PRINCIPLES OF CRIMINAL LIABILITY REVISION Elements of a crime: Actus Reus + Mens Rea +The Absence of a Valid Defence ACTUS REUS The physical element of the defence: an act, a failure to act (an omission) or a ‘state of affairs’. For some crimes, the actus reus must also result in a consequence e.g. for murder or for ABH. Actus Reus must be voluntary – Hill v Baxter (automatism) State of affairs: where D is convicted even though they did not act voluntarily. Larsonneur; Winzar OMISSIONS Normal Rule = an omission cannot make a person guilty Comparison with other legal systems = good Samaritan law exists in some systems e.g. France. Exception to the normal rule : An act of Parliament can create liability for an omission e.g. failure to report a road traffic incident, failing to provide a specimen of breath For common-law crimes an omission is only sufficient for the actus reus if there is a duty to act. a. A contractual Duty (Pittwood) b. A duty because of a relationship (Gibbins & Proctor) c. A duty which has been taken on voluntarily (Stone & Dobinson) d. A duty through one’s official position (Dytham) e. A duty which arises because the defendant has set in motion a chain of events (Miller; Santana – Bermudez) Clarification needed in certain areas: Discontinuance of medical treatment – if it is in the best interests of the patient then it is NOT an omission which can form the actus reus of murder (Airdale NHS Trust v Bland) Unlawful Act Manslaughter – cannot be committed by an omission because there must be an unlawful ACT (Lowe) Gross Negligence manslaughter can be committed by an omission. If a duty of care exists then the D can be liable if an omission or failure to act causes death. CAUSATION Where a consequence must be proved (RESULT RATHER THAN CONDUCT CRIMES), then the prosecution has to show that the D’s conduct was: The factual cause of the consequence The legal cause of the consequence There was no intervening act which broke the chain of causation Factual ‘But for Test’ – (White; Pagett) Legal Conduct which is more than a ‘minimal cause’ of the consequence but not necessarily a ‘substantial cause’ (Kimsey – More than a slight or trifling link) The Thin Skull Rule – taking the victim as you find them (Blaue) Intervening Acts In order to break the chain of causation so that D is not responsible for the consequence, the intervening act must be sufficiently independent of the D’s conduct and sufficiently serious. Act of the victim themselves - if D causes the victim to react in a foreseeable way then any injury to the victim will be considered to have been caused by D. (Roberts, Marjoram); If the victim acts in an unreasonable and unforeseeable way then it may break the chain of causation (Williams); Where the wounds caused by D were still an ‘operating and significant cause’ the jury are entitled to convict D, even if V had effectively decided to commit suicide by allowing the wounds to continue to bleed (Dear). Act of a third party - Where the D’s conduct causes a foreseeable action by a third party, then the D is likely to be held to have caused the consequence. (Pagett). o Medical treatment: Provided that the injury caused by D was still an operating and substantial cause of death, D would be guilty (Smith); D’s act need not be the sole or even the main cause of death, provided that his acts contributed significantly to the death. ‘Unless the negligent treatment was so independent of D’s acts and in itself so potent in causing death, that the jury regard the contribution made by the D as insignificant’. (Cheshire); But where treatment is ‘palpably wrong’ it will break the chain of causation (Jordan). o Life Support Machines – The switching off of a life-support machine by a doctor when it has been decided that the victim is brain dead, does not break the chain of causation (Malcherek) A natural but unpredictable event – e.g. ambulance crash which kills a victim who suffered minor injuries etc. ACTIVITY: Have a look the following problem questions and assess whether or not D is the factual and legal cause of the consequence. John, who has learning difficulties, is a member of his school's under-16 mixed hockey team. The team's captain, Ken, constantly criticises John in front of the other members of the team for being overweight and slow. During a particularly rough game against a rival school, John lost the ball to Katie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously, "you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katie next moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick. After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher, Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see her doctor in the morning. Katie ignored this advice and went out to party where she danced until ten o'clock. However, that night Katie collapsed and was taken to hospital, where she died. It was later discovered that her death was due to a blood clot caused by the blow to her leg, and that her life could have been saved if she had received prompt medical treatment. Consider whether John may be criminally liable for Katie's death Causation - John's blow was clearly the factual cause of Katie's death, on the "but-for" test in White, so the issue is whether the conduct of either Lisa or Katie amounts to a novus actus interveniens. Katie's conduct in ignoring Lisa's advice would seem to fall within the principle of taking one's victim as you find her: Blaue. If V failed to seek medical treatment (Holland) or acts in a way which exacerbates the risk of death (Wall) this will not normally break the chain of causation (Dear) - although it may be relevant to sentence if D is convicted of manslaughter. Lisa is slightly more problematic: she clearly has a duty of care towards Katie and it could be argued that she failed to discharge this by merely giving and would not warrant taking Katie to hospital. Candidates may argue that Lisa should have administered first aid, and draw analogies with cases involving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may be aware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughter for failure to diagnose and treat MRSA). However, it seems very unlikely that Lisa's conduct would be held to have broken the chain of causation. June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavy and un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost her temper and for a moment she did not care whether she hurt Mary or not. Although it was strictly against the nursing home's rules, she grasped Mary under the armpits and physically hauled her into the wheelchair. The wheelchair toppled under Mary's weight, crushing Kitty against the wall. Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tell anyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticed that Mary's arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned out that Mary's arm was broken and the hospital decided to keep her in for a few days. Meanwhile, Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had come by her injury. That night, Kitty collapsed and died from internal bleeding. Mary's broken arm healed well but while she was in hospital she contracted MRSA and subsequently died from that infection. Consider whether June may be criminally liable for the deaths of Kitty and Mary.  Causation issue – candidates may draw analogies with cases involving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may be aware of Misa and Srivastave (2005), where doctors held guilty of gross negligence manslaughter for failure to diagnose and treat MRSA). However, it could be argued that the risk of picking up an infection while in hospital is a predictable consequence of injuring someone and would not break the chain of causation. Charlie became very depressed after his girlfriend Ruby, ended their relationship and married David. He wrote dozens of letters to Ruby, begging her to leave David and come back to him. Eventually, David went to see Charlie at his flat, and told him that this behaviour would have to stop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. The blow fractured David's skull, which was abnormally thin. Charlie immediately summoned an ambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital, David's heart had stopped beating and he was no longer breathing. David was rushed to the intensive care unit and placed on a life-support system. The doctors told Ruby that even if David survived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, so while the doctors were out of the room, she disconnected the machines that were keeping him alive. Consider whether Charlie and Ruby may be criminally liable for David's death. Causation – whether David's death is legally attributable to the actions of Charlie or Ruby. This depends on whether David was still alive when Ruby turned off the life support system. Under the conventional criteria (no heartbeat, not breathing) David was dead when he reached hospital; however, the courts have shown willingness to accept the medical criterion of brain-stem death. In Malcherek and Steel, the CA upheld convictions for murder where victims were on life-support machines and the doctors switched off the machine after tests showed that the victims were brain- dead. The CA recognised that brain death is the accepted medical criterion of death, but did not actually decide that this is the legal definition of death. In Airdale NHS Trust v Bland, there are dicta in the House of Lords to the effect that brain-stem death is the legal test of death. Charlie – if Charlie’s actions were held to be the legal cause of death, he may be guilty of murder or manslaughter depending on his state of mind when he struck David. MENS REA INTENTION ‘a decision to bring about, in so far as it lies within the accused’s power, the prohibited consequence, no matter whether the accused desired that consequence of his act or not’ (Mohan) MOTIVE IS IRRELEVANT IN DECIDING WHETHER D HAD INTENTION DIRECT INTENTION The defendant set out to achieve a particular result or consequence. They foresaw a particular result as a certainty and wanted to bring it about. Defined in Moloney as: ‘a true desire to bring about the consequences’. INDIRECT/OBLIQUE INTENTION (foresight of consequence) Where D intends one thing but the actual consequence which occurs is another thing. Here it is a question of foresight of consequence. If, in achieving the other thing, D foresaw that he would also cause the actual consequence, then he may be found guilty. Case Law: Moloney: HL’s confirmed that even where it was not someone’s desire, purpose and so on, the jury is entitled to infer that he still intended a result where D knows that the result is a natural consequence of his actions & D realised this. Hancock & Shankland: In such cases the probability of death or injury arising from the act done is important, because "if the likelihood that death or serious injury will result is high, the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure." Nedrick: ‘The jury should be directed that they are not entitled to INFER the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. The decision is one for the jury to be reached on a consideration of all of the evidence.” Woolin: ‘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 (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. Re A: The court thought that Woollin made foresight of consequence part of the substantial law rather than evidential law by substituting the word INFER with FIND i.e. that foresight of consequence IS intention not evidence of intention. Mathews and Alleyne: Confirmed that foresight of a consequence, even of a virtually certain one, is NOT intent, but simply evidence from which intention may be found. Although the CA said there was little to choose between a rule of evidence and a rule of substantive law leaving the meaning of intention ever more unclear. REFORM: Under our recommendations, first degree murder would encompass: (1) intentional killing; or (2) killing through an intention to do serious injury with an awareness of a serious risk of causing death. The Law Commission in common with a House of Lords Select Committee recommends that foresight of a virtual certainty should amount to intention. This would mean that foresight would again be part of the substantive law, not merely part of the evidence. At present, a person who kills foreseeing death or grievous bodily harm as virtually certain may be convicted of murder; under the reformed scheme such a person would be convicted of murder. RECKLESSNESS: Covers the situation where a defendant takes an unjustifiable risk. As with intention, it is a subjective test, and the defendant must recognise the risk that he or she is taking. Recklessness was defined in the case of R v Cunningham. Maliciously means that the D must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk. Previously two different types of recklessness existed - subjective and objective (Caldwell Recklessness), but the objective form is now extinct following the case of R v G and Another (2003). GROSS NEGLIGENCE: Where D owes a duty of care, breaches that duty (by an act or omission) and creates a risk of death. (Misra & Another 2004 – bodily injury or injury to health not enough)The breach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)). TRANSFERRED MALICE : D can be guilty if he intended to commit a similar crime but against a different victim. (Latimer). But where the mens rea is completely different type of offence then D may not be guilty (Pembilton) GENERAL MALICE: D may not have a specific victim in mind e.g. terrorism. In this case the D’s mens rea is held to apply to the actual victim. COINCIDENCE OF ACTUS REUS AND MENS REA: Both actus reus and mens rea must be present for an offence to take place. This can happen where the actus reus and mens rea combine in a series of acts (Thabo Meli v R; Church). As long as they coincide at some point (say where the actus reus is a continuing act) then D will be guilty (Fagan). ACTUS REUS AND MENS REA OF OFFENCES RELEVANT TO THE EXAM MURDER: AR: D kills a reasonable creature in being, under the Queens peace, and the killing is unlawful MR: Express malice aforethought – which is the INTENTION to kill or implied malice aforethought – which is the INTENTION to cause grievous bodily harm. BURDEN/STANDARD OF PROOF: The prosecution must prove beyond reasonable doubt. VOLUNTARY MANSLAUGHTER: Same AR & MR as Murder, but the killing occurs when the D is under diminished responsibility, loss of control or suicide pact. In other words the D kills a reasonable creature in being, under the Queens peace, and the killing is unlawful. They intend to kill or cause GBH, but at their state of mind at the time of the killing means that a partial defence exists. BURDEN/STANDARD OF PROOF: Defendant has to prove on a balance of probabilities. INVOLUNTARY MANSLAUGHTER: UNLAWFUL ACT MANSLAUGHTER: AR: D does an unlawful act (Lamb; Lowe) which is dangerous on an objective test (Church; Larkin; Mitchell)and the act causes death (Dalby, Kennedy, Dias, Rogers) MR: the required mens rea for the unlawful act, e.g. the mens rea for ABH, for Burglary, Robbery (Newbury & Jones) etc. BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. GROSS NEGLIGANCE MANSLAUGHTER AR: Act or omission in breach of an existing duty of care which creates a risk of death and results in death. MR: Conduct so bad in all the circumstances as to amount to a criminal act or omission. Conduct beyond a matter of mere compensation, showing such disregard for life and safety of others as to amount to a crime. BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. RECKLESS MANSLAUGHTER AR: An act or omission which results in death. MR: Recklessness – D realises that there was a risk of the consequence happening and decide to take that risk. BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. ASSAULT & BATTERY: AR: causing V to fear immediate unlawful force (assault) or application of unlawful violence even the slightest touching (battery) MR: Intention of, or subjective recklessness BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. ABH: AR: Assault i.e. an assault or battery with the consequence of ABH MR: Intention or subjective recklessness BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. S.20 GBH: AR: D wounds or INFLICTS grievous bodily harm with or without a weapon or instrument MR: Intention or subjective recklessness BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. S.18 GBH: AR: D wounds or CAUSES grievous bodily harm MR: Intent to do some grievous bodily harm or to resist or prevent the lawful apprehension or detainer of any person BURDEN/STANDARD OF PROOF: Prosecution must prove beyond reasonable doubt. ACTIVITIES Visit each of the problem questions and assess whether or not D has demonstrated the mens rea for the relevant offence(s). John, who has learning difficulties, is a member of his school's under-16 mixed hockey team. The team's captain, Ken, constantly criticises John in front of the other members of the team for being overweight and slow. During a particularly rough game against a rival school, John lost the ball to Katie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously, "you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katie next moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick. After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher, Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see her doctor in the morning. Katie ignored this advice and went out to party where she danced until ten o'clock. However, that night Katie collapsed and was taken to hospital, where she died. It was later discovered that her death was due to a blood clot caused by the blow to her leg, and that her life could have been saved if she had received prompt medical treatment. Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm: Moloney; knowledge that one's action is virtually certain to cause death or grievous body harm: Woollin. June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavy and un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost her temper and for a moment she did not care whether she hurt Mary or not. Although it was strictly against the nursing home's rules, she grasped Mary under the armpits and physically hauled her into the wheelchair. The wheelchair toppled under Mary's weight, crushing Kitty against the wall. Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tell anyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticed that Mary's arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned out that Mary's arm was broken and the hospital decided to keep her in for a few days. Meanwhile, Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had come by her injury. That night, Kitty collapsed and died from internal bleeding. Mary's broken arm healed well but while she was in hospital she contracted MRSA and subsequently died from that infection. state of mind – mens rea of murder = malice aforethought – an intention to kill or cause grievous bodily harm: Maloney. This requires knowledge that one's action is virtually certain to cause death or grievous bodily harm: Woolin. Recklessness will not suffice. June's state of mind looks like recklessness rather than intention to cause GBH, so would not amount to mens rea of murder. Charlie became very depressed after his girlfriend Ruby, ended their relationship and married David. He wrote dozens of letters to Ruby, begging her to leave David and come back to him. Eventually, David went to see Charlie at his flat, and told him that this behaviour would have to stop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. The blow fractured David's skull, which was abnormally thin. Charlie immediately summoned an ambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital, David's heart had stopped beating and he was no longer breathing. David was rushed to the intensive care unit and placed on a life-support system. The doctors told Ruby that even if David survived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, so while the doctors were out of the room, she disconnected the machines that were keeping him alive. Charlie – if Charlie's actions were held to be the legal cause of death, he may be guilty of murder or manslaughter depending on his state of mind when he struck David. Murder – intention to kill or cause grievous bodily harm. Possible defences –diminished responsibility on the basis that Charlie suffers from depression. Provocation – gravity of the provocation – any characteristic which affects the gravity of the provocation to D can be taken into account – Morhall. The degree of self control to be expected from an ordinary person – Morgan Smith, A – G for Jersey v Holley – PC restored view of majority in Luc Thiet Thuan – the CA in James; Karimi held that the PC in Holley had overruled the HL in Morgan Smith and it was bound tofollow Holley. Involuntary manslaughter – if Charlie lacked intention to kill or cause gbh, he may be convicted of manslaughter on the basis of an unlawful and dangerousact – Franklin. Newbury – mens rea is simply the intention to do the unlawful act –Scarlett, Owino. Direct: The defendant desires a consequence and it is his purpose to achieve it. Indirect/oblique: A result is indirectly intended even Intention though not desired, when: (1) That result is a virtually certain consequence, and (2) The actor knows that it is a virtually certain consequence (R v Hancock & Shankland (1986); R v Nedrick (1986); R v Woollin (1998) Varies according to the particular circumstances. The Law Commission suggested a general definition as follows: Recklessness A person is reckless if: (a) Knowing that there is a risk that an event may arise from his Mens conduct or that a circumstance may exist, he takes that risk, and Rea (b) It is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present. Defendant: Owes a duty of care Gross Negligence Breaches that duty and creates a risk of death. The breach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)). STRICT LIABILITY REVISION NOTES Definition & contrast with absolute liability Strict liability offences do not need mens rea to be established for D to be guilty. Actus Reus (voluntary) must be proved which is how SL offences differ from absolute liability ones where the actus reus may be committed involuntarily (Larsonneur/Winzar). It is a departure from the fundamental principle that a voluntary act, a guilty mind and absence of a valid defence must coincide for D to be guilty of an offence. This departure may be seen as unjust – i.e. that D may be morally innocent and have taken every possible step to ensure that they did not break the law but will still be liable (Callow v Tillstone). Mens rea may be required for part of the actus reus of an offence but not for others. (Prince (1875) and Hibbert (1869) & B v DPP as case examples) D may be convicted even if his act inadvertently caused a prohibited consequence and D is totally blameless. Most SL offences are statutory and regulatory in nature e.g health and safety laws and are put in place to protect the public. Some statutes explicitly state that the offence is one of strict liability (e.g. s.5,6&7 Sexual Offences Act 2003 – Rape, assault by penetration, sexual assault of a child under 13). But others are silent on the matter and this is where statutory interpretation comes in. Statutory language, such as “mens rea words” like ‘maliciously’ ‘knowingly’ demonstrate that the offence is NOT one of SL, as mens rea is required. Sometimes mens rea words are used in some sections but not others and so it may be construed as meaning that mens rea is not required to make D guilty of an offence under those sections. It may be the case that if these words are not included then Parliament intended it to be a strict liability offence. Case law shows inconsistency of statutory interpretation though. CRITICISMS JUSTIFICATION Is it EVER morally just to convict a person who The following cases show that the purpose of SL has no mens rea? Callow v Tillstone (1900) & offences is to make a ‘safer, cleaner, and more Harrow LBC v Shah and Shah (1999) are efficient society.’ Callow v Tillstone, examples of the fact that there is no due Pharmaceutical SGB v Storkwain (1986) Alphacell v Woodward (1972); James & son v diligence defence. In other words where D does Smee (1954) Harrow LBC v Shah and Shah all they can to avoid breaking the law they are (1999) ). Without SL offences companies may be still guilty because their act inadvertently causes harm despite their efforts. permitted to pollute rivers by disposing of controlled substances irresponsibly, they could Although Parliament sometimes includes a shirk responsibility for providing a safe place of defence for such people within a piece of work for employees and people could defend a legislation, there is a lack of consistency. case of drink driving if it were not a SL offence. There is no evidence to suggest that companies SL offences regulate behaviour and help in the will raise standards. If they will be convicted smooth running of society making it clear what should a mistake be made despite having taken is acceptable and what is unacceptable all reasonable steps, will they bother taking behaviour. those steps? Sometimes a defence of mistake exists, but this Principles in Gammon (1984) - This sets out the defence is applied inconsistently - Cundy v Le procedure for deciding whether an offence is cocq (1884) & Sherras v De Rutzen (1895). one of strict liability. It can be argued that Impact on public respect for the criminal law. If because of this procedure, SL offences can be the morally innocent are convicted, the public justified. may lose respect for the criminal justice system. 1. There is a presumption of mens rea. Sweet v Parsley; B v DPP (2000) ; R v K. Although many SL offences are summary in Kumar (2004), S(2005) nature (i.e. punishable by a fine) some are not 2. This presumption is particularly strong (Gammon) and may result in imprisonment for a where the offence is ‘truly criminal’ person who is morally innocent. In Gammon the rather than a quasi crime because it may penalty was up to 3 years imprisonment. involve stigma attached to D or a term of imprisonment. Quasi – (regulatory offences) – Callow v Tillstone (1900); Cundy v Le Coq (1884); Gammon (1984), Harrow LBC v Shah and Shah (1999), Alphacell v Woodward (1972). Truly Criminal - Sweet v Parsley (1970); B v DPP (2000); R v K (2001); R v BLAKE (1997) 3. The presumption can be displaced only if this is clearly or by necessary implication the effect of the statute 4. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is an issue). – discussion of the degree of social danger and rebutting the presumption. Sweet v Parsley (1970)Empress Car Company v National Rivers Authority (1998) Blake (1997)Bromley LC v C (2006) 5. Even where the statute is concerned with such an issue, the presumption stands unless it can be shown that making it a strict liability offence will lead to the promotion of standards and law enforcement)Reynolds v GH Austin and Sons Ltd ; Lim Chin Aik (1963); City of Saulte Ste Marie (1978); Smedleys Ltd v Breed (1974) SUGGESTIONS FOR REFORM Parliamentary guidance on statutory interpretation or make it explicitly clear where an offence is one of SL. Consistent application of the due diligence defence – i.e. if D has taken all possible steps to avoid the offence they will be innocent. ACTIVITIES THERE ARE MANY CASES TO DISCUSS IN AN ESSAY ON STRICT LIABILITY!!! Create a case law glossary list of SL cases. Include the following. Case name Summary of facts What argument (justification or criticism) does the case support? Use the revision notes and your case law glossary to answer the two essay questions below. 1. Examine critically the criteria which the courts have developed for determining whether an offence is one of strict liability. 2. Strict Liability offences contribute to a safer, cleaner and more efficient society and can be justified on these grounds. Critically discuss. If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on attempts is available to ensure that he or she can still be prosecuted. (e.g. White 1910). The law on attempts is contained in s.1(1) of the Criminal Attempts Act 1981 “If with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’ The defendant must perform an act that is ‘more than merely preparatory’ to the commission of the offence. Criminal Attempts Act DOES NOT define the phrase and it is a matter for the jury to decide in each case It is up to the jury to decide whether the defendant has progressed to something beyond the preparation stage. This is not an easy decision to make. Campbell 1990 – all the acts were merely Attempted robbery? When? preparatory until he walked into the bank. 1. D decides to rob a bank. In this case D who had an imitation gun, 2. He buys a shotgun sunglasses and a threatening note in his 3. He converts it to a sawn off shotgun pocket was still in the street outside the 4. He drives around the area looking for escape routes post office when arrested. His acts were 5. He steals a car and drives to the bank merely preparatory. 6. He stands on the pavement outside the bank 7. he bank carrying the shotgun in his bag 8. He walks into the bank Previously, (Pre the 1981 Act) the law on attempts was covered by the common law, and a series of tests was developed by the courts to decide whether the defendant was guilty or not. As the 1981 Act was a codifying Act, past cases can be considered where any provision of the Act is doubtful. The tests: The proximity test: ‘acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are’. See Robinson (1915) The Law commission supported this test. • The rubicon test (Stonehouse (1978): Adopted in Widdowson (1986) soon after the enactment of the new legislation. • Has D ‘crossed the Rubicon and burnt his boats: that is, gone beyond the ‘point of no return’. The series of Acts test: (Sir James Stephen C19th Judge) Has the D already completed a series of acts that would have been successful if not interrupted? Referred to in Boyle and Boyle (1986) Where D’s were found standing by a door to which the lock and one hinge were broken. Progress!! After much confusion.... Since the case of R v Gullefer (1987), the courts have stressed that the words of the Criminal Attempts Act 1981 are to be followed, rather than the tests laid down in pre-statute cases. Gullefer: D jumped onto a race track in order to have the race declared void and so enable him to reclaim money he had bet on the race. His conviction for attempting to steal was quashed because he had several other acts to do before the theft. The C of A held that ‘more than merely preparatory’ means the D must have gone beyond purely preparatory acts and be ‘embarked on the crime proper’. In this case he had not. In Jones (1990) is was decided that the ‘natural meaning’ of the words should be used and old case law should not be turned to. • D discovers that his girlfriend is seeing another man (F). D decides to do something about it. He decides to kill this love rival. But at which point does he become liable for attempted murder? • He buys a shotgun • He shortens the barrel • He loads it • He leaves his house, wearing overalls and a crash helmet with the visor down, carrying a bag containing the loaded gun. • He approaches F’s car as F drops his daughter off at school Taylor LJ said that all acts until he ot into the car • He opens the car door and gets in and pointed the loaded gun were merely • He says he wants to sort things out preparatory, once he had done that, there was • He takes the shotgun from the bag sufficient evidence of an attempt to leave to the • He points it at F, and says, ‘you’re not going to like this’. jury. • F grabs the gun, throws it out of the window and escapes. Geddes: D was found in the boy’s lavatory block of a school, in possession of a large kitchen knife, some rope and masking tape. He had no rights to be in the school. He had not contacted any of the pupils. His conviction for attempted imprisonment was quashed. (He had not actually tried to commit the full offence in question.) The CA put forward a two stage test: 1. Had the accused moved from planning or preparation to execution or implementation? 2. Had the accused done an act showing that he was actually trying to commit the full offence or had he got only as far as getting ready, or putting himself in a position, or equipping himself, to do so? R v Tosti (1997) D and an accomplice had oxyacetylene equipment, (fuel to aid cutting) which they hid in a hedge neat to a barn that they planned to break into. They walked up to the barn door and examined the lock on it. When they realised they were being watched, they ran away. On appeal their convictions for attempted burglary were upheld, as the C of A said that there was evidence that showed that they had gone beyond the preparatory stages and had actually tried to commit the offence. Bowles v Bowles (2004) CA quashed D’s conviction of attempting to ‘make a false instrument’. He has been convicted of attempting to forge a will in the name of his neighbour who was an elderly widow with dementia. After his arrest an unsigned will was found which detailed her house being left to D. She has already created a will leaving her house to charity. The conviction was quashed because there was no evidence of D having taken any steps to have it executed. The act of writing the will was merely preparatory. Mens Rea D must normally have the same intention as would be required for the full offence. If the prosecution cannot prove that D has that intention then D is not guilty of the attempt. In Mohan (1975) intent was defined as the decision to being about the commission of an offence no matter whether D desired the consequence of his act or not. Easom (1971) D picked up a woman’s handbag in a cinema, rummaged through it, then put it back on the floor without removing anything from it. His conviction for theft of the bag and its contents was quashed. The C of A also refused to substitute a conviction for attempted theft of the bag and specific contents (including a purse and a pen), as there was no evidence than D intended to steal them. There was no evidence of an intention to permanently deprive (the mens rea of theft). Similarly in Husseyn (1977) D and another man had been observed loitering near the back of a van. As police approached they ran off. D was convicted of attempting to steal a quantity of sub-aqa equipment that was in the van. The CA quashed the conviction AG’s Ref (Nos 1 & 2 of 1979) C of A decided that if D had a conditional intent (i.e. D intented stealing if there was anything worth stealing, D could be charged with an attempt to steal some or all of the contents. Recklessness is not normally sufficient mens rea for an attempt. This is so even where recklessness would suffice for the completed offence. Millard and Vernon (1987) Ds repeatedly pushed against a wooden fence on a stand at a football ground. The prosecution alleged that they were trying to break it and they were convicted of attempted criminal damage. The C of A quashed their convictions. However recklessness is relevant in some circumstances A-G’s Ref (No 3 of 1992) 1994 D threw a petrol bomb towards a car containing four men. The bomb missed the car and smashed harmlessly against a wall. D was charged with attempting to commit arson with intent to endanger life. C of A held that it was necessary to prove that D intended to damage property, but it was only necessary to prove that he was reckless as to whether life would be endangered. In relation to attempted rape although the law commission took the view that D would need intention to have non-consensual intercourse and that D would need to know that the intercourse was non-consensual, the courts have allowed recklessness to stand. Khan 1990 D along with 3 others, was convicted of the attempted rape of a 16 year old girl. All 4 men tried to have sex with her unsuccessfully, Their convictions were upheld despite the trial judges direction that, on a charge of attempted rape, it was only necessary to prove that they intended to have sex, knowing that the girl was not consenting, or not caring whether she consented or not. Section 1(2) of the Criminal Attempts Act 1981 states: • ‘A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible • Physically Impossible: E.g. D attempts to pick V’s pocket, which, unknown to D, is in fact empty; or D attempts to murder V, who, unknown to him, died that morning. • Legally Impossible: e.g. D attempts to handle goods, believing them to be stolen, when in fact they are not stolen. Anderton v Ryan (1985) D bought a video recorder that she believed to be stolen. After confessing this to the police, they found no evidence to show that the equipment had been stolen but the D was nonetheless charged with attempting to handle stolen goods. She was convicted, but on appeal, the H of L quashed her conviction, despite the wording of s. 1(2) of the CAA 1981 which clearly made her guilty. Less than a year later, the H of L overruled the decision in Anderton (using the Practice Statement) in R v Shivpuri (1986). Do you think it is fair that someone can be convicted based solely on intention rather than actually doing anything wrong? Public protection v only punishing those who deserve to be punished? If conviction of a crime is impossible because there is no such offence, the D cannot be guilty of attempting it. R v Taafe (1984) : D’s luggage was searched by customs on arrival into he UK and a number of packages were found. He was asked what they contained and he said money. He thought that he was committing a crime by importing currency but there is no such crime so D could not be guilty of attempting it. It is irrelevant that he thought he was committing a crime. Evaluation Sentence s. 4 CAA 1981 – same max sentence as completed crime. Some people argue that the person convicted of an attempted offence should not face the same maximum penalty as someone who has actually committed the full offence, since he or she is not as blameworthy. Others ( who support the current system) argue that often a person will only fail because he or she is caught before committing the full offence or because something beyond his or her control occurs to prevent him or her. They claim that if the defendant intended to commit the crime, he or she is as blameworthy as the D who actually committed it and should therefore face the same sentence. Protection of society. No opportunity to withdraw Once the defendant has performed an act that is more than merely preparatory, there is no opportunity or incentive for him or her to withdraw, since he or she will be liable for the attempted offence. As this carries the same maximum penalty as the full offence, he or she might as well continue, since there is nothing to be gained by withdrawal. Determining when an act is ‘more than merely preparatory’ As statute gives no definition of what is meant by the phrase ‘more than merely preparatory’, it is left to juries and appeal courts to decide. This creates uncertainty and can allow D who are clearly a danger to avoid liability. Geddes/Campbell! However it could be argued that the ‘more than merely preparatory test’ has helped clarify and simplify the law as it is an improvement on prior tests. It makes it easier for juries because they can apply common sense. Protection of the public Why should attempting something make someone liable? The main justification is protection of the public. Can prevent the full offence from being committed. It would be ridiculous if the police had to wait until D fired the shot and killed V, instead of being able to arrest him for attempted murder. But can we reconcile Geddes and Campbell with this? Law Commission Proposals Our provisional proposal: the offence of ‘attempt’ We are provisionally proposing that there should be an offence of ‘attempt’confined to those who, with intent to commit a substantive offence, were engaged in the last acts needed to commit it. In other words, their attempt was complete or all-but complete. Our provisional proposal: the offence of ‘criminal preparation’ We are provisionally proposing that there should be a new offence of ‘criminal preparation’ applying to those who, with intent to commit the offence, were still only preparing to commit it but had proceeded beyond the stage of mere preparation. In other words, their preparation was immediately Should intention alone make a defendant guilty? Should a D be liable for his intention or mere contemplations? Or must he do something toward the commission of the full offence? This question is particularly relevant to attempting the impossible. IS it fair that Shivpuri was guilty despite not actually dealing in drugs or doing anything wrong? Is it enough that he intended to in order to protect the public? • Murder = intention to kill or to cause really serious harm (GBH) • Attempted murder = intention to kill only This means that it is easier to be convicted of murder than it is for attempted. Is this fair? But D could be charged with attempted s.18 GBH instead so is not completely let off. ATTEMPTS EVALUATION ESSAY If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on attempts is available to ensure that they can be prosecuted. The rationale behind the law is that those who plan to commit an offence but fail deserve to be punished and its existence means that if the police are aware that an offence is going to be committed, they do not have to wait until it is complete before arresting the suspects. If the defendant is found guilty, they will usually face the same maximum penalty that applies to the full offence. The problem with prosecuting those who attempt crimes is where to draw the line. Should they be liable as soon as they think of committing a crime? Obviously the law does not seek to punish those who merely think about committing an offence as most people have probably thought about committing a crime but few ever would and also it would be virtually impossible to secure a conviction in those circumstances. The difficulty is at what stage the defendant becomes criminally liable for an attempted crime. The law on attempts is contained in the Criminal Attempts Act 1981: Section 1(1) “If with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.” Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judge will firstly consider whether there is enough evidence to go before the jury but if so, it is entirely a matter of fact for them. It is up to them to decide whether the defendant has passed the preparation stage and progressed to something beyond that. Obviously, this is not an easy decision to make. In R v Gullefer (1987), the defendant had placed a bet on a greyhound at the racetrack but it soon became obvious that his choice was not going to win. The defendant ran onto the track in order to disrupt the race so that it would be declared void and he could then retrieve his stake money from the bookmakers. The question was whether his actions could be said to be more then merely preparatory to the commission of theft. The Court of Appeal overturned his conviction for attempted theft. They said that he had not gone beyond the preparatory stages, as he still had to go and ask for his money back from the bookmakers. Previously, the law on attempts was covered by the common law and a series of tests were developed by the courts to decide whether the defendant was guilty or not. Since Gullefer, the courts have stressed that the words of the Criminal Attempts Act 1981 are to be followed rather than the tests laid down in pre-statute cases. In R v Geddes (1996), the defendant was found in the boys’ toilets of a school. He ran off, leaving a rucksack containing string, tape and a knife. He was convicted of attempted false imprisonment but on appeal this was quashed, as despite the fact that he clearly had the requisite intention, his actions were preparatory – he had not progressed beyond the preparatory stage since he had not made contact with any of the boys. He had simply put himself in the position of being able to commit the offence and he had not moved into the implementation stage. The defendant in R v Tosti (1997), along with another had oxyacetylene equipment which they hid in a hedge near to a barn that they planned to break into. They walked up to the barn door and examined the lock on it when they realised that they were being watched and ran away. On appeal, their convictions for attempted burglary were upheld as the Court of Appeal said that there was evidence that showed that they had gone being the preparatory stages and had actually tried to commit the offence. In order to be liable, the statute states that the defendant must act with intent to commit an offence – thus the mens rea for an attempted offence is intention. Thus, for example, the mens rea for attempted murder is an intention to kill, an intention to cause GBH which would be sufficient for a murder conviction, will not be enough to make the defendant liable for attempted murder. In R v Mohan (1976), The defendant refused to stop when a police officer signalled for him to do so and instead, drove towards the officer who managed to move out of the way in time. The defendant’s conviction for attempted GBH was quashed due to an error by the trial judge. The Court of Appeal stated that the mens rea for an attempted offence was satisfied by a decision to bring about the commission of the offence – in other words only intention would suffice. A conditional intent may arise, if for example, instead of having a specific object in mind, the defendant intends to take anything worth stealing. This may be enough to make him liable for an attempted offence. In R v Husseyn (1977), the defendant and another man were seen standing by the back of a van which contained diving equipment. They had intended to take anything worth stealing but ran off when the police approached them. The defendant was convicted of attempting to steal the diving equipment but this was quashed on appeal as he had been charged specifically with attempting to steal the diving equipment when in fact his true intention was to steal anything. This case appeared to leave a gap in the law which posed a problem for the courts since a defendant could simply claim that they were not intending to steal whatever specific thing was detailed in the charge and following Husseyn, they would be acquitted. The problem was resolved in Attorney General’s References (Nos. 1 and 2 of 1979) where the Court of Appeal held that a conditional intent was enough to impose liability for an attempted offence if the charge does not refer to specific items. In Husseyn, the defendant could have been found guilty if he had been charged with attempted theft of anything from the van instead of being charged specifically with attempted theft of the diving equipment, as there was no evidence that this was his intention. With regard to attempting the impossible, section 1(2) of the Criminal Attempts Act 1981 states that: “A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.” Thus, the person who puts their hand into an empty pocket can be guilty of attempted theft even though it would be impossible for them to be convicted of the full offence as there was nothing to steal. Here, the crime is physically impossible but in other circumstances, the crime may be legally impossible, for example if the defendant attempts to handle what they think are stolen goods but the goods are not in fact stolen e.g. Anderton v Ryan (1985), the defendant bought a video recorder that she believed to be stolen. After confessing this to the police, they found no evidence to show that the video had actually been stolen and the defendant was therefore charged with attempting to handle stolen goods. She was convicted but on appeal, the House of Lords quashed her conviction despite the fact that the wording of section 1(2) of the Act clearly made her guilty. This was an unexpected result and one which was to be changed only a year later in R v Shivpuri (1986) where the defendant was arrested after being found carrying a suitcase which he believed contained either heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant was convicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction was upheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correct the mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart from their previous decision. The defendant was held to be guilty since he had clearly intended to commit the offence and had done an act which was more than merely preparatory to the commission of the offence. If conviction of a crime is impossible because there is no such offence, the defendant cannot be guilty of attempting it. As in R v Taaffe (1984) where the defendant’s luggage was searched by customs on arrival into the UK and a number of packages were found in his luggage. He was asked what they contained and replied that it was money. He thought that he was committing a crime by importing currency into the UK. In fact, there is no such crime so the defendant could not be guilty of attempting it. It was irrelevant that he thought that he was actually committing a crime. Some have agued that the person convicted of an attempted offence should not face the same maximum penalty as someone who has actually committed the full offence since they are not as blameworthy. Those in favour of the current system argue that often a person will only fail to commit the full offence because they are caught beforehand or because something beyond their control occurs to prevent them. They claim that if the defendant intended to commit the crime then they are as blameworthy as the defendant who actually committed it and should therefore face the same sentence. As the statute gives no definition of what is meant by the phrase “more than merely preparatory,” it is left to juries and appeal courts to decide. This creates uncertainty and can allow defendants who are clearly a danger to avoid liability as in Geddes. Once the defendant has performed an act which is more than merely preparatory, there is no opportunity or incentive for them to withdraw since they will be liable for the attempted offence. As this carries the same maximum penalty as the full offence, they might as well continue since there is nothing to be gained by withdrawal. 1. Why is it necessary for the criminal law to cover attempts? If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on attempts is available to ensure that they can be prosecuted. The rationale behind the law is that those who plan to commit an offence but fail deserve to be punished and its existence means that if the police are aware that an offence is going to be committed, they do not have to wait until it is complete before arresting the suspects. 2. How is an attempt defined? The law on attempts is contained in the Criminal Attempts Act 1981: Section 1(1) “If with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.” 3. Who decides whether an act is “more than merely preparatory?” Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judge will firstly consider whether there is enough evidence to go before the jury but if so, it is entirely a matter of fact for them. It is up to them to decide whether the defendant has passed the preparation stage and progressed to something beyond that. Obviously, this is not an easy decision to make. 4. What happened in R v Tosti (1997)? The defendant along with another had oxyacetylene equipment which they hid in a hedge near to a barn that they planned to break into. They walked up to the barn door and examined the lock on it when they realised that they were being watched and ran away. On appeal, their convictions for attempted burglary were upheld as the Court of Appeal said that there was evidence that showed that they had gone being the preparatory stages and had actually tried to commit the offence. 5. What is the mens rea of attempt? In order to be liable, the statute states that the defendant must act with intent to commit an offence – thus the mens rea for an attempted offence is intention. For example, the mens rea for attempted murder is an intention to kill, an intention to cause GBH which would be sufficient for a murder conviction, will not be enough to make the defendant liable for attempted murder. 6. Can a person attempt the impossible? Yes, section 1(2) of the Criminal Attempts Act 1981 states that: “A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.” 7. What happened in Anderton v Ryan (1985)? The defendant bought a video recorder that she believed to be stolen. After confessing this to the police, they found no evidence to show that the video had actually been stolen and the defendant was therefore charged with attempting to handle stolen goods. She was convicted but on appeal, the House of Lords quashed her conviction despite the fact that the wording of section 1(2) of the Act clearly made her guilty. 8. How was this rectified a year later? In the case of R v Shivpuri (1986) - The defendant was arrested after being found carrying a suitcase which he believed contained either heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant was convicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction was upheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correct the mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart from their previous decision. The defendant was held to be guilty since he had clearly intended to commit the offence and had done an act which was more than merely preparatory to the commission of the offence. 9. What is the maximum sentence that a person convicted of an attempted crime can receive? If the defendant is found guilty, they will usually face the same maximum penalty that applies to the full offence. 10. Do you think that it is fair that the defendant can receive this penalty? Some have agued that the person convicted of an attempted offence should not face the same maximum penalty as someone who has actually committed the full offence since they are not as blameworthy. Those in favour of the current system argue that often a person will only fail to commit the full offence because they are caught beforehand or because something beyond their control occurs to prevent them. They claim that if the defendant intended to commit the crime then they are as blameworthy as the defendant who actually committed it and should therefore face the same sentence. MURDER & MANSLAUGHTER REVISION Homicide – the unlawful killing of a human being. There are different types depending on the mens rea of the D and whether there is a special defence. Murder = most serious where D kills V having INTENDED (directly or indirectly) to do so. “The unlawful killing of a reasonable person in b-eing and under the Queens peace with malice aforethought, express or implied” Voluntary Manslaughter = Where the killing occurs when the D is under Diminished Responsibility Loss of control Suicide Pact The 3 defences are PARTIAL – charge of murder is reduced to manslaughter and the judge has discretion in what sentence is imposed rather than being limited to a life sentence. DIMINISHED RESPONSIBILITY s.2(1) HA 1957 DEFINITION: “Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induces by disease of injury) as substantially impaired his mental responsibility for his acts and omission in doing or being a party to the killing”. BURDEN OF PROOF: on the D proved on the balance of probabilities. ABNORMALITY OF MIND: A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal (Byrne). Comparisons with insanity are not helpful (Seers). Can include: Depression, (Seers) Paranoia (Simcox) , Epilepsy(Price) , PMT, BWS (Hobson) & is wide enough to cover The inability to form a rational judgement as to whether an act is right or wrong The inability to exercise will power to control physical acts with that rational judgement (irresistible impulses).Byrne. CAUSES OF ABNORMALITY OF MIND: Abnormality of mind must be attributable to at least one of the causes listed in s.2(1) Any Inherent Cause: (an internal cause from within D) Wide scope & doesn’t need to be inherited or present from birth (Gomez). Includes the examples above i.e. psychopathy (Byrne); mental deficiency (Speake); paranoia, epilepsy. Depression, PMT, BWS & Asperger’s syndrome (Jama) Disease: Wide enough to cover mental as well as physical disease (Sanderson). Injury: usually as a result of physical violence but can also be inflicted by violent or dramatic psychological stress as well as by slow merciless factors, little by little and with hopelessness. (Whitworth). SUBSTANTIALLY IMPAIRS: Byrne: The question of whether D’s impairment could be described as substantial was a question of a degree and so was one for the jury (although medical opinion was not irrelevant). Lloyd: It doesn’t mean ‘total’ nor does it mean ‘trivial’ or ‘minimal’. It is something in between. GIVES JURY WIDE DISCRETION – have found manslaughter where very little evidence of DR but D has reacted to severe grief or stress. DR & INTOXICATION Transient effect of drink or drugs on brain is not an injury for the purposes of DR (Di Duca; O’Connell) Alcoholism is only a defence if drinking is involuntary or brain has been damaged (Tandy) Where the D has a pre-existing mental disorder, intoxication does not prevent him using the defence. The abnormality of mind does not have to be the sole cause of the defendant doing the killing. (Gittens; Egan; Dietschmann; Hendy) 2008 UPDATE: Wood (2008) Alcohol dependency syndrome could be considered as a possible source of abnormality of mind and was for the jury to decide. If the jury found that it was an abnormality of mind they had to then consider the effect of any alcohol consumed by the D as a result of his dependency. The jury have to decide which drinks were involuntary and consider the effect of those, while ignoring any consumption of alcohol they decide was voluntary. PROVOCATION (NB now loss of control – please refer to notes/book) S.3 HA 1957 DEFINITION: “where on a charge of murder there is evidence on which the jury can find the person charged was provoked (whether by things done or by things said or by both together) to lose his self- control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury; and in determining that question the jury shall take into account everything both done and said according to the effect it would have on a reasonable man” BURDEN OF PROOF: D must provide evidence of provocation. The onus is then on P to prove that D was NOT provoked. If there is evidence of provocation, the judge must direct the jury to consider it. TWO STAGE TEST: 1. A SUBJECTIVE test – did D lose his self control? 2. An OBJECTIVE test – Was the provocation enough to make a reasonable man do as D did? When conducting the objective test, D’s characteristics are relevant, but only when assessing the gravity of provocation (James, Karimi (2006) following Holley (2005) and overruling Smith (Morgan) 2000 going back to Camplin) a. Power of self control – D is assumed to have the standard of self control expected of a reasonable person of the age and sex of the D. (objective test) b. Gravity of the provocation – D’s characteristics can be taken into account e.g. glue sniffer (Morhall), impotence (Bedder); pregnancy, menstruation, physical deforminty, infirmity (Camplin). The characteristics may be self induced and may be psychological as well as physical. WHAT CAN BE PROVOCATION? Physical assaults, both on D or on his relatives (Pearson); homosexual advances; the continual crying of a 19 day old baby(Doughty); a denial of stealing the D’s tools (Smith (Morgan)); the actions of a wife’s lover in going to meet her, where the husband was provoked into killing his wife (Davis – provocation can come from a 3rd party); supplying drugs to D’s son (Baillie). LOSS OF SELF CONTROL DUFFY: ‘Sudden & 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’ CUMULATIVE PROVOCATION: Humphrey’s: provocation is not confined to the last act or word before the killing. TIME LAPSE The longer the time lapse between the provocation and the killing, the less likely that the defence will succeed. (Ibrams & Gregory; Baillie). Loss of self control must be sudden not immediate (Thornton, Ahluwalia). SLOW-BURN Argued unfair to women who have a slower reaction (slow-burn) to provocation (Thornton, Ahluwalia). This reaction does not fit the Duffy test. The D’s reaction to the provocation has to be sudden rather than immediate and the longer the delay, the more likely the act is deliberate. DR REFORM 1 Persons suffering from diminished responsibility “(1) A person (“P”) who kills or is a party to the killing of another is not to be convicted of murder if P was suffering from a relevant mental impairment which provides an explanation for P’s acts and omissions in doing or being a party to the killing. (1A) “Relevant mental impairment” means an abnormality of mental functioning which - (a) arises from a recognised medical condition, and (b) substantially impairs P’s ability to do one or more of the following - (i) to understand the nature of P’s conduct; (ii) to form a rational judgment; (iii) to exercise self-control. (1B) For the purposes of subsection (1), a relevant mental impairment provides an explanation for P’s conduct if it causes, or is a significant contributory factor in causing, the person to carry out that conduct.” This brings the existing terminology up-to-date in a way which would accommodate future developments in diagnostic practice and encourage defences to be grounded in a valid medical diagnosis linked to the accepted classificatory systems which together encompass the recognised physical, psychiatric and psychological conditions. It also spells out what aspects of D’s functioning must be impaired. PROVOCATION REFORM The Government proposes to abolish the existing law on provocation and to replace it with new partial defences tailored to those who kill as a response to: a fear of serious violence; and/or circumstances of an extremely grave character, giving rise to a justifiable sense of being seriously wronged. The first will cover situations where: a victim of sustained abuse kills his or her abuser in order to thwart an attack which is anticipated but not immediately imminent; and someone overreacts to what they perceive as an imminent threat. In the second it has been made clear that V’s infidelity WILL NOT be reason enough to kill. The threshold has been raised where only words or actions of exceptionally grave character are acceptable. Sudden and temporary loss test will be abolished – control must be lost but will allow for situations where the D’s reaction has been delayed or builds gradually. The partial defences should apply only if a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or a similar way. ACTIVITIES: Zandra, who is aged 16, has had an unhappy childhood. She has left home and has turned to drugs and prostitution. She is living with Shaun, aged 33, who is a weightlifter. Shaun regularly forces Zandra to give him her earnings. He is jealous and possessive and has beaten her on a number of occasions. She is immature and has often harmed herself to seek attention. One night, fearing that Shaun will beat her up and force her to have sex with him, Zandra cuts her wrists. When Shaun comes into the lounge and sees what she has done, he taunts her saying she has made a pathetic job of slashing her wrists. Zandra goes to her bedroom to get her knife, returns to the lounge and stabs Shaun in the chest killing him instantly. Discuss Zandra’s potential liability for the murder of Shaun. Define murder: Discuss direct intent to do serious harm at least therefore murder charge is sustainable Discuss provocation/diminished responsibility as potential special and partial defences which, if successful, would reduce the conviction to voluntary manslaughter allowing discretion in sentencing Define Provocation – S.3 Homicide Act 1957 Evidence of provocation: Shaun’s conduct and words and past behaviour may be taken together to provide evidence of provocation even though the last is trivial – Humphreys Sudden and temporary loss of self-control; – Duffy; Ibrams & Gregory; Thornton; Humphrey’s o there appears to be no sudden and temporary loss of self-control – Zandra goes to her bedroom to get her knife – Duffy; Ibrams & Gregory o There appears to be a ‘cooling off’ period –Thornton; Ahluwalia Objective ‘reasonable man test’: as developed by the courts including the characteristic which affect the gravity of the provocation to the accused and those which affect the power of self control to be expected; – Camplin; Smith (Morgan James); Weller; Rowland; Holley; Mohammed; Karimi & James etc it would appear that Zandra’s immaturity may still be taken into account – Camplin; Humphreys the evidence of her suffering from ‘battered woman syndrome’ is more likely to be seen as a psychiatric condition post Ahluwalia; Hobson; Holley and this and her attention seeking is unlikely to be taken into account as a relevant characteristic unless it affects the gravity of the provocation to the reasonable 16 year old woman, not the level of self-control to be expected – Holley; Mohammed; Karimi & James Define Diminished responsibility – S.2 Homicide Act 1957 • abnormality of mind – Byrne • substantial impairment – Sanderson • internal cause • specified cause – Seers; Ahluwalia; Hobson • medical evidence Argue that the relevant evidence appears to exist for a successful use of the defence – Ahluwalia; Hobson; Humphreys It should, however be supported by expert psychiatric evidence – Dix; Hobson Argue to any logical conclusion John, who has learning difficulties, is a member of his school's under-16 mixed hockey team. The team's captain, Ken, constantly criticises John in front of the other members of the team for being overweight and slow. During a particularly rough game against a rival school, John lost the ball to Katie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously, "you fat slug, even a girl can play better than you!". John felt angry and humiliated and when Katie next moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick. After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher, Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see her doctor in the morning. Katie ignored this advice and went out to party where she danced until ten o'clock. However, that night Katie collapsed and was taken to hospital, where she died. It was later discovered that her death was due to a blood clot caused by the blow to her leg, and that her life could have been saved if she had received prompt medical treatment. Consider whether John may be criminally liable for Katie's death.  ANSWER John may be guilty of murder or manslaughter, depending on (a) his action being the cause in law of Katie's death, and (b) his state of mind when he struck Katie. Causation - John's blow was clearly the factual cause of Katie's death, on the "but-for" test in White, so the issue is whether the conduct of either Lisa or Katie amounts to a novus actus interveniens. Katie's conduct in ignoring Lisa's advice would seem to fall within the principle of taking one's victim as you find her: Blaue. If V failed to seek medical treatment (Holland) or acts in a way which exacerbates the risk of death (Wall) this will not normally break the chain of causation (Dear) - although it may be relevant to sentence if D is convicted of manslaughter. Lisa is slightly more problematic: she clearly has a duty of care towards Katie and it could be argued that she failed to discharge this by merely giving and would not warrant taking Katie to hospital. Candidates may argue that Lisa should have administered first aid, and draw analogies with cases involving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may be aware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughter for failure to diagnose and treat MRSA). However, it seems very unlikely that Lisa's conduct would be held to have broken the chain of causation. Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm: Moloney; knowledge that one's action is virtually certain to cause death or grievous body harm: Woollin. Defences - John may have the defence of diminished responsibility reducing murder to manslaughter: Homicide Act 1957, s.2 - abnormality of mind arising from arrested or retarded development: Byrne. Provocation: Homicide Act 1957, s. 3 - John may rely on provocation even if he was provoked by Ken rather than Katie (Davies, Pearson). According to the HL in smith (Morgan), evidence of mental impairment is relevant to both the gravity of the provocation to D and his capacity for self-control: however, this had been disapproved by the full Privy Council in A-G for Jersey v Holley (2005). The position would now seem to be as it was under Campling and Morhall i.e., mental impairment relevant to whether D lost his control and the gravity of the provocation to D, but D's action to be judged against the standard of a reasonable person of D's sex and age. Involuntary manslaughter - unlawful act manslaughter - act must be unlawful and dangerous: Franklin, Lamb, Church, Newbury. Tackles that go beyond the rules of a game and deliberate assaults in the course of organised sports have been held unlawful: Bradshaw, confirmed in Brown. Gross negligence manslaughter requires a duty of care by D towards V - D must either be recklessly indifferent to an obvious risk to V's health, or foresee the risk and decide to run it: Stone and Dobinson, approved by HL in Adamako. Unlikely to be relevant to John, but some candidates may argue a case for its application to Lisa. INVOLUNTARY MANSLAUGHTER Definition: An unlawful killing where the defendant does not have the intention, either direct or oblique, to kill or to cause GBH. Ways of Committing Involuntary Manslaughter Unlawful act manslaughter Gross negligence manslaughter Reckless manslaughter UNLAWFUL ACT MANSLAUGHTER The elements: D must do an unlawful act The act must be dangerous on an objective test The act must cause death The S must have the required mens rea for the unlawful act. Unlawful Act: Must be unlawful (Lamb) A civil wrong is not enough (Franklin) It must be an act; and omission is not sufficient (Lowe) In many cases the unlawful act will be some king of assault but any criminal offence can form the unlawful (arson, criminal damage, burglary). Dangerous Act: An objective test – would a sober and reasonable person realise the risk of some harm? (Church) The risk need only be of some harm – not serious harm (Larkin) The act need not be aimed at the final victim (Mitchell) An act aimed at property can still be such that a sober and reasonable person would realise the risk of some harm (Goodfellow) There must be a risk of physical harm; mere fear is not enough (Dawson). Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to him, then D will be liable (Watson). Causes Death Normal rules of causation applu; the act must be the factual and legal cause of death (Dalby) An intervening act such as the victim self-injecting a drug breaks the chain of causation (Kennedy) merely preparing the injection is not a cause of death. V’s self-injection breaks the chain of causation. The D can only be guilty if he was involved in administering the injection. D may be liable for gross negligence manslaughter instead (Dias) where it can be shown that D owed V a duty of care. Mens Rea D must have mens rea for the unlawful act but it is not necessary to prove that D foresaw any harm from his act (Newbury and Jones) GROSS NEGLIGENCE MANSLAUGHTER Elements: The existence of a duty of care towards the victim A breach of that duty of care which causes death Gross negligence over the risk of death which the jury considers to be criminal. Duty of Care: D must owe V a duty of care (Adomako) The civil concept of negligence applies (Adomako) Covers wide range of situations, e.g. maintaining a gas fire (Singh) May even cover a duty not to supply drugs (Rogers) The fact that V was party to an illegal act is not relevant (Wacker) Breach of duty: This can be by an act or omission Gross Negligence Beyond a matter of mere compensation and showed such disregard for the life and safety of others as to amount to a crime (Bateman) Conduct so bad in all the circumstances as to amount to a criminal act or omission (Adomako) Risk of Death There must be a risk of death from D’s conduct, it is not enough to show a risk of bodily injury or injury to health (Adomako; Misra and another). RECKLESS MANSLAUGHTER Lidar (2000) – CA held that there was a third limb of involuntary manslaughter. The court said that there was nothing in Adomako to suggest that subjective recklessness manslaughter had been abolished. D causes V’s death (there is no requirement that D owed V a duty of care. D must have foreseen a risk of serious injury or death occurring. (Cunningham recklessness) D must have assessed that risk as at least highly probable to occur. REFORM UNLAWFUL ACT Problems: Covers a very wide range of conduct Death may be an unexpected result; if the same act resulted in minor injury, the D would only be liable for the offence. A D who did not realise there was risk of any injury is still guilty because of the objective nature of the test. Reform: Under the LC recommendations in their 2006 report (the three tier homicide) manslaughter would cover: 1. Killing another person through gross negligence; or 2. (Criminal Act Manslaughter) Killing another person: a. Through the commission of a criminal act intended by the D to cause injury; or b. Through the commission of a criminal act that the D was aware involved a serious risk of causing some injury. More serious situations (where D intended to cause injury or a fear or risk of injury and was aware that his or her conduct involved a serious risk of causing death) would be classed as second degree murder. GROSS NEGLIGENCE MANSLAUGHTER Problems: The test is circular, as the jury is directed to convict of a crime if they think that the conduct was criminal. The test may lead to inconsistent verdicts, as it depends on what different juries think The civil test for negligence should not be used in criminal cases: the purpose of the two branches of law is quite different. Reform: In their 2006 report, the LC recommended that there should be gross negligence manslaughter which would be committed where: A person by his or her conduct causes the death of another; A risk that his or her conduct will cause death.. would be obvious to a reasonable person in his or her position; He or she is capable of appreciating that risk at the material time; and …his or her conduct falls far below what can reasonably be expected of him or her in the circumstances. BUT: they recommend keeping the rule that GNM can be committed even when D was unaware that his or her conduct might cause death but P must prove that the D is capable of appreciating that risk at the material time (preventing those with mental disabilities or younger children being convicted. RECKLESS MANSLAUGHER In their 2006 report the LC rexcommended that the offence be abolished as a separate category. In more serious cases of recklessness (where there was an intention to cause a fear or risk of injury) would amount to second degree murder and in less serious cases, most cases would be covered by GNM as D would be hard pressed to deny that he or she was well aware of the risk of his or her conduct killing someone. ACTIVITIES: Raul and Christiano are standing in a queue at a bus stop when they begin arguing with one another. Raul pushes Christiano who staggers backwards and collides with Margaret, an 83 year old lady. Margaret falls backwards onto the pavement. She is injured and in pain. Margaret is taken to hospital where x-rays reveal that she has broken her hip. Doctors agree that the injury is made worse partly because she suffers from osteoporosis (a disease which makes her bones unusually brittle). Although Margaret is elderly, Doctor Smith decides to operate in order to allow Margaret any chance of being able to walk in future. A few days later, Margaret is recovering slowly from the operation when she develops a secondary infection. Doctor Smith prescribes Margaret penicillin but she is allergic to the drug and dies. Discuss the potential criminal liability of both Raul and Doctor Smith for the death of Margaret.  Define involuntary manslaughter For Raul Discuss the potential offence of murder and dismiss it for lack of the relevant mens rea Define Unlawful and dangerous act/constructive manslaughter – Church; Newbury & Jones; Mitchell; Goodfellow; Dalby; Carey etc Discuss the potential offence of unlawful act/constructive manslaughter, discuss and apply to the facts: The act must be criminal/a push, though trivial, is a battery – Mitchell; Carey Is it ‘dangerous’? – the facts suggest it may be as even the primary victim Christiano may fall and suffer ‘some harm’ in the view of a jury Discuss whether this could therefore amount to foresight of inflicting grievous bodily harm recklessly and a potential s.20 AOPA offence Apply the principle of transferred malice - Latimer – and apply to Margaret’s injury Has it made a factual and more than minimal contribution to Margaret’s death? – Yes? CAUSATION Explain the principles of causation: • Factual causation – White • Legal causation – Pagett; • ‘de minimis’ principle – Kimsey • ‘Take your victim as you find them’ – Hayward; Blaue • ‘novus actus interveniens’ and medical treatment – Jordan; Smith; Cheshire etc Has the medical negligence broken the chain of causation? Arguable – discuss and apply Jordan; Smith; Cheshire to a reasoned conclusion Discuss whether the medical negligence has broken the chain of causation in all/any of the above alternatives? Arguable – discuss and apply – Jordan; Smith; Cheshire to a reasoned conclusion noting that, as a matter of policy, the courts are reluctant to allow even negligent medical treatment to ‘break the chain of causation’ Gross negligent manslaughter – Adamako; Litchfield; Wacker; Misra & Srivastava Discuss the potential offence of gross negligence manslaughter, discuss and apply to the facts: Is a duty of care owed to Christiano (and Margaret)? Adamako; Donoghue v Stevenson Has the duty of care been broken? Yes, Christiano is the victim of a battery Is Raul’s conduct so far below that to be expected of a reasonable person in those circumstances as to amount to a crime? Technically yes in one way as he has committed a crime Is there a risk of death? (This is debateable) There was clearly a very small risk of death and Margaret has eventually died but would a jury think it existed when Raul pushed Christiano? As above, argue to a reasoned conclusion Reckless manslaughter – Pike; Lidar etc Discuss the potential offence of reckless manslaughter, discuss and apply to the facts: • Did Raul foresee a risk of death or serious harm to Christiano? (unlikely, just a push) • Probably dismiss a reckless manslaughter charge Explain the principle of ‘transferred malice’ – Latimer Discuss and apply the principle of transferred malice which is relevant in each case and conclude that Raul is potentially liable for the harm caused to his unintended victim Margaret – Latimer (Most credible would probably be unlawful act manslaughter) For Doctor Smith Discuss the potential offence of gross negligence manslaughter, discuss and apply to the facts: • Is a duty of care owed to Margaret? Yes – Adamako; Donoghue v Stevenson • Has the duty of care been broken? Perhaps, depending on Dr. Smith’s knowledge & conduct • Is Dr. Smith’s conduct so far below that to be expected of a reasonable doctor in those circumstances as to amount to a crime? Arguably yes. Up to the jury • Is there a risk of death? Doctors must be aware of this potentially fatal allergic reaction. Up to the jury? • As above, argue to a reasoned conclusion MURDER REFORM Law Commission’s Proposals Murder should be divided into 2 separate offences: First degree murder (D intends to kill or intends to cause serious harm and was aware that his or her conduct posed a serious risk of death) Second degree murder (where D intended to do serious injury, but was not aware that there was a serious risk of death). Mandatory life sentences would only apply to first degree murder. Government’s response: July 2008 Rejected the LC proposal of completely reforming murder and so do not address the problems of no intent to kill, the difficulty of the meaning of intention, the lack of a defence of duress and the use of the mandatory life sentence. The only area where the Government accepted that reform is needed is the lack of a defence for those who use excessive force in self defence. For this the Government are proposing a partial defence of ‘killing in response to a fear of serious violence’ which replaces provocation. Euthanasia Also known as mercy killing. Where D kills V because V is suddering through an incurable illness. Quite often, D is the spouse or partner. Under the present law, if D kills V then D is guilty of murder, even if V has begged D to do the killing. (Pretty). This means that D will be sentenced to life imprisonment with a minimum term of 15 years before D can be considered for release on licence. As such a defendant is unlikely to be a dangerous person; surely there should be more discretion in the sentence that the courts impose. Practice Essay Discuss whether the common law governing the offence of murder is satisfactory or is in need of reform by Parliament. Define the offence of murder and explain the elements of the actus reus (unlawful killing/reasonable creature in being) and mens rea (Define ‘express malice’ and ‘implied malice’). Actus Reus Discuss whether a killing may be lawful eg self defence Discuss whether a foetus is not a ‘reasonable creature in being’ and comment on the morality of that stance Mens Rea Explain that it is a crime of specific intent. Discuss the difficulty in practice for the prosecution in proving what was the defendant’s state of mind Refer to different aspects of intention – direct/oblique, but being clear it remains a subjective concept. Discuss the distinction between intention and foresight of consequences – Moloney Explain the developments that have occurred explaining the concept of oblique intent and cite relevant cases eg Moloney; Hancock & Shankland; Nedrick;; Woollin; Re A; Mathews & Allyeyne Discuss the omission of probability from the Moloney Guidelines and the significance of the refinements produced in Nedrick and Woollin Discuss the difficulties for jurors inherent in distinguishing between degrees of probability Appreciate the fact that foresight of intention is not the same as intention but may be used in conjunction with S.8 Criminal Justice Act 1967 – evidence from which intention may be inferred by the jury – Moloney; Nedrick; Woollin OTHER AO2 COMMENTS Discuss the need to distinguish between murder and manslaughter by reference to the gravity of the offence in terms of blameworthy states of mind and the sentence that attaches ie the mandatory life sentence for murder is often unfair when D only intended to cause injury, not death. Discuss the proposition that judges are often happy to allow juries to decide whether a consequence was intended by relying upon their ‘common sense’ judgement on the evidence Discuss whether juries should be asked to make such judgements on morally reprehensible facts in murder trials as in Moloney, Hancock, Woollin etc Discuss the euthanasia debate and the decision in Pretty REFORM Refer to the Law Reform (Year and a Day Rule) Act 1996 Refer to the Law Commission’s 2006 Consultation Paper and the Governments Responses in 2008 Discuss the Law Commission’s Consultation Paper No 177 proposing a system of degrees of homicide similar to the system in the USA Discuss, for example, the proposed three tier structure for homicide and proposed changes to a classification of first and second degree murder Discuss the proposed codification of intention which suggests putting the ‘virtual certainty’ test in Woollin into statutory form Discuss the restrictive effect of the mandatory death sentence and the way that the new proposals would offer judges flexibility in respect of sentencing were they to be implemented NON FATAL OFFENCES REVISION NOTES GBH s.20 ABH s.47 GBH s.18 NFO’s Battery Assault ASSAULT: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988 BATTERY: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988 ASSAULT OCCASIONING ACTUAL BODILY HARM: S.47 OAPA 1861 MALICIOUS WOUNDING OR INFLICTING GRIEVOUS BODILY HARM: S.20 OAPA 1861 WOUNDING OR CAUSING GRIEVOUS BODILY HARM WITH INTENT: S.18 OAPA 1861 KEY FACTS TABLES OFFENCE DEFINITION ACTUS REUS CONSEQUENCE MENS REA REQUIRED ASSAULT An act which causes the victim to None needed Intention of or apprehend the infliction of Causing V to fear subjective recklessness immediate, unlawful force with immediate unlawful as to causing V to fear either an intention to cause another violence. Requires an immediate unlawful to fear immediate unlawful act but can be silent violence personal violence or recklessness as telephone calls, to whether such fear is caused Ireland (1997) or letters Constanza (1997) BATTERY The application of unlawful force to Application of None needed Intention of or another person intending either to unlawful violence, subjective recklessness apply unlawful physical force to even the slightest as to applying unlawful another or recklessness as to touching, Collins v force DPP v Majewski whether unlawful force is applied Willcock (1984) (1976) ABH An assault or battery which causes Assault, i.e. an Actual bodily harm (e.g. Intention of or actual bodily harm, with the assault or battery bruising) This includes. subjective recklessness intention to cause the victim to fear as to, causing fear of unlawful force, or to be subjectively Momentary loss of unlawful force, i.e. the consciousness (R(T) v DPP reckless as to whether the victim mens rea for an assault (2003) & Psychiatric harm fears or is subject to unlawful force or battery. Chan Fook (1994) s.20 GBH Whosoever shall unlawfully and A direct or indirect Either a wound – a cutting Intention or subjective maliciously wound or inflict any act or omission og the whole skin: JJC v recklessness as to grievous bodily harm upon any Martin (1881) Eisenhower (1984) causing some injury other person, wither with or (though not serious) without a weapon or instrument, Or Parmenter (1991) shall be guilty of an offence and No need to prove an Grievous bodily harm shall be liable to imprisonment for assault Burstow (really serious harm) not more than five years. (1997) which includes psychiatric harm: Burstow (1998) s.18 GBH Whosoever shall unlawfully and A direct or indirect A wound or grievous Specific intention to maliciously by any means whatsoever act or omission which bodily harm (as above) wound or to cause GBH wound or cause any grievous bodily harm causes V’s injury or specific intention to to any person, with intent to resist or resist or prevent arrest prevent the lawful apprehension or plus recklessness as to detainer of any person, shall be guilty causing injury Morrison of… an offence. (1989) CPS CHARGING STANDARDS CPS Codes Non-Fatal Offences CPS Code Common Assault grazes; scratches; abrasions; minor bruising; swellings; reddening of the skin; superficial cuts; or a "black eye". CPS Code Actual bodily harm loss or breaking of a tooth or teeth; temporary loss of sensory functions (which may include loss of consciousness); extensive or multiple bruising; displaced broken nose; minor fractures; minor, but not very superficial, cuts of a sort probably requiring medical treatment (e.g. stitches); or psychiatric injury which is more than fear. CPS Code Grievous bodily harm injury resulting in permanent disability or permanent loss of sensory function; injury which results in more than minor permanent, visible disfigurement; broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek bone, jaw, ribs etc; injuries which cause substantial loss of blood, usually necessitating a transfusion; and injuries resulting in lengthy treatment or incapacity. Wounding and GBH entail serious harm but the injury need not be life-threatening, nor need it be intended as such. CPS Code Wounds In law wounds require a breaking of the continuity of the whole of the outer skin, or inner skin within the cheek or lip. Rupture of internal blood vessels is excluded. Minor wounds should not result in a section 20 charge. CPS Code Section 18 The greater mens rea requirement in section 18 means that it should be reserved for the more serious cases, as where there is: a repeated or planned attack; deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; making prior threats; or using an offensive weapon against, or kicking, the victim's head. Note also that the ulterior intent in section 18 may consist of an intent to resist or prevent the lawful apprehension or detainer of any person, and in these cases there must obviously be evidence of such an intent. CONSENT AS A DEFENCE ‘The law on consent as a defence to offences against the person recognises that the causing of deliberate harm may sometimes be justified.’ Consider the truth of this statement.  Ideal Structure & Content Refer to the defence of consent when applied to offences against the person – i.e. that consent may be a defence to battery and other offences against a person including sexual offences; Consent is not however, strictly a defence as where the other person consents, there is no offence (Donovan; Slingsby). Recognise the limitations imposed upon the availability of consent eg not available to a charge of homicide – euthanasia is not recognised in the UK, aiding and abetting a suicide is an offence; AO2: Discuss whether euthanasia should be made lawful? (Pretty v DPP (2002)) Mention that consent to minor assaults in the course of everyday life is generally implied; (Wilson v Pringle (1987)) Refer to policy decisions restricting the availability of consent as a defence eg not to prize-fighting with bare fists – Coney (1882), nor to agreeing to settle differences by means of a fight or duel – A-G’s Reference No.6 of 1980; nor to sado-masochistic activities deemed to be against the public interest – Brown Indicate with appropriate citation that a true consent may excuse what would otherwise be an assault where there are exceptions to the rule in A-G Ref (No 6 1980) eg 1) Surgery, injections, tattooing, body piercing for cosmetic purposes Corbett v Corbett; Wilson; AO2: Consider the social utility of surgical treatment as a justification for the defence whether or not the patient is conscious and capable of giving consent; 2) Physical contact sports – Billinghurst; Barnes. AO2: Consider the policy that allows consent as an effective defence to a charge of injury sustained in the course of properly conducted sport or games but recognises that an assault may be prosecuted should a participant exceed what is allowable within the rules of that sport or game; Consider the factors that will be taken into account when making this determination (the type of sport, the level at which it was played, the nature of the act, the degree of force, the extent of the risk of injury; D’s state of mind’. AO2: Consider the distinction between deliberate and accidental harm inflicted in physical contact sports, deliberate harm is the essence of boxing but unacceptable in a variety of ball sports such as football, rugby or hockey – Billinghurst; Barnes 3) Sexual relations Donovan; Brown; AO2 Considerations: Consider the reasons for the decisions given in Brown and Wilson; Slingsby. Consider when and why it is appropriate for the law to interfere with individual freedom of choice on the grounds of public interest. The law does not readily tolerate the idea of consent being a defence to injuries inflicted for sexual gratification, although they seem to be more tolerant of heterosexual sexual activity (Wilson; Slingsby) than of homosexual (Brown). In Brown the acts were viewed differently – as acts of violence with a sexual motive rather than sexual acts that involved violence. The violence in Brown was considered to be indulgence of cruelty by sadists and the degradation of victims which is injurious and unpredictably dangerous. The Law Lords decided that a victim could give valid consent to ABH but not GBH. They didn’t criminalise all sado-masochistic activity. Lord Slynn thought that the whole area was for Parliament to decide. The HRA 1998 has not affected the area too greatly (in Laskey, Jaggard and Brown v UK and in Emmet (1999) the ECHR upheld the decision in Brown. Saying that the public authorities may interfere with the exercise of the right to respect for privacy and family life provided it was necessary in the interests of national security or public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. 4) Rough horseplay (Jones; Aitken) 5) lawful parental chastisement Consent must be real – the fact that V apparently consents to D’s act does not mean that the law will treat that consent as valid. If V is a child, or mentally disabled, this apparent consent may not suffice. (Burrell v Harmer (1967)). Fraud only negatives consent to an assault if V was deceived as to the identity of the person concerned or the nature of the act performed –; Richardson (dentist case); Tabassum (the breast fondling case); Cuerrier; Dica; Konzani; (HIV cases) – biological GBH as although V consented to sex, they did not consent to the risk of the transmission of HIV. Honest mistaken belief in consent is a defence (Morgan). EXAM QUESTIONS PROBLEM QUESTION – NON FATALS AND RELEVANT DEFENCES Wayne is the captain of the Northport United football team. During an important match against their local rivals, Wayne is involved in a clash of heads in an incident with an opposing player, Andrew. Wayne receives a nasty bruise above his left eye and is badly concussed. Wayne insists on continuing after treatment with a cold sponge but is obviously still in a very dazed condition. A few minutes later Wayne jumps wildly into a foul tackle on Andrew. Andrew is carried off in agony and X-Rays later reveal that he has broken an Ankle. Discuss Andrew and Wayne’s liability for any offences and any possible defences. Andrew: Offence: A bruise may amount to an assault occasioning actual bodily harm contrary to s.47 OAPA 1861 as long as it interferes with the health or comfort of Wayne (Miller 1954). It would seem from his badly concussed state that this is the case. The CPS charging standards recognise that although any injury that is more than transient or trifling can be classified as actual bodily harm, the appropriate charge will be common assault if the injuries amount to no more than ‘grazes, scratches, abrasions, minor bruising, swelling, reddening of the skin, superficial cuts, and black eye’s. Unless aggravating features exist (of which there is no evidence) the bruise alone may only amount to a s.39 charge. Although the concussion may make it a s.47. Andrew must display either intention or recklessness as to whether Wayne fears or is subjected to unlawful force. If it can be proven that he was subjectively reckless in the Cunningham sense then he would be guilty of common assault or ABH charges. Defences: Consent – may be available as a defence. Although consent is not a defence to ABH as it is against the public interest (A-G’s Ref No6), properly conducted games and sports provide a relevant exception in this case. Andrew will therefore only be liable if he caused Wayne’s injuries outside of the rules of the sport (there is no evidence of this) or if it was proven that although during a match, his conduct was sufficiently grave to be properly categorised as criminal (Barnes 2004). It is likely that Andrew would successfully use consent as a defence. Wayne Offences: The injury that Andrew has sustained as a result of Wayne’s foul tackle may amount to ‘serious harm’ and could be charged under either the basic intent s.20 (unlawfully and maliciously wounding or inflicting any grievous bodily harm) or the specific intent s.18 (unlawfully and maliciously wounding or causing grievous bodily harm with intent). The charge will depend upon Wayne’s mens rea (did he intend to cause serious harm (s.18) or was he merely subjectively reckless as to inflicting some harm (s.20). With a s.20 offence, there Is no need for Wayne to have foreseen the level of serious injury as long as some harm was foreseen in the Cunningham sense (Parmenter). If intent can not be proven on a charge of s.18 then Wayne will likely to be found guilty of a s.20 offence which has a maximum sentence of 5 years. Defences: Consent –Although consent is not a defence to ABH as it is against the public interest (A-G’s Ref No6), properly conducted games and sports provide a relevant exception in this case. Wayne will therefore only be liable if he caused Andrew’s injuries outside of the rules of the sport (there is evidence of this as it was a FOUL tackle where he has jumped wildly) or if it was proven that although during a match, his conduct was sufficiently grave to be properly categorised as criminal (Barnes 2004). The breach of the rules of the sport must be serious. It is likely that Andrew would be unsuccessful in using this defence. Andrew has consented to being tackled, but he hasn’t consented to wild tackles that constitute a foul. Automatism – Automatism was defined in Bratty as ‘an act done by the muscles without any control by the mind’. Non-insane automatism is a defence because the act is done by the D involuntarily and the mens rea is not present. The cause of the automatism must be external. In this case Wayne has received a blow to the head which has left him concussed, and dazed. This is an external cause. It must however be proven that this external factor has resulted in ‘total destruction of voluntary control’. Partial or reduced control of actions is not sufficient (A-G’s reference (No 2 of 1992). Wayne has a potential defence if it is found that his actions were as a result of his concussion and not intentional or reckless and that the concussion caused him to lose ALL control. Tyrone & Percy were best friends until Tyrone started going out with Percy’s ex girlfriend, Una. Tyrone and Una were sitting together in the pub when Tyrone received a text message from Percy which said: ‘I’m watching you. Be very afraid.’ Una read the text message and turned pale with fright. Seconds later, Comment [S1]: Things said or done – common assault. Tyrone was hit on the back of the head by an empty beer can thrown by Percy. Tyrone decided that it Comment [S2]: Apprehends physical violence – was time he and Percy ended their quarrel, so he located Percy among the crowd of drinkers and same as phone calls ‘fear of violence at some time, suggested they settle their differences as they always did, with a friendly fist fight. Tyrone could see that not excluding the immediate future’ (Constanza) Percy was very drunk, and thought that no harm could come of it. Percy consented to the plan and the Comment [S3]: Battery – any touching - immediate (doesn’t have to be instantaneous) Not an two young men squared up to one another in the street outside the pub. Not wanting to hurt Percy, assault, doesn’t see it coming. Tyrone delivered a loose punch with barely grazed Percy’s face. Percy retaliated with a blow that Comment [S4]: A-G’s reference (No 6 of 1980) – two young men agreed to fight in the street to settle knocked out one of Tyrone’s teeth. A passer-by, Austin, saw the blood coming from Tyrone’s mouth and their differences following a quarrel – the CA held that consent could not be a defence to such an action ran up to separate them. Thinking that he was being attacked, Percy kicked Austin in the stomach, as it was not in the publics interest. (the exceptions causing him serious internal injuries. of game, sport, lawful chastisement etc do not apply) but what about horseplay (Aitkin and Jones) Comment [S5]: Common assault. Comment [S6]: s.47 – any hurt or injury which Consider whether Percy and Tyrone may have committed any offence(s) taking into account any interferes with health or comfort (Miller)) defences which might be available to them.  Comment [S7]: Prevention of crime Comment [S8]: Mistake Comment [S9]: GBH AO1 DEFINITIONS REQUIRED Elements of assault and battery at common law: Criminal Justice Act 1988 s.39 Aggravated assaults: OAPA 1861 ss.47, 18, 20 Intoxication: distinction between crimes of basic and specific intent Self defence, Mistake Reasonable force in the prevention of crime: Criminal Law Act 1967 s.3 Tyrone Could be guilty of assault and battery against Percy - force used would not amount to one of the aggravated assaults Defences – arguable that Tyrone lacks mens rea of assault, but against this, he clearly intends Percy to think that they are going to have a real fight, so he presumably intends Percy to apprehend immediate unlawful force. Consent – Percy’s consent would be relevant since the force used does not amount to ABH. Consent would not normally apply to a fist fight but it could be argued that, on the facts, this is no more than horseplay, as in Jones and a case of mistaken consent. Percy Could be guilty of assault against Tyrone and Una, as this can be committed by words alone: Ireland, Burstow. D’s conduct must cause V to fear immediate unlawful force. May be guilty of a battery against Tyrone – hitting him on the head with an empty beer can could be a battery, although not assailt, since Tyrone did not see it coming and so would not have been put in fear of immediate unlawful force. May be guilty of an aggravated assault against Tyrone – knocking his tooth out would most likely amount to ABH under s.47 May be guilty of aggravated assault against Austin – s.18 wounding or causing serious bodily harm Possible defences – Majewski – intoxication can be a defence to a crime of specific intent but not basic intent, so could not plead absence of mens rea due to intoxication in relation to assault on Una and Tyrone or the battery against Tyrone with the beer can. Could plead that he did not have intention to cause GBH to Austin, (that he was so drunk that he was incapable of forming the intent required). Cannot rely on a mistaken belief in the need for self defence caused by intoxication (drunken mistake)– O’Grady, followed in O’Connor and confirmed in Hatton (2005) Consent – might be possible to argue horseplay in relation to Tyrone, but unlikely. The Theft Act 1968, s. 1 Defines theft as: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” The Act then goes on in the next five sections to give some help with the meaning of the words in the definition. Actus Reus of Theft ‘appropriates property belonging to another.’ There are three elements to this: 1. Appropriation 2. Property 3. Belonging to another Appropriation – s. 3 (1) “any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.” So, appropriation is much wider than a pickpocket taking a wallet from someone’s pocket. The thief must do something which assumes (takes over) one of the owner’s rights. Appropriation by assuming the right to sell Pitham and Hehl (1977) Facts of the case The defendant had sold furniture belonging to another person. Principle of the case This was held to be an appropriation. The offer to sell was an assumption of the rights of an owner & the appropriation took place at that point. It did not matter whether the furniture was removed from the house or not. Even if the owner was never deprived of the property D had still appropriated it by assuming the rights of the owner to offer the furniture for sale. Appropriation by assuming the owner’s right to destroy property If the defendant destroys property belonging to another he can be charged with theft. Theft can also be charged where the defendant does not destroy the other’s property but throws it away. Morris (1983) Facts of the case The defendant had switched the price labels of two items in a supermarket. He had then put one of the items, which now had a lower price on it, into a basket and taken the item to the checkout, but it had not gone through the checkout when he was arrested. His conviction for theft was upheld. Principle of the case Lord Roskill: “it is enough for the prosecution if they have proved…the assumption of any of the rights of the owner of the goods in question.” Consent to the appropriation Lawrence (1971) Facts of the case An Italian student, who spoke very little English arrived at Victoria Station and showed an address to Lawrence, a taxi driver. The journey should have cost 50p, but Lawrence told him it was expensive. The student offered Lawrence a £1 note. Lawrence said that this was not enough. The student opened his wallet and Lawrence helped himself to another £6. Lawrence argued that he had not appropriated the property because the student had consented to him taking it. Principle of the case The COA and the HOL rejected this argument and held that there was an appropriation. Gomez (1993) Facts of the case The defendant was the assistant manager of a shop. He persuaded the manager to sell electrical goods worth over £17, 000 to an accomplice and to accept payment by two cheques, telling the manager they were as good as cash. The cheques were stolen and had no value. The defendant was convicted of the theft of the goods. Principle of the case (Court of Appeal) The COA quashed the conviction relying on the judgment in Morris that there had to be an ‘adverse interference’ for an appropriation. Principle of the case (House of Lords) HOL held that an appropriation had taken place & that there was no need for adverse interference with or usurpation of some right of the owner. To be guilty of theft the D need not do anything contrary to the owner’s wishes. Consent without deception Hinks (2000) Facts of the case The defendant was a 38 year old woman who had befriended a man who had a low IQ and was very naïve. He was, however, mentally capable of understanding the concept of ownership and making a valid gift. Over a period of eight months the defendant accompanied the man on numerous occasions to his building society where he withdrew money. The total was about £60,000 and this money was deposited in the defendant’s account. The man also gave the defendant a TV. The defendant was convicted of theft of the money and the TV after the jury were directed to consider whether the man was so incapable that the defendant herself realised that ordinary and decent people would regard it as dishonest to accept a gift from him. Principle of the case On appeal, it was argued that if the gift was valid, the acceptance of it could not be theft. HOL dismissed the appeal (3/2). Four of the judges decided that, even though the property was a valid gift, there was an appropriation. Lord Hobhouse dissented, ruling that there could not be an appropriation in these circumstances. A later assumption of a right s. 3(1) makes it clear that there can also be an appropriation where the defendant acquires property without stealing it, but then later decides to keep or deal with the property as owner. The appropriation takes place at the point of ‘keeping’ or ‘dealing.’ E.g. the defendant borrows a bicycle but then sells it or gives it away. Property – s. 4 (1) “Property includes money and all other property real or personal, including things in action and other intangible property.” Money Real property – land and buildings Personal property - all moveable items (books, jewellery, CDs, cars, aeroplanes) Things in action – bank account Other intangible property – export quota, patent Personal property Kelly and Lindsay (1998) Facts of the case Kelly was a sculptor who asked Lindsay to take body parts from the Royal College of Surgeons where he worked as a laboratory assistant. Kelly made casts of the parts. They were convicted of theft and appealed on the ground that body parts were not property. Principle of the case The COA held that, though a dead body was not normally within the definition of the Theft Act, the body parts were property as they had acquired ‘different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.’ Real Property Real property is the legal term for land and buildings. S. 4 (2) states when land can be stolen: Where a trustee or personal representative takes land in breach of his duties; Someone not in possession of land severs anything forming part of the land from the land; A tenant takes a fixture or structure from the land let to him. In 1972 a man was prosecuted for stealing Cleckheaton Railway station by dismantling it and removing it. Things in action A thing in action is a right which can be enforced against another person by an action in law. The right itself is property under s. 4. Bank account: the bank does not keep coins or banknotes for each customer’s account in a separate box. Instead the customer has a right to the payment of amount in his account. So, if the defendant causes the bank to debit another person’s account he has appropriated a thing in action. A cheque itself is a thing in action, but it is also a piece of paper which is property which can be stolen, and it is a ‘valuable security’ which can be stolen under the definition of property. Other intangible property This refers to other rights which have no physical presence but can be stolen under the Theft Act. AG for Hong Kong v Chan Nai-Keung (1987) An export quota for textiles was intangible property which could be stolen. Oxford v Moss (1979) Facts of the case The defendant was a University student who acquired an examination paper he was due to sit. It was accepted that the defendant did not intend to permanently deprive the University of the piece of paper on which the questions were printed. But he was charged with theft of confidential information (i.e. knowledge of the questions). Principle of the case He was found not guilty. Knowledge of the questions was held not to be property. Things which cannot be stolen s. 4 (3): “A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or sale or other commercial purpose.” S. 4 (4): “wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person & possession of it has not been lost or abandoned, or another person is in course of reducing it into possession.” Belonging to Another s. 5 (1) “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest.” Turner (no 2) (1971) Facts of the case The defendant left his car at a garage for repairs. It was agreed that he would pay for the repairs when he collected the car after the repairs had been completed. When the repairs were almost finished the garage left the car parked on the roadway outside their premises. The defendant used a spare key to take the car during the night without paying for the repairs. Principle of the case The COA held that the garage was in possession or control of the car and so the defendant could be guilty of stealing his own car. Property received under an obligation s. 5 (3) “Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property shall be regarded (as against him) as belonging to the other.” Hall (1972) Facts of the caseFacts The defendant was a travel agent who received deposits from clients for air trips to America. The defendant paid these deposits into the firm’s general account but never organised any tickets and was unable to return the money. Principle of the case He was convicted of theft but on his appeal his conviction was quashed because when the defendant received the deposits he was not under an obligation to deal with it in a particular way. The COA stressed that each case depended on its own facts. Klineberg and Marsden (1999) Facts of the case The two defendants operated a company which sold timeshare apartments in Lanzarote to customers in England. Each purchaser paid the purchase price on the understanding that the money would be held by an independent trust company until the apartment was ready for the purchaser to occupy. Over £500,000 was paid to the defendant’s company but only £233 was actually paid into the trust company’s account. Principle of the case The defendant’s were guilty of theft as it was clear that they were under an obligation to the purchasers ‘to retain and deal with that property or its proceeds in a particular way’ deal that they had not done this. Davidge v Burnett (1984) Principle of the case The defendant was guilty of theft when she was given money by her flatmates to pay the gas bill but instead used it to buy Christmas presents. Property got by mistake – s. 5 (4) AG’s Ref (No 1 of 1983) (1985) Facts of the case The defendant’s salary was paid into her bank account by transfer. On one occasion her employers overpaid her by £74.74. She was acquitted but the prosecution asked the COA to rule on whether a person in this situation who dishonestly decided not to repay the money would be guilty of theft. Principle of the case COA held that s. 5 (4) clearly provided for this type of situation. The defendant was under ‘an obligation to make restoration’ and if there was a dishonest intention not to make restoration then all the elements of theft were present. Gilks (1972) Facts of the case The defendant placed a bet on a horse race. The bookmaker had made a mistake about which horse the defendant had backed and overpaid the defendant. The defendant realised the error and decided not to return the money. Principle of the case As betting transactions are not enforceable at law s. 5 (4) did not apply and the defendant was not guilty. Mens Rea of Theft There are two elements to this: 1. Dishonest 2. Intention Behaviour which is not dishonest – s. 2 A person’s appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that: 1. He has in law the right to deprive the other of it, on behalf of himself or a 3rd person or 2. He would have the other’s consent if the other knew of the appropriation and the circumstances of it or 3. The person to whom the property belongs cannot be discovered by taking reasonable steps. If the defendant had a genuine belief in one of these three then he is not guilty of theft. Being willing to pay is still dishonest – s. 2 (2) The Ghosh test Ghosh (1982) Facts of the case Ghosh was a doctor acting as a locum consultant in a hospital. He claimed fees for an operation he had not carried out. He said that he was not dishonest as he was owed the same amount for consultant fees. Principle of the case The COA decided that the test for dishonesty has both an objective and a subjective element to it. These are: Was what was done dishonest according to the ordinary standards of reasonable and honest people? Did the D realise that what he was doing was dishonest by those standards? Intention of permanently depriving Velumyl (1989) Facts of the case The defendant, a company manager, took £1,050 from the office safe. He said that he was owed money by a friend and that he was going to replace the money when that friend repaid him. Principle of the case The COA upheld his conviction for theft as he had the intention of permanently depriving the company of the banknotes which he had taken from the safe, even if he intended replacing them with other banknotes to the same value later. DPP v Lavender (1994) Facts of the case The defendant took doors from a council property which was being repaired and used them to replace damaged doors in his girlfriend’s council flat. The doors were still in the possession of the council but had been transferred without permission from one council property to another. Principle of the case The Divisional Court held that the question was whether he intended to treat the doors as his own, regardless of the rights of the council. The answer to this was yes, so the D was guilty of theft. Borrowing or lending Lloyd (1985) Facts of the case The projectionist at a local cinema gave the defendant a film that was showing at the cinema so that the defendant could make an illegal copy. The defendant returned the film in time for the next screening at the cinema. Principle of the case His conviction for theft was quashed because, by returning the film in its original state, it was not possible to prove an intention permanently to deprive. Borrowing is not theft unless it is for a period and in circumstances making it equivalent to an outright taking or disposal. This means keeping the property until ‘the goodness, the virtue, the practical value has gone out of the article.’ Robbery – Theft Act s. 8 In effect it is a theft which is aggravated by the use of force. “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.” Actus Reus for Robbery Theft + Force or putting or seeking to put any person in fear of force. In addition, there are two conditions on the force and these are that it must be immediately before or at the time of the theft and it must be in order to steal. Completed theft There must be a completed theft for a robbery to have been committed. All of the elements of theft must be present. Robinson (1977) Facts of the case The defendant ran a clothing club and was owed £7 by victim’s wife. The defendant approached the victim and threatened him. During a struggle the man dropped a £5 note and the defendant took it, claiming he was still owed £2. Principle of the case The defendant’s conviction for robbery was quashed because the trial judge had wrongly directed the jury that the defendant had honestly to believe he was entitled to get the money in that way. In fact if the defendant had a genuine belief that he had a right in law to the money, then his actions were not dishonest under s. 2 (1) (a) TA 1968. Where force is used to steal, then the moment the theft is complete there is a robbery. Corcoran v Anderton (1980) Facts of the case One of the defendant’s hit a woman in the back and tugged at her bag. She let go of the bag and it fell to the ground. The defendant’s ran off without the bag (because the woman was screaming and attracting attention). Principle of the case It was held that the theft was complete so the defendant’s were guilty of robbery. Force or threat of force Dawson and James (1976) Facts of the case One of the defendant’s pushed the victim causing him to lose his balance which enabled the other defendant to take his wallet. They were convicted of robbery. Principle of the case The COA held that ‘force’ was an ordinary word and it was for the jury to decide if there had been force. Clouden (1987) Facts of the case The COA held that the defendant was guilty of robbery when he had wrenched a shopping basket from the victim’s hand. The COA held that the trial judge was right to leave the question of whether the defendant had used force against a person to the jury. Principle of the case n any person The person threatened does not have to be the person from whom the theft occurs. Force immediately before or at the time of the theft Hale (1979) Facts of the case The two defendant’s knocked on the door of a house. When a woman opened the door they forced their way into the house. One defendant put his hand over her mouth to stop her screaming while the other defendant went upstairs to see what he could find to take. He took a jewellery box. Before they left the house they tied up the householder. On appeal the defendant’s argued that the theft was complete as soon as the second defendant picked up the jewellery box, so the use of force in tying up the householder was not at the time of stealing. Principle of the case The COA upheld their convictions. The COA thought that the jury could have come to the decision that there was force immediately before the theft when one of the defendant’s put his hand over the householder’s mouth. In addition, the COA thought that the tying up of the householder could also be force for the purpose of robbery as the theft was still ongoing. Lockley (1995) Facts of the case The defendant was caught shoplifting cans of beer from an off-licence. He used force on the shopkeeper who tried to stop him from escaping. Principle of the case Lockley appealed on the basis that the theft was complete when he used the force, but the COA followed the decision in Hale and held that he was guilty. Force in order to steal If the force was not used in order to steal, then any later theft will not be a robbery. E.g. the defendant has an argument with the victim and punches him, knocking him out. The defendant then sees that some money has fallen out of the victim’s pocket and decides to take it. The force was not used for the purpose of that theft and the defendant is not guilty of robbery, but guilty of two separate offences: an assault and theft. Mens Rea for Robbery The defendant must have the Mens Rea for theft The defendant must be dishonest and must intend permanently to deprive the other of the property. He must also intend to use force to steal. Burglary – Theft Act s. 9 S. 9 provides two different ways in which burglary can be committed: S. 9(1)(a) a person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict GBH, or do unlawful damage to the building or anything in it. s. 9(1)(b) a person is guilty of burglary if, having entered a building or part of a building as a trespasser, he steals or attempts to steal anything in the building or inflicts or attempts to inflict GBH on any person in the building. s.9(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of the building in question, of inflicting on any person therein any grievous bodily harm, and of doing unlawful damage to the building or anything therein. s.9(4) References in subsection (1) and (2) above to as building, and the reference in subsection (3) to a building which is a dwelling, shall apply to any such vehicle or vessel when the person having habitation in it is not there as well as at times when he is. The difference is the intention at the time of entry. For (a) the defendant must intend to do one of the three listed offences (known as ulterior offences) at the time of entering. For (b) what the defendant intends on entry is irrelevant, but the prosecution must prove that he actually committed or attempted to commit theft or GBH. Actus Reus for Burglary Entry Of a building or part of a building As a trespasser. Entry Collins (1972) The COA said that the jury had to be satisfied that the defendant had made ‘an effective & substantial entry.’ Brown (1985) Facts of the case The defendant was standing on the ground outside but leaning through a shop window rummaging through goods. His feet and lower parts of his body were outside the shop, but the top part of his body and arms were inside the shop. Principle of the case COA said that the word ‘substantial’ did not materially assist the definition of ‘entry’ & his conviction for burglary was upheld as clearly in this situation his entry was effective. Ryan (1996) Facts of the case The defendant was trapped when trying to get through a window at 2.30am. His hand and right arm were inside the house. The fire brigade released him. This could scarcely be said to be an ‘effective’ entry. Principle of the case The COA upheld his conviction for burglary, saying that there was evidence on which the jury could find that the defendant had entered. Building Includes: Houseboats, caravans, houses, blocks of flats, offices, factories, outbuildings, sheds. B and S v Leathley (1979) Facts of the case A 25 foot long freeze container which had been in a farmyard for over two years was used as a storage facility. It rested on sleepers, had doors with locks and was connected to the electricity supply. Principle of the case This was held to be a building. Norfolk Constabulary v Seekings & Gould (1986) Facts of the case A lorry trailer with wheels which had been used for over a year for storage had steps, and was connected to the electricity supply was held not to be a building. Principle of the case The fact that it had wheels meant that it remained a vehicle. Part of a building Walkington (1979) Facts of the case The defendant went into a counter area in a shop and opened a till. This area was clearly marked by a three-sided counter. Principle of the case The defendant’s conviction for burglary under s. 9 (1) (a) was upheld as he had entered part of a building (the counter area) as a trespasser with the intention of stealing. As a trespasser Collins (1972) Facts of the case The defendant was drunk and wanted to have sexual intercourse. He saw an open window and climbed a ladder to look in. He saw there was a naked girl asleep in bed. He then went down the ladder, took off all his clothes except for his socks and climbed back up the ladder to the girl’s bedroom. As he was on the window sill outside the room, she woke up, thought it was her boyfriend and helped him into the room where they had sex. Collins was convicted of burglary under s. 9 (1)(a) i.e. that he had entered as a trespasser with intent to rape. He appealed on the basis that he was not a trespasser as he had been invited in. The COA quashed his conviction because there was no evidence that he was a trespasser; the girl had invited him in. Principle of the case The COA said that there could not be a conviction for entering premises as a trespasser unless the person entering did so either knowing he was a trespasser or was reckless as to whether or not he was entering the premises of another without the other person’s consent. Going beyond permission Smith and Jones (1976) Facts of the case Smith & Jones went to Smith’s father’s house in the middle of the night and took two television sets without the father’s permission or knowledge. The father stated that his son would not be a trespasser in the house; he had a general permission to enter. Principle of the case The COA upheld their convictions for burglary – he had gone beyond his general permission to enter by removing the TV’s. Mens Rea for Burglary There are two parts to the Mens Rea in burglary: Entering as a trespasser; and The ulterior offence. For both (a) and (b) the defendant must know or be subjectively reckless, as to whether he is trespassing. In addition, for (a) the defendant must have the intention to commit theft or GBH or criminal damage at the time of entering the building. For (b) the defendant must also have the Mens Rea for theft or GBH when committing (or attempting to commit) the Actus Reus of one of these offences in a building. General Defences The OCR specification requires that you study the following general defences: Insanity Automatism Intoxication Duress/Necessity Self Defence/defence of another/prevention of crime. Consent (please see your special study materials) Insanity A denial of mens rea The Significance of Insanity The defence of insanity is rarely used. Its importance has been much reduced, particularly in murder cases by two developments: 1. The introduction of diminished responsibility in 1957, and 2. The abolition of the death penalty in 1965. It is a general defence and may be pleaded as a defence to any crime requiring a Mens Rea. Often the defendant does not specifically raise the defence of insanity, but places the state of his mind in issue by raising another defence. The question whether such a defence, or a denial of Mens Rea really amounts to insanity is a question of fact for the judge. If the judge decides that the evidence does support the defence, then he should leave it to the jury to determine whether the defendant was insane. If the defendant is found to have been insane at the time of committing the Actus Reus then the jury should return a verdict of ‘not guilty by reason of insanity’ (s. 1 Criminal Procedure (Insanity) Act 1964), otherwise referred to as the special verdict. Until recently this verdict obliged the judge to order the defendant to be detained indefinitely in a mental hospital. The M’Naghten Case M’Naghten (1843) M’Naghten suffered from extreme paranoia. He thought he was being persecuted by the ‘Tories’. He tried to kill a member of the Government, Sir Robert Peel, but instead killed his secretary. Because of his mental state he was found not guilty of murder. In fact, he was committed to a mental hospital because of his mental state but this was not the result of the verdict. The fact that he could be found guilty and need not have been sent to a mental hospital caused a public outcry and led to the judges in the HOL being asked to clarify the law in respect of insanity. The answers to those questions have created the rules on insanity which are used in legal cases today. “the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that 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 defect of reason, from disease of the mind, as 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.” The M’Naghten Rules The main rule is that ‘every man is presumed to be sane’ until it is proved otherwise. To prove a man was insane, three elements must be established: 1. The defendant was suffering from a defect of reason; 2. Caused by a disease of the mind; 3. With the consequence that the defendant did not know the nature and quality of his act; or did not know what he was doing was wrong. Defect of Reason This means that the defendant’s powers of reasoning must be impaired. However, if the defendant is capable of reasoning but has failed to use those powers then this is not a defect of reason. R v Clarke (1972) Facts of the case The defendant went into a supermarket and left without paying for three items which she had placed in her handbag. She was charged with theft but claimed in her defence that she lacked the Mens Rea for theft on the basis of absent-mindedness caused by diabetes and depression. The trial judge ruled that this amounted to a plea of insanity, at which point the defendant pleaded guilty. Principle of the case The rules apply only to ‘persons who by reason of disease of the mind’ are deprived of the power of reasoning. They do not apply and will never apply to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full’. Disease of the Mind The defect of reason must be due to a disease of the mind. This is a legal term not a medical one. The disease can be a mental disease or a physical disease which affects the mind. R v Kemp (1956) Facts of the case The defendant suffered from arteriosclerosis (hardening of the arteries) which restricted the flow of blood to the brain, causing blackouts. In this condition he committed the Actus Reus of GBH (he hit his wife with a hammer). At the trial the question arose as to whether this condition came within the rules of insanity (i.e. a ‘disease of the mind’). Principle of the case The defendant was held to be insane because the law was not concerned with the brain but with the mind. The defendant’s ordinary mental faculties of reason, memory and understanding had been affected and so his condition came within the rules on insanity. R v Sullivan (1984) Facts of the case The defendant had suffered from epilepsy since childhood. He was known to have fits and had shown aggression to those trying to help him during a fit. He injured a 80-year-old man during a friendly visit to a neighbour’s house. The trial judge ruled that on the facts he would be directing the jury to return a verdict of ‘not guilty by reason of insanity.’ As a result of this, the defendant pleaded guilty to ABH. The defendant then appealed. Principle of the case Both the COA and HOL confirmed the conviction. The HOL ruled that the source of the disease was irrelevant. It could be ‘organic, as in epilepsy, or functional’, and it did not matter whether the impairment was ‘permanent or transient and intermittent’, provided that it existed at the time the defendant did the act. Thus acts done during an epileptic fit = insanity. R v Hennessy (1989) Facts of the case The defendant was a diabetic who had not taken his insulin for three days. He was seen to get into a car which had been reported stolen and drive off. He was charged with taking a motor vehicle without consent and driving while disqualified. He had no recollection of driving the car. Principle of the case A diabetic, who falls into a hyperglycaemic state, must be treated as pleading insanity as it was the disease itself (an internal factor) causing the seizure. R v Burgess (1991) Facts of the case The defendant and his girlfriend had been watching videos. They fell asleep and in his sleep the defendant attacked her. There was no evidence of an external cause for the sleepwalking and a doctor at the trial gave evidence that in this instance it was due to an internal cause: a sleep disorder. The judge ruled that this was evidence of insanity and the defendant was found ‘not guilty by reason of insanity.’ Principle of the case The COA upheld this finding. However, if the sleepwalking is due to an external cause, such as a blow to the head, then it is not insanity but it would allow the defendant to use the defence of automatism. External factors Where the cause of the defendant being in a state, is not a disease, but an external cause then this is not insanity. R v Quick (1973) Facts of the case The defendant was a diabetic who had taken his insulin but not eaten enough. This causes low blood sugar levels which can affect the brain. In this state the defendant, who was a nurse at a mental hospital, assaulted a patient. Principle of the case The COA rules that his condition did not come within the rules of insanity. It was caused by an external matter: the drug insulin. This meant that the defendant could rely on the defence of automatism and was entitled to be acquitted of the charge. People with diabetes who go into a hyperglycaemic state (high levels of blood sugar caused by lack of insulin) = insanity People with diabetes who go into a hypoglycaemic state (low levels of blood sugar caused by insulin) = automatism Not knowing the nature and quality of the act There are two ways in which the defendant may not know the nature and quality of his acts. These are: a) Because he is in a state of unconsciousness or impaired consciousness; or b) When he is conscious but due to his mental condition he does not understand or know what he is doing. E.g. The defendant cuts a woman’s throat but thinks he is cutting a loaf of bread. The defendant chops off a sleeping man’s head because it would be amusing to see him looking for it when he wakes up. Or not knowing it was wrong Where the defendant knows the nature and quality of his act he can still use the defence of insanity if he does not know that what he did was wrong. Wrong means legally wrong not morally wrong. R v Windle (1952) Facts of the case The defendant’s wife constantly spoke of committing suicide. One day the defendant killed her by giving her 100 aspirins. He gave himself up to the police and said: ‘I suppose they will hang me for this.’ Principle of this case He was suffering from mental illness, but these words showed that he knew what he had done was legally wrong. As a result he could not use the defence of insanity and was found guilty of murder. Evaluation and reform The burden of proof rests with the defendant Critics have argued that it is unfair that the burden is on the defendant to prove, on the balance of probabilities, that he or she was suffering from insanity. They say that this undermines the notion that the defendant is innocent until proven guilty by the prosecution. The use of a legal rather than a medical definition Perhaps the major flaw in this defence is that the courts use a legal definition of insanity rather than a medical one. In addition, the legal definition dates from 1843 and fails to take account of the huge medical advances that have occurred since then. The rules are too broad The classification of diabetics, epileptics and sleepwalkers as insane has been criticised for suggesting that those suffering from such conditions are a danger to the public, whereas this is far from the truth in the vast majority of cases. Most people with such conditions are able to control them by taking medication. Social Stigma: that can attach to an epileptic etc from a finding of ‘not guilty owing to insanity’ can be far reaching. The rules are too narrow The defence can rule out those who are medically insane if they know the nature and quality of their act or that it is legally wrong but are nonetheless unable to stop themselves from committing it. Thus, those at whom the defence should be aimed are unable to rely on it. For example in the case of Byrne. He was a sexual psychopath who could not resist perverse ideas. He knew what he was doing was wrong and so couldn’t rely on the defence of insanity but could rely on the defence of DR instead. But DR only available for a charge of murder! The defences are effectively established or rebutted by medical experts rather than being decided upon by jurors – doctors should not be delivering opinions on legal or moral responsibility which are essentially jury issues potential for jury confusion & misapplication owing to emotional considerations, sympathy or crude ‘gut reaction’ eg Peter Sutcliffe – the ‘Yorkshire Ripper’ where psychiatrists were unanimous in agreeing he was a paranoid schizophrenic yet he was convicted of murder; Reform Place the burden of proof on the prosecution The Butler Committee and the Criminal Law Revision Committee have suggested that, since it is part of mens rea, the burden of proof should be reversed and placed on the prosecution rather than the defendant. A new defence Critics argue that the only way forward is to abolish the M’Naghten rules altogether. Instead, a new defence should be introduced. The Butler Committee suggested that this should apply to defendants with a mental disorder and should result in a verdict of ‘not guilty on evidence of a mental disorder’. This would avoid the defendant being labelled insane. Others suggest that there is no need for such a defence at all and that those suffering from insanity should be dealt with outside the criminal justice system. INSANITY EXEMPLAR Insanity is a general defence to ALL crimes whereas diminished responsibility is a special and partial defence to a charge of murder ONLY. The DEFENDANT must prove that he or she was suffering from insanity when he or she committed the offence. This must be proved on the BALANCE OF PROBABILITITES. Critics have argued that this is unfair in that it undermines the notion that the defendant is innocent until proven guilty by the prosecution. The Butler Committee and the Criminal Law Revision Committee have suggested that, since it is part of mens rea, the burden of proof should be reversed and placed on the prosecution rather than the defendant When the D is found to be insane the verdict is ‘not guilty by reason of insanity’. Until the introduction of the Criminal Procedure Act 1991, this automatically meant an indefinite hospital stay and meant that defendants were particularly reluctant to plead insanity, but now this only applies to murder. If the defendant is charged with another crime, the judge can make a hospital order, a guardianship order, supervision and treatment order, or an absolute discharge. If D is charged with murder then the judge must impose an indefinite hospital order. The home secretary must consent to release. In the case of McNaghten, it was held that ‘the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, unless proved that he was labouring under such a defect of reason, from disease of the mind, as 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. The three elements: Defect of reason D must show that his or her ability to reason was impaired. The basis of the defence is the defendant’s deprivation of the power of reasoning. A defendant who still possessed the powers of reasoning but failed to use them cannot be classed as insane. In Clarke (1972) it was held that Defect of reason must be more than absent mindedness or confusion. Disease of the mind This is a legal term and not a medical one. The problem with this have been made apparent by the types of conditions that the courts have accepted as constituting a disease of mind, such as arteriosclerosis (Kemp) , epilepsy (Sullivan) and diabetes (Hennessy). These decisions have illustrated the fact that the definition is purely legal which has been broadened to cover the operation of the mind in all its aspects. Under this element, the reluctance to accept automatism as a full defence if it could mean releasing potentially dangerous people back into society is in issue. The general rule is that if automatism (acts done by the muscles without any control by the mind) is caused by a ‘disease of the mind’ then the M’Naghten rules apply and the D will be found not guilty by reason of insanity. (Insane Automatism). Where the automatism is caused by an external factor then the defendant will be found not guilty as none-insane automatism is a complete defence. The question of whether D’s condition is sane or insane automatism is one of law for the judge (Bratty 1963). The continuing danger theory focuses on the danger or recurrence. If there is a danger of recurrence then the more likely a condition will be treated as a disease of mind. (Burgess 1991). The external cause theory focuses on the cause of the automatism and says that conditions stemming from the psychological or emotional makeup of the accused, rather than from some external factor, should lead to a finding of insanity The application of these theories has caused problems of inconsistency as can be demonstrated in the diabetes cases of Hennesy and Quick. One diabetic, who fell into a hypoglycaemic state after taking insulin but not eating enough, was acquitted because it was an external factor (the insulin) causing the seizure (Quick), whereas another diabetic, who fell into a hyperglycaemic state, after failing to take insulin for three days was treated as pleading insanity as it was the disease itself (an internal factor) causing the seizure (Hennessy). The decision in quick is generally regarded as incorrect. Although the insulin was caused the state, the underlying cause was his diabetes. Consistency requires that any diabetic seizure should be regarded as a disease of the mind. If found insane, the defendant will not necessarily face hospitalisation after the passing of the 1991 Act and may simply be subject to a supervision or treatment order or may be discharged. However, the classification of diabetics, epileptics and sleepwalkers as insane has been criticised for suggesting that those suffering from such conditions are a danger to the public, whereas this is far from the truth in the vast majority of cases. Most people with such conditions are able to control them by taking medication. The social stigma that can attach to an epileptic etc from a finding of ‘not guilty owing to insanity’ can be far reaching. In addition to the criticisms related to the broadness of this legal definition, critics have argued that it is also out of date. It dates from 1843 and fails to take account of the huge medical advances that have occurred since then. D Did not know the nature and quality of the act. It must also be proven that in terms of the ‘nature and quality of the act’, the defendant would be unaware of his or her actions. D must not know that what he was doing was legally wrong. (Windle). This element of the rule as been criticised for making the defence too narrow as it can rule out those who are medically insane if they know the nature and quality of their act or that it is legally wrong but are nonetheless unable to stop themselves from committing it. Thus, those at whom the defence should be aimed are unable to rely on it. For example in the case of Byrne. He was a sexual psychopath who could not resist perverse ideas. He knew what he was doing was wrong and so couldn’t rely on the defence of insanity but could rely on the defence of DR instead. But DR only available for a charge of murder! Other evaluation points include the fact that the defences are effectively established or rebutted by medical experts rather than being decided upon by jurors. It is argued that doctors should not be delivering opinions on legal or moral responsibility which are essentially jury issues There is also potential for jury confusion & misapplication owing to emotional considerations, sympathy or crude ‘gut reaction’. For example in the Peter Sutcliffe – the ‘Yorkshire Ripper’ case where psychiatrists were unanimous in agreeing he was a paranoid schizophrenic yet he was convicted of murder. A new defence Critics argue that the only way forward is to abolish the M’Naghten rules altogether. Instead, a new defence should be introduced. The Butler Committee suggested that this should apply to defendants with a mental disorder and should result in a verdict of ‘not guilty on evidence of a mental disorder’. In 1989 the Law Commission’s Draft Criminal Code proposed that a defendant should not be guilty on evidence of severe mental disorder or severe mental handicap. This would avoid the defendant being labelled insane. Others suggest that there is no need for such a defence at all and that those suffering from insanity should be dealt with outside the criminal justice system. In light of the above exploration of the defence of insanity, it would seem apt to agree with the statement that it is outdated and unsatisfactory and with the opinion that reform is long overdue in the interests of both justice and common sense. It is founded on legal rather than medical definitions, and this legal definition was established in a time of limited medical knowledge. This has led to unsatisfactory and inconsistent decisions, labelling insane those who are suffering from a physical medical condition which seems to go against common sense and justice. The burden upon the defendant to prove that he is insane goes against a fundamental principle of the criminal law that we are innocent until proven guilty. Despite the changes in terms of orders that can be made by a judge finding a defendant not guilty by reason of insanity after the 1991 Act, the defence remains unsatisfactory and in desperate need of reform. Automatism A defence where the defendant does an act which is not under the control of his conscious mind. Definition of Automatism “an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking.” Bratty v AG for Northern Ireland (1963) The Two Types of Automatism 1. Insane automatism – where the cause of the automatism is a disease of the mind within the M’Naghten rules. In such a case the defence is insanity and the verdict is not guilty by reason of insanity. 2. Non-insane automatism – where the cause is an external one. Where such a defence succeeds, it is a complete defence and the defendant is not guilty. Non-insane Automatism This is a defence because the Actus Reus done by the defendant is not voluntary. In addition, the defendant does not have the required Mens Rea for the offence. The cause of the automatism must be external. E.g: A blow to the head An attack by a swarm of bees Sneezing Hypnotism The effect of a drug Hill v Baxter (1958) Facts of the case The defendant drove through a stop sign without stopping and collided with another car. He was charged with dangerous driving but acquitted by the magistrates who accepted that he remembered nothing from some distance before reaching the stop sign. Principle of the case The Divisional Court allowed the prosecution’s appeal and remitted the case back to the magistrates with a direction to convict as there was no evidence to support a defence of automatism. The court approved the judgment of the COA in the earlier case of Kay v Butterworth (1945) where the judge had said: “A person should not be made liable at the criminal law who, through no fault of his own, becomes unconscious when driving, as, for example, a person who has been struck by a stone or overcome by a sudden illness, or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees.” R v T (1990) Facts of the case The defendant was gang raped. Three days later she took part in a robbery and an assault. She claimed that at the time she was suffering from Post Traumatic Stress Disorder as a result of the rape and that she had acted in a dream-like state. Principle of the case It was accepted that exceptional stress can be an external factor which may cause automatism. The trial judge allowed the defence of automatism to go to the jury, but the defendant was convicted AGs Ref (No 2 of 1992) (1993) Facts of the case The defendant was a lorry driver who, after driving for several hours, drove along the hard shoulder of a motorway for about half a mile. He hit a broken down car which was stationary on the hard shoulder, killing two people. He said that he was suffering from the condition ‘driving without awareness’ which puts a driver into a trance-like state. It may be brought on by driving for long distance on motorways. The jury acquitted him. Principle of the case The AG referred the point of law to the COA who ruled that because this condition only causes partial loss of control it did not amount to automatism. For automatism, there must be ‘total destruction of voluntary control.’ Self-induced automatism This is where the defendant knows that his conduct is likely to bring on an automatic state. For example: A diabetic, who knows the risk, of failing to eat after taking medication. A person who drinks after taking medication, when he has been told by the doctor that he must not take alcohol. The law on this comes from R v Bailey (1983). R v Bailey (1983) Facts of the case The defendant was a diabetic who had failed to eat enough after taking insulin to control the diabetes. He became aggressive and hit someone over the head with an iron bar. The trial judge ruled that the defence of automatism was not available. Principle of the case The COA held that this ruling was wrong but upheld the defendant’s conviction as there was insufficient evidence in the case to raise the defence of automatism. The COA set out the rules on self-induced automatism: If the offence charged is one of specific intent, then self-induced automatism can be a defence. This is because the defendant lacks the required Mens Rea for the offence. If the offence charged is one of basic intent then: a) If the defendant has been reckless in getting into a state of automatism, self-induced automatism cannot be a defence. Subjective recklessness is sufficient Mens Rea of crimes of basic intent; b) Where the self-induced automatism is caused through drink or illegal drugs the defendant cannot use the defence of automatism. In DPP v Majewski it was held that becoming voluntarily intoxicated is a reckless course of conduct; c) Where the defendant does not know that his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use the defence of automatism. R v Hardie (1985) Facts of the case The defendant was depressed after breaking up with his girlfriend. Whilst packing his bags to leave, he took some of victim’s prescription valium tablets from the medicine cabinet, believing that they would calm him down. Shortly after, he started a fire in the wardrobe. The defendant’s defence was that he did not know what he was doing because of the valium. The jury convicted of arson after being directed to ignore the effects of the valium. Principle of the case However, COA quashed the defendant’s conviction as the defendant had taken the drug because he thought it would calm him down. (This is the normal effect of valium). So the defendant was not reckless and the defence of automatism should have been left to the jury. Essay Question ‘Insane and non-insane automatism are similar defences involving mental abnormality. It is vital that the distinction between them is fully understood since they produce very different consequences for a defendant who relies on one or other of them.’ Critically consider the truth of the above statement. January 2006 [50 marks] Intoxication A defence where the defendant has consumed alcohol, drugs or other substances. Intoxication is a means of putting doubt into the minds of the magistrates or jury as to whether the defendant has formed the necessary mens rea. It is governed by case law. It usually involves alcohol, but can apply to any case where the defendant has consumed a substance (or cocktail of substances) which is capable of affecting the defendant’s ability to intend or to foresee the consequences of their actions. If, despite the intoxication, the defendant forms the necessary mens rea for the crime in question then the defence is not available. The Rules Intoxication is no defence if, despite the intoxication, the defendant formed the mens rea; Where the defendant was involuntarily intoxicated and failed to form the mens rea, the defendant is entitled to be acquitted; Where the defendant was voluntarily intoxicated and failed to form the mens rea, the defendant is entitled to be acquitted if the offence charged is one of specific intent. If the offence charged is one of basic intent then the jury must consider whether the defendant would have formed mens rea had he been sober. Intoxication is no defence if the defendant still formed the mens rea for the crime. So “The mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.” R v Sheehan 1975 Involuntary Intoxication Involuntary intoxication covers situations where the defendant did not know he was taking an intoxicating substance (spiked; prescribed drugs have an unexpected effect). The mere fact that the defendant’s alcoholic drink has a stronger effect than necessary does not make the intoxication, involuntary: R v Allen (1988) If the defendant was involuntarily intoxicated such that the prosecution cannot prove the mens rea, then the defendant is entitled to an acquittal. If the defendant was involuntarily intoxicated but did have the mens rea when he committed the offence, he will be guilty. The involuntary intoxication will not provide a defence. This is so even though the defendant would not have committed the offence without the intoxication lowering his resistance to committing the offence. R v Kingston (1994) Facts of the case The defendant was a middle-aged businessman. He had admitted paedophilic, homosexual tendencies, which he was able to control whilst sober. This presented an opportunity for former business associates of his to blackmail him. As part of the set-up, both the defendant and a 15-year-old boy were lured, separately to a flat and drugged (drugs put in their coffee). The boy fell asleep the defendant was invited to abuse him. The defendant did so and was photographed by the blackmailer. In the prosecution’s view there was evidence that the defendant, despite the effects of the drugs, intended to touch the boy in circumstances of indecency and the jury agreed. Principle of the case The HOL upheld his conviction for indecent assault. They held that if a defendant had formed the Mens Rea for an offence then the involuntary intoxication was not a defence. R v Hardie (1985) Facts of the case The defendant was depressed after breaking up with his girlfriend. Whilst packing his bags to leave, he took some of the victim’s prescription valium tablets from the medicine cabinet, believing that they would calm him down. Shortly after, he started a fire in the wardrobe. The defendant’s defence was that he did not know what he was doing because of the valium. The jury convicted of arson after being directed to ignore the effects of the valium. Principle of the case The COA quashed the defendant’s conviction as the defendant had taken the drug because he thought it would calm him down. (This is the normal effect of valium). So the defendant was not reckless. Voluntary Intoxication This is where the defendant has chosen to take an intoxicating substance. Whether the defendant is guilty depends upon whether the crime is one of specific or basic intent. Crimes of specific intent Crimes of basic intent Murder Manslaughter Wounding or causing GBH with intent Rape Theft Malicious wounding Robbery Assault occasioning ABH Burglary Common assault Voluntary intoxication and specific intent offences Voluntary intoxication can negate the mens rea for a specific intent offence. If the defendant is so intoxicated that he has not formed the mens rea for the offence he is not guilty. DPP v Beard (1920) Facts of the case The defendant had been charged with murder but argued that he was too intoxicated to have formed the mens rea for murder. Principle of the case Lord Birkenhead stated the rule which still applies today: “If he was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved.” R v Sheehan and Moore (1975) Facts of the case The defendant’s were very drunk when they threw petrol over a tramp and set fire to him. They were too drunk to have formed any intent to kill or cause GBH (the MR for murder). Principle of the case It was held that because they did not have the Mens Rea for murder their intoxication was a defence to that offence. However, they were found guilty of manslaughter as that is a basic intent offence. See also R v Heard 2007 Dutch Courage cases! Where the defendant has the necessary mens rea despite his intoxicated state, then he is guilty of the offence. The intoxication does not provide a defence. AG for Northern Ireland v Gallagher (1963) Facts of the case The defendant decided to kill his wife. He bought a knife to do the killing and also a bottle of whisky. He drank a large amount of the whisky before killing his wife. Principle of the case The defendant's conviction for murder was upheld – a drunken intent is still an intent. Dutch Courage “If a man, whilst sane and sober, forms an intention to kill and makes preparation for it knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to murder, not even as reducing it to manslaughter. He cannot say he got himself into such a stupid state that he was incapable of an intent to kill…The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do.” Per Lord Denning in Gallagher Voluntary intoxication and basic intent offences Where the offence charged is one of basic intent then intoxication is not a defence. This is because voluntarily getting intoxicated is considered a reckless course of conduct and recklessness is enough to constitute the necessary mens rea for crimes of basic intent. DPP v Majewski (1977) Facts of the case The defendant had taken both alcohol and drugs. In a very intoxicated state he then attacked people in a pub and also the police officers who were trying to arrest him. He was convicted of 3 offences of assault occasioning ABH and 3 of assaulting a police officer in the execution of his duty. Principle of the case The HOL upheld all these convictions. His intoxicated state was not a defence as: “it is a reckless course of conduct and recklessness is enough to constitute the necessary Mens Rea.” Drunken Mistake If the defendant is mistaken about a key fact because he is drunk, then it depends on what the mistake was about as to whether he has a defence or not. Where the mistake is about something which means that the defendant did not have the mens rea for the offence then for a specific intent offence he has a defence. However, where the offence is one of basic intent then the defendant has not got a defence. R v Lipman (1970) Facts of the case The defendant and his girlfriend had taken the drug LSD before falling asleep at her flat. LSD causes hallucinations. The defendant thought that he was at the centre of the earth and being attacked by snakes. When he awoke he found his girlfriend was dead. He had strangled her and stuffed a sheet into her mouth believing she was a snake attacking him. His conviction for manslaughter was upheld. Principle of the case The defendant did not have the specific intention for murder as he thought he was killing a snake. However, he was guilty of manslaughter because he had voluntarily taken the drug LSD. This was a reckless course of conduct and so he was guilty of manslaughter. R v O’Grady (1987) Facts of the case The defendant and the victim, who was a friend, had been drinking heavily; they fell asleep in the defendant’s flat. The defendant claimed that he awoke to find the victim hitting him. The defendant picked up a glass ashtray and hit the victim with it, the defendant then went back to sleep. When he woke he found that the victim was dead. The defendant was charged with murder but was convicted of manslaughter. Principle of the case This was upheld by the COA. R v Hatton (2005) Facts of the case The defendant had drunk over 20 pints of beer. He and the victim (another man) went back to the defendant’s flat. In the morning the defendant claimed he found the victim dead from injuries caused by a sledgehammer. The defendant said he couldn’t really remember what had happened but thought the victim had hit him with a 5 foot long stick and he had defended the attack. The defendant was convicted of murder. Principle of the case The COA held that a drunken mistake about the amount of force required in self-defence was not a defence. To celebrate the end of A levels, Una and Natasha went out to a night club, where they were joined by Una's boyfriend, Pedro, and Natasha's former boyfriend, Tyrone. Pedro was in a bad mood because he thought he might have failed one of his exams, while Tyrone was still miserable following his break-up with Natasha. In an effort to cheer them up, Una offered to buy a round of drinks. Tyrone was taking medication for his hay fever and had been warned by his doctor to avoid alcohol, so he asked for orange juice. Pedro, who had already drunk several cans of beer before coming to the club, settled for half a pint of lager. Deciding that drastic measures were called for, Una surreptitiously added a large amount of vodka to both their glasses. Pedro became aggressively drunk, and loudly accused Tyrone of fancying Una. Una told him to keep his voice down, whereupon Pedro slapped her and shouted that he would fight anyone who objected. Several people backed away in alarm, fearing for their personal safety. In his anger, Pedro threw a glass at Tyrone, but missed and his Natasha. The glass shattered, cutting her face. By now Tyrone was experiencing the combined effect of the medication and the vodka, and thinking that he was protecting Natasha, he punched Pedro, breaking his jaw. Consider the potential criminal liability of Tyrone and Pedro, including any defences which may be available to them.  Definitions (AO1 knowledge required) Elements of assault and battery at common law; Criminal Justice Act 1988, s. 39. Aggravated assaults: Offences Against the Person Act 1861, ss. 47, 20, 18. Intoxication: distinction between crimes of basic and specific intent. Mistaken use of force in prevention of crime: Criminal Justice and Immigration Act 2008 s.76 Intoxicated mistake Criminal Justice and Immigration Act 2008 s.76 Application Pedro: Offences: May be guilty of a technical assault on the other people nearby (intentionally or recklessly causing them to apprehend immediate unlawful personal violence: Fagan v MPC, approved by HL in Savage and Parmenter. Words alone can constitute assault: Ireland. The slap to Una is a battery, which may be charged as common assault under CJA 1988, s.39, or as assault occasioning actual bodily harm under OAPA 1861, s.47, if hurt or injury is sufficient to interfere with the health or comfort of the victim: Miller. Mens rea: intention or Cunningham recklessness as to battery: foresight of actual bodily harm not necessary: Savage and Parmenter. The injury to Natasha - Pedro may be charged with the offence under s.20 or s.18, or s.47 if the cut is minor. (Under the police charging standards, a minor cut would normally come under s.47, but may be charged as s.20 if the wound is serious, e.g., disfiguring.). His intent to hit Tyrone would be transferred (transferred malice) to Natasha. Defences Intoxication - Pedro's intoxication may be held to be voluntary, as he knew he was drinking alcohol, although not its strength: Allan. If so, then he cannot adduce evidence of intoxication to show he lacked mens rea for assault, battery or the offence under ss.47 or 20; he could do so, however, if he were charged under s.18 as this is a specific intent crime. If involuntarily intoxicated, he can use this as a defence to any of these charges: Majewski. Tyrone What does he do? - Punches Pedro breaking his Jaw. May be charged with maliciously causing grievous bodily harm under s.18 or maliciously inflicting grievous bodily harm under s. 20. Define both. Section 18 requires specific intent, i.e. D must intend to wound (cut or break the continuity of the skin – Eisenhower) or cause GBH (really serious harm (DPP v Smith/Saunders) or foresee it as a virtually certain consequence of his actions. Section 20 requires intention or Cunningham recklessness to wound or inflict GBH but D will be liable if he foresaw some harm, albeit a lesser degree of harm than that which was caused: Mowatt, affirmed in Savage and Parmenter. Conclude which offence is most likely in the circumstance. Defences Intoxication - Tyrone's intoxication is involuntary, so he can adduce evidence of intoxication to negative mens rea whether the offence is one of basic (s.20) or specific intent (s.18) (Majewski). However, if he is proved to have formed the necessary intent, he will be convicted and the involuntary intoxication will be a mitigating factor in his sentence: Kingston/Hardie. . Defence of reasonable force in defence of oneself or another, or to prevent commission of a crime: Criminal Justice and Immigration Act 2008 Although mistaken belief caused through the defendant’s voluntary intoxication cannot give a defence of self defence, defence of another or prevention of crime (s.76(5)), Tyrone is involuntarily intoxicated and so may be able to rely on this defence. If D mistakenly believes it is necessary to use force in the circumstances, his mistake as to the circumstances need only be genuine and not necessarily reasonable - Williams (Gladstone), Scarlett & s.76(3) of the CJIA 2008. Tyrone ought to be acquitted if the jury believe that he honestly thought it was necessary to punch Pedro to protect Natasha, and that a punch was reasonable force in the circumstances. Duress There are two defences of duress and the principles relating to these defences are identical Duress by threats is where: The defendant is threatened (with death or serious injury) by another to commit a specific criminal offence. Cole (1994) Duress by circumstances is where: – The defendant is threatened by the circumstances Pommell (1995) The threats! How serious must the threat be? ‘the imminent peril of death or serious injury …… is an essential element’ Abdul-Hussain (1999) Need not be the sole reason why the defendant committed the offence. Valderrama Vega (1985) R v Valderrama Vega (1985) Facts of the case The defendant illegally imported cocaine and claimed he did this as a result of death threats from a mafia organisation as well as threats to disclose his homosexuality and financial pressures. Principle of the case Held that the jury were allowed to look at the cumulative threats but if the threat of death had not been made the other reasons could not be used for the defence of Duress. Who must the threats be against? R v Conway 1988 In this case threats were allowed to a passenger in the defendant’s car. Consequently this limitation includes threats to other people. Additionally, Threats to a defendant’s spouse would suffice. There have been suggestions in the draft criminal code that it should also include threats to a complete stranger. R v Wright 2000 Principle of the case The Court of Appeal stated that the threat must be directed against the defendant, a member of his immediate family, or a ‘person for whose safety the defendant would reasonably regard himself as responsible’. (This case was approved by the House of Lords by an obiter statement in Hasan 2005) How imminent must the threat be? Abdul-Hussain 1999 – Principle of the case In this case the Court of appeal ruled that, imminent does not mean immediate. This principle was confirmed in the case of R v Safi & Others 2004 However, in the case of Hasan 2005 the House of Lords ruled that the threat must be immediate or almost immediate. Lord Bingham stated that the correct test was…. ‘It should be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged’. Opportunities to escape/ Police protection R v Gill 1963 Facts of the case The defendant was threatened with violence unless he stole a lorry. However, before he committed the offence there was a period of time where he could have raised the alarm. Principle of the case As he had a safe avenue of escape, he had had time to raise the alarm, he could not rely on the defence of duress. Hudson and Taylor 1971 Facts of the case In this case two teenage girls lied on oath about a violent attack as they had been threatened with death if they gave evidence. In the perjury trial the prosecution said that they could have sought police custody. Principle of the case The COA said that in some cases the police could not provide the necessary protection and that the age of the defendants should be considered together with the circumstances of the threats. However the decision in this case was criticised in Hasan 2005. Please read part of Lord Bingham’s judgment above! Self –induced duress A defendant will be denied the defence of duress if they have voluntarily placed themselves in a situation where they risk being threatened with violence in order to commit a crime. Sharp 1987 Facts of the case In this case the defendants had attempted the armed robbery of a post office which resulted in the death of the sub-postmaster. Sharp’s defence was that he had been threatened with having his head blown off if he did not cooperate. The trial judge withdrew the defence from the jury. Sharp was convicted of manslaughter and robbery. Principle of the case The Court of Appeal upheld the convictions stating that if the following were satisfied then the defence would be denied: The defendant must ‘voluntarily join a criminal organisation or gang they must have knowledge of its nature they must have known that pressure might be out on him to commit an offence they must have been an active member of the gang when pressure was put on him Hasan 2005 Facts of the case The defendant was a driver and minder for a prostitute. He had been threatened by her boyfriend (a violent gangster/drug dealer) to carry out a burglary. The defendant committed an armed burglary and at trial pleaded duress. He was convicted. The Court of Appeal quashed his convicted but it was re-instated by the House of Lords Principle of the case The House of Lords stated that the defence of duress is denied when the defendant foresaw (or should have foreseen) the risk of being subjected to ANY compulsion by threats of violence. Consequently, the defendant no longer has to join an organization/gang but should be involved in criminal enterprise. In Hasan 2005 this was involvement with a prostitute. However, another condition in Sharp 1987 was that the defendant must have ‘knowledge of its nature’. Shepherd 1987 Facts of the case The defendant was a member of an organized gang of shoplifters but they were non-violent. However, when he tried to leave the gang they threaten him and his family with violence if he did not continue. He was charged and convicted of theft. The trial judge had withdrawn the defence of duress from the jury. Principle of the case The Court of Appeal quashed his conviction stating that ‘Common sense must recognise that there are certain kinds of criminal enterprises the joining of which, in the absence of any knowledge of propensity to violence on the part of one member, would not lead another to suspect that a decision to think better of the whole affair might lead him into serious trouble. The logic which appears to underlie the law of duress would suggest that if trouble did unexpectedly materialise, and if it put the defendant into a dilemma in which a reasonable man might have chosen to act as he did, the concession to human frailty should not be denied to him. . . .LJ Mustill Resisting the threats! The threat/s made must be one that the ordinary man would not have resisted. Graham 1982 developed a two part test The first question (subjective) is:- was the defendant, or may he have been, compelled to act as he did because, as a result of what he reasonably believed had been said or done, he had good cause to fear that if he did not act as directed he would suffer death or be caused serious physical injury? The second question (objective) is:- would a sober person of reasonable firmness, sharing the characteristics of the defendant, have responded in the same way as the defendant did? The second part of the test requires a reasonable man to respond in the same way! Bowen 1996 Principle of the case This case listed accepted characteristics of a reasonable man. These include 1. Age – young and old people can be susceptible to threats. 2. Pregnancy – fear of unborn child. 3. Serious physical disability – cannot protect oneself. 4. Recognised mental or psychiatric disorder. 5. Sex Scope of the defence Generally duress can be used for all crimes BUT it cannot be used for murder – R v Howe (1987) Principle of the case As I can find no fair and certain basis upon which to differentiate between participants to a murder and as I am firmly convinced that the law should not be extended to the killer, I would depart from the decision of this House in DPP for Northern Ireland v Lynch [ AC 653] and declare the law to be that duress is not available as a defence to a charge of murder, or to attempted murder. I add attempted murder because it is to be remembered that the prosecution have to prove an even more evil intent to convict of attempted murder than in actual murder. Lord Griffiths R v Gotts (1991) This case followed the obiter dicta statement in Howe (see above) and stated that duress cannot be used for attempted murder. This has been heavily criticised by academics and the Law Commission has recommended it be available for all crimes. Specific Offence/Nexus The threats must be in order to make him carry out a specific offence. R v Cole 1994 Principle of the case In our judgment it is plain that the defence of duress by threats can only apply when the offence charged (the offence which the accused asserts he was constrained to commit) is the very offence which was nominated by the person making the threat, i.e. when the accused was required by the threat to commit the offence charged. It is plain . . . that the appellant on the present appeal cannot seek to rely upon the defence of duress by threats: his money lenders had not stipulated that he should put himself in funds by committing robberies; they nominated neither that, nor indeed any other offence, as the means by which he should equip himself to meet their demands. This only applies to duress by threats. Duress of Circumstances Basic rules = same as for duress by threats BUT it is the circumstances that threatened death or serious personal injury unless the crime is committed. The defence originated recently - R v Willer 1986 R v Willer 1986 Facts of the case He drove his car down a narrow alley and was surrounded by a gang of youths threatening violence. To get away from them he drove on the pavement and then reported the incident to the police. He was convicted of reckless driving! Principle of the case COA said that the jury could consider if he drove under duress R v Conway 1989 Facts of the case T, a passenger in D’s car, had been attacked and shot at a few weeks earlier. Two men came running towards their parked car. Unknown to D and T, they were plain clothes policemen seeking to execute an arrest warrant on T. D, claiming to fear that T was about to be killed, drove off in a reckless manner pursued by the policemen in their car. D was convicted of the now replaced offence of reckless driving after the trial judge refused to leave a defence of necessity to the jury. Principle of the case WOOLF J: . . . We have also seen the Law Commission’s report on the Codification of the Criminal Law (Law Com. No. 143 (1985)), which took the view that necessity should remain as a defence at common law, in so far as it is one already. It appears that it is still not clear whether there is a general defence of necessity or, if there is, what are the circumstances in which it is available. We conclude that necessity can only be a defence to a charge of reckless driving where the facts establish ‘duress of circumstances’, as in R v Willer  As the learned editors point out in Smith and Hogan Criminal Law (6th edn, 1988) p. 225, to admit a defence of ‘duress of circumstances’ is a logical consequence of the existence of the defence of duress as that term is ordinarily understood, i.e. ‘do this or else’. This approach does no more than recognise that duress is an example of necessity. Whether ‘duress of circumstances’ is called ‘duress’ or ‘necessity’ does not matter. What is important is that, whatever it is called, it is subject to the same limitations as the ‘do this or else’ species of duress. . . .It follows that a defence of ‘duress of circumstances’ is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury. Although it is unlikely that the outcome of the jury’s deliberations would have been any different, they should have been directed as to the possibility that they could find the appellant not guilty because of duress of circumstances, although they were otherwise satisfied that he had driven recklessly. . . . R v Martin 1989 Facts of the case His wife threatened to commit suicide unless he drove her son to work (otherwise he would have lost his job). He did so but at the time was disqualified from driving. Principle of the case Duress of circumstances was allowed however the court gave further instruction as to when the defence would be allowed..... ‘…..first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established. R v Pommell 1995 Facts of the case Police officers entered D’s home at 8 am one morning to execute a search warrant. He was found lying in bed with a loaded gun in his right hand. He was arrested and in interview said that during the night someone had come to see him carrying the gun with the intention of going to shoot some people who had killed his friend. D said that he persuaded the man to give him the gun, which he took upstairs. He decided to wait until morning to give the gun to his brother to hand to the police. Principle of the case LJ Kennedy stated that …….’All the cases so far have concerned road traffic offences but there are no grounds for supposing that the defence is limited to that kind of case. On the contrary, the defence, being closely related to the defence of duress by threats, appears to be general, applying to all crimes except murder, attempted murder and some forms of treason, . . . . . . . That leads us to the conclusion that in the present case the defence was open to the appellant in respect of his acquisition of the gun. . . . That leaves the question as to his continued possession of the gun thereafter. . . . In our judgment, a person who has taken possession of a gun in circumstances where he has the defence of duress by circumstances must ‘desist from committing the crime as soon as he reasonably can’. In this instance the judges felt that the delay had not been unreasonable and therefore the defence should have been left to the jury. Please read the above cases and explain why the decisions in Conway, Martin and Pommell were so important? Necessity Necessity is where the circumstances the defendant is in forces them to act in order to prevent a greater evil. There are similarities between the defence of necessity and the defence of duress of circumstances. However, the traditional view is that there is no defence of necessity. R v Dudley and Stephens 1884 Facts of the case Following a storm, D and S were left helplessly drifting in an open boat over 1,000 miles from land along with another and the ship’s cabin boy aged 17 years. The occupants had been kept alive largely due to the resourcefulness of D, the ship’s captain, but after seven days without food and five without water, D and S killed the cabin boy, who was already delirious and near to death. The men feared that they would all die soon without food and water. The three survivors ate his flesh and drank his blood for four days, whereupon they were rescued by a passing ship. They were charged with the murder of the boy. Principle of the case However, in Re A (Conjoined Twins) 2000 Facts of the case A hospital applied for a declaration that it could lawfully perform an operation to separate two conjoined twins, Jodie and Mary. If no operation was performed both twins would die within three to six months. If an operation was performed, Mary would inevitably die within a few minutes but Jodie would be able to live a relatively normal and worthwhile life. Principle of the case The majority thought that, because the doctors knew that Mary was certain to die from their surgery, they would intentionally kill her in accordance with the definition of intention in Woollin. However all three judges agreed that, in the circumstances, the doctors would have a defence of necessity and the operation would be lawful. Quoting Sir James Stephen, LJ Brooke stated that …..there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case. Necessity – The debate – Please note the additional cases used here! 1. Necessity is where a person commits an offence to avoid a greater evil to either themselves or others arising out of the circumstances In these circumstances the conduct of the accused would be lawful because it is justified 2. However, there has been considerable debate about whether the defence exists and if it did what crimes would it cover. In Dudley and Stephens (1884) Lord Coleridge confused the issue by stating that there is no defence of necessity but then went on to say that in the facts of the case there was no necessity. Therefore implying that there was a defence but not in this case. In Buckoke (1971) Lord Denning argued that issues of necessity should be considered in mitigation and then went on to suggest that preferably someone in these circumstances shouldn't be prosecuted. 3. More recently there have been a number of cases to support a defence of necessity In Re F 1990 Lord Goff stated that the 'common law principle of necessity could justify action which would otherwise be unlawful'. (But this was a civil case concerning the sterilisation of a patient suffering from severe mental health problems) 4. The cases of Willer, Martin etc appear to suggest that necessity is effectively duress of circumstances. This would mean that they would be applicable to the same offences. (Not murder or attempted murder) This would also mean that necessity is now an excuse NOT a justification 5. In Re A 2000 it has however been argued that necessity could be a defence to murder. LJ Brooke said the test for necessity was - Act needed to avoid a worse evil; - No more is done than is necessary for the purpose to be achieved; - In all the circumstances the evil inflicted is not disproportionate to the evil avoided. However, this decision was again not conclusive and nor was it binding precedent in criminal law. 6. In Shayler 2001 however, LCJ Woolf stated that duress of circumstances and necessity were the same thing. This cannot be the case since the test from Re A does not correspond to the tests for duress of circumstances. Further clarification of the law is therefore still needed. Self Defence This defence covers situations where generally the defendant has used force against others in order to protect himself or others Self defence – which is a common law defence Allows the defendant to use reasonable force to: a) Defend himself from attack b) Prevent an attack on another person – R v Rose (1884) c) Defend his property – R v Hussey (1924) Prevention of crime – s3(1) Criminal Law Act 1967) “A person may use such force as is reasonable in the circumstances in the prevention of crime, or effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.” The Criminal Justice and Immigration Act 2008, s 76 provides “clarification” of the law of self defence. The section does not create a new defence but does seek to clarify the existing common law defence and that under s 3 of the Criminal Law Act 1967 The section does nothing more than reiterate the common law stated above: That being that the defendant is entitled to use such force as is objectively determined to be reasonable having regard to the circumstances as he subjectively perceives them to be. What is the defence of self defence? The essence of self-defence is that in some circumstances, the defendant is justified in using violence to meet unjustified aggression against an interest which the law deems worthy of protection. (See above) The law has to regulate the competing interests of the aggressor and defender, although naturally the balance is in favour of the defender. Although self-defence is referred to as a ‘defence’ – it is really part of the definitional elements of crimes of violence. The force must be ‘unlawful’ and if the D uses reasonable force in self-defence, he does not apply ‘unlawful’ force and the Actus Reus is not established. The prosecution must disprove the defence. Where evidence of self defence exists it must be left to the jury to decide (DPP v Bailey 1995) Use of force Use of any force is not justified if it was not necessary! The test is was it necessary as the defendant saw the circumstances to be! Remember once the defence has raised this particular defence it is for the prosecution to prove that the use of force was unnecessary! R v Williams 1987 Facts of the case The defendant was on a bus when he saw what he thought was a man assaulting a youth. In fact it was a man trying to arrest the youth for mugging an old lady. The defendant got off the bus and asked what was happening. The man said he was a police officer but he could not show the defendant his ID. There was a struggle and the defendant injured the man. Principle of the case Held that if the defendant was labouring under a mistake as to the facts, he must be judged according to his mistaken view of the facts. This is so whether the mistake was reasonable or not. The position regarding pre–emptive strikes It is not necessary for there to be an attack in progress; it is sufficient if the defendant apprehends an attack. R v Beckford 1988 Principle of the case ‘a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike’ The position regarding threats R v Cousins 1982 Principle of the case Self defence also applies to threats of violence. The defendant can issue threats of force, even death, if that might prevent an attack upon himself or prevent a crime from taking place. The position of a defendant preparing for an attack A-G’s Ref (No 2 of 1983) (1984) Principle of the case Where the defendant apprehends an attack upon himself he may make preparations to defend himself, even where that involves breaches of the law. (The defendant had made petrol bombs to protect himself from rioters.) A duty to retreat? At one time, it had been thought that the law required D to retreat as far as possible before resorting to violence. However, this is no longer the test. R v Bird 1985 Principle of the case In this case it was held that insisting that the defendant demonstrated a reluctance to fight ‘placed too great an obligation’ upon the defendant. R v Rashford 2005 Principle of the case Allows for the aggressor to use the defence where the victims retaliation is out of all proportion to that used by the defendant. Reasonableness of force Only such force may be used as is reasonable in the circumstances The jury must decide this question from the position of what the defendant saw and thought the circumstances to be! R v Palmer 1971 Principle of the case ‘a person defending himself cannot weigh to a nicety the exact measure of his….defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken’ R v Whyte 1987 - confirmed Palmer 1971 Principle of the case ‘The belief need not be reasonable but the amount of force needed must be reasonable, judges objectively on the facts as the defendant believed them to be’. R v Owino 1996 Principle of the case ‘The essential elements of self defence are clear enough. The jury have to decide whether the D honestly believed that the circumstances were such as required him to use force to defend himself from attack or threatened attack. In this respect the D must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be’ Relevance of the D’s characteristics In Martin (2002) it was ruled that psychiatric evidence relating to the defendant’s perception of his circumstances was not admissible. This was a policy decision potentially based on a floodgates argument. In Canns (2005) the COA followed Martin (2002) stating that ‘when deciding whether the D had used reasonable force in self defence it was not appropriate to take into account whether the D was suffering from some psychiatric condition which may have produced delusional beliefs that he was about to be attacked. However, the court did state that there may be exceptional circumstances when this evidence may be taken into consideration and s 76(8) CJIA 2008 allows for other matters to be taken into account which may lead to renewed argument about which of the defendant’s characteristics are relevant? Excessive force R v Clegg (1995) Facts of the case The defendant, a British soldier, shot dead a joyrider in the rear of a car which failed to stop when ordered to do so by soldiers in Northern Ireland. It was accepted that the defendant feared for the life of a fellow soldier when he fired three shots at the car. However, the 4th and fatal shot was fired into the rear of the car after it had passed all the soldiers who were therefore no longer in any danger. He could not have fired the fatal shot in self-defence or in defence of a colleague. Principle of the case The HOL upheld the defendant’s conviction for murder, holding that there is no ‘half-way house’ between murder and manslaughter. There is no rule that a defendant who has used a greater degree of force than was necessary in the circumstances should be found guilty of manslaughter rather than murder. R v Martin (Anthony) (2001) Facts of the case The D shot and killed Freddie Barras (age 16) and seriously wounded Brendan Fearon (age 30) when he discovered them burgling his isolated Norfolk farmhouse. Barras was shot in the back and in his legs and Fearon was also shot in the back of both legs. The jury rejected the defendant’s plea of self-defence on the ground that he had used excessive force. Indeed, the evidence suggested that the defendant had lain in wait for them and shot at them at short range with the intention either of killing or seriously injuring them. The defendant was convicted of murder. Principle of the case On appeal, fresh evidence that the defendant was suffering from a paranoid personality disorder resulted in a successful plea of diminished responsibility. Reform The all or nothing position with regards to this defence has led to criticism. Australian courts have in the past (not now) said that a finding of excessive force should lead to a partial defence. The Criminal Law Revision Committee stated that a finding of excessive force should lead to a partial defence. The Draft Criminal Code also stated that a finding of excessive force should lead to a partial defence. After Clegg 1995 a review took place that found that in a few cases a finding of excessive force leading to a partial defence would have been helpful. However, this report concluded that it would be difficult to change the law in this area without a full review of the law on murder. This review has now taken place and it also recommends a finding of excessive force should lead to a partial defence. However, the defence would come under a redefined defence of provocation. Mistake A defence where the defendant makes a mistake about a fact Mistake To be a defence a mistake must be a mistake about a fact. The mistake must have the effect that if the facts had been as the defendant believed them to be, it would mean either: 1. There was no mens rea for the offence e.g. If A picks up a coat from a stand as he is leaving a restaurant in the mistaken belief that it is his own coat, he does not have the Mens Rea required for theft as he is not dishonest. 2. The defendant would have been able to rely on another defence e.g. If B, in the mistaken belief that the victim is pointing a gun at him, throws a stone at the victim and knocks him out, B can plead he should be judged on the basis that his action was in self- defence. In these situations, provided that the defendant genuinely made a mistake, there is a defence. This is so even if the mistake is unreasonable: DPP v Morgan and Others (1976) Facts of the case The defendant, who was a senior officer in the RAF, invited three junior officers to come to his house to have sex with his wife. The three queried this, but said they were persuaded by the defendant that his wife did want to have sex with them. He told them that she would pretend to refuse in order to stimulate her own excitement. So, the men had sex with the wife, despite the fact that she screamed and called for her son to call the police. The judge told the jury that their belief in the wife’s consent had to be based on reasonable grounds. They were convicted. Principle of the case The COA held that the judge had misdirected the jury as the belief in consent had to be genuine but need not be reasonable. However, the COA upheld their convictions as they thought a jury correctly directed would still have convicted. R v Williams (1987) Facts of the case The defendant was on the bus when he saw what he thought was a man assaulting a youth. In fact it was a man trying to arrest the youth for mugging an old lady. The defendant got off the bus and asked what was happening. The man said he was a police officer arresting the youth, but when the defendant asked him to produce his police ID card he could not do so. There was a struggle between the defendant and the man in which the man was injured. The defendant was convicted of assault. Principle of the case The COA quashed his conviction because the jury should have been told that if they thought the mistake was genuine they should judge the defendant according to his mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable. Mistake and Self-defence Excessive force If the jury accept the defendant’s mistake meant that he genuinely thought he was acting in self defence or using force in the prevention of crime, then the jury have to decide whether the amount of force used was reasonable in those circumstances as the defendant believed them to be. If the amount of force was unreasonable in those circumstances then the defendant has no defence. R v Beckford (1988) Facts of a case The defendant was accused of murder but pleaded honest mistaken belief in the need to act in self- defence. Principle of the case The Privy Council approved both Morgan and Williams. Lord Griffiths said that: “If then a genuine mistaken belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negates the intent to act unlawfully.” Drunken Mistake If the defendant is mistaken about a key fact because he is drunk, then it depends on what the mistake was about as to whether he has a defence or not. Where the mistake is about something which means that the defendant did not have the Mens Rea for the offence then for a specific intent offence he has a defence. However, where the offence is one of basic intent then the defendant has not got a defence. R v Lipman (1970) Facts of the case The defendant and his girlfriend had taken the drug LSD before falling asleep at her flat. LSD causes hallucinations. The defendant thought that he was at the centre of the earth and being attacked by snakes. When he awoke he found his girlfriend was dead. He had strangled her and stuffed a sheet into her mouth believing she was a snake attacking him. His conviction for manslaughter was upheld. Principle of the case The defendant did not have the specific intention for murder as he thought he was killing a snake. However, he was guilty of manslaughter because he had voluntarily taken the drug LSD. This was a reckless course of conduct and so he was guilty of manslaughter. R v O’Grady (1987) Facts of the case The defendant and the victim, who was a friend, had been drinking heavily; they fell asleep in the defendant’s flat. The defendant claimed that he awoke to find the victim hitting him. The defendant picked up a glass ashtray and hit the victim with it, the defendant then went back to sleep. When he woke he found that the victim was dead. The defendant was charged with murder but was convicted of manslaughter. Principle of the case This was upheld by the COA. R v Hatton (2005) Facts of the case The defendant had drunk over 20 pints of beer. He and the victim (another man) went back to the defendant’s flat. In the morning the defendant claimed he found the victim dead from injuries caused by a sledgehammer. The defendant said he couldn’t really remember what had happened but thought the victim had hit him with a 5 foot long stick and he had defended the attack. The defendant was convicted of murder. Principle of the case The COA held that a drunken mistake about the amount of force required in self-defence was not a defence. Mistakes of Law It is no defence for the defendant who causes the actus reus of an offence with the mens rea to say that he did not know the actus reus was an offence, ignorance of the law being no excuse. R v Esop (1836) The defendant, from Iraq, was convicted of buggery. It was legal in Iraq and the defendant assumed it was lawful in England. His ignorance of the English law was no defence.
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