CRIMINAL LAW.


03/10/2023. INTRODUCTION LECTURE.

Clarkson & Keating: Criminal LAW

(10th edition, 2020)
mock exam 13th December 2 till 4 pm. Marks returned 21st of January (TBC)
Exam Summer 2024 100% weight on the final mark

D Defendant the person accused

V Victim person who suffered harm.
C complainant sexual offences’ victims.
CPS Crown Prosecution Service is responsible for prosecuting criminal cases investigated by
the police and others in England and Wales
R v Surname.

Summary offences: heard and tried in a magistrates’ court. They are the most minor
offences, less serious and less serious punishment carried. The maximum sentence is usually
6 months (can be 12 months now).
Common assault, criminal damage for things less than £5k AND driving without insurance.

Indictable offences: the most serious. It is tried in the crown court.

the route is as follows: appear in the magistrates (plea hearing), depending on whether you
plead guilty it will then be sent to the Crown court for trial and sentencing.
Common law offences (developed through the court system).
Murder, rape, robbery

Either way offences: depending on the circumstances, may be heard in the crown court of
magistrate court. Must be considered if the sentencing powers are enough in the
magistrates’ courts for the scenario or any unusual factual dimension of the case. it will then
go to court for a trial by Jury.
Theft, burglary, and possession of drugs

Everything starts at the magistrate’s court.

(3 lay magistrates with a legal advisor or professional magistrates, a district judge, who will
make the decision);
a case can be appealed to the crown court from here. if you want to appeal your sentence
you can do that in the court of appeal.
Crown court hears the most serious offences, in front of a jury.
Appeal court: the sentence was too harsh or issues with the jury.
The D must be granted “leave to appeal”. The attorney general Is resaved for when the
sentence is unduly lenient (usually).
Supreme court decisions will affect the whole population, so only really important.
Privy council= The judgments are not strictly for England and Wales.
European court = persuasive only.
05/10/2023 
Substantive criminal law = the rules that make up our criminal laws.
what conduct constitutes criminal law? what type can be criminalised and punished?

criminal law is used to control and regulate people. an example is COVID-19.

The Coronavirus Act 2020 (fast track bill, that completed all parliamentary stages really
quickly) conferred powers to ministers (statutory instruments) to make rules.
delegated legislation does not require any parliament approval.
regulation 6(2) = restricted movement. no one was allowed outside their houses unless they
had a reasonable excuse. (like buying food etc.) = the police had the right to ask people
where they were going, and they had to have a serious reasonable reason to do so.

there’s no clear definition of what a criminal offence is as surrounding circumstances must

be looked at. we need to look at the process to determine whether it is civil or criminal.
Glanville Williams
look at the procedure!
Can they be arrested by the police, charged with a crime, prosecuted by the CPS, convicted
at a court, and sentenced? then we know we have a criminal offence.

So, the 6(2) was a quasi-criminal offence as identifies criminal wrongdoing. But not fully
criminal and dealt with regulatory bodies.

there are 3 main criminal theories: liberalism, paternalism, and legal moralism.

IN 1957 Wolfenden reported 1957 should homosexual sex and prostitution be criminalised?

LIBERALISM: WHEN SHOULD WE USE THE CRIMINAL LAW?

the only purpose should be to prevent/stop person A from doing what they want to do as
this would cause B to be harmed = stopping harm/ limit freedom of action = liberalism. JS
MILL’ PROOSAL

Joel Feinberg:
HARM PRINCIPLE The main reason why behaviour is criminalised, to prevent harm on other
people.
HE extended Mill's principle to include the offence principle: if it causes serious
harm/offence to other people. but what does it mean by harm? is there an objective
definition for it?
harm = define it with legal moralism. He says sometimes harm has a justification. only the
harms that aren’t justifiable morally should be criminalised.
autonomy = As an individual you make choices about your actions every day. you choose
what you want to do, and if someone interferes with that, then there’s harm. set backing
your personal interest.
Paternalism is the state acting like your parent, making a judgment call on what is in the best
interest of people.
wearing a helmet when riding a motorcycle or taking drugs. the state knows that’s not in
your best interest.

HLA Hart = he’s more paternalist unlike what he claimed ( LIBERALIST). he claimed people
don’t know what is in their best interest.

soft paternalism = state JUSTIFIES interfering just to make sure you know what you're
doing. so, restrain/restrict movement etc. until the danger can be communicated and
ensure you are knowledgeable on the matter.
legal moralism = law should be used to tackle immoral conduct. (Devlin)
1 identify immoral conduct. (which is not always criminalizable)
2 Are there circumstances that might stop the criminalisation?

*Legal moralism has two parts: (a) immorality identified, and (b) a set of countervailing
factors considered.
examples are cruelty to animals and homosexual sex.

society would say it is immoral and shouldn’t be tolerated. = criminalised

think about regulation 6(2) = not leaving your house, right?

All offences/regulations (with the exception of a few) can be explained using different
theories.

10/10/2023 
Punishment = to reform and change behaviour, punishment is there to show us what
behaviour is considered criminal.

retribution= eye for an eye, holding people accountable, because of their wrongdoings and
proportionally to their wrongdoings. this is not a contemporary theory.
deterrence = discourage/deter others from committing criminal offences. based on the
theory of utilitarianism, to instil fear in people's minds by sufficiently punishing an offender,
making him an example for society. = If you don’t punish/ sufficiently punish, then the crime
might multiply.
incapacitation = state has a duty to protect the public from future harms or wrongs. done by
incarcerating offenders. make society safe again and segregate the wrongdoers.
how long should you put them there to protect society? indefinitely? = whole life order.
rehabilitation = committed a wrong, punish them to change them and reform their
behaviour. provide educational and vocational programs while in prison. counselling and
skills training. The reoffending rate doesn’t change.
reparation = most contemporary one, crime should be corrected by having d making
amends to victims. so, repairing the wrong done to the victim by being restricted and having
liberty restricted while in prison.
*there’s no right answer for the purpose of criminal law and punishment. this is not the main
focus, the substantive law is

crimes should be corrected = restitution /repair the wrong done to victim/society.

s.57 Sentencing Act 2020: the purpose of sentencing.

when sentencing all the purposes must be achieved (retribution etc…)

unit 1: from here examinable

AR= everything the D did, circumstances and the result of the actions, what they caused
(harm to the v) EXTERNAL.
MR= STATE of mind of the d (intentionally recklessly), beliefs about the matter, what did they
know about the matter, INTERNAL.

criminal law only criminalises wrongdoing that manifests itself in the world. So not
thoughts.

typical criminal law offence:

PARADIGMATIC OFFENCES = AR + MR+ NO DEFENCE = CRIMINAL
LIABILITY.
ar= conduct d was involved in, the legally relevant circumstance of the act, and the result
their conduct has caused.
the conduct element is physical behaviour/movement e.g., moving your finger to shoot
someone. this must be done voluntarily. ( if not automatism applies)
the circumstances of the act= facts
the result = effects of the D’s conduct.
S.20 OAPA 1861
S.1 CDA 1971

conduct element: absence of movement

1 omission,
2 possession,
3 and state of affairs offences

Larsonneur= French citizen allowed in the UK on the condition she left within a set of time.
she travelled to Ireland and was sent back to the UK, where she was convicted of being an
alien. here it didn’t matter she had no choice and was forced back to the UK.

Winzar v Chief Constable of Kent caused a nuisance in the hospital as he was drunk, they
took him, the police, to the highway and charged him for being drunk on the highway, it is
enough that he was there.
Robinson-Pierre= D’s dog was at home; the dog ran out when the police came to his house.
5 police officers were seriously injured. it wasn’t the D THAT opened the door, but the D was
charged for owning a dangerous dog in a public place. he wasn’t even home.
the court of appeal said that D had no control over the dog being outside.

circumstance element only the relevant ones

The result element D’s conduct causes prohibited results.
54:09

omission FAILURE to do something when you are duty-bound.

1 Recognised offence
2 Duty to act
3 Breach of duty
NO OBLIGATION IMPOSED BY THE STATE, when you see for e.g., someone drowning. you
have no duty to intervene/act in those circumstances.
omissions don’t interfere with your everyday autonomy.
you must be legally bound to act.
1 statutory duty
2 contractual duty
3 familial relationship
4 assumption of care
5 endangerment/ creation of a dangerous situation

Dytham= D was a police officer, misconduct while on public duty/office. he failed to

intervene in a situation in which he should have. a bouncer, at 2 a.m., was kicking the victim
to death, but he didn’t intervene.
he could have reported it/ physically intervened/asked people for help etc. 1

Attorney General ref n3= court of appeal held that when bound by statutory duty
the D must be subjectively aware of the duty and subjectively reckless in its performance.
so, criminalise when you know and you breach it. (D’S themselves knew they were under
duty and knew they were breaching it)
The victim was punched and hit in the club, he was very unwell but regardless was abusive
and violent to the medical staff in the hospital. (he was very drunk) he was lace in a custody
suit in a semi-face-down position and slowly he started breathing less and less. attempt
were made, but the police had breached their duty of care, police should have done more in
trying to keep the suspect alive. They were aware and reckless. 1

contractual duty can give rise to duty when D is contractually obliged to help and intervene
if things go wrong, most likely in the context of employment. 2
PITTWOOD= railway crossing gatekeeper. He went to lunch and forgot he left the gates open
at the train gate, a car crossed and collided with the train killing the train driver. Based on his
omission, as he was contractually obliged to close the gate (but didn't do so, so he failed to
act), he was charged with manslaughter.

*Outside of contracted hours is there still an obligation to help? who knows. will they be
liable?

familial /special relationship:

a parent owes a duty to act for their infant child.

Gibbins and Proctor= g was a father to 2 children and had a mistress. The mistress proctor
abused one of the daughters. Nelly was not looked after, and she starved to death. Proctor
did not spend any money on her, given by Gibbins.
Both hid the body and they lied she ran away. both were under a legal obligation to provide
for her, food, warmth etc. They were liable for murder on the basis of omission for not doing
what they were meant to do. 3

Hood = married couple. the husband failed to help the wife when she fell and broke her
bones, he didn’t help her for 3 weeks and she died. he failed to assist her and he was
charged with manslaughter on the basis of breaching his familiar duty to assist. 3

12/10/2023 
familial duty: siblings? extended family?
Evans: half siblings do not have a duty.

Assumption of care: circumstances where the D starts caring for the victim and as a result of
the assumption of responsibility, then he becomes duty-bound to act when the victim needs
him, to seek help for him. these can be with no familial relationship 4
Instan = the D, she lived with her aunt and looked after and cared for her. Gangrene
developed in the aunt's legs, she became unable to do anything. The D didn’t give her any
food, didn’t attempt to treat her legs, and didn’t call for medical help. The aunt died from
the infection.
Gross negligent manslaughter, she was charged as she placed herself in the position of care,
she should have called a doctor, but she didn’t.

Sinclair = Sinclair is D, AND Johnson (third party) and the victim. the victim took methadone
against the advice of the D, overdosed and the D failed to summon help. This happened in
the mid-afternoon. Sinclair woke up the next morning and only then, when the victim was
still very very unwell, only then did he call for help, an ambulance.
they had known each other for years and treated each other like brothers.
he had assumed responsibility by staying with him, trying to help (splashing his face with
water), and staying with him for many hours. The duty was formed as he took responsibility
for his welfare.

Ruffell= the victim self-injected themselves with heroin, THE D= R, HE tried to revive the
victim throughout the night by opening the window, running a bath, splashing his face with
water, wrapping him in towels and propping him next to a radiator. he then dragged him out
and left him there when he was still unwell in the early morning, the victim died from
ipoternia and opium intoxication after falling asleep outside.
clearly, D became responsible for the victim, as he cared for him, and didn’t do what he was
supposed to do call an ambulance.

*Once you decide to help/look after someone, that’s when the law
compels you to do what’s right as you have assumed responsibility.

Creation of a dangerous situation: your conduct has caused or contributed to the creation
of a dangerous situation. Once you have created it, you must prevent any possible harm
from occurring. minimise and mitigate the harm against someone else, you must do
something.

Miller = was squatting in the V house; D fell asleep, a cigarette fell out of his mouth when he
was sleeping, and the mattress got lit on fire. he did nothing and just got up and went to the
next room. (no water poured, and no emergency service was called)
failure to tackle the mattress fire or to alert the police once it happened, so he was held
liable for it. CRIMINAL DAMAGE

Evans = 24-year-old woman who purchased heroin and provided it to her 16-year-old sister.
mother and half-sister Jemma appreciated that the victim had an overdose but didn’t call
the authorities and just put her to bed.
she died of heroin poisoning; heroin is a class-A drug.
Mother familiar with duty of care for the 16-year-old daughter.
Evans= no familiar relationship as half-sisters, and CARLY was the one to self-inject (she
created the dangerous situation herself, as the drugs themselves are not dangerous until
USED)
Evans contributed towards the creation of the dangerous situation, that will be sufficient for
this duty to arise. OUGHT TO HAVE REALISED

Lewin (HEARD BEFORE EVANS, SO BOUND BY MILLER STRICT PRINCIPLE)

The D left his drunk friend in the car on a very hot day, and he died.
he didn’t create the dangerous situation and didn’t realise the results of the dangerous
situation could have caused so he wasn’t liable.
breach of duty: the duty of care must be breached to be liable.
when they didn’t do what they should have done in that situation THIS IS WHAT MAKES YOU
LIABLE.

reasonable response = call emergency services/support to put out small fires etc.
(miller). Wouldn’t expect him to try to put it out as could endanger him, life-threatening so
that’s, not reasonable.

Stone and Dobinson, both with very low IQs. Anorexic sister of Dobinson, their efforts
towards her were inadequate and incompetent, they didn't realise they were falling short of
what they were required to do. the victim died. they were both charged with gross
negligence manslaughter.
were they capable of even looking after themselves? so is it reasonable and fair to impose
an objective standard?

causation = because of the d failure to act, according to their duty, it

caused the resulting harm.
must prove breach of duty/omission caused the resulting harm.

causation lecture: 17/10/2023 

must satisfy both: causation 1 in fact and 2 in law.

CAUSATION IN FACT:
but for causation (factual causation).
*All we need to do here is remove the D’s conduct outside of the scenario, if the result does
not occur. = THEN D IS A FACTUAL CAUSE ( use white always..)

White= the D put poison in his mother's drink intending to kill her. She died shortly
afterwards, but it was due to an unrelated heart condition.
the D was charged with her murder. Did he cause her death?
but for the defendant’s conduct, she would have died anyways = the same result would have
occurred regardless of his actions. He was NOT a factual cause of his mother's death. So, he
was not liable for the murder (he would be liable maybe for attempted)

Benge = railway foreman whose job was to read the train timetable. and repairs sections of
the tracks. He, unfortunately, misread the timetable. A train arrived, derailed and someone
died. he argued he was not the only factual cause (flag man).it doesn’t matter if someone
else also is.
LEGAL CAUSATION:
D’s conduct must be both a legal cause as well as a factual cause.

1 D’s conduct must be significant and operative (in causing the resulting harm) ( needs to be
more than a minimal cause) ( what D did must still be operating at the time the resulting
harm is brought about )
2 the D’s conduct must also be blameworthy in bringing out that resulting harm.
(HUGHES: he was driving his car safely, but without car insurance and without a full driving
licence, as he was driving, the V came out of a corner driving on the wrong side of the road,
at high speed, and ended up colliding with D’s car and V dyed)
he was driving uninsured/ with no licence but wasn’t driving dangerously/ intoxicated etc
like the victim. but was given a significant prosecution for homicide.
the jury found him not guilty. however, the court of appeal found him to be guilty. this is a
strict liability offence (no mens rea required). all that mattered was that he caused the
result. it went to the Supreme Court and found that the jury decision was correct. was his
conduct BLAMEWORTHY? no.

NOVUS ACTUS INTERVENIENS: INTERVENING EVENT that can break the chain of causation.
this would cause D’s contribution to be insignificant and inoperative.
(doctor, police, victim himself etc.)
1 naturally occurring events will only render D’s conduct insignificant and inoperative
if: they are unforeseen by D AND unforeseeable to the reasonable person. HART
(assaulted her and left her on the low side of the beach, ended up being drowned by a tide)
he claimed to not be the one who had killed her. However, it was FORESEEABLE to him and a
reasonable person.
2 Victim’s intervention
*Voluntariness: If, following D’s conduct, the result comes about because of V’s voluntary
act, this will render D’s conduct insignificant and inoperative. The focus here is on FDI
conduct.
free deliberate and informed conduct by the V = this relieves the D’s from any
responsibility for the victim's harm.

Kennedy (No 2 )= prepared and supplied heroin and handed it to the victim. V self-
injected and died suffocating of his own vomit due to acute intoxication. house of lord
quashed the conviction as he had NOT caused the injection, the victim's response broke
the chain of causation. the victim made a VOLUNTARY DECISION AND SELF-INJECTED.
even if they are addicts, they are still responsible for their choices.

Field = D was manipulating the victim, who had serious health issues. all this was done so
the D would be included in the V’s will. He was secretly drugging him and convinced him
to change his will. D kept drugging him, he then left a bottle of strong whisky next to him,
left, and the victim died following him drinking the alcohol (the victim's medicine would
cause death if taken in conjunction with alcohol) (the victim didn’t know he was being
drugged).
The jury found him guilty of the murder = the drinking of the alcohol was involuntary, even
if he agreed to drink it: he didn’t realise it would cause his death). there was clear
evidence (notebook in which D wrote that if the drug was mixed with alcohol, it would
cause death)
CA= The victim was not making a fully informed action when drinking, he didn’t know the
surrounding circumstances.

*Foreseeability:
If, following D’s conduct, the result comes about because of an unforeseeable act by V, this
will also render D’s conduct insignificant and inoperative.
Roberts: d (male) was driving the V home (female) after a party, and he started sexually
molesting (advances) her. touching her knee, commenting inappropriately. so, as the car was
moving, she jumped out of the car. She suffered physical harm. So, who caused the harm?
the court said that her decision to jump out of the car was an involuntary decision she had
to make.
was it foreseeable? new test: was THE VICTIM’S response DAFT/SILLY?

3 intervention from third-party

the D and the third party both contribute to the causation of the proscribed harm.
To consider: VOLUNTARINESS (FDI RULE) AND FORESEEABILITY + WHO THE THIRD PARTY IS
AND THEIR RELATIONSHIP TO V. (ESPECIALLY RELEVANT IN MEDICAL NEGLIGENCE)
Jordan: the wounds had nearly healed. the doctor X, prescribed a medication that the
victim was allergic to = V died due to that reaction. who caused the death? the stabbing or
the doctor?
NEGLIGENT TREATMENT was PALAPBLY WRONG and rendered what the D did insignificant.
( the D was no longer the cause of death)
he died due to the drug, not the stabbing.

Cf. Smith: narrow down the principle. In Smith, the D and V are both in the army and had
an argument. D stabbed the V with his bayonet end of his raffles which went into the V’s
lungs. The doctor who examined him failed to notice he was stabbed in the lungs. he died of
the injury. What the doctor did here was thoroughly bad ( really bad treatment, other
doctors said they would have noticed so he should have too).
However, despite the bad treatment
D remained a legal cause of the death despite the bad treatment. They were both causes of
death, this didn’t relieve the D of his liability. In Cheshire this principle was confirmed.

Cheshire is a more recent case, 1991. Here the D shot the victim. The V wounds were
healed and were no longer life-threatening. However, complications arose, and the V had to
have an emergency tracheotomy and windpipe and artificially provide oxygen to the body.
This operation was carried out negligently, the windpipe narrowed, and the victim died.
His original injuries had healed, and his cause of death was a result of the tracheotomy that
went wrong. Nonetheless, the D was charged with murder which was appealed at the court
of appeal. the courts said that: the defendant’s conduct remained a significant and operative
cause of death. to not “relieve” people from their crimes, the courts said that the negligent
treatment of the doctor had to be so independent and in of itself potent in causing death in
order to render what the defendant did as being insignificant. in this case, it wasn’t, it was
somehow connected to why the victim was in the hospital in the first place.

Pagett: here the D was a 31-year-old male who left his wife to have a relationship with a
16-year-old girl. He got her pregnant and kidnapped her. He resisted arrest from the police
officers, he came out and started shooting the police while using her as a human shield to
protect himself.
The police officer shot back at him and shot and killed the girl.
who caused the death of the girl?
The courts said that the actions of the police officer did not relieve the defendant of causal
responsibility. It did not break the chain of causation.
the D’s conduct of both assaulting the victim and firing at the police officer was a legal cause
of the victim’s death.
(POLICY PRINCIPLES INFLUENCE PURE LEGAL PRINCIPLES)

4 Pre-existing vulnerabilities:
D must ‘take his victim as he finds him’. = “thin skull” rule.
May be more vulnerable than a normal person (statistically).

pre-existing physical vulnerability Master:

D stabbed the V but the V had a pre-existing medical condition, they suffered from deep vein
thrombosis which meant they subsequently suffered from pulmonary embolism and died.
Somebody with that condition wouldn’t have died in that situation but it doesn’t matter, as
the D must the V as he finds him. Pre-existing physical vulnerability will not excuse the D’s
actions and result as they’re more vulnerable to harm.

also applies to pre-existing psychological vulnerabilities Blaue:

The D broke into the victim’s home and demanded intercourse form the vicrtim. she said no
and because of this he stabbed her 4 times and passed her lungs and she was in a really bad
state.
She was taken to the hospital and was told that in order to survive she had to get a blood
transfusion, she was a Jehovah’s Witness and refused the blood transfusions because of her
religion.
She died the next day due to blood loss; she was told she would die without that transfusion
but she still refused.
In the crown court, she was found guilty of manslaughter for causing her death and was
convicted of it.
He appealed and said that her refusal of the blood transfusion broke the chain of causation.
but he was not acquitted for this.
She died due to stab wounds and loss of blood, not because of refusal of treatment.
THE DEFENDANT'S CONDUCT REMAINED A SIGNIFICANT AND OPERATIVE CAUSE OF DEATH
IRRESPECTIVE OF HER REFUSAL.
The courts said that if the victim has a pre-existing psychological vulnerability
(they are more susceptible to harm) than again the D needs to take his victim as he finds her.
What about other characteristics? Can they be treated in the same way?
UNKNOWN

Inconsistent legal principles?

there is no single test for establishing causation in criminal law.
Beyond the causal baseline (that D’s conduct must be a significant and operative cause of
death), the particular ‘rules’ or ‘principles’ that are applied by the trial and appellate courts
are often dictated by other, extra-legal, considerations.

for example, Wallace:

she managed to buy sulphuric acid and poured this on her ex-boyfriend while he was asleep
in only his boxers. He suffered burns all over his face and chest.
The injuries were catastrophic. Permanent facial and bodily disfigurement. He was
wheelchair bound and suffering from paralysis and was in constant pain = unbearable state
of life. After a couple of years he travelled to Belgium and committed suicide through
euthanasia, as it is lawful there.
The D was charged with the murder.
The court of appeal was asked, to analyse the case. They concluded that causation could be
found and that the V’s decision was not voluntary. It was not free, deliberate and informed
as the injuries imposed upon him by the D were so severe, he had no other choice. he was
placed in a place of long-life suffering, and he chose euthanasia to escape.
the jury did not convict her of murder. (found her liable of s.29 ,
applying corrosive substance with intent to cause bodily injury)
she still received a life sentence, just not under a murder conviction and wasn’t convicted for
causing her death.

Automatism
Automatism is a denial of criminal responsibility – that D has not completed the AR of the
criminal offence because of involuntariness.

Suppose that A stabs B. Is A guilty of murder? Need to establish whether A caused B’s death
and that they intended to kill or cause serious harm. What if A stabs B during an epileptic
seizure?
If we claim that A is acting involuntarily, A is claiming that the movements of his/her body
which caused B’s death do not belong to A as a reasoning person. It is a denial of the actus
reus itself.
HLA Hart, ‘Acts of Will and Responsibility’ in Punishment and Responsibility (book).
In general, D’s deliberative control over their behaviour can be lost or impaired in two ways.
1. Loss of physical control
2. Impaired consciousness
 HLA Hart, ‘Acts of Will and Responsibility’ in Punishment and Responsibility (OUP
1968) 90, at 107:
“What is missing in these cases appears to most people as a vital link between mind
and body; and both the ordinary man and the lawyer might well insist on this by
saying that in these cases there is not ‘really’ a human action at all and certainly
nothing for which anyone should be made criminally responsible however ‘strict’
legal responsibility might be.”
Loss of physical control: Bratty v AG for Northern Ireland [1963] AC 386.
Impaired consciousness: Hill v Baxter [1958] 1 QB 277 (Pearson J).
Must D have lost all conscious control over her limbs? A-G’s Reference (No. 2 of
1992) [1993] 3 WLR 982.
Do these cases only apply to driving offences? Coley [2013] EWCA Crim 223.
34:47 MINUTES

Dana and Vincent were in a relationship. The relationship broke down, and Dana threw
sulphuric acid over Vincent. The acid caused significant horrific and permanent injuries to his
face and body which left him in a state of immense suffering.
Vincent was advised by a medical expert that, even with surgery, he would remain
disfigured, permanently injured, and continue to suffer from his injuries. Vincent left a note
saying that he could not bear to live in this state. He swallowed a handful of prescribed
painkillers and died from an overdose.
a) Discuss whether Dana legally caused Vincent’s death.
b) In answering (a), Discuss whether Dana should be held to have legally caused
Vincent’s death.

19/10/2023
24/10/2023

Mens rea
Sweet v Parsley= parliament intended to require some sort of mens rea: “quite clear no
mens rea was required”

criminal damage: intention or recklessness

recklessness meaning:

capacity conception: making a choice and capacity to understand their actions and could
have been done otherwise.

character conception: In the case of Kingston (involuntary intoxication), he was a paedophile

They spiked his drink(coffee?) and left him alone with a child. he committed assault on the
child.
he claimed he wouldn’t have done that without the drink. so he was unable to control
himself.
He was convicted as he had the mens rea, he wanted to and did so. although he didn’t have
the capacity to do otherwise, he was still charged and judged based on his character.

Normative mens res: punish because failed to live up to a particular standard of care. this is
objective.
Misra= gross negligence manslaughter.

cognitive mens rea: D makes a choice, foresees the results, and carries on. He INTEDS for it
to happen/ thinking of it.
proof of cognitive mens rea: impossible to prove. interfaces must be drawn from facts.
(stabbing someone, can make a reasonable assumption of intention).
DPP V Smith: the police officer told the D to pull over the car. the driver accelerated off and
tried to shake the police officer off him while driving.
The D was prosecuted for murder, He should have realised he could have killed the police
officer, as he was driving recklessly with the police officer hanging off his car (stolen car?)
an ordinary responsible man would contemplate the results as natural and possible.
(Court of Appeal). it was probable that the police officer would at least suffer from serious
harm. OBJECTIVE TEST, what would somebody else in that situation have thought?
UNPOPULAR DECISION (only bring up Smith if asked to be critical about intention/ current
law etc.): parliament passed a new statute CRIMINAL JUSTICE ACT 1967 S.8, undid the
decision in the case, and this is still valid now.

JURY should confer intention s.8b from the evidence in the circumstances. They have to be
convinced from that evidence whether the D had intention / foresaw the result.

intention meaning:
direct intention: aim/objective/desire. what we want to happen.
oblique intention: aim and objective OR is foreseen.

 case law to look at: HYAM, MOLONEY, HANCOCK.

Hyam (arson case) – HL said foresight of death or GBH as “highly probable” = intention.
Moloney (drink + shotgun case) – HL said the test was whether D foresaw the result as a
natural consequence of his act.
Hancock and Shankland (miners’ strike case) – HL overruled Moloney – “the greater the
probability of a consequence the more likely it is that the consequence was foreseen, and
that if that consequence was foreseen the greater the probability is that that consequence
was also intended”.
Nedrick (another arson case) – Lord Lane CJ in CA attempted to synthesise the HL’s decisions.
His model direction was approved by the HL in Woollin (next slide).

Woollin is the current authority for oblique intention = confirms Nedrick.

he threw the baby against the wall, causing his death (new-born parent). He had realised
there was a serious risk of injury, and he was prosecuted for murder.
he lost his temper and just acted.
he didn’t want to kill his son, but he had realised in the moment there was a risk of serious
injury.
substantial risk of causing harm/GBH: (infer), FIND intention from his behaviour so was
convicted.
for murder, you must have a virtual certainty of death or serious bodily harm as a result of
the D’s actions, and the D appreciated that such was the case. (per Lord Steyn)

must find evidence (VIRTUALLY CERTAIN result) to FIND intention.

Matthews & Alleyne = threw a victim in a river and died as a result of this.
ONLY FIND INTENTION IF the Ds realised that the boy would die as a result of him being
thrown into the river.
EVIDENTIAL TEST OF INTENTION

moral elbow rule: The jury doesn’t have to convict if the jury is convinced of the D’s
reasoning for acting.

Re A: if they were not separated, they would have both died. should the doctors be allowed
to do that? evidential test: not guilty of murder.

26/10/2023
Recklessness (malicious)= has 2 interpretations.
subjective Cunningham and Caldwell objective.

foresight/foresee/foresaw = what was in the D’s head/was thinking

what was foreseeable /foreseeability as to the circumstances of the case = objective
Cunningham = D tore a gas meter from the wall in order to steal money from it. Gas escaped into
his neighbour’s house and was inhaled by V. D was convicted of an offence against the person,
requiring proof of a mens rea of malice (MR) (which is the same as recklessness) as to the
endangerment of life. The conviction was quashed on appeal.
maliciously administering a dangerous substance that endangers life. (?)
He thought he shouldn't be liable as he didn’t intend to hurt anyone.( didn’t realise he could
cause a gas leak)

1- foresee the risk/possibility of the consequences occurring (virtual certainty) and

decide to carry on regardless.
2- (the second part is objective) was it unjustifiable or unreasonable to take that risk?
WOULD A REASONABLE PERSON IN THE SAME SITUATION DO SO...

The benefits of the risks and the risks would be ratioed and compared.

Stephenson = highlights the subjective nature of the test. here he suffered an abnormality of
mind. he caused criminal damage to the hay belonging to a farmer by setting fire to it.
anyone else is that situation would have realised that risk. here the D himself failed to
foresee the damage. The CA allowed the appeal, and the conviction for arson was
quashed(since the jury wasn’t told he didn’t FORESEE the risk). The subjective test applies =
Law requires D to foresee risk
Caldwell/Lawrence = D got drunk and set fire to a hotel. his defence was that he was
drunk and that he didn’t mean to do it. he shouldn’t just get a defence just because he’s
drunk: escaping liability here wouldn’t be fair.
test: objective recklessness.
1 obvious risk to the ordinary person: it’s foreseeable, doesn’t matter if it is not for the D.
2 foresee risk but carried on or he hasn’t had any thoughts of risks. (NO LONGER
RELEVANT)
for reckless driving (replace by dangerous driving now, statute 1991)

Elliott v C = caused arson and destroyed a shed. because of the factors that she had
learning difficulty 14yrs old girl, the risk of burning a shed would not be obvious to her. it
was appealed on the basis of whether it would have been obvious to a reasonable man.
She was held liable.

R v G = CURRENT POSITION OF THE MENS REA OF RECKLESSNESS- use when dealing with
criminal damage
11 and 12 yrs old boys. they set fire to a stack of newspapers, at the back of the coop in
MK.
the fire spread to the shop, causing a million pounds in damage.

they thought they would just burn out, and just have fun. But it didn’t matter what they
thought, obvious the fire would spread to the bins and the shop. so were convicted.

31/10/2023
Spratt – confirmed it should be Cunningham's recklessness for assault.

A-G’S reference n3 2003 –

DUFF CONCEPT OF “PRACTICAL INDIFFERENCE’- failing to do what’s expected = not
applying his/her brain to the risk, so they had the capacity to foresee the risk but weren’t
thinking properly.

SUBJECTIVE= THE D HIMSELF MUST FORESEE THE RISK FIRST

THEN OBJECTIVE = WAS IT REASONABLE TO ACT THAT WAY?

what we would expect given the position they are in.= MR of negligence, it is not
subjective.

careless driving = failed to live up to the standard of a proper competent and careful
driver. So, it is OBJECTIVE, about meeting the standard, not about what is in the D’s head.
knows or ought to have known it amounts to harassment = Harassment.

S.5 of the Domestic Violence = includes serious physical harm as a result of an unlawful act
of the D. objective test.
either D was the person whose act caused V’s death [or serious physical harm] or—
(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),
(ii) D failed to take such steps as he could reasonably have been expected to take to protect
V from the risk, and
(iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen

CORRESPONDENCE:
the mens rea should exist in relation to the actus reus.
MR and AR should correspond to each other and exist in relation to the other.
the D’s mens rea should relate to the harm caused.
many offences breach this principle, like Murder (where intention to cause GBH is
sufficient even if the AR is unlawful killing) = those are CONSTRUCTIVE CRIMES.
the requirement here doesn’t relate only to death but can also include GBH.
1ST DEGREE AND 2ND DEGREE= one with the intention to cause murder one not.
s.20 OAPA = only need to foresee some harm.

TRANSFERRED MALICE
*harm intended for somebody, is accidentally caused to somebody else.

Latimer: the malicious intention intended for a man, ends up being caused onto another
man. The D will be then guilty of what the law considers malice against the person actually
injured. the D swung his belt at a man with whom he was quarrelling, and accidentally hit a
woman standing next to the intended victim. could he be liable? yes, liability cannot be
escaped.

Pembliton: the D threw a brick at the intended V but hit a window nearby instead.
Here the D cannot be liable for criminal damage as he was not aware of the existence of the
window. can't transfer the malice from a person to an object as those are different offences.
cannot transfer malice BETWEEN DIFFERENT OFFENCES, ONLY BETWEEN VICTIMS.

AG’S Reference n3 of 1994= D’S had the intention to cause GBH. He also caused harm to
the foetus. The woman as a result of being stabbed, the baby was born too prematurely to
survive and died. THE D WAS ONLY LIABLE FOR GBH TO THE WOMAN.
the charge intended for the child’s death (AS there’s a chain of causation as, had he not
stabbed the woman, the baby wouldn’t have died as he caused it). DOUBLE TRANSFER OF
MALICE, the baby was not existing/a human being in legal terms.
D NOT GUILTY OF MURDER OF THE FOETUS as not a human being BUT MANSLAUGHTER as
the child did take a few breaths.
AR AND MR MUST COINCIDE= THABO MELI

02/11/2023 – go over this

AR AND MR MUST COINCIDE= THABO MELI

THEY need to take place at the same point in time and place.
THABO MELI = D had a premeditated plan to kill the V. He struck him on the head while he
was drunk, and he assumed he was dead. he dropped him over a cliff to make it seem like a
suicide.
he died due to exposure at the low level of the cliff.
NOT LIABLE FOR MURDER as the AR didn’t actually cause the death at that point in time, and
when he died, he was at the point of the cliff as there was no MR at the time he died.
PC held - impossible to divide up one series of acts. Ds is liable for murder.

CHURCH- the jury could convict of murder if they regarded D’s behaviour from the moment,
he first struck V to the moment he threw her in the river as a series of acts designed to
cause her death or GBH.
He was found liable for manslaughter, but the principle was still upheld.

LE BRUN – D killed his wife while he was dragging her away to try and cover his tracks after
assaulting her. (what caused her death was her hitting her head)
D liable (for manslaughter) as the chain of causation was not broken between the original
assault and death. MR COMES BEFORE AR HERE

FEGAN V MPC - AR CAME AFTER MR. He didn’t intend to drive over the police officer’s foot.
the police officer asked him to reverse, but the D TURNED OFF his ignition. He was charged
with battery. The court interpreted the act as a continuous one. MR could be superimposed
on existing AR. IT IS ONE COURSE OF EVENTS, THE ACTS CAN’T BE SPLIT UP.

MILLER – he was liable for the arson because all the events could be seen as one causative
event.
INTOXICATION:
what effect should it have on the D blameworthiness and therefore their liability?
• Basic rule = a ‘drunken intent is still an intent’, per Sheehan and Moore (1975) 60 Cr
App R 308.
if they form enough intent, they are still liable Kingston.
• Intoxication can provide a defence = if they are so intoxicated that their brain is
affected, they could not and did not have formed MR. The defence is LACK OF MR.
• Intoxication as a doctrine of inculpation: TO FIND SOMEONE LIABLE /GUILTY OF
SOMETHING. the argument is that they are blameworthy for the result, they had a
Prior voluntary Fault.

rather than a defence, it can be a doctrine of inculpation:

article by Simester, “Intoxication is Never a Defence”.
MAJEWSKI: confirmed the rule that voluntary intoxication negativing MR is a defence to
crimes of specific intent but not others.
Lord Elwyn-Jones held the condition of intoxication is taken to constitute the culpability
required for the offence in crimes of basic intent.

The D was accused of ABH, he lacked MR due to voluntary intoxication……

specific = MR requires intent. look at A-level notes.

07/11/2023.
NON-FATAL OFFENCES AGAINST THE PERSON.

right to not be subjected to any unwarranted intrusion upon the body (even a threat to
touch a person’s clothes)
*Intrusion is sufficient to trigger criminal law: no actual harm is needed.
low threshold for triggering these offences = In 1978, Sir William Blackstone (an English jurist, judge,
and politician) said that ‘the law cannot draw the line between different degrees of violence, and therefore
totally prohibits the first and lowest stage; every man’s person being sacred, an no other having a right to
meddle with it, in any slightest manner’. – Commentaries of the Laws of England.

OAPA 1816 contains the 4 most employed offences within the OAPA 1861.

1 GBH, CONTRARY TO S.18 OAPA 1861

2 GBH, CONTRARY TO S.20 OAPA 1861

3 ABH, CONTRARY TO S.47 OAPA 1861

4 ASSAULT and BATTERY, contrary to common law and s.39 Criminal Justice Act 1988

Assault and battery are 2 distinct separate offences.

Battery is the infliction of unlawful violence upon another. = Make physical contact e.g., a
punch
Assault is the apprehension of imminent unlawful violence. = fear of imminent harm

DPP V LITTLE = confirmed they are distinct offences.

Assault, or technical assault

is the apprehension of imminent unlawful violence.

E.g., D chases V shouting “I am going to punch you when I catch you”.
It is important to remember that for each of the offences that we will cover, it is necessary to
establish both the actus reus and mens rea requirements.

Although ‘assault’ is referred to by both s. 47 OAPA and s. 39 CJA 1988, we look at common
law in order to determine what is required for the offence to be completed.

Ireland provides the AR: ‘any act by D that causes V to apprehend immediate and unlawful
personal violence’.
FOR THE OFFENCE TO BE COMPLETED: ACTUS REUS.

- Conduct element: D must complete a positive act, not an omission. Smith v

Superintendent of Working Police Station

- Immediate violence: D must cause V to apprehend immediate violence. See

Constanza [1997] 2 Cr App R 492 and Ireland [1998] AC 147.

(Feel/ fear like they are about to be subject to immediate harm/ Violence)
(so won't be fulfilled for threat for the future)

Costanza = regularly followed the v home, made numerous silent phone calls, and
wrote 800 letters. and even wrote threatening messages.)
she developed depression and anxiety. Could that conduct cause the victim to
apprehend immediate unlawful violence?
words were enough, and since they lived in the same neighbourhood, she did fear as
she didn’t know when it would happen, so it could even be immediate.
Ireland = series of silent phone calls for 3 months straight, to 3 different women. he
was convicted of causing Actual bodily harm. he appealed that: silence cannot
amount to an assault, and that psychiatric injury is not bodily harm.

- Cf. Protection from Harassment Act 1997; Communications Act 2003. = unless the
court is satisfied that the victim felt immediate/not excluding the near future harm.
On this, see Collins [2005] Crim LR 794.

ASSAULT MENS REA: MR

(a) Intention: the definition of intention is given its plain and ordinary meaning.
(b) Recklessness: we are concerned here with Cunningham recklessness, as confirmed
by Spratt [1991] 2 All ER 21; Parmenter [1992] 1 AC 699. T
 D must intend or foresee that V will fear the possibility of
immediate (or imminent) violence and continue unjustifiably.

DO NOT DISCUSS OBLIQUE INTENTION. if it is not intention, it would be

recklessness.

Battery:
Battery is the infliction of violence on V by D.

Dungey (1864) 4 F&F 99, kissing someone without their consent.

Smith [2006] EWHC 94, the unauthorized cutting of hair.
Day (1845) 1 Cox CC 207, touching V’s clothes.

*need to establish both the actus reus and mens rea requirements to establish
the offence of battery.

The actus reus of battery is the infliction of violence on V by D. This means that D commits
battery if he makes contact with V in any fashion to which she has not consented or not a
contact in keeping with the normal expectations of the relevant time and place,
e.g., jostling in a busy shopping centre.

Battery requires an ‘act’, not an omission.

See: Santana-Bermudez [2004] Crim LR 471. = Needle scare

How ‘direct’ must the contact be to constitute a battery?

See: Wilson [1984] AC 242 and DPP v K [1990] 1 All ER 331. = indirectly or directly harm can
fall under the definition of battery.
In Wilson, he took the acid to the toilet and poured it on the hairdryer and left. the V got the
acid blown onto his face causing permanent scarring. = INDERECT APPLICATION OF FORCE.
Thus, in cases of physical contact, the more relaxed reading of ‘inflict’ in Wilson should be
extended to battery. It therefore follows that the indirect infliction of violence should suffice.

Need for hostility? See: Brown [1994] 1 AC 212. Cf. Collins v Wilcock [1984] 3 All ER 374. = In
BROWN requirement for hostility as an element (touching with hostility).
Collins= no requirements for hostility.

MENS REA

The mens rea requirement for battery mirrors that of technical assault.
D must either (a) intend to inflict unlawful violence or (b) do so recklessly. Once again, this is
Cunningham's recklessness and D must have actually foreseen the risk of inflicting violence
upon V and unjustifiably continued.

Punishment
Max: £5000 and/or 6 months’ imprisonment.

For details of sentencing, see the Sentencing Council, available here. Note, you are not
expected to know sentencing provisions for the purposes of your examination.

AGGRAVATED ASSAULT AND BATTERY:

(1) Assault on emergency workers and public servants – 12-month sentence. See
McGarrick [2019] EWCA Crim 530.
(2) Racially or religiously aggravated assaults – 24-month sentence (Crime and
Disorder Act 1998).

ABH
The next most serious offence on the non-fatal offence ladder is assault occasioning actual
bodily harm, contrary to section 47 OAPA 1861.
The provision provides that:
whosoever shall be convicted upon an indictment of any assault occasioning actual bodily
harm shall be liable to be imprisoned for any term not exceeding five years.

CONSTRUCTIVE CRIMINAL LIABILITY: technical assault/battery which causes GREATER

harm/injury.
ASSAULT OCCASIONING ACTUAL BODILY HARM

The term assault is used by s. 47 as an umbrella term to cover both technical assault and
battery. However, it is more common that D commits a battery against V, which results in
greater harm being caused – e.g., that of actual bodily harm.

What is actual bodily harm?

The court in Donovan [1934] 2 KB 498 held that actual harm is
‘any hurt or injury calculated to interfere with the health and comfort of the victim’,
‘providing it is more than transient or trifling’.

Bruises, bloodied noses, and momentary unconsciousness are all enough.

See: T v DPP [2003] EWHC 266.

When is s. 47 ABH charged?

CPS (Crown Prosecution Service) will look at whether significant medical intervention is
required and or whether permanent effects have resulted.
(TO BE BRUISED ETC. IS NOT ENOUGH TO BE CHARGED, the CPS has its own guides)
(e.g., stitches or a hospital procedure under anaesthetic)

Sustained or repeated acts: Langford [2017] EWCA Crim 498.

(REPEATED HARM, PUNCHING ETC) here the D was a violent man, and the V was a female.
he kept choking her and letting go OVER AND OVER, while threatening on killing her and
spitting on her. she had extensive bruising. all those individual batteries point to something
more serious = ABH.

MILLER= V filed for divorce due to adultery, during the period of separation she met with V
on several occasions and had sex with her against her will, causing her emotional distress.
he was charged with rape and alternative ABH.
(might not be convicted of rape as her “husband”)
is psychiatric harm enough? yes.
hysteria and nervous and therefore constituted actual bodily harm so could trigger ABH.

Chan-Fook = rented his house to a university student. he accused the lodger of stealing his
fiancé's engagement ring. He blamed the French student. they enter into an altercation. he
dragged the V upstairs, closed him into the room and to interrogating him. HE ( afraid he
might come back with a weapon) ties his bedsheet into a rope and tries to jump out of the
window. he fell and dislocated his pelvis and fractured his wrist. The D was charged for
causing ABH due to fear, distress, and panic, not for the actual physical injuries. (as there
was difficulty in defining causation) while the cause of psychiatric harm was clear.
NEED EVIDENCE FROM A MEDICAL PRACTITIONER THAT THE VICTIM SATISFIES THE
REQUIREMENT OF A RECOGNISED MEDICAL CONDITION/ PSYCHIATRIC INJURIES
Burstow = The victim suffered from psychiatric harm. This case confirmed (house of Lords
case?) that it must be psychical injury confirmed by evidence (?)

What mens rea is required?

Section 47 is an offence of constructive liability.

What this means is that D’s liability is constructed on the basis that they committed an
assault which caused greater harm than intended or foresaw.
Thus, the mens rea for s. 47 is the same as assault or battery and there is no need to prove
any mental element with respect to occasioning actual bodily harm.
MR IS THE MR OF ASSAULT OR OF BATTERY. ( low threshold)

See Savage [1991] 94 Cr App R 193.

D picked up a glass of beer and hit the victim with it during an altercation in a pub (intending
to throw the drink and not the glass).

House of lords concluded that that was enough, she intended to throw the beer. it made no
difference she didn’t force she might let of the glass. ONCE YOU STEP INTO THE SPHRE OF ASSAULT
OF BATTERY, you have to take the repercussions. it is your fault for putting yourself in the situation is
the first place.

Is this appropriate?
John Gardner in ‘Rationality and the Rule of Law in Offences Against the Person’ [1994] CLJ
502.
VOLUNTALRUY CROSS OF MORAL THRESHOLD = You are now responsible for the outcome. =
change of the normative position.

CONTRARY VIEW:

Barry Mitchell, ‘In Defence of the Correspondence Principle’ [1999] Crim LR 195.
SHOULD ONLY BE LIABLE FOR THE SERIOUS OFFENCES CAUSED only if intended to cause the
result. (mens rea as a limiting factor is defining liability)
 GBH S.20 OAPA 1861
After ABH, the next most serious offence on the non-fatal offence ladder is Maliciously
wounding or inflicting grievous bodily harm, contrary to section 20 OAPA 1861.

The provision provides that:

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm
upon any other person, either with or without any weapon or instrument, shall be guilty
of an offence, and being convicted thereof shall be liable…to imprisonment for a term not
exceeding five years.

NB: The sentence for this offence is the same as for ABH (s. 47). However, in practice the
sentences handed down in respect of section 20 convictions are typically higher than those
sentences imposed in respect of section 47.

AR:

The harm element of this offence is present if D wounds or inflicts grievous bodily harm on
V. (MAKE IT CLEAR WHETHER IT INVOLVES WOUNDING OR GBH)

What is a wound? Moriarty v Brooks (1834) 6 C&P 68 as confirmed in M’Loughlin (1838) 8

C&P 635. (breaking ALL layers of the skin, BOTH outer layer and inner layer)

Is internal bleeding a wound? no. JCC v Eisenhower (1984) 78 Cr App R 48.

This rather odd definition of what amounts to a wound means that both a pin prick and a
serious wound satisfy the definitional requirements for the purposes of section 20.

MEANING OF GBH
What of ‘grievous bodily harm’? = really serious harm.
Metheram [1961] 3 All ER 200; Smith

*like in ABH, a lot of smaller injuries can be inflicted and can be looked at in the totality of
serious harm. = here it is Grundy [1977] Crim LR 534.

HIV and infectious diseases? Dica [2004] EWCA Crim 1103. = REALLY SERIOUS HARM(GBH)
Psychiatric injury? Burstow [1998] AC 147. = REALLY SERIOUS HARM (GBH)
Are non-fatal offences an appropriate method of policing such matters? Do we need specific
legislation, e.g., the Protection from Harassment Act 1997.

ANY CONDUCT THAT CAUSES REALLY SERIOUS HARM. IT IS

THEN UP TO THE CPS TO DECIDE WHAT’S TO BE PROSECUTED

09/11/2023
NON- FATAL OFFENCES PT.2

MEANING OF INFLICTING (GBH UPON ANOTHER)

What is the meaning of ‘inflict’?

implied to mean a direct harm , implying assault and batter = confusing
Clarence (1888) 22 QBD 23.
D and V. the D knew he had gonorrhea but the wife didn’t know = they had unprotected sex.
he inflicted grievous bodily harm on her. his conviction was quashed ( when he appealed) as
no violence/physical harm was inflicted as she had consented to sexual intercourse so there
was no battery.

Wilson [1984] AC 242.

changed the def. no need for direct force of violence. it can be both indirect and direct.

inflict is a synonym of cause = Lord Hope.

Burstow [1998] AC 147.

psychiatric injury

Dica [2004] EWCA Crim 1103 and Konzani [2005] EWCA Crim 706.
agreed with lord hope. inflict = caused.

MR
What mens rea is required?
The key term in the statutory provision is ‘malice’.
interpreted as meaning intention or recklessness.

The recklessness is Cunningham's recklessness. However, the foresight required is not

foresight on the part of D that he will wound or inflect grievous bodily harm on V. It is
enough that D foresees he may inflict some bodily harm on V. CONSTRUCTED LIABILITY
Mowatt [1968[ 1 QB 421, as confirmed by the HL in
Savage; Parmenter [1992] 1 AC 699.
INTENDNE TO CAUSE SOME HARM / OR RECKLESS TO CAUSE SOME HARM TO THE V

s.18

The most serious offence on the non-fatal offence ladder is wounding or inflicting grievous
bodily harm with intent to cause grievous bodily harm, contrary to section 18 OAPA 1861:
Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause
any grievous bodily harm to any person…with intent…to do some…grievous bodily harm 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.
Section 18 creates one offence with four modes of commission, but we are going to focus on
two:
a) unlawfully and maliciously wounding, with intent to do grievous bodily harm.
b) unlawfully and maliciously causing grievous bodily harm, with intent to do grievous
bodily harm.

AR:
The actus reus for section 18 wounding or inflicting grievous bodily harm with
intent is the same as section 20.
The meanings of ‘wounding’ and ‘grievous bodily harm’ apply to S.18.

The difference between this offence and section 20 is the mens rea that D must
possess when causing or inflicting the harm.
 MR:
The core of this offence is intention.
RECKLESSNESS IS INSUFFICIENT FOR THIS OFFENCE.

In variant a = D INFLICTS WOUNDS and intends to cause SERIOUS HARM

this is an offence of ulterior intent. Offences of ulterior intent are those that require
proof of a second mens rea element.

(2 MENS REA, ONE FOR THE CONDUCT AND ONE FOR THE RESULT THAT AROSE,
CAUSED BY THE D). CLEAR AND CONSISTENT TO THE APPLICATION OF BOTH OF
THESE.

In variant (b)= D CAUSES GRIEVOUS BODILY HARM AND HAS TO INTEND GRIEVOUS
BODILY HARM.

OFFENCE OF PURE CORRESPONDENCE = AR AND MR REQUIRE THE SAME

the mens rea coincides with the actus reus.
DISCUSS INTENT.

In this case, if the grievous bodily harm is caused by way of a direct attack, the jury
should be invited to consider whether D intended that result.

If, however, D causes grievous bodily harm by way of a dangerous act and claims that
they did not intend to cause such harm, it is necessary to apply indirect intention,
and D is liable if D foresaw that harm is a virtual certainty to occur.
The mens rea issue is whether D intended grievous bodily harm.

non-fatal offences against the person ladder of offences. These are:

1. Assault: including (a) technical assault and (b) battery.

2. Assault occasioning actual bodily harm (s. 47)
3. Maliciously wounding or inflicting grievous bodily harm (s. 20)
4. Wounding or inflicting grievous bodily harm with intent (s. 18)

Transmitting diseases and infection

the late 1980s and early 1990s, there was significant concern about the spread of
HIV. More specifically, whether the offences that we have discussed thus far apply to
conduct associated with the transmission of that condition.
1. D infects V in order that V should die. would have to prove murder.
2. D intentionally causes V to become HIV-positive. causing GBH, s.18 as intentionally
3. D knowingly risks transmission of the disease. = not with the intention of
transmitting, but risking.

Cases that deal with these issues:

https://www.theguardian.com/uk-news/2018/may/04/daryll-rowe-jailed-for-
deliberately-trying-to-spread-hiv-in-Scotland
(In this case, only look at the conduct, the law isn’t relevant as it is from Scotland.)
He was charged with GBH 18.

Dica [2004] EWCA Crim 1103 and Konzani [2005] EWCA Crim 706.
What about V’s consent to sexual intercourse when D is HIV-positive??

DICA
In this case, D knowing he was HIV positive, had unprotected sexual intercourse with
two women, who were both subsequently diagnosed as HIV positive.
D was charged with inflicting grievous bodily harm, contrary to section 20 OAPA
1861. (2 counts of GBH s.20).

foresaw the risk of transmitting the disease. he inflicted GBH on them.

D had recklessly transmitted the disease to the women when they did not know of,
nor consent to, the risk of infection.

he appealed: the D who knew, and recklessly transmitted could be liable for s.20, and
that if the V consented to the intercourse, it was not consent to contracting/ risk of
contracting HIV.

The CA considered the applicability of S. 20 GBH, that V could have consented to the
risk of infection, and that ‘consent’ means different things depending on the
specific offence (e.g., sexual offences cf. non-fatal offences)

Konzani

In this case, D was informed that he was HIV positive, and informed as to the risks of
passing the infection on to any sexual partners, and its dire consequences.
D had (unprotected) sexual intercourse with three women.
 D did not give evidence at trial, but it was formally admitted that D acted recklessly
by having a sexual relationship with the three V’s without using a condom.
D withheld vital information about his condition; each V expressly denied that they
consented to the risk of catching HIV. However, D argued that each V impliedly
consented to all the risks associated with sexual intercourse. Thus, since HIV was
one of the possible consequences, each V consented to the risk.
The jury found that none consented to the risk of HIV. Sentenced to 10 yrs’
imprisonment.

In both Dica [2004] and Konzani [2005], V had not consented to the risk of
contracting HIV.
There are some circumstances where D may infect V with an infection with informed
consent. E.g., starting a family, and organizing one’s life according to the strictures of
the Roman Catholic Church. In such circumstances, may be legitimate to take the risk.

CONSENT CAN HAVE DIFFERENT MEANINGS:

Consent? If V gives valid consent to the risk of HIV, D commits no offence. If D
intentionally deceives V as to D’s HIV status, V still consents to sexual intercourse.
This will be discussed in the sexual offences lectures.

General criticisms:
(1) OAPA is outdated = archaic language. preventing a person from escaping a reck is for
example, not relevant in today’s society.

(2) OAPA does not grade offences, nor are they in any logical order. (there no indication
of any progression of grading)

Specific criticisms:
Ss. 18 and 20 GBH offences:

(1) What does GBH mean? = only serious harm will suffice. however, Golding tells us that
what is serious will depend on medical and societal progress. advances in technology
an medicine can change overtime. what is considered to be a serious injury can
change over time.
(2) Difference between inflict and cause? inflict used to mean violence, but now it mean
cause. it is now far beyond violence
(3) S. 20 can only be directed against another person. S.18 is against ANY person. so
even one’s self.

(4) Why are wound and GBH in the same offence? despite the severity of the offence.

s. 47 offence:
(1) GBH and wounding overlap with ABH. ( psychiatric injury etc.)

(2) It is a lesser included offence of the more serious offences

(3) New meaning of ‘bodily’ harm.
MR criticisms:
(1) Terminology within offences. S. 18 talks to ‘malice’ but we take this to mean
intention.
(2) As above, with s. 20, malice is to mean intention or recklessness.
(3) S. 47 requires no additional MR element – constructive liability.
(4) Ss. 20 and 47 label D for an offence that they did have the MR for.
Finally, we have sentencing issues.

REFORM

Law Commission’s recommendations for reform Nov 2015 (Law Com No.361)
Replace the outdated Offences Against the Person Act 1861 with modern, clear and
logical legislation drawing on proposals made by the Home Office Draft Offences
Against the Person Bill 1998 (see next slide).
Create a new offence of “aggravated assault”, to bridge the gap between common
assault and the much more serious actual bodily harm (ABH). This is primarily to
keep more cases in the magistrates’ court and out of the crown court (“enormous
cost savings could … result”).
Extend the offence of threats to kill to include threats to cause serious injury and
threats to rape.

POWERPOINT PAG.37 FOR TABLE ON REFORM:

14/11/2023
 CONSENT TO BODILY HARM:
When can V consent to harm that is inflicted by another?
Moralistic and paternalist view is taken by English law.

Brown [1994] 1 AC 212

By a three-to-two majority, the HL held that consensual S&M activities do not fall
within any recognized exception to the general rule that V’s consent affords no
defence to D should the harm inflicted be actual bodily harm or worse.

CAN ONLY CONSENT TO BATTERY / ASSAULT,

ANYTHING ABOVE ABH CANNOT BE CONSENTED TO unless it is part of the
exceptions.

*In this case a group of homosexual masochist individuals involved themselves in

violent sexual conduct.
the D and Victim fully consented, there was no permanent injury.
the harm remained a criminal offence.
moralism and paternalism: trying to protect ppl from their poor decisions

Two principles were advanced:

Legal moralism: the view that if conduct is sufficiently immoral or degrading, that of
itself merits the punishment of persons who engage in such conduct.
Paternalism: the view that the criminal law may be used to protect persons from
themselves.

There are three possibilities:

(1) consent as an integral part of the AR.
(2) where harm occurs but consent precludes liability (defence or offence – not sure);
(3) consent as a defence – special circumstances.
In Brown, the majority said that consent is a defence (to serious harm), but the
minority said that it is part of the offence.

CONSENT IS AVAILABLE BY ELIMINATING THE ELEMENT OF AR with assault/battery.

like hugging etc.
when you breach that “harm”, consent will only provide you with a substantive
defence.

there is no def. of consent for the causation of bodily injury.

analytically whether the victim is in fact providing consent.

normative should the victim be able to consent to the harm.
 CONSENT definition in the Sexual Offences Act 2003, s. 74:
a person ‘consents if he agrees by choice and has the freedom and capacity to
make that choice.’ However, as you will see from the lectures and tutorials when
you cover sexual offences, this is often not of much use in difficult or hard cases.

Age of consent: V must possess a sufficiently mature capacity to understand the

nature of the interaction that D proposes. Gillick-competency in the House of Lords.
usually, the age of 16.

LIMIT OF CONSENT:
The general rule is that V’s consent will generally be ineffective if D’s
conduct causes actual bodily harm or worse.

NB low threshold for ABH: Donovan [1934] 2 KB 498.

(nothing major)
‘any hurt or injury calculated to interfere with the health and comfort of the victim’,
‘providing it is more than transient or trifling’.

In A-G’s Reference (No 6 of 1980) [1981] QB 715, Lord Lane held that it is not in the
public interest to cause each other harm for no good reason. It is an assault
occasioning actual bodily harm if intended or caused.

Also, see Boyea [1992] Crim LR 574. Cf. Slingsby [1995] Crim LR 570 and Broadhurst
[2019] EWCA Crim 2026.

Slingsby = the defendant fisted the victim both vaginally and anally. THE VICTIM DIED
OF BLOOD POISONING, as he was wearing a ring. the injury was incidental, following
mutual sexual gratification.
CONSENT FOR THE BATTERY.

Broadhurst = Here the D inflicted over 40 injuries on the victim, and fatally lacerated
her vagina and she dies as a result of this as she bleeds to death. Rough sex = bottle
of carpet cleaner in her vagina resulting in her dying.
did the victim provide consent? from the fractured eye socket and others.
the court said that if consent was there, it was not effective, the carpet cleaner
causing her death was incidental, following mutual sexual gratification. That specific
act was lawful. He was liable for her death as he left her to bleed to death: gross
negligence manslaughter.

So, in summary – assault and battery can be consented to

(whether definitionally or as a defence is uncertain).
Anything above this, consent is ineffective.
 EXCEPTIONS TO THE GENERAL RULE:

last 10min of the lecture.

There are exceptions to that general rule:

1. Organised sports:
Barnes [2005] 1 WLR 910;
Bradshaw (1878) Cox CC 83.

non-fighting sports if you intentionally cause harm, you might be liable. if the injury is
not intentional but is a foreseeable consequence, you are not going to be responsibly
acting you are acting within the rules of the games ( even if you slightly go above the
rules) like in rugby.

2. Horseplay: Aitken [1992] 1 WLR 1066.

3. Therapeutic surgery.
INFORMED CONSENT TO THE MEDICAL PROCEDURE

4. Non-therapeutic (cosmetic) surgery.

BODY ENHANCEMENT

5. Body piercings, including branding: Wilson [1997] QB 47.

(GIVEN THEY COMPLY WITH LOCAL REGULATIONS)
(branded his wife initials on her bum, got infected)
What of other types of (common) bodily modifications?

Extreme bodily modifications

BM [2018] EWCA Crim 560 with extreme bodily modifications by a non-medical
professional.
The specific question for the Court was whether the defence of consent was available
to an individual who caused serious bodily harm when performing bodily
modifications to another.
D performed several procedures including; (1) the removal of a customer’s ear, (2)
the removal of a customer’s nipple, and (3) the bifurcation of a customer’s tongue to
create something akin to a reptilian tongue.
He was charged with three counts of wounding with intent to do grievous bodily
harm (s. 18 GBH). All of the customers either provided written consent for the
 procedures to be undertaken, or there was no evidence to suggest that the
procedures were carried out against their wishes.

1 paternalistic role in preventing harm.

2 risk of unwanted injury when providing procedure: risk for society
3 no societal benefit
4 not a role of the judiciary to provide exception, it is matter for parliament
5 significance importance was placed on the protection of the public

CHANGES?
Domestic Abuse Act 2021, s. 71.
The provision provides that ‘consent to serious harm for sexual gratification not a
defence’. This includes section 18, 20, and 47 of the OAPA 1861.
This provision does not change the legal position re sexually transmitted diseases and
infections.
How wide is this provision? Well, ‘it does not matter whether the harm was inflicted
for the purposes of obtaining sexual gratification for D, V or some other person.’

Brown has been so heavily criticised; why enact this provision now?

Social utility or social disutility?

The social utility model states that once the critical level of harm has been reached, it
is necessary for the defence to demonstrate that the particular activity is in the
public interest and should be permitted.
There are significant problems when phrasing the test in this way. The ‘public
interest’ criterion has not been properly articulated by Parliament, the judiciary or
academics.
Some of the exceptions listed by Lord Slynn clearly serve a valuable societal purpose
– e.g., surgery, others are less clear. For example, it is not apparent what societal
purpose activities such as tattooing, ear-piercing, male circumcision and boxing
serve.
The social disutility model? Unless the prosecution is able to articulate specific
reasons for prohibiting the specific conduct, consent will be effective up to the level
of grievous bodily harm.

30/11/2023

s.6(1) – Intention to Permanently Deprive

A person appropriating property belonging to another without meaning the other
permanently to lose the thing itself is nevertheless to be regarded as having the intention of
permanently depriving the other of it if his intention is to treat the thing as his own to
dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to
so treating it if…[it] is for a period and in circumstances making it equivalent to an outright
taking or disposal.
S.6(2): …where a person, having possession or control (lawfully or not) of property belonging
to another, parts with the property under a condition as to its return which he may not be
able to perform, this (if done for the purposes of his own and without the other’s authority)
amounts to treating the property as his own to dispose of regardless of the other’s rights.

S.6 covers three situations that will be regarded as exhibiting an intention to permanently deprive:

1. Intending to treat property as own (REGARDLESS OF THE OTHER PARTY’S RIGHTS)

DPP v. Lavender [1994] Crim LR 297 : he went and took new doors from a different council house, to
replace his old council house. He then took his old doors and brought them to the other house. he was
charged with theft against the council property. He argued they weren’t going to be deprived of doors,
and also the doors have been taken to” a council house”.
it is enough to treat the property as his own and make decisions over it as the true owner.
so, here his actions are enough.

Raphael [2008] All ER (D) 159: took the owner's car hostage. the D’s were charged with
robbery. they argued they didn't have the intention to keep it forever. this type of taking can
be regarded as an intention to permanently deprive the other, as you're making the return
subject to a condition (money, sale etc), which is something only the owner should be able
to do, this qualifies as theft.

2. A borrowing equivalent to a taking

Lloyd [1985] QB 829 : D’ worked at the cinema as the projector.
he would take the film rim at home and make a copy = pirating a copy.
he argued he didn’t have the intention to permanently deprive, they weren’t destroyed, and
he argued were of the same nature.
The courts argued he was right, he borrowed and returned the object, the value of the
object hadn’t been lost and nature didn’t indeed change. this was not regarded as theft. he
can be guilty of pirating.

“The goodness, the virtue, the practical value of the films to the owners has not gone out of
the article. The film could still be projected to paying audiences, and…audiences would have
paid for their seats.” (per Lord Lane CJ at pp836-7)
Mitchell [2008] All ER (D) 109

Lawful possession but unable to return.

Fernandes [1996] 1 Cr App R 175:

“[S]ection 6(1), which is expressed in general terms, is not limited in its application to the
illustrations given by Lord Lane in Lloyd…The critical notion is whether a defendant intended
‘to treat the thing as his own to dispose of regardless of the other’s rights’…We consider
that section 6 may apply to a person in possession or control of another’s property who,
dishonestly and for his own purpose, deals with that property in such a manner that he is
risking its loss.” (per Auld LJ at 188)

Velumyl [1989] Crim LR 299 – returning different property.

is that intention to permanently deprive?
(Here he took money out of the employer’s safe, he took the money with the intention of
returning it, and he didn’t intend to permanently deprive the employer. However, the money
was returned in different notes, so the different property was returned and so it was
considered to be theft.)

Easom [1971] 2 QB 315 – conditional intent.

Marshall [1998] 2 Cr App R 282
Cahill [1993] Crim LR 142

s.2(1) – Dishonesty

TA1968 provides a negative definition of dishonesty – situations in which D will not be held
to have been dishonest.
Subjective = establish what D believed at the time of the appropriation
s.2(1): A person’s appropriation of property belonging to another is not to be regarded as
dishonest when:

*(a) If he appropriates the property in the belief that he has in law the right to deprive the
other of it, on behalf of himself or of a third person; or,
*(b) If he appropriates the property in the belief that he would have the other’s consent if
the other knew of the appropriation and the circumstances of it; or,
*(c) If he appropriates property in the belief that the person to whom the property belongs
cannot be discovered without taking reasonable steps.

(a) Feely [1973] QB 530: dishonesty is a question of fact for the jury to determine by
applying the current standards of ordinary decent people.
(b) Ghosh [1982] 1 QB 1053: the CA added a second element:
(a) “In determining whether the prosecution has proved that the defendant was
acting dishonestly, a jury must first of all decide whether according to the
ordinary standards of reasonable and honest people what was done was
dishonest. If it was not dishonest by those standards, that is the end of the
matter and the prosecution fails. If it was dishonest by those standards, then
the jury must consider whether the defendant himself must have realised that
what he was doing was by those standards dishonest.” (per Lord Lane at
1061).
(c) Thus there are two questions:
(a) Is the conduct dishonest according to the ordinary standards of reasonable
and honest people (objective)
(b) Does D realise that his conduct is dishonest according to those standards
(modified subjective)
(d) Hayes [2015] EWCA 1944: are juries barred from considering some contextual
information about common ‘standards’?
 Ivey v Genting Casinos [2017] UKSC 67
- D was ‘cheating’ at cards in a casino (edge-sorting for an advantage)
- What is ‘dishonesty’? Must D subjectively regard his conduct as such?
- Under Ghosh, Ivey could argue that using this technique was, he believed,
taking advantage of a legitimate piece of information – a ‘marginal gain’
- Under Feeley, however, he could not – his belief would be irrelevant
Per Hughes LJ at para.74:
- “When dishonesty is in question the […court] must first ascertain (subjectively) the
actual state of the individual’s knowledge or belief as to the facts…once his actual
state of mind as to knowledge or belief as to facts is established, the question
whether his conduct was honest or dishonest is to be determined by the fact-finder by
applying the (objective) standards of ordinary decent people. There is no requirement
that the defendant must appreciate that what he has done is, by those standards,
dishonest.”
- Barton and Booth [2020] EWCA Crim 575: the test to be applied in relation to
dishonesty is “(a) what was the defendant's actual state of knowledge or belief as to
the facts; and (b) was his conduct dishonest by the standards of ordinary decent
people?” [para 84]
- What about Hayes situations – relevant to limb A?
- What about the exclusions in s2 TA 1968?
Additional Reading:
- Dyson and Jarvis, ‘Poison Ivey or herbal tea leaf?’ (2018) 134 LQR 198.
- Laird, ‘R v Barton and Booth [2020] EWCA Crim 575: Case Comment’ [2020] Crim LR
1065
- Tamblyn, R. (2020) ‘Reforming Theft: Taking Without Consent’, Criminal Law Review
59

Theft:

Fraud:
*Services
*False representation
*Failure to disclose
*Abuse of position

Burglary:
*9(1)a
*9(1)b
*Aggravated Burglary

Robbery:
*s.8 Robbery
 16/01/2024

HOMICIDE OFFENCES
Fletcher, G. P. (1978) Rethinking Criminal LAW
“There are three prominent starting places for thinking about criminal liability. In the pattern
of manifest criminality, the point of departure is an act that threatens the peace and order of
community life. In the theory of subjective criminality, the starting place is the actor’s intent
to violate a protected legal interest. In the law of homicide, the focal point is neither the
act nor the intent, but the fact of death. This overpowering fact is the point at which the
law begins to draw the radius of liability. From this central point, the perspective is:
who can be held accountable, and in what way, for the desecration of the human and divine
realms?”

In England, there are three categories of homicide:

*MURDER

*MANSLAUGHTER (of which there are several species)

-INVOLUNTARY MANSLAUGHTER (LACK OF MR FOR MURDER: RECKLESS: CONSTRUCTIVE:
GROSS NEGLIGENCE;)
-VOLUNTARY MANSLAUGHTER (D HAS PARTIAL DEFENCE

*INFANTICIDE
MURDER: DEFINITION
“Murder is when a man of sound memory, and at the age of discretion, unlawfully (3) killeth (1) within
any county of the realm any reasonable creature in rerum natura [human being or person] under the
king’s peace, with malice aforethought (2), wither expressed by the party or implied by law, so as the
wounded, or hurt etc. die of the wound or hurt etc. within a year and a day after the same”
(COKE, 3 INST. 47)

NB- year and a day rule, developed at a time when medical science was primitive, was abolished by the
Law Reform (Year and Day Rule) Act 1996 s.1
[ However, if the attacker has already been convicted of a non-fatal offence, like wounding with intent,
before the death of the deceased, it has been held that a prosecution for murder is still possible and does
not go against the double jeopardy rule: European Convention on Human Rights (ECHR) Protocol 7 art.4]

GREEN = AR 1
BLUE = MR 2
PINK = LACK OF DEFENCE 3

UNLAWFULLY = NOT IN SELF DEFENCE

KILLING = ACT OF THE D KILLED THE V. IT MUST BE THE LEGAL CAUSE OF DEATH OF V (CAUSATION MUST
BE ESTABLISHED)
A REASONABLE PERSON IN BEING = ALIVE

ACTUS REUS OF MURDER

*” Unlawfully killing a reasonable person who is in being and under the King’s Peace” ( Sir Edward
Coke)

AG’s Ref (No.3 of 1994) [ the one about the stabbing of a pregnant woman whose baby later died]
* V must die
* D must cause death

Attorney-General’s Reference (No 3 of 1994) [1997] 3 All ER 936

Clift [2013] 1 Cr. App. R. 15
• Are all accelerations of death caught?
• Does it matter whether D’s conduct is an act or an omission?
• When does life begin?
• When does life end?
• Does it matter when V dies?

As everyone is dying, all that is required is some acceleration of death.

Clift- D guilty 7 years after initial assault, having already been convicted under s.18 ( screwdriver attack
to the victim in his head, the Victim died despite treatment) COULD THE D BE LIABLE FOR THE DEATH?
the court ruled that as long as the chain of causation cannot be broken then yes. ( from the moment
the D attacked the V with a screwdriver in the skull till the death there were no breaks in the chain of
causation).
(the evidence of d being guilty of s. 18 can be used to prove he was also guilty of murder)

* It is the mens rea that distinguishes homicide offences.

FOCUS ON MENS REA WHEN ANSWERING THE QUESTION.

MENS REA OF MURDER = Malice Aforethought

Murder is committed when a defendant commits the actus reus of homicide
with malice aforethought.

* Intention (may be direct or oblique) = INTEND TO CAUSE DEATH; OR INTEND TO CAUSE GRIEVOUS
BODILY HARM.
> WOOLIN [1999] 1 AC 82 – test for oblique intention (needs to foresee the result as a virtual certainty)
* To kill (“express malice” IS WHEN THERE IS INTENT TO KILL)

* or cause grievous bodily harm (“implied malice”)

> VICKERS [1957] 2 QB 664- includes the intention to cause GBH.
> CUNNINGHAM [1982] AC 566 – GBH rule validity confirmed by HOUSE OF LORDS

“MALICE” IN THE SENSE OF ILL WILL IS NOT NEEDED

“AFORETHOUGHT” IN THE SENSE OF PREMEDITATION IS NOT NEEDED.

“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be
directed that they are not entitled [to find] the necessary intention unless they feel sure that death or serious
bodily harm was a virtual certainty (baring some unforeseen intervention) as a result of the defendant’s actions
and that the defendant appreciated that such was the case.” (As amended by Lord Steyn in Woollin).
Although the House of Lords accepted the GBH rule as applicable, Lord Edmund Davies did query whether this
ought to be changed (next slide).

CUNNINGHAM [1982] AC 566:

“[T]he view I presently favour is … that there should be no conviction for murder unless an intent to kill is established,
the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I
find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of
another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling
for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder,
nothing less than intent to kill will suffice. But I recognise the force of the contrary view that the outcome of
intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for
complaint if, where death results, he is convicted and punished as severely as one who intended to kill.” [per LORD
EDMUND-DAVIES].
PUNISHMENT FOR MURDER
* ORIGINALLY AUTOMATIC DEATH SENTENCE (ALTHOUGH NOT EVERYONE SENTENCED TO DEATH WAS
EXECUTED)
* NOW MANDATORY LIFE IMPRISONMENT. Does life mean life?
* MINIMUM TERM (“TARIFF”) SET USING CRIMINAL JUSTICE ACT 2003, S.269 & SCH.21 (now part of the
Sentencing Act 2020) which provides starting points and factors to be considered in fixing the tariff.
* SIGNIFICANTLY LONGER PERIODS SERVED THAN FOR MANSGLAUHGHTER DUE TO EARLY RELEASE
PROVISIONS APPLICABLE TO NORMAL DETERMINATE PRISON SENTENCES.

Highest starting point = whole life order.

Sullivan [2005] 1 Cr App R 3 – provides guidance on CJA 2003. Judge retains discretion. Most cases will fall into 15 year bracket.
Starting points
2(1)If—
(a)the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b)the offender was aged 21 or over when the offence was committed,
the appropriate starting point is a whole life order.
(2)Cases that would normally fall within sub-paragraph (1)(a) include—
(a)the murder of two or more persons, where each murder involves any of the following—
(i)a substantial degree of premeditation or planning,
(ii)the abduction of the victim, or
(iii)sexual or sadistic conduct,
(b)the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c)the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,
(d)a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
(e)a murder by an offender previously convicted of murder.
3(1)If—
(a)the case does not fall within paragraph 2(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
(b)the offender was aged 18 or over when the offence was committed,
the appropriate starting point, in determining the minimum term, is 30 years.
(2)Cases that (if not falling within paragraph 2(1)) would normally fall within sub-paragraph (1)(a) include—
(a)in the case of a offence committed before 13 April 2015, the murder of a police officer or prison officer in the course of his or her duty,
(b)a murder involving the use of a firearm or explosive,
(c)a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d)a murder intended to obstruct or interfere with the course of justice,
(e)a murder involving sexual or sadistic conduct,
(f)the murder of two or more persons,
(g)a murder that is aggravated by racial or religious hostility or by hostility related to sexual orientation,
(h)a murder that is aggravated by hostility related to disability or transgender identity, where the offence was committed on or after 3 December 2012 (or over a period, or at some time during a period, ending on or
after that date),
(i)a murder falling within paragraph 2(2) committed by an offender who was aged under 21 when the offence was committed.
(3)An offence is aggravated in any of the ways mentioned in sub-paragraph (2)(g) or (h) if section 66 requires the court to treat the fact that it is so aggravated as an aggravating factor.
4(1)If—
(a)the case does not fall within paragraph 2(1) or 3(1),
(b)the offence falls within sub-paragraph (2), and
(c)the offender was aged 18 or over when the offence was committed,
(d)the offence was committed on or after 2 March 2010,
the offence is normally to be regarded as sufficiently serious for the appropriate starting point, in determining the minimum term, to be 25 years.
(2)The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to—
(a)commit any offence, or
(b)have it available to use as a weapon,
and used that knife or other weapon in committing the murder.
5If the offender was aged 18 or over when the offence was committed and the case does not fall within paragraph 2(1), 3(1) or 4(1), the appropriate starting point, in determining the minimum term, is 15 years.
6If the offender was aged under 18 when the offence was committed, the appropriate starting point, in determining the minimum term, is 12 years.
Aggravating and mitigating factors
7Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point.
8Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.
9Aggravating factors (additional to those mentioned in paragraphs 2(2), 3(2) and 4(2)) that may be relevant to the offence of murder include—
(a)a significant degree of planning or premeditation,
(b)the fact that the victim was particularly vulnerable because of age or disability,
(c)mental or physical suffering inflicted on the victim before death,
(d)the abuse of a position of trust,
(e)the use of duress or threats against another person to facilitate the commission of the offence,
(f)the fact that victim was providing a public service or performing a public duty, and
(g)concealment, destruction or dismemberment of the body.
10Mitigating factors that may be relevant to the offence of murder include—
(a)an intention to cause serious bodily harm rather than to kill,
(b)lack of premeditation,
(c)the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957) lowered the offender’s degree of culpability,
(d)the fact that the offender was provoked (for example, by prolonged stress) but, in the case of a murder committed before 4 October 2010, in a way not amounting to a defence of provocation,
(e)the fact that the offender acted to any extent in self-defence or, in the case of a murder committed on or after 4 October 2010, in fear of violence,
(f)a belief by the offender that the murder was an act of mercy, and
(g)the age of the offender.

SPECIFIC OFFENCES
INVOLUNTARY MANSLAUGHTER

Species of Manslaughter:
it can be INVOLUNTARY: CONSTRUCTIVE, GROSS NEGLIGENCE, SUBJECTIVE RECKLESS
OR it can be VOLUNTARY: DIMINISHED RESPONSIBILITY, LOSS OF CONTROL.
The crime of manslaughter is committed when a defendant commits the actus reus of homicide, but
the killing is not sufficiently blameworthy to warrant liability for murder.

This will be so in two situations:

 (1) where the defendant does not have the necessary mens rea for murder, but can
nevertheless be regarded as blameworthy to some extent (involuntary
manslaughter); or
 (2) where the defendant does possess the necessary mens rea for murder, but has
killed under certain specific circumstances which the law regards as mitigating the
seriousness of the offence (voluntary manslaughter).

(SUBJECTIVE) RECKLESS MANSLAUGHTER:

*Where D falls short of the test for oblique intention laid down in WOOLIN.

Where the defendant subjectively foresees a risk of death or serious injury (but the degree of foresight
fails to come within the Woollin test of intention required for murder), there will be liability for
manslaughter.

AR = CAUSE OF DEATH
MR= SUBJECTIVELY RECKLESS AS TO (HAD FORESIGHT OF) RISK OF CAUSING SERIOUS HARM.

RECOGNISED BY THE LAW COMMISSION & THE CASE OF LIDAR

(1999 UNREPORTED)

HUSSAIN [2012] EWCA CRIM 188

MOST CASES WILL BE PROSECUTED ON THE BASIS OF CONSTRUCTIVE MANSLAUGHTER, OR POSSIBLY

GROSS NEGLIGENCE MANSLAUGHTER.
While rarely used, there is an offence of subjective reckless manslaughter as confirmed by the Court of Appeal in Lidar (unreported):

The direction given by the judge might be said to be open to criticism for failing to specify first, that there had to be a high probability of
physical harm to Kully, and secondly, that the risk was of serious injury rather than, as the judge put it, ‘injury to health’ and ‘some physical
harm, however slight’.
See Stark’s article “Reckless Manslaughter” - Stark doubts its existence as a separate form of manslaughter, arguing that proof of subjective
recklessness is actually simply a factor for consideration in proving a case of unlawful act or gross negligence manslaughter. But he argues
that it should be a separate form of manslaughter. F. Stark, “Reckless manslaughter” [2017] Crim. L.R. 763–784.

An example of a successful prosecution for this offence is Hussain [2012] EWCA Crim 188.

D was driving and V, a young child, ran into the road. At this point, D’s driving was not at fault; there was nothing he could do to avoid the
collision. However, while he initially applied the brakes, he panicked and drove off (he was unlicensed), with V caught under the car and V
suffered multiple injuries that cased his death. The prosecution case was based on reckless manslaughter, in that D, after the initial collision
for which no blame was attached, drove off and “knew that it was a child who was under the car rather than some other object, that he
foresaw the risk of serious injury or death by continuing to drive and yet chose to take that risk and death resulted” (at para 25).
 Constructive manslaughter
(aka unlawful and
dangerous act
manslaughter
UAM)

REQUIREMENTS:
* THE D HAS COMMITTED AN UNLAWFUL ACT
* THE UNLAWFUL ACT IS DANGEROUS
* THE ACT CAUSES THE DEATH OF THE VICTIM

Known as “constructive manslaughter” because it is constructed upon a lesser unlawful act. (a

misdemeanour) = manslaughter to kill in the course of committing a misdemeanour.
* The majority of constructive manslaughter cases are based on some form of assault as the unlawful act.

Unlawful act:

• Franklin (1883) 15 Cox CC 163 – the unlawful act must constitute a crime – not just a civil wrong
= PUNISHABLE UNDER CRIMINAL LAW.

• Andrews v DPP [1937] AC 576 – act must be criminal for some other reason than that it has been
negligently performed – so not dangerous driving. = DRIVING CAN ONLY BE MADE UNLAWFUL IF
PEOPLE DRIVE NEGLIGENTLY.
(See also Meeking.)

• Lowe [1973] QB 702 – unlawful act cannot be committed by omission. = THERE MUST BE A
POSITIVE ACT TO HAVE CONSTRUCTIVE MANSLAUGHTER. (Doubtful whether an omission will
suffice for constructive manslaughter.

• [ Jennings [1990] Crim. L.R. 588 – the Crown must identify what the unlawful act is. ]

Meeking (2012) EWCA Crim 641: While her husband was driving at around 60 mph, D (because they were arguing) pulled the handbrake on
their car, causing the husband to lose control of the car. They suffered a head on collision with another vehicle and her husband died. D
was charged with unlawful act manslaughter, the unlawful act being endangering other road users by ‘intentionally and without lawful
authority or reasonable cause… interfere[ing] with a motor vehicle’ in ‘circumstances that it would be obvious to a reasonable person that
to do so would be dangerous’ (Contrary to s22(A)(1)(b) of the Road Traffic Act 1988). Is this is really a crime of negligence? The CA doubted
whether unlawful act manslaughter was the correct charge, and commented that manslaughter by gross negligence would have been a
more appropriate charge.

• LAMB [1967] 2 QB 981 (the one about the accident with the gun). Here it was held that the D was
not guilty of constructive manslaughter. There was no un7lawful act because there was no
assault- V had not apprehended unlawful force.

Lamb, in jest, with no intention of doing any harm, pointed a revolver at his best friend who was similarly treating the incident as a joke. He
knew there were two bullets in the chambers but as neither bullet was in the chamber opposite the barrel he did not foresee any danger.
He pulled the trigger; this rotated the cylinder and placed a bullet opposite the barrel so that it was struck by the striking pin. The bullet
was fired and the friend was killed. Three experts agreed that Lamb’s mistake was natural for somebody unfamiliar with the way the
revolver mechanism worked. SO THERE WAS NO UNLAWFUL ACT.
[Sachs J went on to rule that, while an appropriately directed jury could have convicted Lamb of manslaughter by gross negligence, the jury
had not been so directed and so the verdict could not stand.]
More details on the Baldwin case here: https://www.theguardian.com/us-news/2023/jan/20/alec-baldwin-rust-shooting-criminal-charge-
prosecutors. But the word “recklessness” is used in that article in a way that is not helpful to us studying English criminal law!
The charges were originally dropped as Baldwin claimed he had not pulled the trigger, and it must have been modified to allow it to go off
without anyone pulling the trigger. But more recently the gun was tested to prove it would not go off without the trig being pulled, and it
looks like he will be charged once again: https://www.theguardian.com/us-news/2023/oct/17/alec-baldwin-rust-shooting-recharged-
manslaughter. Re the mock exam – you were asked only to assess whether he caused V’s death. But if you were asked to discuss his
criminal liability, you would be expected to set out the requirements of UAM, including there being an unlawful and dangerous act, but
also that this caused her death. You might also discuss liability for GNM which we will come to later.

• LARKIN [1942] 29 Cr App R 18

The one about… brandishing a razor.

Held – D guilty of manslaughter – there was an unlawful act of assault.
Larkin - the defendant brandished a razor at a man in order to terrify him. His mistress fell against the razor, cut her throat and died.
Larkin’s conviction for manslaughter was upheld. In this case, unlike Lamb, there was clearly an unlawful act, namely, an assault by
intentionally terrifying the man.

DRUGS AND CONSTRUCTIVE MANSLAUGHTER

Cato (1976) 62 Cr App R 41
The one about… D injecting his friend with heroin.
CA Held – unlawful act = administering noxious thing under s.23 OAPA 1861.

Kennedy (No.2) [2008] 1 AC 269

The one about… the D who prepared syringe of heroin and gave it to V who injected himself.
HL Held – D not guilty of manslaughter as there was no unlawful act – V had administered the drug
himself and D’s supply of the drug did not cause death due to V’s voluntary act.

Dangerous Act
The unlawful act must be a dangerous one, in the sense that it must expose the
victim to the risk of some bodily harm resulting therefrom.

* CHURCH [1966] 1 QB 59 – THE ONE ABOUT D knocking V unconscious and throwing her into the river
where she drowned. (INCLUDE IN THE AR ALONGSIDE ALL THE AR TESTS) (CAN BRIEFLY MENTION IN THE
MR)
HELD – OBJECTIVE TEST:
“The unlawful act must be such as all sober and reasonable people would inevitably recognise. Must
subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”.
* DPP v Newbury and Jones [1977] AC 500 The one about… boys pushing paving slab over a bridge onto
the train. Held – D need not know that the act was unlawful or dangerous. Only MR required is that of
the unlawful act (base offence).
“The test is still the objective test. In judging whether the act was dangerous the test is not did the
accused recognise that it was dangerous but would all sober and reasonable people recognise its
danger”, per Lord Salmon (at p507).

RISK OF PHYSICAL HARM:

risk of some harm HAS to be physical harm.

*Dawson (1985) 81 Cr App R 23

- robbery of a petrol station attendant.
Held: the unlawful act must expose V to the risk of some physical harm. Emotional disturbance is not
enough. But liability if shock led to physical injury such as heart attack. ( The V had a heart condition that
made them susceptible to stress) ( THE D DIDN’T KNOW THIS)

Definition of robbery under s.8 Theft Act 1968

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any
person or puts or seeks to put any person in fear of being then and there subjected to force.

*What information does the sober bystander possess?

Watson (1989) 89 Cr App R 211 - burglary of old man’s house, the V suffered a heart attack following
being tied in a chair.
THE V WAS VERY ELDERLY, SO NOT A RESULT HE SUFFERED A HEART ATTACK AS A RESULT OF THE TRAUMA
HE WAS PUT INTO. The v’s age and condition so the CHARACTERISTICS (here the V was fragile and
vulnerable) are relevant in the decision of whether there is a risk of harm.
Held: sober & reasonable bystander to be endowed with whatever knowledge D possessed. CONVICTION
IS UPHELD

Dawson (1985) 81 Cr App R 150 - The reasonable bystander could not be attributed with knowledge
(that the victim suffered from a heart condition) as the defendants could not have known that this was
the case. OBJECTIVE TEST, so what the D’s think is not relevant.

Bristow [2013] EWCA Crim 1540 – “Whilst burglary of itself is not a dangerous crime, a particular burglary
may be dangerous because of the circumstances surrounding its commission.” [34]
C.A. EMPHASISED THAT BURGALY ITSELF ISN’T DANGEROUS, A BURGARLY WITH PARTICULAR
CIRCUMSTANCES CAN BE DANGEROUS.

Mistakes and the sober bystander

Ball [1989] Crim LR 730 - D mistaken, but not reasonably so, about whether the gun was loaded. The
bystander is not assumed to have made an unreasonable mistake just like the D here.
A MISTAKE WON’T BE APPLIED TO THE REASONABLE PERSON.

(The neighbour confronted the D on what he had done and D took out his shotgun, planning on scarring
him, he claimed he fired the gun in order to scare the victim and didn’t expect to fire an actual shot, and
the V died.) ( he thought they were blanked)
(the info held by the D is also assumed to be held by the sober bystander)
Definition of burglary under s.9 Theft Act 1968
D enters building as a trespasser and steals or attempts to steal.
Bristow - burglary – plan to steal a number of vehicles. Given the means of escape if found – driving at speed up a single track road passing
V’s home – there was sufficient evidence for the jury to find that the offence was dangerous.

JM and SM [2012] EWCA Crim 2293

The victim was a 40-year-old doorman who died as a result of blood loss from a ruptured aneurysm, and
the prosecution claimed that this was caused by a surge of adrenalin which resulted from an altercation
involving the defendants. The unlawful act was an affray. Did the danger of harm created by the affray
have to be of the ‘sort’ that V suffered?

AFFRAY: easy offence to prove, so often used by the prosecution. (altercation)

CA Held - No, all that had to be created was a risk of some harm, and the reasonable bystander did not
have to foresee the ‘sort’ of harm caused.

Unlawful & dangerous act must cause death. (use headings

in the problem questions too).

Carey [2006] Crim LR 842

The one about… the girl who ran away from her attackers and suffered a heart attack in doing so.
THE DIFFERENCE HERE IS THAT DESPITE THE HEART CONDITION BEING UNKNOWN, HERE THERE IS
PHYSICAL CONTACT BETWEEN D AND V.

CA Held – Ds not liable for manslaughter – no dangerous act causing death.

(AS NOT ALL THE ELEMENTS WERE MET FOR THE OFFENCE).

The only dangerous act was an assault, but the assault did not cause death, only bruising.
(prosecution didn’t argue on the basis of assault, and the assault only caused bruising, so not death)

The affray, however, was not dangerous as the defendants were not to know about the heart condition.

*CHOOSE THE APPROPRIATE UNLAWFUL AND DANGEROUS ACT THAT ACTUALLY CAUSES THE DEATH.

DJ [2007] EWCA Crim 3133

The one about… the old man playing cricket with his son who was insulted by youths who threw stones
and spat. V suffered a heart attack.
UNLAWFUL ACT = THROWING STONES, SPITTING (IF LANDED ON THE VICTIM BATTERY)
DANGEROUS = THROWING STONES.
CA Held – Ds not liable for manslaughter. Could not prove heart attack was caused by throwing stones
alone. NO MEDICAL EVIDENCE.
DJ - It was not clear if the assault caused the heart attack, or the whole incident, including the verbal abuse. As the battery could not be
proved as the cause of death, then there was no unlawful and dangerous act that caused death.

MENS REA OF CONSTRUCTIVE MANSLAUGHTER

THE MR IS THE SAME OF THE UNDERLYING OFFENCE.

SUBJECTIVE RECKLESSNESS OR INTENTION AT TO THE UNDERLYING OFFENCE
( MENTION OFFENCE)

DPP V NEWBURY = The only MR requirement is that of the underlying act.

R v F and E [2015] EWCA Crim 351 = two elements had to be carefully differentiated: the
requisite state of mind and the requirement of dangerousness in relation to the unlawful
act.
-The test of dangerousness is objective.
-The requisite state of mind is subjective (the underlying offence was criminal damage,
therefore the mens rea requirement was intention to cause criminal damage or subjective
recklessness as to causing criminal damage).

F &E: Manslaughter conviction upheld. Ds had been acquitted of arson being reckless as to
whether life was endangered. So they had the MR for straightforward criminal damage,
but did not realise that life would be endangered thereby. They argued this meant they
should not be liable for manslaughter. But the act of criminal damage was dangerous in
the objective sense and the suggestion that the objective test should be adapted to take
account of the Ds’ age and low IQ was rejected – such a change would have to be made by
Parliament.

subjective recklessness as to the endangering of life.

Gross negligence manslaughter (GNM):
Introduction

Often (not always) where D is engaged in a prima facie lawful (though potentially dangerous) activity

History:

• Bateman (1925) 19 Cr App R 8 – definition of gross negligence referred to in Adomako

• Andrews v DPP [1937] AC 576 - applied to driving
• Stone & Dobinson [1977] QB 354 – omission to help Stone’s sister
• Seymour [1983] 2 AC 493 – gross negligence rejected in favour of objective recklessness.
• The leading case is now Adomako, which reinstated gross negligence as the relevant test.

The test for GNM- ADOMAKO

1. D owed V a duty of care

(The question of whether duty arose is question for the judge - Evans [2009])
2. D breached that duty
3. The breach of duty caused death.
4. The breach of duty should, in all the circumstances including the risk of death, be characterised
as gross and therefore a crime.
So…. it is a crime because it is bad enough to be a crime. (Note the circularity of this test)
5. The breach carried an obvious and serious risk of death.

Requirement 5 has been added by later cases interpreting the 4th part of the test in Adomako.

lecture on the above finished the 19/01/2024

ADOMAKO [1995] 1 AC 171

*The one about... the anaesthetist who failed to notice patient’s tube was disconnected from the
ventilator.
*Question for HL was whether gross negligence or objective recklessness should apply?

LORD MACKAY LC IN Adomako

“…in my opinion, the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a
duty of care towards the victim who has died. If such a breach of duty is established the next question is whether that breach of duty
caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross
negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the
circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the
defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the
patient, was such that it should be judged criminal” (at p187).

DUTY OF CARE: WACKER [2003] 1 Cr App R 22

*The one about... illegal immigrants found dead in a lorry trailer.

*Held- REJECTED ARGUMENT THAT D DID NOT OWE DUTY OF CARE (SO HE HAD A DUTY) BECAUSE
Vs ENGAGED IN CRIMINAL ENTERPRISE. D GUILTY OF MANSLAUGHTER.

“...looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a
person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time
or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful
enterprise”, per Kay LJ (at p338).

In other cases, Herring and Palser have argued that there are good reasons for relying upon the law of tort to establish a duty of care:
Herring and Palser, ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Crim LR 24.
Note on 21st December 2020 two people smugglers, including a lorry driver, were convicted of 39 counts of manslaughter when
Vietnamese people were shipped in a sealed container across the channel and suffocated:
https://www.theguardian.com/uk-news/2020/dec/21/essex-lorry-trial-two-found-guilty-over-deaths-of-39-vietnamese-people

CAUSATION: BROUGHTON [2020] EWCA Crim 1093

*V was with her boyfriend, D, when she took drugs and had a “bad trip” whilst at Bestival.
D ailed to fetch help and she died. DID THIS CAUSE DEATH?
*CA held: conviction quashed. It was not clear at what point an obvious and serious risk of death
arose, and therefore at what point D breached his duty. In turn, it was impossible to determine
whether, at that point in time, summoning help would have prevented V’s death. It could not be
proved to the criminal standard that D’s breach of duty had caused death.

This appeal concerns causation in gross negligence manslaughter. V was pronounced dead in the early hours of the morning of Monday 11
September 2017 at the Bestival Music Festival at Lulworth Castle. She
had taken a controlled Class A drug, namely 2C-P as well as ketamine and ecstasy. The appellant, who was her boyfriend, had supplied the
2-CP and "bumped" it up either by giving her an increased dose or mixing it with ecstasy or ketamine. The prosecution case was that
having supplied the drugs and remained with her, the appellant owed V a duty of care to secure medical assistance as her condition
deteriorated to the point where her life was obviously in danger. He was grossly negligent in failing to obtain timely medical assistance,
which failure was a substantial cause of her death.
D and V had left the festival site and gone to a nearby wood at around 4.30pm. Mobile reception was poor. V took the drugs and D filmed
her with his phone, with her consent. The videos show V becoming more and more agitated. An hour and a quarter later, D phoned V’s
mother and the mother can hear V in the background sounding distressed, and D trying to calm her down. Mother asks D to get V help; D
says he will look after V. Essentially, throughout the evening V’s family tried to keep in contact with him and encourage him to take V to the
medical tent but he stayed where he was, and around 8:30pm, when V was not at all coherent and was only making animal sounds, he sent
his Google map location to a friend, who did not have Google maps on his phone. Communications continued and he told V’s family around
11.45pm he would try to carry her to get help, but he didn’t want to leave her. Around 11.25pm he took a photo which depicted her,
according to the expert, to be dead. A short time later D came out of the wood and told security guards his girlfriend had taken an
overdose. Her body was found around 1am.
At trial, the prosecution proceeded on the basis that it was for the Crown to prove that timely medical intervention would have saved V's
life. In the course of his summing up the judge said:
"To prove this element of the offence the prosecution must make you sure that the failure to obtain medical help by the defendant was a
substantial contribution to the cause of death. The prosecution's case is that by failing to obtain medical help in time, his breach of duty
was a substantial contribution to the cause of death, in short had she been treated by a medical practitioner in time, she would have lived.
The defence case is that by the time there was any breach of duty, it was already too late, in short it would have made no difference, it was
not a substantial contribution to the cause of death. You will have to assess the time from which he was in breach and medical aid was
needed, what was the likelihood of survival. Are you sure that the failure to obtain medical help at that time was a substantial cause of her
death?“
One of expert witnesses stated "In view of the lack of previously documented deaths from 2CP, the combined effect of three stimulant
drugs and the unknown mechanism that resulted in Louella's death, it is not possible to state beyond reasonable doubt that earlier medical
intervention would have been able to save Louella's life once she had ingested the 2CP.“
CA: To establish the guilt of the appellant the prosecution had to make the jury sure that at the time when V's condition was such that
there was a serious and obvious risk of death the appellant was grossly negligent in failing to obtain medical assistance and that such
assistance would have saved her life. That she was having a bad trip, or the time had come when medical help was needed is not enough.
In a case of this sort, as in medical cases involving health professionals, there needs to be a clear focus on when the condition of the
deceased reached the threshold of serious and obvious risk of death, what the accused should have done then and the prospects of
survival at that point. Jury had been asked to consider a long period of time without such clear focus.
There was no evidence of a non-expert nature which could help to answer the question on causation. The expert's opinion of a 90% chance
of survival at 21.10, with medical help, left a realistic possibility that she would have lived. Thus, the evidence was not capable of
establishing causation to the criminal standard and the case should have been withdrawn from the jury
Rebelo: Whereas Broughton makes a point about the need for factual “but for” causation (despite the court’s reference to “substantial
cause”), legal causation is also needed, and a novus actus interveniens will break the chain as it would do in any other case. We see the
principle in Kennedy (No.2) about V’s act breaking the chain if it is a free, deliberate and informed act in a case where GNM was charged
following a failed prosecution for UAM. (which failed because the court found the unlawful act of selling drugs on the internet was not
dangerous in the Church sense). In Rebelo, the court upheld D’s conviction for GNM when he supplied a highly toxic substance (DNP) over
the internet as a dieting aid. V died, having taken an excess of the substance. The jury concluded that V had not made a fully free,
informed, and voluntary decision to take the drug, given her mental health conditions and her addiction.

Gross negligence: Misra & Srivastava [2005] 1 Cr.App.R. 21

*The one about.. the 2 SHOs who failed to diagnose toxic shock following a knee operation.
*Held- Art.7 ECHR not breached by test for gross negligence manslaughter.
*”The question for the jury is not whether the defendant’s negligence was gross,and whether
additionally, it was a crime, but whether his behaviour was grossly negligent and consequently
criminal. This is not a question of law, but one of fact, for decision in the individual case” (per
Judge LJ).
*Obvious and serious risk not just of injury or even serious injury, but death.

When does negligence become gross negligence? We are answering the question, when should the conduct of the defendant be viewed as
criminal with the answer: when we think it should be criminal.

Is this contrary to the European Convention on Human Rights? Article 7:

No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under
national or international law at the time when it was committed…
“62…The decision whether the conduct was criminal is described not as ‘the test’, but as ‘a’ test as to how far the conduct in question must
depart from accepted standards to be ‘characterised as criminal’. On proper analysis, therefore, the jury is not deciding whether the
particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence
was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not
a question of law, but one of fact, for decision in the individual case” (per Judge LJ).

OBVIOUS AND SERIOUS RISK OF DEATH

• Gurphal Singh [1999] Crim LR 582: carbon monoxide poisoning case

• Mark [2004] EWCA Crim 2490 – D does not have to be aware of risk of death (objective test – R v
G has no bearing on the test to be applied)
• But the reasonably prudent person is of D’s age and experience (R v S [2015] EWCA Crim 558)

• Singh – D was son of landlord who helped look after properties. Carbon monoxide poisoning caused by gas fire on chimney
breast but chimney was blocked.
 • Trial judge developed the last part of the Adomako test – whether death was caused by gross negligence having regard to risk of
death involved, and included in direction the need that this be a serious and obvious risk of death. CA approved his as a model
direction.
• “a reasonably prudent person in the position of the appellant would have foreseen a serious and obvious risk of death and that
the failure of the appellant to do more to prevent that risk involved a very high degree of negligence.”

OBVIOUS AND SERIOUS RISK OF DEATH: RUDLING [2016] EWCA Crim 741
• GP failed to carry out a home visit to a boy who died of a rare autoimmune disease. The trial
judge ruled no case to answer.
• CA dismissed the appeal by the prosecution on the basis that there was insufficient evidence to
show that a reasonably competent GP should have recognised an obvious and serious risk to life.
• Whether there is an obvious and serious risk of death is to be determined at the time of the
breach and based on what D knew then.
• The obvious and serious risk question is not about what might have been found if D had not
breached the duty.
• Also confirmed in Rose (next slide)
• Some limits for professionals’ liability?

GP failed to carry out home visit to boy who died of rare autoimmune disease. He had been poorly earlier in the year but
nothing had been diagnosed. His mother phoned the surgery on a Friday night with further symptoms. GP asked if it could wait
until after the weekend, by which time V had died. D prosecuted for GNM but judge threw case out on the basis of no case to
answer and Crown appealed that decision. CA dismissed the appeal and upheld the on the basis that there was insufficient
evidence to show that a reasonably competent GP should have recognised an obvious and serious risk to life. The judge had not
misinterpreted or misconstrued the medical expert's evidence such that her conclusion had been outwith the range of
reasonable conclusions.

ROSE [2017] EWCA Crim 1168

• An optometrist failed to carry out an examination of V’s eye. Had she done so, she should have
found that he was suffering from a life-threatening condition. Convicted of GNM.

• The Court of Appeal quashed the conviction on the basis that in assessing the reasonable
foreseeability of a serious and obvious risk of death, it is not appropriate to take into account
what D would have known but for her breach of duty.

This is one of many appeals against conviction for GNM from around this time, showing that the law in this area has caused a great deal of
controversy.
See for example:
Winterton [2018] EWCA Crim 2435
Zamman [2017] EWCA Crim 1783 (where restaurant owner was liable for GNM when customer with peanut allergy died after eating a
contaminated dish)
Kuddus [2019] EWCA 837 (in contrast to Zamman, the D was not liable for GNM as was not put on notice as to the customer’s allergy).
Statutory homicide offences:

Infanticide (Infanticide Act 1938, s.1)

Encouraging or assisting suicide (Suicide Act 1961, s.2)

Causing or allowing the death of a child or vulnerable adult (Domestic Violence, Crime and Victims Act
2004, s.5)

Causing death by driving offences

(under the Road Traffic Act 1988)

Corporate manslaughter
(Corporate manslaughter and Corporate Homicide Act 2007, s.1) company would be responsible/liable for
death.

THE STRUCTURE OF HOMICIDE OFFENCES:

HOMICIDE REFORM:

Problems with current law of homicide:

• GBH rule for murder
• Problem in defining “intention” – blurred line between murder and manslaughter
• Mandatory life sentence for murder
• Broad ranging conduct falling within “manslaughter” – morally uninformative (see principle of
fair labelling). Note that Sentencing Council has produced sentencing guidelines for
manslaughter: https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter-
definitive-guideline-Web.pdf
• Role luck plays (relevant to murder, manslaughter and the causing death by driving offences) –
question of a “change in normative position”?

Wilson in Ashworth & Mitchell: A better focus to the problem of indiscriminate risk taking… has been provided by Lord Hailsham. In Hyam,
he insisted that intention rather than foresight was the fault element in murder. Mrs Hyam [who only intended to frighten] was guilty of
murder because, lacking any lawful excuse for what she did, she intended to expose her victim to the serious risk of death or grievous
bodily harm… For Lord Hailsham risk-taking does not become the fault element in murder simply by crossing a threshold of probability, say
from possible to probable. As long as it is the accused’s intention to court a serious risk of death the actual degree is unimportant, subject
always to the overriding requirement that risk taken be unjustified (at p39-40).
Law Commission No.304 Murder, Manslaughter and Infanticide
(2006).

• Proposes new “Ladder” of homicide offences:

• 1st Degree Murder
• 2nd Degree Murder
• Manslaughter

1.64 In structuring the general homicide offences we have been guided by a key principle: the ‘ladder’ principle. Individual offences of
homicide should exist within a graduated system or hierarchy of offences. This system or hierarchy should reflect the offence’s degree of
seriousness, without too much overlap between individual offences.

LC304 Recommendations:
(1) First degree murder (mandatory life penalty)
(a) Killing intentionally.
(b) Killing where there was an intention to do serious injury, coupled with an awareness of a serious risk
of causing death.

(2) Second-degree murder (discretionary life maximum penalty) CURRENT GBH NO NEED OF AWARENESS
OF DEATH
(a) Killing where the offender intended to do serious injury.
(b) Killing where the offender intended to cause some injury or fear or risk of injury and was aware of a
serious risk of causing death.
(c) Killing in which there is a partial defence to what would otherwise be first-degree murder.

(3) Manslaughter (discretionary life maximum penalty)

a Killing through gross negligence as to a risk of causing death.
(b) Killing through a criminal act:
(i) intended to cause injury; or
(ii) where there was an awareness that the act involved a
serious risk of causing injury.

3.53 Under our recommendations, not all cases of ‘reckless’ killing will fall into second degree murder. These will be killings where there is
an awareness of a risk that conduct may cause death, but the extra element is missing: there is no intention to cause injury or a fear or risk
of injury. Almost all of our consultees were in favour of treating ‘reckless’ killing (without any further aggravating factor) as manslaughter.
We believe that such cases should be treated as falling within gross negligence manslaughter. In other words, there should cease to be a
separate category of ‘reckless manslaughter’.
The following partial defences would reduce first degree murder to second degree murder:
(1) provocation (gross provocation or fear of serious violence);
(2) diminished responsibility;
(3) participation in a suicide pact.
Other specific homicide offences

There will remain a number of specific homicide offences, such as infanticide, assisting suicide and causing death by dangerous driving.
3.60 We recommend the adoption of the definition of causing death by gross negligence given in our earlier report on manslaughter:
(1) a person by his or her conduct causes the death of another;
(2) a risk that his or her conduct will cause death…would be obvious to a reasonable person in his or her position;
(3) he or she is capable of appreciating that risk at the material time; and
(4) … his or her conduct falls far below what can reasonably be expected of him or her in the circumstances
EVALUATION OF MURDER READING NOTES:
If a defendant intends really serious bodily harm to another there is always a probability that death may result
from such injuries. Most defendants would know this. Thus, people who intend to cause grievous bodily harm
have chosen to run a risk of endangering life. They are as dangerous and as blameworthy as those who actually
intend to kill so should an exception really be made and have criticism on the grievous bodily harm rule?
“Criminal Law Revision Committee, Working Paper on Offences against the Person, 1976, para.29:
It is argued that a person who inflicts serious injury on another intentionally must know that by so doing there
is a real chance that his victim will die and if death results it is right that he should be convicted of murder.
(Some, like Lord Mustill in Attorney General’s Reference (No.3 of 1994) [1998] A.C. 245 (House of Lords), argue
that this reasoning is old and obsolete). Despite this attack, Lord Mustill recognised that there was no ground
upon which the House of Lords could abolish so established a rule.
he main arguments for changing the present law, which prescribes intent to inflict grievous bodily harm as an
alternative to the intent to kill in murder, are as follows:
(a)Murder is commonly understood to mean the intentional killing of another human being; and, unless there
are strong reasons which justify a contrary course, it is generally desirable that legal terms should correspond
with their popular meaning.

(b)To limit intent in murder to the intent to kill is not to disregard the very serious nature of causing death by
the infliction of grievous bodily harm, but, since the suspension of the death sentence, if such an offence were
to be treated as manslaughter only, it could nevertheless be punished by a maximum penalty as severe as the
penalty prescribed for murder, namely, imprisonment for life …

(c)Furthermore, a man should not be regarded as a murderer if he does not know that the bodily harm which
he intends to inflict is likely to kill … If there is any special deterrent effect in the label ‘murder’ as distinguished
from manslaughter, it should be attached to an act done with intent to inflict bodily harm which the accused
knows is likely to kill … (a)So long as a distinction between murder and manslaughter is to be maintained, there
must be a defensible criterion for distinguishing between them. In our view the essential element in murder
should be willingness to kill, thereby evincing a total lack of respect for human life.” Following Woollin, there is
some uncertainty as to the meaning of intention. One interpretation of this decision is that foresight of a
virtual certainty is an alternative species of intention. The other interpretation is that intention remains
undefined but the jury is entitled to find intention only where there is such foresight of a virtual certainty. But,
while they are “entitled” to find such intention, equally they are entitled to find that the defendant did not
intend death or grievous bodily harm. Under this latter interpretation, where intention is not defined and the
jury is allowed “moral elbow-room” to decide whether the defendant deserves to be labelled a murderer,
the hypocrisy of the past century is continued. Murder is a “crime of intention”, but maximum flexibility is
retained by not defining the concept.

INTENTION: Murder is the most serious crime under English law and carries the most severe penalty. It should
be reserved for the worst cases which are directly intended killings. As long as murder is retained as a separate
crime, it must be reserved for the “worst”, “most reprehensible” killings. Emotive tests such as those involving
criteria of depravity or wantonness must be rejected; judgments must relate to people’s actions, not to their
characters
25/01/2024
MANSLAUGHTER (VOLUNTARY):
TWO PARTIAL DEFENCES.

DIMINISHED RESPONSIBILITY
LOSS OF CONTROL
LOSS OF CONTROL:
It is a partial defence; reduces murder to manslaughter.
DEFINITION: Coroners and Justice Act, 2009, ss.54 and 55
**Replaces previous common law partial defence of provocation, which was defined as:
“…some act, or series of acts, done by the dead man to the accused which would cause in any reasonable
person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the
accused so subject to passion as to make him or her for the moment not master of his mind”
per Devlin, J as approved by Lord Goddard CJ in Duffy [1949] 1 All ER 932
(INITIALLY THERE FOR PEOPLE WHO WERE SUBJECT TO THE HEAT OF THE MOMENT)
Example of recommendations of Law Commission being adopted and enacted. These proposals were in a package of recommendations
made for the reform of homicide but only those relating to partial defences were adopted.

“Reasonable person” given so many of D’s characteristics that it became pointless, if not ridiculous
(the “reasonable glue sniffer” problem.)

Ahluwalia (1993)- cumulative provocation is positive but must still be a sudden and temporary loss of
control.

Ø Criticised as favouring angry men at the expense of abused women.

Ahluwalia The one about… the abused wife who waited until her husband went to bed before she set fire to him. Held – delay will not
necessarily negate the defence but the longer the delay the stronger the evidence of deliberation and the more likely the defence will be
negatived.

Coroners & Justice Act 2009, s.54

(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’ 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.
(quote this for authority)

Provocation abolished and replaced by this:

s56 Abolition of common law defence of provocation
(1)The common law defence of provocation is abolished and replaced by sections 54 and 55.
(2)Accordingly, the following provisions cease to have effect—
(a)section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to be left to the jury);
(b)section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (questions of provocation to be left to the jury).
Other subsections on later slides but reproduced below for info.
Note that this defence can be left to the jury even if not raised by the defence. If the judge sees evidence of loss of control s/he should direct the jury on this defence.
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.

LOSS OF SELF-CONTROL
*The first requirement under s.54(1)(a) is that the killing resulted from D’s loss of control, but little
case law on what this means.
*The law commission chose to retain the loss of control requirement as the rationale for the defence
is to make concessions to “human frailty”.
*Jewell [2014] ‘a loss of the ability to act in accordance with considered judgment or a loss of normal
powers of reasoning.’ (as per Smith & Hogan)
*Barnsdale-Quean [2014] EWCA Crim 1418
*Goodwin [2018] EWCA Crim 2287: “we certainly do not think that the fact that there were at least
18 blows of itself, in the circumstances, gives rise to an inference of loss of control”.

(in the questions discuss the elemnts needed to establish the offence, not what the jury would “think’)

Jewell – explained on next slide.

Whether D claims he lost control or not is not decisive – judge can direct on loss of control even where it is not claimed. But, there must be
some evidence of it. In Goodwin D killed his neighbour with a hammer. He claimed that V had attacked him with the hammer and that he
retaliated, acting in self defence. Jury rejected he was acting in self defence and judge refused to leave defence of LOC to the jury. This
decision was upheld by the CA. No evidence of LOC – 18 blows with a hammer over a 5 minute period was not evidence itself of a frenzied
LOC.

Barnsdale-Quean [2014] EWCA Crim 1418: there needs to be sufficient evidence of a loss of control before the partial defence is left to the
jury, and evidence that the killing was planned will allow the trial judge to refuse to put the defence to the jury. This is particularly the case
if the defence case involved no claim of a loss of control. In this case, the defendant was convicted of murder after his wife was killed and
there was an attempt to make it look like suicide. His wife had been sedated before being strangled with a ligature (that D admitted
obtaining several days earlier) and D had self-inflicted injuries that he claimed had been inflicted by his wife.

CUMULATIVE PROVOCATION

To solve the problem in Ahulwalia.

*s.54(2) - it does not matter whether or not the loss of control was sudden. (NEW LAW)
*BUT evidentially suddenness remains relevant – Clinton ( so relevant in terms of evidence)
*Dawes [2013] EWCA Crim 322- CA confirmed that cumulative impact of provocation can be relied
upon. (not just the last thing that has happened and caused the trigger, you can take into account
events that occurred over the years, in order to decide whether the defence should apply)
*Jewell [2014] EWCA Crim 414- Example of delay (together with apparent planning and D harming
himself
with a gun) being fatal to the claim of LOC

Under s.54(4) D cannot rely on the defence if D acted “in a considered desire for revenge”. See next slide on Clinton.
Dawes will be mentioned on several occasions – a case joined with two others – Bowyer and Hatter.
Jewell killed his co-worker
In our judgment, there are overwhelming difficulties in the way of these submissions. The factual backdrop is not helpful to the applicant.
He armed himself with firearms (in the plural) and with what the Crown accurately described as a survival kit including a tent, spare
clothing, passport, driving licence, cash, and other weapons and he did so some 12 hours before he drove to Mr Prickett's home, armed
with a loaded shotgun and a loaded home-made pistol, shot him without warning and made good his escape. This bore every hallmark of a
pre-planned, cold-blooded execution. His explanation that he was in fear of serious violence from Mr Prickett, who the night before had
made a threat to kill him, must be seen in context. That context includes that the applicant went home and during the next 12 hours failed
for example to seek help from the police or from his family or from his friends, save his father who was persuaded to loan him a shotgun.
He then drove, alone, to Mr Prickett's home not, according to his evidence, intending to kill him, but shooting him at close range the
moment Mr Pickett came out of his house. We remind ourselves of the words of the Lord Chief Justice in Clinton: “In reality, the greater
the level of deliberation, the less likely it will be that the killing followed a true loss of self-control.”
In our view, the 12-hour cooling off period, as the judge in his ruling labelled it, reflects exactly this analysis.
The evidence that this was a planned execution is best described as overwhelming. Thus, the commonsense judgment based on an analysis
of all the evidence ( Clinton para 46) 46. was inevitably as the judge described it.
The judge ruled that there was insufficient evidence to leave the first component ( section 54(1)(a) ) to the jury and in our view correctly
found that if any one of the three components is absent the partial defence fails. ( although it doesn’t have to be sudden there still has to
be a LOSS OF CONTROL, here it was pre-planned.)

Not revenge.
• s.54 (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a
considered desire for revenge.
• Clinton, Parker and Evans [2012] EWCA Crim 2
“10. The killing must have resulted from the loss of self control. The loss of control need not
be sudden, but it must have been lost. That is essential. Before reaching the second ingredient, the
qualifying trigger, there is a further hurdle, that the defendant must not have been acting in a
‘considered’ desire for revenge... In the broad context of the legislative structure, there does not
appear to be very much room for any ‘considered’ deliberation. In reality, the greater the level of
deliberation, the less likely it will be that the killing followed a true loss of self control.” per Judge, LCJ

Sjolin: LOC often is revenge, but hot rather than cold.

Qualifying Trigger.
*Under common law of provocation trigger is confined to the emotion of anger, but could be from
anything said or done, e.g. baby crying as in DOUGHTY (1986) 83 Cr App R 319
*NOW DEFINED UNDER S.55 C&JA 2009.
TWO TRIGGERS:
1. FEAR OF SERIOUS VIOLENCE: and/or
2. OUTRAGE/ANGER (see wording of statue)

Doughty - The one about… the father who killed his 17 day old baby because it wouldn’t stop crying.
Held – CA said that a crying baby could constitute provocation for the purposes of s.3.
Dawes - “the circumstances in which the qualifying triggers will arise is much more limited than the equivalent provisions in the former
provocation defence. The result is that some of the more absurd trivia which nevertheless required the judge to leave the provocation
defence to the jury will no longer fall within the ambit of the qualifying triggers defined in the new defence” (at para 60).

Section 55 Triggers.
S.55(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious
violence from V against D or another identified person.

S. 55(4) This subsection applies if D’s loss of self-control was attributed to a thing or things done or
said (or both) which-----
(a)constituted circumstances of an extremely grave character, and
(b)caused D to have a justifiable sense of being seriously wronged.

S.55 (5) This subsection applies if D’s loss of self-control was attributed to a combination of the
matters mentioned in subsection (3) and (4).

rd
Fear – must be of serious violence from V but need not be directed at D – D might be protecting a 3 party.
In many cases where D raises self-defence as a defence but fails, he might also rely on LOC to reduce the conviction to manslaughter.
However, as the CA pointed out in Martin, it is not automatic that there is a potential LOC defence where self-defence has been pleaded
since there must be a fear of serious violence which is not a requirement for self defence.
s.55 in full:
55Meaning of “qualifying trigger”
(1)This section applies for the purposes of section 54.
(2)A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3)This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified
person.
(4)This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—
(a)constituted circumstances of an extremely grave character, and
(b)caused D to have a justifiable sense of being seriously wronged.
(5)This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6)In determining whether a loss of self-control had a qualifying trigger—
(a)D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the
purpose of providing an excuse to use violence;
(b)a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of
providing an excuse to use violence;
(c)the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7)In this section references to “D” and “V” are to be construed in accordance with section 54
Interpreting the triggers
Clinton, Parker and Evans [2012] EWCA Crim 2

“11. In section 55(3) it is not enough that the defendant is fearful of violence. He must fear serious
violence. In subsection (4)(a) the circumstances must not merely be grave, but extremely so. In
subsection (4)(b) it is not enough that the defendant has been caused by the circumstances to
feel a sense of grievance. It must arise from a justifiable sense not merely that he has been
wronged, but that he has been seriously wronged. By contrast with the former law of
provocation, these provisions… have raised the bar. We have been used to a much less
prescriptive approach to the provocation defence.”

“12… indeed all the requirements of section 55(4)(a) and (b), require objective evaluation”, per
Judge, LCJ.

Ø Subjective Q – ‘did D feel seriously wronged?’

Ø Objective Q – ‘were the circumstances extremely grave?’ and ‘was D justified in feeling
seriously wronged?’

Triggers in practice
• Bowyer [2013] EWCA Crim 322 - D killed V when V returned to his home to find
D in the process of committing burglary. D claimed to have lost self-control as a
result of V’s actions when he found D there. CA: “it is absurd to suggest that the
entirely understandable response of the deceased to finding a burglar in his
home provided the appellant with the remotest beginnings of a basis for
suggesting that he had any justifiable sense of being wronged, let alone
seriously wronged” (at para 66).

• See also Hatter (part of same appeal with Dawes and Bowyer) - CA doubted if
the break up of a relationship could amount to circumstances of an extremely
grave character that resulted in a feeling of being seriously wronged.

• Both triggers can be combined and pleaded together: s.55(5) and Dawes.

Triggers: exclusions
S.55(6) In determining whether a loss of self-control had a qualifying trigger-
*(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which
D incited to be done or said for the purpose of providing an excuse to use violence.
*(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing
to be done or said for the purpose of providing an excuse to use violence:
*(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Exclusion: self-induced provocation

Dawes:[2013] EWCA Crim 322

“THE MERE FACT THAT IN SOME GENERAL WAY THE DEFENDANT WAS BEHAVING BADLY AND
LOOKING FOR AND PROVOKING TROUBLE DOES NOT ITSELF LEAD TO THE DISAPPLCATION OF THE
QUALIFYING TRIGGERS…. UNLESS HIS ACTIONS WERE INTENDED TO PROVIDE HIM WITH THE EXCUSE
OR OPPORTUNITY TO USE VIOLENCE”

but
“One may wonder ( and the judge would have to consider) how often a defendant who is out to
incite violence could be said to ‘fear’ a serious violence: often he may be welcoming it. Similarly, one
may wonder how such a defendant may have a justifiable sense of being seriously wronged if he
successfully incites someone else to use violence towards him”
(PARA 58.)

Exclusion: sexual infidelity: Clinton

• D claimed V had taunted him about a range of matters including her sexual infidelity, that he
did not have the courage to kill himself and that she did not care about their children.
• CA held: although infidelity cannot itself constitute a trigger it may be taken into account as
part of the background of a case (i.e. when assessing other triggers).
“23. The taunts and distressing words, which do not themselves constitute sexual infidelity,
would fall to be considered as a possible qualifying trigger. The idea that, in the search for a
qualifying trigger, the context in which such words are used should be ignored represents an
artificiality that the administration of criminal justice should do without. And if the taunts by
the unfaithful partner suggested that the sexual activity which had just been taking place
was infinitely more gratifying than any earlier sexual relationship with the defendant, are
those insults – in effect using sexual infidelity to cause deliberate distress - to be ignored?”

Although historically sexual infidelity has been a typical example providing a defendant with something “said or done” giving rise to
provocation, the Government was clear that times have changed:
“It is quite unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred. We want to
make it absolutely clear that sexual infidelity on the part of the victim can never justify reducing a murder charge to manslaughter. This
should be the case even if sexual infidelity is present in combination with a range of other trivial and commonplace factors.”
What does sexual infidelity mean and possible anomalies: does the term only relate to sexual acts, and would, therefore, confessions of
love for another, where no sexual activity has taken place, remain as qualifying triggers? Similarly, what would be the case if a victim lied
about an affair, that did not take place, and this caused a loss of control? Furthermore, what would be the position of a jealous stalker, who
killed the victim who he found having sex with another? In such a case, this would not be a case of ‘sexual infidelity’ as there was no prior
relationship with an expectation of fidelity. It would be a strange law that allowed this as a trigger, but excluded it if the victim’s partner
found her having sex with another. Similar arguments were made in relation to ex partners who killed the victim who had a relationship
with another after the end of their relationship. Would this be sexual infidelity?
Clinton - The defendant killed his wife by beating her about the head with a wooden baton, strangling her with a belt, and then tightening
a piece of rope around her neck with the aid of the baton. She had admitted to him that she had been having an affair and the defendant
claimed that, just prior to the killing, his wife had taunted him about a range of matters including her sexual infidelity to him, that he did
not have the courage to kill himself and that she did not care about their children. The trial judge withdrew the defence of loss of self-
control from the jury for three reasons: the taunts as to fidelity were excluded as a trigger because they fell into the category of things said
or done which “constituted sexual infidelity” within the meaning of section 55(4) of the Coroners and Justice Act 2009 ; the other matters
could not constitute circumstances of an extremely grave character; and they could not have caused the defendant to have a justifiable
sense of being seriously wronged. The defendant appealed against his conviction for murder.
“20. Whatever the anomalies to which it may give rise, the statutory provision is unequivocal: loss of control triggered by sexual infidelity
cannot, on its own, qualify as a trigger for the purposes of the second component of this defence. This is the clear effect of the legislation”,
per Judge, LCJ.
However, what if other triggers were operative, and sexual infidelity was part of the context that explains the defendant’s reaction? The
example given by Lord Judge was of a defendant who found his partner having sex with someone else, and upon discovery the victim
defended her position and taunted the defendant, blaming the defendant for the infidelity. This is context of quote on slide.
“31. In relation to the third component, that is the way in which the defendant has reacted and lost control, “the circumstances” are not
constrained or limited. Indeed, section 54(3) expressly provides that reference to the defendant’s circumstances extends to “all” of the
circumstances except those bearing on his general capacity for tolerance and self restraint. When the third component of the defence is
examined it emerges that, notwithstanding section 55(6)(c), account may, and in an appropriate case, should be taken of sexual infidelity.”
BUT D pleaded G to murder when his case was heard at retrial. Why would he do that? Because the objective test still needs to be met.

Final Objective Test

S 54(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 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.
…
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.

History of objective test

*Camplin [1978] AC 705: the “reasonable man” test.

-Characteristics which affect the gravity of the provocation - i.e. which are the subject of the
provocation
vs
-Characteristics which affect D’s ability to control his reaction to the provocation

*Smith [2001] 1 AC 146 – HL suggested the second category of characteristics was relevant.
*A G for Jersey v Holley [2005] UKPC 23- PC held test entirely objective; only the first category of
characteristics relevant.
* Coroners & Justice Act 2009 prefers Holley approach.
*Holley approach confirmed in Rejmanski [2017]- diminished responsibility is alternative defence for
those suffering mental abnormality.
Camplin - The one about… boy was buggered by deceased who then taunted him. Boy killed him with chapatti pan.
Held – Reasonable man = “a person having the power of self-control to be expected of an ordinary person of the sex and age of the
accused, but in other respects sharing such of the accused’s characteristics as they [the jury] think would affect the gravity of the
provocation to him”.
Smith - The one about… the manic depressive who killed in an argument over tools.
HL Held 3-2 – aspects of D (such as serious clinical depression) that affect D’s ability to control his actions should be considered.
Holley - The one about… the alcoholic who fatally attacked his girlfriend with an axe.
PC Held – test is entirely objective. D to be judged against “ordinary person” and alcoholism not relevant. Smith disapproved
Holley approach confirmed in Rejmanski [2017] EWCA Crim 2061 –those suffering from a mental disorder should rely on DR as a defence;

Asmelash [2013] EWCA Crim 157.

* D was drunk at the time he stabbed V. Pleaded loss of control.
* Question for CA: does “all of D’s circumstances” include the fact D was drunk?
* Held: No. Trial judge was right to direct jury that they should consider whether a person unaffected
by drink would have reacted in similar way.

the defendant had been drunk at the time that he stabbed the victim, and said that he had lost self control and did not really know what
had happened, but (somewhat inexplicably) was not so drunk that he did not know what he was doing. The judge directed the jury that
they should consider whether a person unaffected by drink would have reacted in a similar way. Appeal against murder dismissed.
“If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint might have behaved in the same
way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence, just because
he was not sober” (at para 25).
“different considerations would arise if, a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the
condition, to the extent that it constituted a qualifying trigger, the alcohol or drug problem would then form part of the circumstances for
consideration” (at para 25).
Other circumstances that may be relevant? Clinton – relevance of sexual infidelity shifted from trigger to this test. It is relevant to consider
here.
Mentally Disordered Offenders who Kill.
General defence: Insanity.
* M’Naghten’s Case (1843)
* Rules: “To establish a defence on the ground of insanity it must be clearly proved that, at the time
of the committing of the act, the party accused was labouring under such a [1] defect of reason, from
[2] disease of the mind, as [3] not to know the nature and quality of the act he was doing; or, if he
did know it, that he did not know he was doing what was wrong”
*Results in special verdict: not guilty by reason of insanity
*Must stem from an internal cause (external cause = automatism)
e.g. epilepsy (Sullivan)
*Problems: label of “insanity”; difficulty in proving requirements, especially [3] above; disposal
(potential hospital order).
= Denial of responsibility.
R. v Sullivan [1984] A.C. 156 (House of Lords)
Disposal is now governed by section 5 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Under this Act, the judge is
provided with three disposal options:
(a)
a hospital order (with or without a restriction order);
(b)
a supervision order; and
(c)
an order for an absolute discharge.

Diminished Responsibility: Homicide Act 1957, s.2

(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 omission sin 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 section (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 e convicted of murder.

As amended by Coroners & Justice Act 2009

The burden is on D to prove diminished responsibility on the balance of probabilities
Diminished Responsibility: requirements.
(USE AS HEADINGS IN THE QUESTION ANSWERS).

1. An abnormality of mental functioning.

2. From a recognised medical condition.
3. That substantially impairs D’s ability to:
a) Understand the nature of his conduct or
b) Form a rational self-judgment or
c) Exercise self-control; and
4. Provide an explanation for D’s acts

Abnormality of mental functioning

*The old law required D to suffer from an ‘abnormality of mind’; this was regarded as a very vague
concept that did not translate well to psychiatric practice. The phrase ‘abnormality of mental
functioning’ is thought to better fit with psychiatric understandings of mental illness.
*Williams [2013] EWCA Crim 2749: ‘the extent to which a person’s acts are the choice of a free and
rational mind’.
the D will be whilst in prison will be diagnosed regarding any psychiatric illness.

abnormality of mental functioning is more user-friendly for expert witnesses. However, the other requirements are more likely to affect the
success of the defence.

Recognised Medical Condition

*Medical condition is ‘recognized’ if it is listed in one of the accepted classificatory systems such as
the WHO’s International Classification of Diseases or the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders.
A DIAGNOSIS IS ESSENTIAL.
*Expert evidence is a ‘practical necessity’ (Bunch [2013] EWCA Crim 2498) but is not decisive as a
jury may not accept it. (it is still up to the jury to decide).
*In cases involving alcohol, need to distinguish alcoholism from intoxication.

Alcoholism. (alcohol dependency syndrome)

*Tandy [1988] 1 All ER 267 – under old law alcoholism could form the basis of defence if the first
drink of the day was involuntary.
*Dietshmann [2003] 1 AC 1209 HL: where D pleads DR resulting from the combination of mental
abnormality and intoxication the jury should be satisfied that, despite the drink D’s mental
abnormality substantially impaired his mental responsibility for his fatal acts
*Williams [2013] EWCA Crim 2749

and

Intoxication.
*Dowds [2012] EWCA Crim 281: ‘acute intoxication’ is not a recognised medical condition, despite
being listed in the WHO ICS-10
*Kay [2017] EWCA Crim 647 A D suffering from schizophrenia who killed while intoxicated could rely
on DR if their condition was of such severity that, even without intoxication, it would have impaired
their responsibility. BUT in this case there was no medical evidence that D’s underlying illness was of
such a degree that, independent of drug or alcohol abuse, it substantially impaired his responsibility.
Conviction for murder upheld.

Williams (if the answer to any of this Qs is no, then it is not DR and another defence should she chosen)
was the defendant suffering from an abnormality of mind [now mental functioning] at the time of the killing?
2. if so, was it caused by disease or illness [now recognized medical condition]? As we have said, Alcohol Dependency Syndrome may
qualify; and
3. if it was so caused, did the abnormality of mind [now mental functioning] substantially impair the defendant’s mental responsibility for
his acts or omissions in being a party to the killing [now: ability to do one of the things listed under subsection (1A)]?

Dowds - The defendant was drunk at the time that he stabbed his partner 60 times, killing her, but there was no suggestion that he was
suffering from alcohol dependency syndrome.
Instead, he tried to argue diminished responsibility on the basis that “acute intoxication” is listed in the WHO ICD-10 and should
therefore amount to a recognised medical condition for the purposes of pleading diminished responsibility. The Court of Appeal rejected
this argument on the basis that the Law Commission explicitly did not include writing the terms of ICD-10 and/or DSM-IV into the
legislation, for which purpose those terms are “demonstrably unsuited”. Pleading diminished responsibility successfully does not as simple
as relying on the presence of a particular condition on any such diagnostic list. Being on the list is a necessary but not sufficient condition
for diminished responsibility to apply. ( so he couldn’t rely on the defence).

Kay = combined with case of ‘Joyce‘ :

Kay was a paranoid schizophrenic. He knew that drug use triggered and exacerbated his symptoms but was a habitual drug user. He
spent three days consuming excessive amounts of alcohol and drugs including heroin, cocaine, amphetamine, and ecstasy and became
psychotic. Kay entered the victim's garage with a large kitchen knife and stabbed him 35 times in the face, chest, and legs. A person
suffering from schizophrenia who killed while intoxicated could rely on the defence of diminished responsibility.

if their condition was of such severity that, even without intoxication, it would have impaired their responsibility. (the
explanations for his actions would be his schizophrenia and not the alcohol).

They could also rely on the defence if the schizophrenia was coupled with drink or drug dependence which together substantially
impaired responsibility.

Substantially impairs D’s ability to ...

*UNDERSTAND THE NATURE OF HIS CONDUCT OR

*FORM A RATIONAL SELF-JUDGMENT OR
*EXERCISE SELF-CONTROL

Conroy [2017] EWCA Crim 81 – D with an autistic spectrum disorder had strangled a fellow care home resident in order to have sex with
her undisturbed. Three psychiatrists for the defence, and one for the Crown (P4), agreed that C suffered from an abnormality of mental
functioning. They disagreed whether it substantially impaired his ability to form a rational judgment; P4 said it did not. The judge's
summing up stated that the outcome of C's thought process had been to kill M for sex, which was on any view irrational, and instructed the
jury to ask if the thought process leading to that was irrational, and whether his ability to rationally form a judgment had been substantially
impaired. The jury unanimously rejected diminished responsibility and convicted D of murder. Conviction upheld.
Meaning of Substantial
*Ramchum [2010] 2 Cr App R 3

“Substantially” is an ordinary English word… designed to ensure that the murderous activity of a
defendant should not result in a conviction for manslaughter rather than murder on account of any
impairment of mental responsibility, however trivial and insignificant but equally that the defence
should be available without the defendant having to show that his mental responsibility for his
actions was so grossly impaired as to be extinguished.’ [per Judge, LCJ, at 23.]

*Golds [2016] UKSC 21 (INCLUDE, IN THE ANSWER!)

Ordinarily in a murder trial where diminished responsibility is an issue, the judge does not need to
direct the jury beyond the terms of the statute and should not attempt to define the meaning of
‘substantially’. Where the jury requires further explanation, the judge should explain that whilst the
impairment had to pass the merely trivial before it needed to be considered, it was not the law
that any impairment beyond the trivial would suffice. (the jury will be directed according to this
and are likely to take what the expert is telling them).
Golds - Illustrative expressions of the sense of the word might be employed so long as the jury was given clearly to understand that no
single synonym was to be substituted for the statutory word.
Accordingly, the judge had not erred in not directing the jury as to the meaning of the word “substantially” in s.2. Appeal against murder
conviction dismissed.

Per curiam
(i) Medical evidence (nearly always forensic psychiatric evidence) has always been a practical necessity where the issue is diminished
responsibility. Although it is for the jury, and not for the doctors, to determine whether the partial defence is made out, and this important
difference of function is well recognised by responsible forensic psychiatrists, it is inevitable that they may express an opinion as to
whether the impairment was or was not substantial, and if they do not do so in their reports they may be asked about it in oral evidence. It
is therefore important that if they use the expression, they do so in the sense in which it is used by the courts (see post, [38]).
(ii) So long as the experts understand the sense in which “substantially” is used in the statute, and that the decision whether the threshold
is met is for the jury rather than for them, it is a matter for individual judgment whether they offer their own opinion on whether the
impairment will have been substantial or confine themselves to the kind of practical effect it would have had (see post, [42]).

Provides an explanation for D’s conduct.

s.2(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.
*Question of whether the condition causes the defendant’s acts (see previous cases on intoxication).
*Need not be the only cause for D’s actions.
Reverse burden
*S.2(2) 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.

*Foye [2013] EWCA Crim 475: CA concluded reverse burden does not breach ECHR
(Art. 6 (2) right to a fair trial) because:

i) DR is an exceptional defence available in an appropriate case with a view to avoiding the

mandatory sentence which would otherwise apply, so that a discretionary sentence can be imposed,
tailored to the circumstances of the individual case.

ii) DR depends on the highly personal condition of D himself, indeed on the internal functioning of his
mental processes. (THE D WOULD NEED TO PROVE THAT= DIAGNOSIS)

iii) A wholly impractical position would arise if the Crown had to bear the onus of disproving DR
whenever it was raised on the evidence; that would lead not to a potentially unfair trial (at para 23).

*Breannan [2014] EWCA Crim 2387 – where unchallenged evidence of DR judge should withdraw
murder from the jury.

Brennan:
B, who was 22 at the time, had been working as a male escort. He brutally killed one of his clients. B had had personality and mental health
issues since childhood. The only issue at trial was his defence of diminished responsibility. The evidence adduced in support of that
defence was from a consultant forensic psychiatrist (M). Her opinion was firmly in support of the defence and was not contradicted by any
expert evidence adduced by the Crown, which called no expert evidence at all in that regard. Nevertheless, the jury convicted B of murder.

Held: Appeal allowed.

(1) Where there was unchallenged medical evidence of diminished responsibility and no other evidence which, looked at in the
round, was at least capable of rebutting the defence, the trial judge should withdraw a charge of murder from the jury. This was
such a case. The Crown had sought to identify matters which were capable of displacing the uncontradicted opinion of M. It
relied, among other things, on admitted evidence of planning and premeditation. However, all of those matters had been
addressed by M in the course of her evidence. She explained unequivocally and rationally why in her opinion they did not
displace the defence of diminished responsibility. Further, no expert was called by the Crown to say to the jury that such
matters might not be consistent with diminished responsibility. In the circumstances, B's conviction was unsafe and a verdict of
manslaughter should be substituted.

(2) B's case seemed to be the first of its kind to come before the appellate court in the context of a defence of diminished
responsibility under the Homicide Act 1957 s.2 as amended. The new wording of s.2 gave significantly more scope to the
importance of expert psychiatric evidence. There was now essentially a four-stage test: whether the defendant was suffering
from an abnormality of mental functioning; if so, whether it had arisen from a recognised medical condition; if so, whether it
had substantially impaired his ability either to understand the nature of his conduct or to form a rational judgment or to
exercise self-control (or any combination); if so, whether it provided an explanation for his conduct. The new provisions were
significantly more structured than the former provisions. Most, if not all, of the aspects of the new provisions related entirely to
psychiatric matters. It would be both legitimate and helpful for an expert psychiatrist to include in his evidence a view on all four
stages, including a view as to whether there was substantial impairment. Moreover, where he was able to and did express a
view on all four matters, there could be no objection to his making explicit his opinion on the "ultimate issue", the more so
when such view would probably have been implicit from his stated opinion on the four matters.

Challen [2019] EWCA Crim 916; [2019] Crim LR 980

Law Reform: gaps in current law and Law Commission recommendations.

• Mercy killings?
– It is currently an offence under the Suicide Act 1961 to assist or encourage
manslaughter.
– Mercy killings often satisfy the requirements for murder with no defence.
– Can we rely on prosecutorial discretion to prosecute only those deserving of
punishment? See Nicklinson v MoJ [2014] UKSC 38
• Victims of domestic abuse who kill still have to rely on diminished responsibility?
– see, for example, Challen [2019] EWCA Crim 916
• Fair labelling vs fair sentencing?
– some have argued that those with a partial defence to (1st degree) murder warrant
the label of manslaughter rather than 2nd degree murder, as well as avoiding the
mandatory life penalty.
– Current sentencing guidelines for manslaughter reflect comparative culpability
between species of manslaughter.

Challen was convicted of murder in 2011, having killed her husband and been portrayed at her trial as a jealous woman taking revenge on
him for his infidelity. Challen’s appeal against conviction eight years
later relied on evidence that she was the victim of coercive and controlling behaviour, the abuse being psychological rather than
necessarily physical. Whilst the Court of Appeal’s decision to quash Challen’s
murder conviction and order a retrial was welcomed by many as a victory for victims of coercive control, it is far from clear that a
defendant in her situation would succeed in pleading loss of control. The court merely accepted that there was fresh evidence of a
psychiatric condition that could have impacted on her ability to exercise self-control or her responsibility for her actions. Challen chose to
plead guilty to manslaughter based on DR at the retrial. Not so dissimilar to Ahuluwalia.