Criminal Law (first term)
Terms in this set (255)
What is crime ?
- Moral definitions of crime, all crimes were in an important sense moral wrongs or mala in se - and that law merely recognised this wrongful quality
- Procedural definitions of crime look at that many crimes are criminal only by virtue of being declared by the law . These are acts that can be prosecuted or punished under criminal procedure. Glanville Williams "an act capable of being followed by criminal proceedings having a criminal outcome is criminal if it has certain characteristics which mark it as criminal"
Difference between civil and criminal wrongs:
- A fine carries a moral blame where as damages signify that a person is responsible for the loss
- "assault involves an interference of fundamental rights of a person, which the state is perceived to have a duty to protect, whereas individuals are normally able to protect themselves against a breach of contract"
- Every crime consists of a conduct element this specifies the act of conduct, omission, consequence, or state of affairs that is the substance of the offence. There is also the mental element and this specifies the state of mind that the prosecution must prove the defendant had at the time of committing the offence
Principle of legality:
- The law should be clearly defined to enable people who wish to be law abiding to live their lives confident that they will not be breaking the law.
- In this sense Acts cannot be too wide as it may give police officers the authority to arrest people for conduct of which they do not approve.
- This principle is often viewed as the Rule of Law
Principle of responsibility:
- this is that people should only be guilty for offences that they are responsible for.
Principle of minimal criminalisation:
- There should be minimal criminalisation as a criminal sanction conveys the message that the conduct was not just bad, but bad enough to involve criminal proceedings.
- It has been suggested that 8000 statutes is too much
Principle of proportionality:
- this is that a sentence accorded to a crime should reflect the seriousness of the offence
- You must determine which interests of the victim have been interfered with and then consider the extent of the interference, you may also consider the blameworthiness of the defendant
Principle of fair labelling:
- this requires that the description of the offence should match the wrong done
- There has been proposals for a single code of law in one document, this was proposed by the Law commission however, abandoned in 2008
- certainty as it would govern whether a person is guilty, the code would help uphold the separation of powers that the creation of law should be for the parliament and not the judiciary. Another pro would be the accessibility, statutory to the ordinary person and often the courts is not very accessible, it could be readily available to the public. It would make the courts more efficient. It would also provide consistency as the ambiguities in the law would be removed. It would also be able to update the and get rid of old fashioned and bizarre statutes that are no longer relevant
The concept of "autonomy":
- This is the right to live one's life as one likes, is of fundamental importance
- The autonomy principle explains why it is only where the activity causes a significant amount of harm to others or to society that the law is justified in prohibiting.
- The autonomy principle explains why people should be liable for making the wrong choice, and also explains that where people do not have a free choice to act as they should the criminal law provides a defence
The "harm" principle:
- In On Liberty by John Stewart Mill: "the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others"
- The harm principle is that each person should be allowed to do and say what he or she likes provided that this does not harm the interests of others.
- Moral principles linked to harm: Lord Devlin has argued that there is a "moral cement" that helps to keep society together, and that the state is entitled to use the criminal law to protect that cement from being damaged by behaviour which infringes those principles
Subjectiveness and objectiveness:
- Subjectiveness argues that criminal liability should be determined by looking inside the mind of the criminal
- Objectiveness focuses on the behaviour of the defendant and asks whether he, the defendant acted as a responsible person
Criminal law and HRA:
- The Human Rights Act 1998 is designed to ensure the protection of individual's rights under the ECHR
- Section 3 requires judges to interpret legislation in a away which complies with the ECHR so far as is possible "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights" - if a statute does not follow this they may give a declaration of incompatibility
- section 6 requires public authorities (the CPS, the police and courts) to act in a way that is compatible with the convention rights.
- if a defendant has been convicted of an offence which infringes the convention rights then it can be argued that the court should only impose a nominal sentence.
R v Misra and Srivastava, 2005 (Court of Appeal). How this links to fair labelling....
- The two doctors were convicted of gross negligence manslaughter following the death of a post-operative patient in their care
- The patient developed an infection in the wound which was left untreated and as a result died of toxic shock
- They challenged the test laid down in Adomako whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury's opinion to a criminal act or omission and they raised arts' 6 and 7 of the ECHR in which they argued that they had been deprived to the right of a fair trial and the uncertainty surrounding the fact of the time the acts were committed if these acts/ omissions at this time were regarded as criminal
ACTUS REUS, DEFINITION
- This is the conduct element of the offence, this describes what the defendant has done (or sometimes failed to do), in what circumstances and with what consequences in order to be guilty of a crime
- Only if both the acts reus and mens rea are proved will the defendant be guilty
Three elements to actus reus...
1: the proof that the defendant did a particular act
2: that the act caused a particular result
3:the act or result occurred in certain circumstances - not all acts reus involve all three of these
- There is a distinction between conduct crimes which only need proof that the defendant did an act such as the possession of drugs and result crimes this in that you need proof that the defendant did the act and that the act produced certain results such as murder
Voluntary act requirement:
- A voluntary act must be established to commit actus reus
- However, there can also be a lack of an act which is an omission, one must be under a duty of care to commit this
- You can also be held liable if you are under a certain state of affairs such as possession of drugs
- One can be under a duty of care in many circumstances
- statutory duty: such as under the Road Traffic Act 1988 one must supply a breath sample
- duties of law enforcement: the police are under a duty of care to help those in danger
- assumed duties: these are duties that arise automatically such as parent and child
Evans (ommisions, duty of care):
- An older half sister supplied drugs to her younger half sister who was 16 (this created a care of duty)
- The half sister and mother saw signs of OD but did not call the police as they were scared that they would be caught for possession
- If Evans had given the drugs then left she would not have created enough criminal liability
- They were both convicted of gross negligence manslaughter
R v Stone, R v Dobinson: (If D volunatarily undertakes a duty then failure to undertake that duty may result in liability)
- The appellants Stone and Dobinson were both seen as below average intelligence, inadequate and ineffective
- Stone's sister Fanny stayed with them, she was anorexic, denied herself food and stayed in her room at days of time
- The appellants tried to find her a doctor but were unable to do so
- Fanny died in appalling conditions
- A duty of care was established as she was a blood relative
- They were convicted of manslaughter
Ownership or property control:
- Someone is under a duty to act if another person in their presence commits a crime and they do nothing to seek to prevent the crime
Fagan v Metropolitan police commissioner:
- The defendant accidentally drove over a police mans foot
- When asked to remove his car, he refused
- It was held that the actus reus started when the D refused to remove the car
- Once he was aware that he was causing harm the actus reus and mens reus coincided
R v Miller:(A person who creates a dangerous situation may be under a duty to remove the danger)
- The D lit a cigarette on a mattress and fell asleep
- When he woke up the mattress was on fire, however, he did nothing to put it out just moved to the neighbouring room
- It was argued that an omission was committed when he left the room as this was a breach of duty and therefore an actus reus and mens rea was established
Distinguisng between acts and omissions:
- the D must do what is reasonable
- Medical cases are good for this
Airdale NHS Trust v Bland:
-The patient had been in PVS for more than two years being fed through a nasal tube
- The doctors and parents held that it was in the patients best interest to remove the nasal tube
- the HL held that in this case the doctors would not be held criminally liable
- This is because the doctors were no longer obliged to continue care and treatment where it was no longer in the patient's best interest. In Lord Hoffman's judgement he talks about there is a distinction between death and allowing someone to die
Lasonneur: (situational offences)
- the D was convicted of the offence of being found in the UK under the Aliens Order 1920, however, she was only there as she had been forcibly returned to the UK by Irish police
- Factual causation: this is "but for" causation
- If it had not been but for the D's actions the harm would not have occurred at the same time and the same way that it did
- Something cannot be a legal cause if it is not a factual cause
- The D put poison into the drink of their wife
- After a few sips the wife died
- However, the but for cause of her death was seen to be a heart attack that would have occurred in the same way and the same time
- The drink therefore was not the factual cause of the death
- Must be a substantial cause: the D must be a substantial cause of the death and contributed to the result in a significant way
Must be an operating cause: the most common way to prove this is to show that there was no intervening act
A novus actus interveiniens: a free and voluntary act of a third party which renders the original act as no longer substantial and operating cause of the result
- This absolves the D of liability
- Only where a person acts voluntarily will they break the chain of causation
- If a person does not know the circumstances of his actions this may not break the chain of causation
Watson (1989) knowing of circumstances:
- D and another man burgled the house of a man aged 87, who died of a heart attack 90 mins later
- They upheld the conviction for manslaughter as D knew of the man's frailty
R v Kennedy:
- Kennedy supplied drugs to Bosque who shortly after died. He was convicted of supplying class A drugs and manslaughter
-However, the Criminal Cases Review Commision held that the judge failed to adewautly explain what a free, voluntary act is which could break the chain of causation
- In this case it was Bosque injecting himself with drugs
R v Jordan:
- D stabbed V
- The doctors gave him medicine that he was allergic too and this caused him to die
- This was seen as an intervening act as it was grossly negligent and the wound had nearly healed
R v Cheshire:
- D shot V in leg and stomach
- V had to have a tracheotomy because of the injury however, this caused his windpipe to close and he died
- This was not seen as a intervening act because it was not independent enough from the original act and in itself was not potent enough to cause the death
- The contribution of this act was seen as insignificant
R v Roberts: (acts of the victim breaking the chain of causation)
- D was giving the V a ride home
- D made inappropriate advances to V
- V jumped out of the car and injured herself
- D was guilty of Offences Against the Persons Act 1861
- D appealed arguing that the judge had misdirected the jury
- However, in Roberts it was reasonably foreseeable that the result could have occurred
R v Blaue:
- D stabbed V piercing her lung
- It was held that a blood transfusion was necessary but she did not accept as she was a jehovah's witness
- D appealed arguing that a refusal of a blood transfusion broke the chain of causation
- The decision looked at how a defendant must take their victim as they find them
- The CA convicted a husband of manslaughter as he had continually abused his wife over years which lead to her suicide
- It could be reasonably foreseeable that this has caused the victim to commit suicide
The Thin Skin Rule:
- This rule sate that D's must take their victims as they find them
MENS REA (THE MENTAL ELEMENT)
- This is the mental element of the crime
- This can be shown through intention (the worst), recklessness, negligence and knowledge
- This can be described as the aim or purpose
- In exceptional cases the jury can be asked to find the intention if the D realised that it was virtually certain to occur
- The jury will be needed to be persuaded beyond reasonable doubt that D intended the crime
- Direct intent must be distinguised from inferred intent (an intent may be inferred when the consequence is virtually certain to follow from what D does, even if D did not want it to happen
- Anthony Duff's test for intention: D throws a burning towel into A's house planning to scare A. The house then catches fire and A dies. If A had lived D would not have seen his intention to be a failure, therefore, D did not intend to kill A
intention and motive:
- It is possible to intend something to happen without wanting it to
- Hales: a D ran over a police officer while trying to escape. It was not his intention to run over the police officer but he was described to be "prepared to kill in order to escape" - therefore intended to kill
Yip Chiu- Cheung v R (1994):
- PC decided that a drugs dealer could be guilty of conspiring with an undercover drug enforcement officer (even though the undercover drug agent has the best motives and is trying to break the ring) he still intends to commit the offence of importing drugs through customs
- Lord Griffiths argued that a good motive is not a defence given that some of the ingredients of the offence are still present
Intention and foresight:
- One cannot act with the purpose of producing a result if he did not believe that the result could possibly be caused by his act
- If a D believes that it is impossible for his action to cause the result he cannot be said to intend it
- HOL have stated that foresight of a result is not the same as intention
- Hancock and Shankland: D, was on a miner's strike and decided to drop a concrete block on V with the intention to scare him and V was killed, D was convicted of murder
- Lord Scarman: "the greater the probability of the consequence the more likely it is that the consequence was foreseen...if that consequence was foreseen the greater the probability that the consequence was also intended"
Intention and premeditation:
- A person may act in the heat of the moment but still intend to kill
Borderline cases of intention:
- These are cases here although the defendant's act was very likely to cause death, it was not the D's purpose
R v Woolin:
- The D threw his three month old baby against a wall and killed it in a fit of temper
- D was charged with murder
- Appeal allowed at HL
- It was argued that it was not his intention to kill the baby (laid out in the Criminal Justice Act 1967) however, it was virtually certain that throwing a baby against a wall would cause serious damage
- Woolin certainty test:
- virtually certain/ as certain as you can be about anything
- The jury must consider whether the serious bodily harm/ death is virtually certain from D's actions and if the D appreciated that such was the case
intention and intoxication:
- Intoxication can be used as evidence in deciding whether the result was the defendant's purpose or if it was virtually certain
- 1: if the drunken defendant has as his purpose the result he intended "a drunken intent is still an intent"
- 2: If a drunken D lacked intent he is not guilty of an intent based crime however, maybe recklessness
R v Moloney:
- The stepson and stepfather were intoxicated and decided to have a shooting competition
- The stepson shot his stepfather dead
- HIs intoxication was used as a defence as it proved that he lacked the mens rea for the offence
- Lord Bridge:
- Looked at how murder is a crime of intention only
- One must look at if D had the necessary intent
- D's foresight of the probability of a consequence does not itself amount to intention but may be evidence of it
- D could be said to intend death where death was a natural consequence of D'd voluntary act and D foresaw that consequence as being a natural consequence of his act
- Someone is guilty of recklessness if they take unjustified risks
- Such as rape, criminal damage, arson, assault and wounding
- A person maybe guilty of recklessness in act, circumstances or intention
- There used to be cad well recklessness but now there is only cunningham
- This is whether D was aware that his or her conduct would cause a particular risk and that the risk was an unreasonable one for D to take
- Important to note that it is based on whether D foresaw the risk and not if a reasonable person would have seen/foresaw the risk
- D tore a gas meter from the wall of an unoccupied house in order to steal money in the meter
- Escaping gas seeped through the wall to the neighbouring house and V had asphyxiated
- D was convicted of maliciously administering a noxious thing
- His conviction was quashed
- Malicious means either 1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
- D was schizophrenic lit a match to a haystack
- As a result of his illness he did not realise that there was a risk to the haystack
- To most people this would have been obvious but to him not, therefore, he was not subject to cunningham recklessness
R v Parker:
- D was charged £10 plus 75 p compensation for causing criminal damage to a telephone kiosk
- He has had a very bad day
- The CA argued that having a risk in the back of your mind is not the same as consciously taking that risk
- However, they stretched Cunningham recklessness
The risk was unreasonable...
- If D swerves to miss hitting a child that has ran out in front of him and may cause a risk to other road users his risk can be seen as reasonable
Objective recklessness/ cadwell recklessness:
- Where D was aware of the risk or if there was an obvious and serious risk AND they failed to consider whether or not there was a risk
Elliot v C:
- 14 year old girl with learning difficulties set fire to a shed with white spirit
- The court has made it clear that Lord Diplock in Cadwell stated that it was whether a reasonable person had foreseen the risk
- Therefore, D was liable for criminal damage
- The case of R v G and R overturned this case
R v G and R:
- Two boys 11 and 12 were camping without their parents
- They set fire to newspapers under a wheely bin
- The fire spread to the supermarkets and adjoining buildings
- They were convicted of criminal damage
- Their appeal at HL was allowed, it stated that the D's would only be guilty of recklessness if he or she realises that there is a risk and undertakes that risk when it is unreasonable to do so
- if D has behaved in a way that a reasonable person would not she s/he is negligent
- Negligence provides an objective standard which does not vary according to D's individual characteristics
- What matters is D's conduct, did D act in a way that a reasonable person would
- Most importantly gross negligence can be the basis for the liability of manslaughter
- The facts of this were laid down in Bateman (1925) - "in the opinion of the jury rye negligence of the accused went beyond a mere matter of compensation of subjects (and) can amount to a crime against the state and conduct deserving punishment"
- D an anaesthetist failed to notice that an oxygen tube had become disconnected and V the patient died
- D was charged with gross negligence
Distinguishing between recklessness, intention and negligence...
- intention and recklessness: This is where the woolin test applies. If the result was D's purpose then the result is intended. If the result is not the D's purpose but is foreseen as a possible result of his/her actions then D is reckless
- Recklessness and negligence: To be reckless the D must foresee the result, to prove negligence one only has to look at if D acted like a reasonable person would
- D who is involuntarily intoxicated can use their intoxication as evidence to show that they lacked mens rea
- D who is voluntarily intoxicated may use their intoxication to prove that they lacked the mens rea in crimes of specific intent
- There a specific crimes that refer to being intoxicated such as to drive under drugs and alcohol
- Allen: D thought he drank some of his friends homemade wine and that it was low alcohol however, it was a high amount, he wa still voluntarily intoxicated
Offences and basic and specific intent:
- specific intent/ mens rea is intent
- basic intent/ mens rea is recklessness
knowledge and belief:
- Knowledge is a positive belief that a state of affairs existed
- This is subjective, as the D must know not if the reasonable person would know
- For example, with the offence of handling stolen goods the D must know that they were stolen
Transferred mens rea:
- This can often be referred to as transferred malice
- Thie is where a person aims to harm a person or piece of property but misses and harms another
- Situation A: D wants to kill A but misses and kills M. D can still be convicted of M's death as the mens era can be transferred to the killing of M and therefore with the actus reus and the mens rea this creates an offence
- Situation B: C shoots N and misses and damages M's property. C cannot be convicted of criminal damage and the actus reus and mens rea are those of different kinds (murder and criminal damage)
Attorney General's reference (1994):
- the accused stabbed his girlfriend and as a result of the wound their child was born early and died prematurely
- However, as it was a foetus in the eyes of the law it was not a person
- Transferred malice therefore could not be used
- However, he was still guilty of manslaughter
- D aimed a blow at X with his belt but by mistake hit V
- His conviction for unlawful wounding was still upheld
- Lord Coldridge: "he had the intent to do an unlawful act, and in carrying out that intent he did injure a person"
Coincident of mens rea and actus reus:
- It is a general principle that the actus reus and mens rea should coincide in time
- However, there are exceptions to this
- Where the defendants had the mens era at one point in time and then later (without the mens era) perform the actus reus
- Meli v R: as part of a preconceived plan they struck a man over the head
- thinking he was dead they threw him over a cliff
- However, medical evidence showed that it was the throwing over the cliff not the initial blow that killed him
- Therefore, at the time of actus reus they lacked the mens era
- However, the privy council still decided that they could be guilty of murder as their actions were described as "one transaction"
- The D committed the actus reus at one point in time but at a later point had the mens era one can look at the earlier cases of Miller and Fagan v Metropolitan Police Commissioner
If it is unclear when the actus reus was committed:
- Attorney General's Reference (1980):
- The D did actions such as slapped his girlfriend, dragged her down the stairs, put a rope around her neck cut her body into pieces - It is unclear which of these acts actually caused her death
- The CA argued that the necessary mens era was still there in each of these acts
Pure intention view:
- This is supported by those who believe that intention should mean purpose
- With the desperate surgeon you may believe that the pure intention view would hold that the surgeons's purpose is to save his wife and not kill V
- However, a pure intent route would but to say that intending to take someone's heart out is intending to kill them - the two are inseparable
Oblique intention view:
- This is the view that a result which is virtually certain is simply intended
- If a person knows that a result with occur as a result of his acts he intended it
- In relation to the burning father scenario they would suggest that although he intended V's death he should be given defence to ensure that he is not guilty of murder
-The term for the unlawful killing of someone
- Under this umbrella term is murder, manslaughter, infanticide, child destruction, death by dangerous driving
- There must be a clear distinction made between murder as this carries a life sentence and manslaughter where the sentencing judge imposes a term they believe to be applicable
Murder (definition: actus reus - the unlawful killing of someone in the Queen's peace, mens rea - the intent to cause death or gbh to the victim):
ACTUS REUS: It must be by a person - according to law life begins at birth, however, if child is born with injuries and then dies it can be made out to be murder. When does life end - the person must have brain death, must be an unlawful killing therefore not self defence and must be under queen's peace (i.e not at war), the D must also be the cause of V's death
MENS REA: this was established by the case Cunningham where a person died by being hit over the head with a chair, he intended to cause gbh and this was sufficient enough for a murder conviction. Mens era for murder can be known as "malice aforethought". One can only be guilty of murder under intention. The statutory provision is the Homicide Act 1957 which makes it clear that to intend to kill or cause gbh will be sufficient
- D broke into the cellar of a shop with the intent to steal
- D was disturbed by V and he kicked and punched her and she died from the injuries sustained
- S1 of Homicide Act 1957 did not abolish implied malice (i.e.)that the implication of malice aforethought from a voluntary act inflicting gbh and causing death
- Voluntary manslaughter: this is where the D had the actus reus and mens rea of murder but does not deserve the label
- Or where the murder should be reduced because of loss of control (the coroners and justice act 2009, ss54-56) or diminished responsibility (homicide act 1957, coroners and justice act 2009, amended ss 54-56)
- If one pleads guilty to diminished responsibility, suicide pact or loss of control they plead guilty to vm
- involuntary manslaughter: the criminal did not intend to cause murder or gbh but there is sufficient criminal liability
- reckless manslaughter, gross negligence manslaughter and constructive manslaughter are all IM
- Constructive manslaughter must be dangerous, unlawful and caused the death of V, this can also be known as unlawful gross manslaughter
- ^ the unlawful act must be such as all sober and reasonable people would inevitably recognise the risk of some harm resulting
Lowe (1973) (constructive manslaughter) 1, there must be an unlawful act, 2. the unlawful act must be dangerous, the unlawful act must cause death)
- D of low intelligence suggested to his partner that she should take their baby to the doctor
- Despite saying that she had done so, she did not as she was frightened that the baby would be taken into care
- The baby died of dehydration
- D was charged with constructive manslaughter
- LJ Phillipmore "I omit to do something with the result that it suffers injury to its health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence even if the omission if deliberate"
DPP v Newbury (unlawful act was committed with mens rea/ foreseen that his act would create significant harm):
- Three teenage D's dropped a paving stone on a passing train
- this landed on the cab and killed the guard
- Lord Salmon in this case upheld the objective test that it is not necessary to prove that D knew the act was unlawful or dangerous, merely whether sober and reasonable people would realise its danger
- The D went into a bar and attacked V because he thought that he was having sexual relations with his fiancé
- He struck the D numerous times over the head with a stool and he died several days later from a hemorrhage from the injuries sustained
- It was argued that here intent to cause GBH is sufficient for murder
- Here the D poured paraffin through V's letterbox
- The house caught fire and a small child dies
- At first D was charged with murder however, on appeal this was quashed to manslaughter
- This was because...
- "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 the defendant's actions and that the defendant appreciated that such was the case."
Andrews v DPP (constructive manslaughter, the act must be unlawful):
- The pedestrian drove a van above the speed limit and overtook another car, as he did so he struck a pedestrian and and killed him
-his conviction for manslaughter was upheld
Chruch (an unlawful and dangerous act, this is whether it is likely to cause harm):
- D was taunted by V about his impotence. He knocked her out, panicked and dumped her body in a river, where she drowned. He was convicted of manslaughter. The series of acts which culminated her death were sufficient to constitute manslaughter
Dawson (harm must be physical harm cannot be emotional disturbance):
- Three men held up the attendant at a petrol station in order to rob him
- Shortly afterwards he died of a heart attack
- The trial judge convicted them of manslaughter as their unlawful act created emotional disturbance
- The convictions were quashed because the harm has to be physical as seen in Church
Ball (What if D is mistaken about the dangerousness?):
- D stored both live and blank cartridges together
- He thought he was firing a blank at V but actually shot a live
- The CA upheld his conviction for manslaughter arising from a dangerous and unlawful act
- D's state of mind is only needed to establish (a) that the act was committed, and (b) that it was an unlawful act, once both of these are established the question whether the act was dangerous should not be judged by D's appreciation, but by that of a sober and reasonable man
- D's intention, foresight or knowledge are irrelevant
Must the act be directed at the victim...
- at-gen ref 1994: "the questions once all the elements are satisfied, is simply one of causation"
Diminished responsibility/ loss of control:
- In section 2 of the Homicide Act 1957
- Ahuwalia (1992):
-D entered an arranged marriage and had years of abuse and violence by V her husband
- He had threatened to kill her and the she set fire to his bedroom whilst he was asleep
- He died and she was convicted of murder
- CA/ the D accepted a plea of guilty by reason of diminished responsibility
NEW TOPIC: VOLUNTARY MANSLAUGHTER - DIMINISHED RESPONSIBILITY AND LOSS OF CONTROL
- Definition of diminished responsibility:
-This is a defence only for murder, and if it can be used for a defence the charge will be dropped to manslaughter
-The D must show that they have suffered from an abnormality of mental functioning, arising from a recognised mental condition
-The significance of having this as a partial defence is that one will not have the mandatory life sentence but the judge will impose their own sentencing
STATUTORY LAW FOR DIMINISHED RESPONSIBILITY:
-Statute: Homicide Act 1957 section 2 (1)
- "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 the mind"
- This was replaced with section2(1) of the Coroners and Justice Act 2009 - this requires proof that the D's abnormality of mental functioning "provides an explanation for the D's acts and omissions in doing so or being party to the killing"
-It should be highlighted that the judge should not instruct the jury about diminished responsibility unless the D has consented to it being raised
- The CA in the case of Vinagre stated that the prosecution should do this only where there is clear evidence of the D's mental abnormality, if not the jury should be presented with evidence
Requirements for diminished responsibility:
-(1) s/he was suffering from a mental abnormality
-(2) The abnormality is a recognised mental condition
-(3) As a result of this abnormality the D's ability to understand the nature of his conduct was substantially impaired
-(4) This was a significant contributing factor to why the D carried out the act
-It can be suggested that the new law under the Coroners and Justice Act 2009, is tighter and may prove difficult to establish
R v Byrne (abnormality of mental functioning):
The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He did so as he was suffering from irresistible impulses which he was unable to control.
"abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. He was thus allowed the defence to reduce the murder conviction to manslaughter.
R v Goulds (substantial impairment of mental ability)
Abnormality of mental functioning:
-With the old law one only had to establish that there was an abnormality of the mind, the mind of D is different to a normal mind with the case of Vinagre: the D killed his wife while suffering from the "Othello syndrome" defined as "morbid jealousy for which there was no cause"
-With the new law it must be shown that the D has a "recognised mental condition"
-The effect of the abnormality of mental functioning:
-The D must have a failure to understand the nature of their conduct, s/he does not understand their acts . For example, if the person thought they were killing a garden gnome but actually killed a person. They will not understand nature but will still have the necessary intent
-If they have a disease of the mind (insanity) this can be classed as a complete defence
- Law commission example: a boy aged 10 had been left to play very violent video games for hours on end, he loses his temper and kills another child when this child attempts to take a game from him, he shows no real understanding that when a person is killed they cannot simply be revived later, as happens in the game that he is continually playing
Abnormality of mental functioning, 2:
-another example is that the abnormality substantially impaired the D's ability to form a rational judgment
- -Leading case on substantial impairment: R v R: the appellant known as R killed his cousin, with whose wife he was having an affair with. His trial for murder relied on the defence of diminished responsibility. He was convicted and appealed on the basis that the judge had failed to adequately direct the jury on the meaning of "substantial"
- The final reason is that the abnormality effects the D;s ability to exercise self control
- example: a man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away - an important point to highlight is that all that needs to be shown is that there is substantial impairment in the D's ability to do one of the 3 things previously mentioned
Diminished responsibility and intoxication:
-R v Stewart: Stewart suffered from alcohol dependancy syndrome. In a drunken incident he killed the V. He wanted to raise the defence of diminished responsibility The CA allowed the appeal and took the opportunity to provide further guidelines in cases where D had this abnormality. The appeal was allowed.
-New provisions, showed how one must distinguish between two categories of cases:
-Where a D does not suffer from this syndrome but has a mental condition and is intoxicated. The jury must decide if the abnormality of the mind (not intoxication) would sufficiently diminish their responsibility in the ways reffered to in Section 2(1A)
-Where the D suffers from an alcohol dependancy syndrome that will be treated as an abnormality of mental functioning. If the jury decides that the involuntary drinking (D unable to resist) could include as an abnormality of mental functioning.
R v Dietschmann:
The appellant had been having a relationship with his aunt who was much older than him and was a drug addict. The appellant was sentenced to imprisonment for an offence he had committed and the relationship continued during his stay in prison. She wrote to him every day and visited him. Unfortunately his aunt died whilst he was in prison. A month before she died, the aunt gave him a watch. He reacted badly to the death of his aunt and had attempted suicide. He was released from prison a month after her death and began drinking heavily. He was also prescribed prozac by his doctor. Two weeks after his release, he was drinking with two men at the home where he was staying. They were dancing and the watch given to him by his aunt fell off his arm. The appellant accused Nicholas Davies of breaking it. He then punched and kicked him to death in a violent attack. He was convicted of murder and appealed.
Held:His conviction for murder was substituted for a manslaughter conviction.
Lord Hutton: . If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter.
R v Dowds:
The appellant, a 49 year old college lecturer, killed his partner in a frenzied knife attack whilst he was heavily intoxicated. Both he and his partner were habitual binge drinkers and there had been numerous violent exchanges between the couple, most of which had been initiated by her and most occurred whilst they were intoxicated. He reported her death to the police two days after the killing and claimed that he had no recollection of the events but accepted that he had killed her. He did not assert that he was alcohol dependant. He could exercise choice over when he drank and would not drink during the week. However, once he had started drinking he was unable to stop. The trial judge ruled that his voluntary and temporary drunkenness was not capable of founding the defence of diminished responsibility. The appellant appealed contending that the World Health Organisation lists acute intoxication in its International Classification of Disease and it was therefore a medically recognised condition and thus satisfied the requirement in s.2(1)(a) Homicide Act 1957 as amended by s.52 Coroners and Justice Act 2009.Held: Appeal dismissed. Voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility.
Diminished responsibility theory:
-There are other defences which are available to a charge of murder such as, the defences of no mens rea - automatism and insanity
-Diminished responsibility is a partial defence therefore, one is still guilty of manslaughter which the potential sentence if life imprisonment (the D is not blameless)
-Peter Sparks, has argued that there is a fundamental flaw in the notion of diminished responsibility as he suggests that we ask whether the D would have killed if he or she did not have the mental abnormality. If yes - then should be complete defence, if no - then should not at all be a defence. Therefore, it has been questioned if it should be a partial defence
Diminished responsibility in practice:
-In 90% of cases where diminished responsibility has been raised people have been successful. This is because in 80% of cases the prosecution does not dispute the mental abnormality.
-The amendment of the new legislation the abnormalities of mental functioning have to be a "recognised medical condition"
-Key to a successful plea of diminished responsibility is finding medical evidence to support it. Although medical evidence might be able to establish whether the D suffered from an abnormality of mental functioning, it is far harder to give evidence about whether the D was suffering a substantial impairment of responsibility
LOSS OF CONTROL:
- This comes from sections 54 and 56 of the Coroner's and Justice Act 2009
- S.56 abolishes common law defence of provocation and s.3 of the Homicide Act 1957.
- Replaced by S.54-55 Coroners and Justice Act 2009 - partial defence to murder: loss of control (in force from October 4th 2010).
-The pure excuse view: this is the idea that a D who acts having lost self control is not fully responsible for his actions, as many have some control over there their actions they are not granted a complete excuse and are still guilty of manslaughter
- Some oppose this view, such as Andrew Ashworth who asked whether it is right to provide a defense to a person who loses his or her self-control and kills on being arrested by a police officer. If there is to be no assessment of whether it was right or appropriate to lose self control such a person would be entitled to a defense
The loss of control defense in such a case acknowledges that that killing was not as serious as a callous, pre-meditated killing of the police officer in similar circumstances would be
- It is subjective - the D must be able to show he lost self control
-Those that look at the objective test as a key part of defence, looks at that the D's acts must be partially justified
- this is that behaviour was most appropriate in the circumstances - thus no crime committed
-If this approach is taken then the D's characteristics are relevant in assessing the gravity of the wrong done to the V and the level of self restraint expected
-However, this like John Gardener have argued that if we require all Ds to live up to the same standards of honesty should we not expect all Ds to live up to the same standards of self control - a view from the objective perspective
Ensuring the D is not prior at fault:
-The individual cannot rely on a defence which is self induced
-For example, characteristics that the D cannot be blameworthy are things such as age, sex and mental ability however, the D can be responsible and blameworthy and cannot use the defence of being an irritable person
-There is the difficulty that this requires a distinction to be drawn between characteristics for which a D is responsible and those for which he or she is not
R v Doughty (S3, of old law, provoking conduct):
The appellant killed his 17 day old baby son. His wife had had a caesarean and was told to take things easy so the appellant was looking after his wife and the baby in addition to carrying out all the general house hold matters. On the night of the killing the baby was constantly crying. The appellant used his best efforts to keep the baby quiet to no avail. He then covered the baby's mouth to dampen the sound. He then stated that due to his excessive tiredness and the constant noise of the baby he lost his control and pressed down harder than he meant to at the time he was kneeling on the baby's head. The trial judge did not allow the jury to consider the defence of provocation stating that provocation can not be founded on the perfectly natural episodes of a baby's crying. The defendant appealed.
The baby's crying could amount to a provocative act within the meaning of s.3 of the Homicide Act 1957. The appellant's murder conviction was substituted for manslaughter and his life sentence reduced to 5 years.
Policy level restraint:
-There has been the argument however, that the objective requirement can be seen as a policy based restraint and it is there to protect the public
-In order to protect the public it is necessary to convict of murder those who kill in the face if minor wrongs, even if in moral terms they are less blameworthy than other killers
The gendered nature of the defence:
-There has been a lot written on the old law of this defence that it focuses on the male idea of anger and provides men too easily with a defence
-It has been suggested that under the new law it might help those who are victims of domestic abuse as they rely on the violence trigger
The defence is too readily available to men:
-It can be suggested that the origins of the defence of provocation were gendered, some commentators argued that such decisions where men would suggest that their wife's constant nagging would cause them to lose self control can reinforce the male possessiveness and control over women (often had shockingly low sentences)
- The new law tries to tackle this, it makes it clear that the D has a "justifiable sense of being wronged" and that there must be "circumstances of an extremely grave character". - - In addition s 55(6) of the new law makes it clear that sexual infidelity cannot amount to a "qualifying trigger"
Loss of self control is difficult for battered women to use:
-Government statistics indicate that one on four women in her life will come across some form of domestic violence
-Women who have killed their partners following months of abuse have not readily found a defence in the criminal law. As self-defence is not readily available if the D is not facing an imminent threat
-Women have faced a number of difficulties in this area....
Battered women are said to have a "slow burning reaction". This is where the anger builds up slowly over time until the violence is exhibited some time after the provocative incident. However, the law in this area has become more accessible after the case of Ahluwalia where it was accepted that even if there was a gap in time between the provocative act and the killing, the jury may still be persuaded that the D suffered a sudden and temporary loss of self control. Also women have been helped by the condition known as the Battered Women Syndrome being recognised in the courts and where a side effect of this is a "slow burning reaction"
Loss of self control is difficult for battered women to use, 2:
-Sometimes in cases of battered women the D has finally snapped after what appears to be a relatively minor incident. Under the new law, the objective test must be applied when considering all the circumstances of the D, looking at their actions in the light of D's history
-Cases on self control suggest that the law presently takes a rather narrow view of the loss of self control, requiring a wild faling around anger. If loss of self control could include a loss of self restraint or loss of moral self control, battered women could more easily use this defence
R v Ahluwalia:
The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him. He died six days later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive throughout the marriage. He was also having an affair. On the night of the killing he had threatened to hit her with an iron and told her that he would beat her the next day if she did not provide him with money. At her trial she admitted killing her husband but raised the defence of provocation however, the jury convicted her of murder. She appealed on the grounds that the judge's direction to the jury relating to provocation was wrong and she also raised the defence of diminished responsibility.
The judge's direction on provocation was correct. The Duffy direction was good law and the judge had directed the jury on the issue of the abuse suffered by the appellant and thus the jury would have considered the affect of this in reaching their verdict. The appeal on the grounds of provocation was therefore unsuccessful.
Loss of self control is difficult for battered women to use, 3:
- Under the old law there were difficulties in showing that the defendant responded to the provocation in a reasonable way. In Thronton: "There are many unhappy, indeed miserable, husbands and wives...But on the whole it is hardly reasonable, you may think, to stab them fatally when there are other alternatives available, like walking or going upstairs". (on retrial, loss of control was proved) However, it has been argued that the D acted as a reasonable person with BWS. Some commentators have been very concerned about the use of BWS in these cases....
-There has been the suggestion that regarding BWS as the cause for the killing disguises other reasons why battered women stay in violent relationships (i.e. no refugees available)
-It has been suggested that women who have suffered long period of violence are still responding reasonably
Assessment of the gravity of the provocation (provocativeness)
What is to be expected of a person of ordinary self-control (provocability)
Camplin , the reasonable man:
- D a 15 year old boy killed V a middle aged man who had buggered him and mocked him. He was convicted of murder
- CA: substituted manslaughter by reason of provocation
- HL: dismissed the crown's appeal. the judge should explain to the jury that the reasonable man is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other aspects sharing such of the accused's characteristics as they would affect the gravity of the provocation to him
The case for abolition of the defence:
-Jeremy Horder, argues that killing in anger is no more worthy a defence than killing whilst overcome by greed or envy
-Asking what is a reasonable response for a person with the D's characteristics encourages the jury to rely on racial and sexual stereotypes
-The loss of self control defence invites the D to defame the deceased. It encourages the D to put forward evidence of insulting behaviour of the deceased
-In addition, it is often gender biased, Horder points out that on average around 52.5% of women who kill their male partners are able to rely on the defence of loss of control, while 30% of men who kill their female partners are able to do so - may be pro women but not...the vast majority of women who kill their partners have been sustained to physical abuse, whilst the number of men who will have been subjected to violence by their partners will be tiny
NEW TOPIC: ASSAULT AND BATTERY
- The statutory material for this is under Section 39 of the Criminal Justice Act 1988. Technically, there is a difference between assault and battery. Battery involves an unlawful and unwanted contact with the body of another, while an assault involves causing another to apprehend the possibility of imminent unlawful contact.
- Sections 47,20,18, common assault ABH, battery, GBH
the actus reus is the D caused the victim to apprehend imminent unlawful force. The mens rea is that the D intended or was reckless that the victim would apprehend imminent unlawful force, this was seen in the CA decision in the case of Venna
Silence can constitute to assault:
R v Ireland that silence alone can constitute to assault. In this case the D made a large number of phone calls to three women and he remained silent when they picked up. The women gained psychological harm. He pleaded guilty to a charge of assault occasioning actual bodily harm, contrary to Section 47 of the Offences Again the Persons Act 1861. He appealed on the basis that the admitted facts were incapable of amounting to an offence however, this appeal was dismissed. Silence can amount to assault.
- V may fear the possibility of immediate harm
Apprehension of force:
- If the victim suffers no apprehension there cannot be any assault. So if the D utters vile threats against the V, which do not perturb the victim at all (they do not believe that the D will actually carry out the violence) there can be no assault
- It has been established in case law that an apprehension that one is about to be stroked or kissed can amount to an assault
- However, it the threat was not touching but to say pour away the V's medicine that they needed this would not amount to assault
What does imminent mean?
-It has been established that a threat to be violent in the distant future (say that I will beat you up) is not an assault
-However, in Ireland this indicated that a fear of violence "within a minute or two" might be sufficient to constitute an assault
-It is not enough to show that the victim was frightened: it must be shown that the victim apprehended an imminent attack
-The difficulty in proving that the victim feared imminent violence in cases involving abusive telephone calls or letters may lead the prosecutors to rely on the offences under the Communications Act 2003 or the Prosecution of Harassment Act 1997, which are easier to prove
There must be a fear of imminent harm not an imminent fear of harm in the near future :
-Victim fearing that there may be violence?
-In the case of Constanza, the D sent letters to the victim. On the 4th and 12th June she had opened two letters which she deemed as threatening. It was accepted that when she opened the letters and read them she feared that the D might harm her "at some time not excluding the imminent future". This was sufficient enough to amount to an assault.
It also has been held that if the D threatens to ask someone else to harm the victim this can be likely to cause assault :
-It has also be held that the D does not intend to carry out the attack does not mean that an act cannot constitute an assault. In the case of Logdon v DPP, the D showed the V a gun and announced that he would keep the V hostage, the gun was fake however it was held that he was guilty as he created fear of violence in the V
What if the threat was conditional?
For example "unless you retract that insult I will punch you". It has been argued that this could be made that this is not an assault because the victim has in it his or her power to avoid violence by acting as requested and cannot so apprehend imminent force. However, there are also other arguments that by acting in a lawful way she will be liable to violence and this can amount to an assault
Does an assault require an act?
-In the case of Fagan it was suggested by the Divisional Court that an assault requires proof of a positive act and cannot be committed merely by an omission. For example, if a man is looking up at a house when he sees a women come to the window notice him and appear frightened. It is an assault if he remains staining where he is and does not move? However, some suggest that an omission can amount to an assault if the D is acting unlawfully
It must be noted that the force which the V apprehends must be unlawful
-The actus reus is that the D touched or applied force to the victim
-The mens rea is that the D intended or was reckless as to touching or applying force to the victim
- Found in section 39 of the Criminal Justice Act 1988
-A battery can be committed without the victim suffering any kind of injury. So a touching can constitute to a battery. It does not need to actually include harm but involves an invasion of "personal space"
Battery can appear through omission:
- It has been established that a battery can be carried out through an object
- It is also clear that battery can be be committed through an omission. Also note the case of DPP v Santa-Bermudez the D in this was asked by a police officer who was planning to search his clothing whether he had any sharp objects on him and he said that he did not, when searing the police officer hurt themselves on a needle this was seen to amount to battery
Venna, 1976 (the mens rea of battery is an intention to apply unlawful force, or subjective recklessness as to whether such force will be supplied)
- Facts: D was involved in a fight in the street and kicked V a police officer, whose hand was fractured. He was convicted of ABH and threatening behaviour. CA dismissed his appeal, the element of mens rea in battery is satisfied by proof that the D either intentionally or recklessly applied force to the person of another. Basically here the CA rejected the argument that battery can only be committed intentionally.
Can everyday touchings amount to battery?:
-It has been held that yes it can
-Collins v Wilcock: Two police officers thought some women were soliciting and went up to them and when they walked away grabbed hold on the womens arm who then scratched the police officer. She was convicted to assaulting a police officer however, appealed this. Her appeal was allowed and her conviction quashed.
-However, the decision in this case makes it clear that everyday touchings are NOT batteries
- There does however, have to be implied consent and necessity
-Must the battery be hostile?
- Re F: Lord Goff doubted whether there was a requirement that the touching had to be hostile.
The concept that the mens rea of assault and battery can be interchangeable?
-What is the D intends to commit a battery, but in fact commits an assault?
-Tom approached Sean, who was asleep intended to touch his hair and Sean suddenly wakes up and saw Tom close to him, terrified and runs away before Tom actually touches him. Here Tom has the mens rea for battery, but committed only the actus reus of assault
Normally it is not possible to combine the mens rea of one offence with the actus reus of a different offence
ASSAULT CAUSING ACTUAL BODILY HARM:
- Section 47 of the Offences Against the Persons Act 1861 is the statutory material for this
- The maximum penalty for this is the same of that under s 20, in reality the sentences imposed are likely to be much lower than offences found under s 20
- Definition: the actus reus of this offence is that the D must commit an assault or battery which causes the victim to suffer actual bodily harm. The mens era of this offence is that the D must intend or be reckless as to the assault or battery.
3 ELEMENTS: it must be shown that there was an assault (this can be assault or battery), the victim must suffer actual bodily harm:
-This has been defined as "any hurt or injury calculated to interfere with the health of comfort of the victim". The harm must be "not so trivial as to be wholly insignificant".Bruisings, grazes, the causing of tenderness, temporary loss of consciousness or breaking of teeth can be included in actual bodily harm. In DPP v Smith the D cut off a women's pony tail. This was to be held as actual bodily harm. There was no need to show pain because "harm" included hurt or damage
-However, the CPS guidelines recommended charging the following as a battery, grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin, superficial cuts, a "black eye"
Can psychological damage amount to ABH?
- The Hl in Ireland held that psychological injuries could be included in the term "actual bodily harm" but only if they were medically recognised conditions which involved more than fear, panic or distress
- Chan Fook : D aggressively questioned V, whom he suspected of stealing his fiancé's engagement ring. D then dragged V to a second floor room, and locked him in. V fearing that D would return escaped through a window and fell and injured himself . D was convicted of an offence under S.47 on the basis the psychological harm that V had suffered. The CA quashed his conviction. The phrase ABH, may include psychiatric injury, but does not include mere emotions such as fear and distress nor panic or states of mind that are not a clinical condition
It must be shown that the actual bodily harm was occasioned by the common assault or battery of the defendant:
- occasioned" has been interpreted as meaning the same as caused
-It is also possible for the offence to involve an assault such as the case of Roberts
It should be stressed that the only mens rea requirement for an assault occasioning actual bodily harm is intent or recklessness that the victim will suffer an assault or battery. There is no need to show that the D foresaw the actual bodily harm
- This also shows that the mens rea is subjective recklessness
It must be shown that the actual bodily harm was occasioned by the common assault or battery of the defendant 2:
-Alf sends Bertha several threatening text messages, following which Bertha suffers depression. What offences has Alf committed?
-Alf will be charged with an assault occasioning actual bodily harm, three things must be looked at though
-1. The prosecution must show that Bertha, as a result of the text messages, apprehended an imminent use of force
-2. It must be shown that Alf intended or foresaw that Bertha would apprehend an imminent use of force
-3. It must be shown that Bertha suffered the depression because of the apprehension of imminent force
- This Offences Against the Person Act 1861, S 20
-Definition: the actus reus of this offence is that the D unlawfully either wounded the victim or inflicted GBH to the victim. The mens rea of the offence is that the D foresaw that the V must suffer some harm, however, it is not necessary to show that the D intended or foresaw that the V would suffer GBH
-Unlawfully: this is that the D acted without lawful justification. A lawful justification is something such as self defence
- This has been interpreted in C v Eisenhower to mean a break in the continuity of the whole skin. A rupture of a blood vessel if not a wound. It is a requirement that the whole of the continuation of the skin be broken means that a scratch may draw blood but not be deep enough if the wound only disturbs the outer layer of the skin
-There is the argument that the use of the words in section 20 "either or without any weapon" suggests that the courts should not be too concerned with the way the wound is caused. We await a clear decision from the courts on the issue
Whether indirect actions can cause an infliction or whether a "direct assault" was needed?:
- Clarence : D knowing that he had gonnorhaoea had sexual intercourse with his wife and infected her. He was convicted of both S 20 and S47 under the OAPA. On appeal it was held that there was no assault and no infliction to harm
- Ireland (changed this, case with silent phone calls)
Mens rea, D must have acted maliciously (recklessly):
- Mowatt : D stole £5 from V's pocket. When V seized him, D hit out allegedly in self defence. D punched V and continued until he passed out. He was convicted of larceny under s 18. His appeal was dismissed, in an offence under s 18 the word "maliciously" adds nothing to the definition of the offence, within s 20 it has the same meaning applied to under Cunningham - D must foresee some physical harm, though not necessarily harm of the gravity charged
Grievous bodily harm:
- this means "really serious bodily harm". The injuries caused by GBH must be an objective test and not subjective in the mind of the D. It is not clear whether the jury in assessing the seriousness of the harm can take into account the charatersitcs of the V. For example, if the D injured a pianist's finger, which meant that he could no longer play the piano decide that the injury for this V on that basis is serious, even if most people would not be? In Bollom, the CA held that in assessing whether the injuries were really serious, the impact of them on the particular victim should be taken into account. GBH can also include very serious psychological harm - to amount to this there must be identifiable clinical condition. For example, a very serious depression could amount to GBH
INFLICTION OF GBH:
- it is necessary to show that the D inflicted GHB. What has been established beyond reasonable doubt is that there is no need to demonstrate that there has been an assault in order to establish a conviction under section 20. It has been argued that (from the judgement of Burstow) that inflict now means the same as cause
- The mens rea requirement: the mens rea is in section 20 and it is that the D must intend or foresee that he or she may cause some kind of harm, albeit minor harm. The mens rea of malicious wounding was established in the case of R v Savage; R v Parmenter. Susan was committed of unlawful wounding contrary to section 20 of the Offences Against the Persons Act 1861, this resulted from an incident where Savage approached Beal in a pub and threw the beer over Beal and the glass slipped out of her hand and broke and Beal was cut. Parmenter caused injuries to his baby while playing with him in a vigorous way, he did not realise that he would cause injury, he was convicted under the same section. The judgement with Savage was that It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result. The judgement with Parmenter was that he appeal was allowed. His convictions under s.20 were substituted with convictions for ABH under s.47.
WOUNDING WITH INTENT:
-Section 18 of the Offences Against the Person Act 1861, is the relevant statutory material for this offence
-Definition - the actus reus of the offence is that the D unlawfully wounded or caused GBH to any person. The mens rea of this offence is that the D intended to cause GBH or the D intended to prevent or resist the lawful apprehension or detention of any person
Differences between s 18 and s s20 of the act:
-(1) The core mens rea for section 18 is that the D intended to do some GBH, while section 20 only looks at if it is foreseen
-The D can still be convicted under section 18 if he was intending to prevent or resist an arrest. The D was Cunningham recklessness, probably to causing GBH or some harm
-It is also no defence to show that the arrest was unlawful, if the arrest was not lawful then the offence would not have been committed
- (2) S 20 looks at "with or without any weapon", s 18 "by any means whatsoever", not much difference in wording here
- (3) s 20 looks at causing injury to "any other person" while in s 18 the injury must be caused to "any person". It could therefore be argued that if a D caused him or herself grevious bodily harm intentionally he or she committed an offence contrary to s 18
- (4) s 18 requires that GBH must be caused whereas s 20 looks at if the D inflicted GBH, it has been argued previously that these are essentially the same thing
- It must be noted that if a D is charged with one of these assaults, but the jury acquits him or her of the offence, the jury can nevertheless convict the D of a lesser assault
-R v Konzani: Kozani was convicted of inflicting GBH on three different women, contrary to section 20 of the Offences Against the Persons Act 1861. He had been warned that he was HIV positive. Nevertheless he had sex with three women without telling them about his HIV status
-There are issues surrounding the concept of consent in this situation, for example what if the V thought falsely that having a shower after sex would mean that they did not have the disease, in addition does one have to be infected by the HIV for someone to be convicted under section 20
CONSENT AND ASSAULT, The question is whether a defendant can be guilty of a non-fatal assault against the person if the victim consented to the force being used against them?:
-R v Brown: The appellants were a group of sadomasochists who engaged in violence against each other for sexual gratification, some found pleasure in inflicting pain others in receiving pain. They were convicted of the offences 20 and 47 of the Offences Against the Persons Act 1861. The Ds argued that the Vs consented to this violence. They were unsuccessful in the trial jude, the Court of Appeal, there appeals were again unsuccessful in the House of Lords. The appellants took their case to the ECHR in Laskey v UK. The court found that prohibiting consensual sadomasochistic activity did violate the right to respect for one's private life under Article 8(1)
Consent and assault 2:
-dangerous exhibitions and bravado
-rough and undisciplined horseplay
-tattoos and piercings
-consensual intimate acts in the course of which one party is infected with a medical condition, where the victim had consented to run the risk of acquiring the infection
R v Golding :
- A conviction of causing GBH contrary to the Offences Against the Person Act 1861 s.20, for infecting his partner with an incurable genital herpes virus was deemed safe, he at first denied that he had it. There was the issue of whether herpres could be described as "really serious bodily harm" so as to come in the scope of s.20.(1) the Crown had failed to follow the CPS Guidelines on Intentional or Reckless Sexual Transmission of Infection and so G had been prevented from making an informed plea; (2) his own solicitor (E) had been at fault in failing to challenge the Crown's failure to follow that guidance; to obtain an expert report dealing with the virus; and to obtain G's full medical records; (3) his guilty plea to a s.20 offence had not been an informed and voluntary plea; (4) the medical evidence, including the fresh evidence, was insufficient to show that the virus amounted to really serious bodily harm; (5) there was insufficient evidence to show G had infected C recklessly, or at all. Then confessed after fresh evidence as to whether the appellants' guilty plea had been fully informed and voluntary. Appeal against conviction was quashed, appeal against sentencing was allowed
The Law Commision's Proposals:
- There can still be little argument that the law is in desperate need of reform. As Lord Mustill points out in Mandair: "in Savage, DPP Parmenter demonstrates once again that this unsatisfactory statute is long overdue for repeal and replaced by legislation which is soundly based in logic and expressed in language which everyone can understand"
- Law Com No 218: The interests of both justice and social protection would be much better served by law that was (i) clearly and briefly stated (ii) based on the injury intended or contemplated by the accused and not on what he happened to cause (iii) governed by clear distinctions, expressed in modern and comprehensive language, between serious and less serious cases
The Law Commision's Proposals, 2:
- They propose three new offences....
(i) intentionally causing serious injury (max life sentence)
(ii) recklessly causing serious injury (five years)
(iii) intentionally or recklessly causing injury (three years)
- The meaning of recklessly would be cunningham-type subjective recklessness, this should involve a test in terms of awareness of risk of injury of the type occurred
- This requires only "a fairly low level awareness of risk, rather than a prolonged reflection and deliberate decision making"
NEW TOPIC THEFT:
Theft the definition: s 1 of the Theft Act 1968 defines theft: "A person guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it"
-The offence can be broken down into five elements
-(3) belonging to another
-(5) with an intention permanently to deprive
-The actus reus of theft is appropriating property belonging to another. The mens rea is dishonesty and an intention permanently to deprive
What is property?:
- Section 4 (1) of the Theft Act 1968 defines property as: "property includes money and all other property, real of personal, including things in action and other intangible property"
- Oxford v Moss: D a civil engineering student, copied an exam paper and then returned it. CA quashed his conviction for theft since confidential information cannot be stolen
- Other property which cannot be stolen is electricity and human bodies, the Computer Misuse Act 1990 created specific offences relates to those who dishonestly enter other people's computer systems
-Land cannot be stolen. So moving a garden fence to add an extra foot to your garden will NOT amount to the theft of the land
-(1) Where the D is acting as a trustee there can be theft of land by the defendant this means that if the defendant is a trustee and is authorised to sell some land he can be convicted of theft if he sells more land than he is authorised to do so
- (2) Permanent structures or integrals parts of land, however, things that are moveable such as garden furniture does not amount to land and thus can be stolen - they are property
-(1) Those who are owners of the land it is not an offence to take property which forms part of the land or to sever the property from the land.
-(2) Those who are not in possession of the land are dealt with under s 4(2)(b). So if a trespasser removed something that formed part of the land (such as a garden shed) this would theft
-(3) If tenants are in possession it would not be an offence for them to remove something that formed part of the land unless it was a "fixture of a structure"
- Special rules relate to fruits and plants from the land. Section4(3) of the Theft Act 1968
-These are dealt with by s4(4) of the Theft Act
-There is a distinction between tamed creatures (these can be treated as property and can be stolen), wild creatures kept in captivity (these can be stolen) and wild creatures not kept in captivity (cannot be stolen)
- information is not property, this was seen with the case of Oxford v Moss mentioned earlier
-The traditional view is that it is not, however, it has been accepted that sometimes these can be property
-(1) If a corpse is reduced to another's possession or control it becomes property (i.e. belongs to a hospital)
-(2) Bodily products such as blood or urine can become property if they are taken into someone's control. In the case of Welsh a man gave a urine sample to the police and then ran off with it, he was convicted of the theft of urine. Another example is sperm stored at an infertility clinic.
-(3) if someone has exercised special skills in relation to a certain part of the body then it may be transferred into property
-Yearworth v North Bristol NHS Trust: they held in this case that men who gave sperm to a hospital for storage, in case they would need it in the future retained a property interest in the sperm
Belonging to another:
- Statute: S 5(1) This means that property does not just belong to the person who owns it, but also belongs to any person who has possession or control of it, or has proprietary interest in it
- S 5(2) Normally, if property is held on trust it is owned by the beneficiaries
(Ricketts) v Basilson Magistrates' Court :
- it was held that the items left there were within the possession or control of the shop and so the conviction should stand. The first charge related to bags left on the pavement outside the shop. The donor of the bags had not abandoned them, as he intended to give them to the shop as a gift, rather than as a gift to anyone passing by
-It should be added that the possession or control does not have to be lawful possession or control, in other words, if Tim steals property and then Sam takes the property from Tim this can still be theft by Sam
-A further significance of this is that the owner can be convicted of theft of his own property
- this is where a D drove his car away from a garage where he had left for it to be repaired and did not pay for the repairs. It was held that he was convicted of theft of his car. As it was sufficient that the person from whom the property was appropriated was in fact at the time in possession or control
R v Hall:
-S 5(3) This subsection deals with the situation where a D is given property and is under an obligation to deal with that property in a particular way. If he is under an obligation to the victim to deal with that property in a particular way then the property is treated as belonging to the victim for the purposes of the law of theft.
- Hall, was a travel agent received money from some clients by way of deposits for air flights to America. He paid the money into the firm's general account. In fact none of the flights materialised and the money was not refunded. He was convicted of theft and appealed, arguing that the money did not apply to another and s5(3) did not apply. The CA held that the courts did not expect the travel agents to deal with the actual monies handed over in a particular way. The customers expected the travel agents to buy tickets for them, but not using the particular monies they had provided.
-S 5(4) Under this subsection is the situation where the D has received property as a result of another's mistake and is under an obligation to restore the proceeds of their value.
-this is where a police officer was overpaid her salary by the police force. She was obligated to return the money and therefore the money could be treated as belonging to another
-This is contained in s(3) 1 and 2 of the Theft Act
- s3(1) Approropriation involves any usurpation of the rights of the owner. It is much wider than merely "taking". If you give me your chocolate to look after and eat it, I have usurped your rights as the owner. Any interference with your rights as the owner may constitute usurpation.
- s3(2): Where property or a right or interest is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of a property
-(1)There is appropriation if the D has assumed any of the rights of the owner. This means that if the D has done something that the owner has the right to do then this is an appropriation. It must be shown that the act is something that only an owner has the right to do. Looking at something is therefore not appropriation because people other than the owner have the right to do that. There is no need to show that the victim has lost the property for there to be an appropriation
-It has also been stated that there is no need to show that the victim has lost the property for there to be appropriation; indeed there is no need to show that the victim's property interests have been adversely interfered with. In Morris: Conjoined appeals both involving the switching of price labels in supermarkets. Morris was arrested after paying a lower sum for certain items, Burnside was arrested before paying for the goods. The question for the Lords to decide was whether an appropriation required the assumption of all rights of an owner and also if there was an appropriation at what point in time did this occur.Held:There need not be an appropriation of all the rights of an owner. The appropriation took place when there was an adverse interference with or usurpation of the rights of an owner which was at the point of switching the label, not at the point of taking the goods from the shelf.
- The shopper was not appropriating goods by taking them off the shelf, only when there was interference was "adverse" was it an appropriation
Lawrence v MPC: An Italian man who spoke little English, arrived at Victoria Station on his first visit to this country. He got a taxi and gave the driver a piece of paper on which an address was written. The taxi driver told him it was a long way and would be expensive. On arrival at the destination the Italian, took one pound out of his wallet and gave it to the driver. The driver intimated that it was not enough and reached into his wallet and took a further six pounds out of it. The correct lawful fare for the journey was in the region of 10s. 6d.The driver was convicted of theft and appealed contending that the Italian man had consented to the appropriation of the six pounds and his conviction could not therefore stand.
His conviction for theft was upheld. An appropriation can take place notwithstanding the consent of the owner.
R v Gomez:
- (2) Does an act of appropriation have to be one that was NOT CONSENTED to by the victim? No, a touching of a piece of property is an appropriation, whether the victim consented, requested, or objected to the act. The victim's state of mind is irrelevant to whether or not there is appropriation
- D persuaded the manager of the shop where he worked to sell £16000 worth of electrical goods to a rogue by accepting a cheque that was subsequently dishonored. He pleaded guilty to theft when the judge refused to accept a submission that there was no appropriation since the manger had expressly authorised the removal of the goods. The HL allowed the crown's appeal. Lord Keith accepted that no "sensible distinction can be made in this context between consent and authorisation"
- This Gomez situation has widened the law, any assumption of a right of an owner, even with her consent, may constitute the actus reus of theft
R v Hinks:
- D made friends with V who was described as a naive man with limited intelligence. Over a six month period he withdrew £60,000 for D. It was argued that V was unlikely to have made a decision to hand over the money on his own accord. D was convicted of theft. She appealed arguing that it was a valid gift. The HL upheld her conviction, the recipient of a valid indefeasible gift may commit theft if she receives it "dishonestly"
Is appropriation a one-off or a continuing event:
- Atakpu : D's hired cars in Belgium and Germany using false documents. They then brought with them to England intending to sell them. They were arrested within the hire period and charged with conspiracy to steal
- CA quashed their conviction, if goods have once been stolen they cannot be stolen again by the same thief
- s 5 CJA 1993 changed this is provides that conspiracies to defraud may be tried in this country if some part of the conspiracy arose in this country
Intention to permanently deprive:
-Intention: the D must intend permanently to deprive the victim of the item. Such as, if Zhu borrows a book knows that risk and never returns it, this is intent.
-Deprivation: to deprive the victim of the property, even if there is no intention to gain. This point is backed up by s1(2) of the Theft Act 1968
- Replacement of stolen goods: What if the D took some property with the intention of replacing it with a similar item? Even if the D intended to deprive the victim of the notes she took, even though she intended to return their equivalent value. In cases where the D intends to provide a replacement for the item taken this will be very relevant in deciding whether there was dishonesty
- Note: there is no guidance in this section if dishonesty is subjective or objective, nor whether it is a matter of fact or question of law for the judge
R v Lloyd:
R v Lloyd, Bhuee & Ali  QB 829 Court of Appeal
Lloyd worked as a chief projectionist at a cinema. Over a period of some months Lloyd took films from his place of work, gave them to Bhuee & Ali who copied them for distribution and gave them back to Lloyd who returned them to the cinema. The judge left the issue of intention to permanently to deprive for the jury to decide. They were all convicted with conspiracy to steal contrary to s.1 Criminal Law Act 1977 (liability requires proof of theft under the Theft Act 1968). They appealed contending that as a matter of law the issue of intention to permanently deprive could not arise in the circumstances so the judge was wrong to put it to the jury.Held:
Appeal allowed. The convictions were quashed.
The wording of section 6(1) "and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal" requires all the goodness, virtue and practical value to be taken from the goods.
The films were returned in much the same condition as when they were taken and thus did not fall within the definition.
Intention to permanently deprive 2:
-The D need not intend to deprive by the act of appropriation: It does not need to be shown that that D intended to deprive the owner of the property by the act of appropriation. If Ian moves a tin of baked beans to a shelf by the door of the supermarket so that he can off with it a few minutes later this if theft, even though that moving is not intended to deprive the owner permanently
- Conditional intention: In the case of Easom: the D picked up a handbag in a cinema. He looked through it, he decided that there was nothing worth stealing. He was charged with theft of "one handbag, one purse, one notebook etc". He was acquitted on the basis that he could not be said to intend permanently to deprive the victim of any of these items. What he intended was permanently to deprive the vicim of whatever he found of value - a theft charge may be best in these type of case
-Throwing taken items away - One can be convicted of theft under s6(1) as they "treated the property as his own" and "disposed" of it
-Selling the item back to the victim - Under s6(1), in offering the victim's property back to Edward, Tony is treating the property as his own and intending to "dispose" of it
-Moving the D's property: Can moving property amount to disposing of it, in the case of DPP v Lavender D took two doors from one council house and installed them in another, the CA upheld his conviction for theft
-Returning property in an impoverished state: This is covered by s6(1) which states that if borrowing is "equivalent to an outright taking or disposal" then this amounts to an intention to permanently deprive. In the case of DPP v SJ, PI, RC the Ds took the victim's headphones, snapped them and then returned them - the D was convicted of theft it was enough that the property had lost its practical usefulness
-Pawning the goods: if the D pawns or pledges the goods within s6(2) and the D will be treated as intending permanently to deprive
-Risking the property: If the D gambles the V's property or invests it in a risky investment the D will be treated as intending to deprive the victim of it
- Statute: section 2 of the Theft Act 1968, if the D is not covered by s2, then is is necessary to condor the common law definition of theft
-The theft act define three circumstances in which a person is not dishonest....
-Under s2(1) the D's belief that he has the right to deprive the owner of the property. The most obvious example of this is where a D believes that his property is his or her own. For example, if Susan walks out of a restaurant believing taking someone else's umbrella thinking that it is hers then she is not dishonest
-s2(1) Ds belief that the owner would consent A D is not dishonest if she or he believes that the owner would have consented to the taking. This subsection is most likely to apply where the D and the "victim" are friends
-s2(1)Belief that the owner could not be found This section deals with the situation where a person finds property which he or she believes has been abandoned. If the D believes hat the owner cannot be found then there is no theft. However, if D subsequently discovers who the owner is and keeps it thereafter she appropriates the property she can be convicted of theft
-Section 2 (2) reiterates that merely intending to pay for an item does not negate theft. There mere fact that he leaves cash does not mean that he is not dishonest. However, he may well be able to persuade the jury that he believed the shopkeeper would have no objection as long as he paid for what he took he was not dishonest under s2(1)(a)
- D a branch manager of a firm of bookmakers, borrowed £30 from the 'float'. Four days later he was transferred to another branch and the new manager discovered the loss
- D then gave the IOU to cover the deficiency ad when questioned by the police he said that he intended to give it back and that he was owed by the firm in wages more than he borrowed
- His conviction was quashed, because the word dishonesty is in common use, and judges should not define it
R v Ghosh:
- a locum hospital consultant, falsely claimed that money was owing to him from an operations that had yet to be carried out, but later explained that in any case the fees were owed to him through consultancy fees. The CA upheld his conviction, as they argued that dishonesty is a state of mind, not conduct and therefore the test is objective. The standard to be applied is that of a reasonable man, not that of the accused.
- TWO STAGE TEST:
-(1) Was what the D did dishonest according to the standards of reasonable and honest people? - objective, then the jury must consider
-(2) Would the D realise that reasonable and honest people would regard what he did as dishonest? - subjective
Law Commission (1999):
- They seem to want to go further, they believe that the word "dishonesty" should do more than preserve the old defence of claim of right, they criticise both Freely and Ghosh tests for their "assumption of, and dependance on, a shared moral standard"
- This is contained in section 8 of the TA (1) and (2)
-In essence, robbery is made up of two elements
-(1) it must be shown that the D has committed theft. The mens rea and actus reus of theft must be proved
-(2) It must be shown that the D has used or threatened force at the times of theft
- The mens rea for robbery is the mens rea for theft: this is dishonesty and intention to permanently deprive V of the property as well as at least recklessness as to the force used
- three men including the D approached V who was "nudged" by one of them. As V stumbled , his wallet was stolen, the CA held that the word force had been deliberately used in the TA 1968 rather than the word violence it was a word in ordinary use which juries could apply appropriately, the force must be used to steal and not for any other purpose, the force must be used at the time of the theft or immediately before it
R v Mitchell:
- D is on the run from the police, he hijacks a car off an old lady and gives chase from the police, D is caught after abandoning the car and charged with robbery, D was found not guilty because there was no intention to permanently deprive.
-The Fraud Act 2006 created a new offence of fraud where fraud can be committed in three ways. It can be committed by false representation, failing to disclose information and by abuse of position
-Fraud by false representation:
-This can be made orally, in writing or on a website
-S2(2), looks at how a representation is false it it is "untrue or misleading" and S2(3) makes it clear that representation can be as to fact of law or it can include a representation as to someone's state of mind
-It is well established in the case law that if a person uses a credit card they are representing not only that a card is theirs but also that they are authorised to use it
The false representation must be made by the D:
-s2(4) is that the representation can be expressed or implied; in the case of Barnard the D went into a shop wearing an academic cap and gown that is usually worn by those in oxford. The shopkeeper assumed that he was a member and gave him a discounted price, it was held that by wearing this garb the D was giving a false representation and he was a member.
-It must also be noted that the false representation must not be made to anyone. S2(5) states that the offence can be committed against a computer or other mechanical representation
- The D must know that the statement might be untrue or misleading - this is under section (2)(b)
The statement must be made with the intention to make a gain or a loss
- should be emphasised that it does not need to be when that the D make any kind of gain or indeed that the victim suffers any kind of loss. "Gain" or "loss" must be in property or monetary terms
There must be dishonesty
-The Ghosh test for dishonesty will be used however, section 2 of the Theft Act 1968 will not apply. So the circumstances set down there for when a D will not be dishonest will not apply
More fraud points:
-Failing to disclose information:
-This is found in section 3 of the TA, the offence also deals with "deception by silence". However, this offence is only committed when the D is under a legal duty to disclose information, this can also be found under section 2 where there is implied deception
-Fraud by abuse of position:
-This is found in section 4(1)
-This will apply to when trustees and those who owe a fiduciary relation to others. However, it is unclear whether it will apply more widely than this. Remarkably the Act fails to define a position in which he is expected to safeguard, or to act against the financial interests of another person
-Section 6: Fraud and possession offences
-This is found in section 6(1) of the act
-There needs to be no mens rea for this offence, however, it must be shown that D intends the article to be used in fraud
-Section 7 creates an offence of creating, adapting, supplying or offering for supply any article knowing or intending it to be used in connection with fraud
-Obtaining services dishonestly
-This is contained in section 11 of the act, this replaces section 1 of the TA 1978, this was redrafted to in particular include obtaining services through electronic means
-It is restricted to services which were provided on the basis that they would be paid for. This offence would also seem to cover illegally downloading music
-Unlike fraud the offence requires the D to have actually obtained a service as a result of the dishonest act
-Conspiracy to defend:
-There was the debate which decided that the offence of conspiracy to defraud should not be abolished
Making off without payment:
-This is contained in section 3 of the TA1978
-This offence contains a maximum imprisonment of 2 years, this offence is designed to deal with those that for example run off without paying a meal
- The mens rea of the offence is dishonesty and knowledge that payment on the spot is required and intent to avoid this payment
Making off without payment 2:
-In the case of Brooks v Brooks the CA rejected an argument that the term making off indicated that the D surreptitiously left. Boldly walking out through the front of the restaurant is as much to blame as sneaking out the back door
-There is some doubt whether a D can be said to be making off if the V has given the D permission to leave
-John Spencer argues that it is necessary to distinguish between two cases such as where the D has left without it being possible to locate him in the future and where the D has left when it is possible to discover his whereabouts in the future He argues that it the latter case there is no making off as the situation is not the kind which the Act was meant to deal with, but the former is
Burglary and blackmail:
-Burglary is not limited to just theft, it includes other offences that are made inside the home
-Burglary can involve entry to someone's home with the intent to commit crime even if the crime is not committed
Section 9 of the Theft Act 1968 defines the offence of burglary:
-The key difference between the two offences if the time at which the crime is committed
-(1) Section (1)(a) is committed when the D enters the building
-(2) Section (1) (b) is committed when, once inside the building, the D commits one of the listed crimes
-So if a D enters as a trespasser, intending to steal property, and once inside does indeed steal property the D is guilty of both forms of burglary. If the burglary is from domestic premises the maximum penalty is 14 years, whereas if the burglary is from a non domestic premises this will be 10 years.
Building or part of a building:
-A building must involve a permanent structure
-S9(4) states that an inhabited vehicle is included within the definition of a building
-To be a building there is no need for it to be inhabited
-If a D enters a building with permission, then enters a part of the building where they are not with the intent to steal, they can be committed of burglary
- It has to have a certain degree of permanence. Thus a 25 foot long freezer which has sat in a farmyard for more than two years qualifies as a building whereas an articulated container does not
-To be guilty of burglary the D must be a trespasser and know that they are a trespasser
-R v Collins: Collins had a good deal to drink and was "desirous of having sexual intercourse". The D passed the V's house and saw that the lights were on. He fetched a ladder and took off his clothes. The V awoke and saw the naked man and thought that it was her boyfriend and they had sex. She beckoned him in, only when the light was on did she see that in fact it was the D. He was charged with burglary and the intent to rape. Whether he was a trespasser depended on if the entry was intentional or reckless. The appeal was allowed and the conviction quashed.
- There cannot be a conviction for entering premises as a trespasser unless the person entering does so knowing that he is a trespasser
- The mens rea of a trespasser:
-To be guilty the D must know that they are trespassers or reckless, the D's are aware of the facts which render them trespassers
-R v Jones; R v Smith: Jones and Smith were both charged with burglary. They had entered Smith's fathers house and stolen two television sets. Smith stated that his father had given him unreserved permission to enter his house. The conviction depends on whether a person is a trespasser is judged on their mental state. They were seen as trespassers.
-According to the CA in Brown there must be "effective entry", the D broke a shop window and stuck the top half of his body through when he was investigating the shop. This was seen as effective entry
-It is also widely accepted that it is possible to commit burglary by using an object to enter the property - however, there is not any authority on this
The mens rea for burglary:
-Under section 9(1)(a) it must be shown that the D had an intention to commit one of the listed offences at the time the D entered the building. If the D entered the building with intention to steal but once inside did not they would still be guilty of burglary. This works the other way, if the D entered the building with intention not to steal but did so inside then the D would not commit burglary
-Under section 9(1)(b) the mens rea for burglary is the mens rea for stealing
-There is conditional intent where one will steal if there is something worth stealing - this is still burglary
-This is found under section 10 of the TA 1968
-This involves a D who has with him or her at the time of burglary a firearm, imitation firearm, a weapon of offence of a firearm
-if under (a) the D must show that they had a weapon at at the time of entry, under (b) the D must of had the weapon at the time of committing the further offence
-The definition of "weapon" is wide
-It must be shown that the D was aware that he/she had the weapon with him or her at the time of the burglary
-Trespass with the intent to commit a sexual offence:
-This is under section 63 of the Sexual Offences Act 2003
-This offence refers to a structure rather than a building
-The actus reus for this is: (1) where the D makes an unwarranted demand, (2) with menaces
-The mens rea is (1) the D must act with a view to gain for himself or another and intent to cause a loss to other (2) (a) the D does not believe that he has reasonable grounds to make the demands (b) does believe that the use of menaces is a proper means for reinforcing the demand
-This is found in section 21 of the TA 1968
-This can be oral or written
-This is to be given its ordinary meaning, a demand must be issued there is no need for it to be heard or received
-With a view to gain or loss
-This must be a financial gain to the D or third party, or a financial loss to the V, this is found in section 34(2)(a) of the TA1968, there must be monetary loss
-This must be made with menaces, this is to be given its ordinary meaning
-The threat can be that something unpleasant will occur to the victim or the third party, the unpleasantness must not be of a minor nature
-The hardest case for menaces is where the D responds in an unusual way
-(a) D says something that most people would not find frightening. This will be menacing if the D is aware of the effect of the words of the V
-(b) The V being hard skinned does not find it menacing. This would in law be regarded as menacing
R v Garwood:
-Garwood believed that Sayed had burgled his house. He asked for something to call it quits, S gave G £10. Garwood was charged with blackmail. In his reasoning the judge argued that menaces can exist even though a person of normal stability would have not found what was said or done threatening, and even thought the accused was more susceptible to threats.
The demand must be unwarranted:
-The jury must decide if the demand is unwarranted, and they must also consider section 21(1) that the D's demand must be found unwarranted unless (1) that there are reasonable grounds for making it and (2) that the use of menaces is a proper means for enforcing the demand - if the D has the two beliefs mentioned they cannot be guilty of blackmail
-The Bribery Act 2010 creates an offence of bribery for example blackmailing seeking to manipulate another person to make a gain
NEW TOPIC: GENERAL DEFENCES
Intoxication and crime:
Alcohol, "alcohol may be neither a necessary nor sufficient cause of crime, but may nevertheless affect a crime". Shocking statistics, around 58% of rapists are intoxicated, 88% of criminal damages cases involved a drunk defender.
Drug misuse, there is also a strong link between the illegal drug use and crime
Alcoholism and drug dependancy: illness of weak?: some people see drug addiction as a kind of illness or disease which should be treated as a medical condition. Others see them as a major social problem caused by people's own character weaknesses. In terms of a criminal trial there is a debate of whether it should be a mitigating (less serious) or aggravating factor (more serious)
Explaining the present law on intoxication:
Crimes that involve intention (specific intent offences) intoxication is regarded as evidence the jury can take into account in deciding whether the D intended the result
For crimes that involve RECKLESSNESS (basic intent offences) and involuntary intoxication the question is simply whether the D foresaw the risk, and involuntary intoxication is simply part of the evidence concerning what the D foresaw
There is a special legal rule concerning voluntary intoxication, one explanation is that the D is treated as having foreseen the risk and therefore is reckless. This presumption of recklessness is that a person who takes drugs is aware that there is a risk that he may behave in an unpredictable way, there are many criticisms to this point of view.....
S8 of the Criminal Justice Act 1967 requires a jury to consider all the evidence before deciding whether the accused foresaw the result , this has been interpreted by some that the jury should not rely on foresight
When there is recklessness at the time of drinking, there is no coincidence of actus reus and mens rea, which is normally required in criminal law
Normally is offences requiring recklessness it must be shown that the D foresaw a specific kind of harm
It has been argued that the law is unconvincing where the D has never drunk alcohol before and is unaware of its potential effects
It has been argued that what the law is really doing is deterring drunkenness and protecting people who have become violent when drunk
Alternatives to Majewski:
There has been the idea that there should be no special legal regulations governing intoxication, as to treat intoxication as one piece of evidence, this has been adopted in New Zealand and Australia
Some argue that the criminal law should penalise drunkeness and could argue that drunkeness should constitute the mens rea for any offence
There should be a new offence of "causing harm when intoxicated". The Law Commission Consultation Paper proposed an offence of causing certain kinds of harm while intoxicated to a significant extent, this was however, rejected
There has been an argument made for a crime of public intoxication. However, one study suggests that less than 1% of intoxicated people commit serious criminal offences
An alternative approach is to see the "problem as not with intoxication, but with out understanding of intoxication
Intoxication and insanity:
The leading case on this is Lipman: The D took LSD and as a result claimed he had a hallucination in which he was attacked by a monster. On recovering, he had realised that he in fact had killed his girlfriend. He was not allowed to plead insanity as he was voluntarily intoxicated. His conviction for murder was upheld.
Definition of self defence: Where the D was facing an unjust threat from the victim and where the D used a level of force against the threat which was reasonable in the circumstances
There are two sources of law for self defence, there is common law and statutory law found in s2 of the Criminal Law Act 1967, these two rules coexists which means that the legal rules are the same whichever defence is used
In s 76 of the Criminal Justice and Immigration Act 2008 Parliament sought to clarify some elements in both defences
What needs to be shown to establish the defence?
Is it whether the amount of force used was reasonable by the standards of the ordinary person, or whether it was sufficient to show that the D believed that level of force to be reasonable:
R v Martin: the D lived alone in a country house, two men burgled the house and were shot by Martin and one of them died. Martin was convicted of murder. The appellant appeal his conviction and stated that he was suffering from a psychiatric illness (a) D was suffering from diminished responsibility at the time of killing (b) because of his condition he was more likely genuinely to believe that he was about to be attacked than an ordinary person would be. His conviction for murder was quashed to manslaughter.
There are elements of private defence...(1)the threat must be unjustified, (2)the use of force must be necessary,(3) the degree of force must be reasonable, (4)the D must be acting in order to defend himself or another of property
(1) there have been cases which cast shadows on this element.
R v Hitchins: H was charged with assault on Brown. His defence was that he acted in self defence, in that he assaulted her to prevent her from allowing a man into her flat that he believed would go onto assault her. The judge ruled that a D could not rely on self defence in a case where the assault was against an innocent person in order to prevent an attack by a third party. However, his appeal was allowed, this case threatens to undermine the distinction that the law draws between duress and self defence
There is also doubt whether it is possible to use defence when protecting property. The answer is that what the jury consider as reasonable. The jury in the Martin case took the view that for Mr Martin to kill someone in order to protect his house was not reasonable
(2) The threat must be unjust, if Mark attacks Jim and Jim defends himself by using force on Mark, Mark cannot use further force against Jim and claim that it was self defence
(3) It must be necessary to use force. One must note that the D does not have a "duty to retreat". So if the jury decided it was unreasonable to try and retreat than ward off the attack, the D could still rely on the defence, the question is was it reasonable for the D to use force. The law also does permit a pre-emptive strike if to do so is reasonable. It is not absolutely necessary to show that the attack is immediate or imminent (such as if trying to escape when kidnapped) - however, vast majority of cases will require this
(3) It must be necessary to use force. One must note that the D does not have a "duty to retreat". So if the jury decided it was unreasonable to try and retreat than ward off the attack, the D could still rely on the defence, the question is was it reasonable for the D to use force. The law also does permit a pre-emptive strike if to do so is reasonable. It is not absolutely necessary to show that the attack is immediate or imminent (such as if trying to escape when kidnapped) - however, vast majority of cases will require this
(3) The D can successfully use the defence only if the level of force was reasonable in the face of threat as perceived by the D. It should be stressed that the question is whether a reasonable person would say that the level of force was reasonable, not whether the D thought the level of force was reasonable. Many commentators takes the view that it is reasonable to cause greater harm in self defence than was threatened such as a woman being raped, killing a man. Others believe that the D must use a level of force which is proportionate to the threat. The jury is asked to remember that the D is acting in the "agony of the moment", sometimes it is easier to ask what is reasonable rather than what is proportionate
(4) One cannot use self defence as a defence solely out of revenge or retaliation. This is known as the "Dadson principle": the D cannot rely on the justifying circumstances of his or her actions of which she is not aware
What about Ds who think they are being attacked but are not....
The position is that the D is to be judged on the facts as he or she believed them to be
The jury must ask whether on the facts as perceived by the D, the level of force was reasonable
Gladstone Williams: the D saw what he thought was a mugging and intervened and used force against the "mugger". It was actually a citizens arrest and D was charged of assaulting and cause ABH. However, he was able to raise self defence as he honestly believed that he was intervening to prevent a crime. For the court is does not matter how absurd the belief if, it just has to be a genuine belief.
Self induced private defences...
If the D caused the attack in the first place then he or she may not be able to ely on the defence. The question for the jury is whether the D's use of force was reasonable in light of the fact that he or she had instigated the fight. For example, where D initiates the insult but then V produces a gun, the jury may consider that the D can reasonably defend him or herself against an attack
R v Keane: K was being given a lift home by the V and two women. K started to insult one of the women calling her a "chav", this led to a fight between the women and K which left the women with GBH. On appeal there was the question if the judge had directed the jury if the D could use self defence in these circumstances. His appeal was dismissed
Excessive use of force....
In Clegg it was confined that there is no defence is the D is justified in using some force, but uses an excessive degree of violence, the HL held that such creation of a defence should be left to Parliament
Has the HRA 1998 changed the law.....
Andrew Ashworth has suggested that the law on private defence may be challenge under the HRA, at least in the case of murder. He points to art 2 of the ECHR which protects the right to life. In 2(a) the taking of life is permissible is it is in the defence of a person - this is where it is absolutely necessary and strictly proportionate
There are two ways in which the English law falls short of the ECHR. (1) the level of force used must be absolutely necessary and strictly proportionate according the European Court, but only reasonable in England. (2) the defence can be used if the D mistakenly believes that he or she or another is being attacked: only if that mistake is based on good reason according to the European Union, but is only a genuine belief under English law
There has been some confusion over what this actually is
(1) this refers to the lesser of two evils. The D was in a situation which meant that whatever he or she did would result in harm being caused
(2) this has been understood to mean duress of circumstances
(3) sometimes necessity is used to describe an overarching doctrine which explains self defence, duress, and the less of two evils, the overarching theme being that the D was placed in an emergency of some kind and what the D did was necessary to avoid harm
will look at necessity as the lesser or two evils
Cases denying the existence of a general defence of necessity:
The courts have been rather consistent with their reasoning. In the case of Southwark LBC v Williams the CA held that homeless people seeking refuge in empty accommodation had committed trespass. They could not rely on that trespass was a lesser evil than them suffering. Lord Denning: "Necessity would open a door which no man could shut"
NECESSITY CANNOT BE A DEFENCE FOR MURDER. This was seen in the case of Dudley V Stephens there were three men and a boy who were shipwrecked in an open boat with no food or water. After several days the men killed the boy who was very ill and ate him and therefore managed to survive until they were rescued. They argued that the killing of the cabin boy was the lesser of two evils. Their defence failed and they were convicted of murder
The limited defence of necessity at common law....
(1) when the D damages or steals another property in the public interest (in order to create a firebreak)
(2) when the D damages the D's property or interferes with another's property in order to save his or her own person or property (to stop fire spreading)
(3) When actions are taken for the benefit of another person where that person is unable to consent. In Re F (Mental Patient: Sterilisation): the doctrine was relied upon to authorise the sterilisation of a mentally ill women. She was unable to consent; necessity could therefore be relied upon. "A man who seizes another and forcibly drag him from the path of an oncoming vehicle, thereby saving him from injury or death, commits no wrong" - Lord Goff
(4) It is permissible for a police constable to direct people to break traffic regulation if that is necessary and reasonable to protect public life or property
(5) A very limited category of necessity as a defence to murder was recognised in....
Re v A :
Jodie and Mary were conjoined twins. Mary was only kept alive because of a common artery that she shared with Jodie. Jodie was capable of living independanty from Mary, but Mary could not. The operation would lead to the death of Mary but would save the life of Jodie. The parents of the twins refused to consent to the operation. The hospital applied to the court for a declaration that the operation would be lawful. The judge concluded that it would and the case was then taken to the CA. The declaration was given. The law on this has been on a case to case basis
Brook LJ judgement: (1) the act is needed to avoid inevitable and irreparable evil, (2) no more should be done than is reasonably necessary for the purpose to be achieved, (3) the evil inflicted must not be disproportionate to the evil avoided
Implied recognition of necessity....
One could look at the case of Bourne: where the D was charged under s58 of the Offences Against the Person Act 1861 with unlawfully procuring a miscarriage. The surgeon had perfumed an abortion on the suicidal 14 year old who had been the victim of rape. It was held that because the doctor had performed the operation in order to save the girls life he had not acted unlawfully.
Duress of circumstances.....
In some cases where the D does the lesser of two evils, they will be able to rely on the defence of duress of circumstances
This is where the D reasonably believes that in the circumstances are such that unless he/she commits a crime he or she or another will suffer death or serious injury and that a reasonable person in a similar situation would do the same
It can be seen as more NARROW than necessity as this defence is not available in order to avoid threat less than death or GBH
It can be seen as WIDER as it covers the situation where the D reasonably believed there to be a threat of death or serious injury, even if there was in fact no threat - necessity does not cover this
Definition: Duress is a defence to all crimes expect for murder, attempted murder and some forms of treason, to establish this defence the D must show that..
(1) he/she committed the crime because of threats of death or GBH
(2) a reasonable person would have acted as the D did
There is duress by threats - this occurs when one person commutes a crime after another person has threatened to kill or injure someone is he or she does not commit a crime
There is duress by circumstances - this arises where no one has specifically told the D to commit the crime but the circumstances are such that the D believes that unless he or she commits a crime he or she or others will suffer death or serious injury
The case which established that duress is not a defence to murder was Howe...
R v Howe: Howe and Bannister appealed against their convictions for murder. They claimed that they joined in two brutal assaults on young men which culminated in their deaths only because they had been told too by an older man with a substantial criminal record that if they did not they would suffer violence. The HL upheld the conviction. Lord Halisham: "acts... which withdraws the protection of the criminal law from the innocent victim and casts the cloak of its protect upon the coward and the poltroon in the name of a 'concession to human fragility'"
R v Gotts: D stabbed and seriously injured his mother, after his father threatened to kill him if he did not do so. He was convicted of attempted murder. The HL dismissed his appeal, Lord Jauncey: "the reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance"
What are the elements of the defence of duress?
The D must act because of a threat of death or serious injury...
The D must act because of the threats or the circumstances: The D must act because of threats or circumstances and not for any other reasons. It would be in only other rare circumstances that the D would commit a crime following threats of death or serious harm, but not because of threats. The case of DPP v Bell raises an issue: he had consumed excess alcohol, it was held that even if the defence had been available for his initial driving away he had to desist from the crime once the threat was no longer potent. By carrying on driving and having escaped from the danger area he was from then on not acting because if the threat so could not rely on the defence of duress
The threat must be of death of GBH: A lesser kind of threat will not suffice, there is some doubt over whether serious psychological injury would be sufficient - this was rejected in Baker and Wilkins
The threat can be of death or serious harm to anyone: It is now clear that the defence is available if the D fears that anyone whom the D reasonably regards himself responsible is under threat
The threat must not come from the D himself: in Roger and Rose where the Ds were charged with offences connected with escaping from prison, they argued that they had become so depressed because of the conditions in the prison that they would have committed suicide if they had not escaped. They were therefore facing a threat of death. The CA held that duress was not available because the threat of death did not come from a source extraneous from the Ds
The D can rely on what he or she reasonably believed to be a threat: In the case of R v Z, Lord Bingham held that the defence of duress is only available if the D both genuinely and reasonably believes the threat to have been made
The reasonable person must have responded to the threat in the way the D did...
The jury must decide this: they will look at how severe and grave the crime is. The jury is likely to consider whether the D responded in a way which was proportionate to the threat
Characteristics of the reasonable person?: one must look at what characteristics can be taken into account and for what purpose they are relevant? The case of Bowen is the authority on this, the characteristic must provide a reason for failing to live up to the standards of the reasonable person i.e. PTSD must work but not IQ, the case also looked at pregnancy and physical disability. The characteristic must not be self induced such as intoxicated.
Intoxication may be ascribed to the reasonable person in duress for three different reasons....
(1) to affect the level of firmness expected, (2) to affect the ability of the D to escape from the threat (physical disability), (3) to affect the gravity of the threat (pregnancy)
The D must take any reasonable opportunity to escape from the threat: For example seeking police protection
The threat must be from imminent harm: this was asserted in the case of Abdul-Hussain, that the threat of death or serious harm must be imminent
The D must have a good cause to believe that the threat will be carried out: The Graham direction makes it clear that the D must have a good cause to believe that the threat could be carried out
The D must not have put himself or herself in a position in which he or she could have been threatened in this way: the defence is not available if the D associates himself with criminals in circumstances in which he or she ought to know that he or she could become subject to compulsion to commit a crime
Internal duress cannot be relied upon: Ds cannot rely on threats that come from within themselves. This was made clear in the case of Quayle: the Ds who sought to use illegal drugs to provide pain relief from the effects of a medical condition were not entitled to rely on the defence of necessity
R v Bowen:
Bowen was convicted of obtaining services by deception, he claimed that he only did because two men had accosted him in a pub and threatened that he and his family would be petrol bombed if they did not assist the plan and would be attacked if he contacted the police. There was evidence that he had a low IQ and was unusually suggestible. His appeal was dismissed.
R v Z:
The D sought to rely on the defence of duress in response to a charge of burglary. The V had called for a prostitute and he entered his house and stole £4000. D suggested that he had only done this as a response to threats from Sullivan who he worked for and had a reputation as a violent man. The was the question of how the judge should direct the jury that the D could not rely on threats by an man known as S because he had associated himself with him and put himself in a position where he knew he would be likely to be subjected to threats. The appeal was dismissed.
R v Quayle:
D and two others were suffering from various illness which cause them severe pain. They were charged with the possession of cannabis contrary to the Misuse of Drugs Act 1971, cannabis was used to avoid serious injury and pain, their appeal was dismissed by the court.
NEW TOPIC: INCHOATE (JUST BEGUN, UNDEVELOPED) OFFENCES
Definition: These are offences that seek to deal with defendants who have taken steps towards the commission of an offence but who have not (yet) committed it. Two examples of these are attempts and conspiracies
Inchoate offences can come in the form of attempts, offences under the Serious Crime Act 2007 or conspiracies
In attempts the D has gone beyond mere preparation and taken steps to plan the crime
In offence cases the D has encouraged or assisted a person in committing a crime
In conspiracy cases the D involves agreeing with others to commit a crime
With all of these offences the D has come close to committing the actus reus but has not actually performed it
Attempt i.e firing a gun, smuggling drugs into a country
Actus reus: the D has done an act which is more than merely preparatory to the commission of the offence
Mens rea: normally an attention to commit the full actus reus. However, it can be difficult if the crime needs proof that the actus reus was fulfilled. Then the D must intend to do his or her act but need only be reckless as to the circumstances
Common law was replaced with statutory law in the Criminal Attempts Act 1981
Mens rea of the offence .....
The key mens rea requirement is that D must intend to commit the full offence. This is stated in section1(1): is an intent to produce the actus reus. So for example, attempted murder required the intent to commit it is not enough to have the intention to cause GBH even though this would be sufficient for the full offence of murder
Intent is given the same meaning as in common law, so there can be direct and indirect intent
R v Khan, R v Dhokia, R v Banga, R v Faiz:
hey were charged of the attempted rape of a 16 year old girl who they met at a disco. The appellants attempted unsuccessfully to have sexual intercourse with her. The trial judge directed the jury that if the Ds were reckless to whether or not the V would have consented they could be convicted of attempted rape. The Ds appealed arguing that the jury should have been directed that they could only be convicted of attempted rape if they knew or intended that the V was not consenting. The appeals were dismissed, "the intent of the D is precisely the same in rape and attempted rape and the mens rea is identical. It must be NOTED that at the time recklessness was the required mens rea for rape. This case looks at the distinction between consequences (which must be intended) and circumstances (which do not need be)
Attorney-General's Reference (No.3 of 1992):
hey were charged with attempted aggravated arson. They threw petrol bombs towards a car however, missed the car and they hit the wall. The judge reeled that it had to be proved that the Ds intended to endanger lives in order to be convicted of the offence. The question for the CA was whether a D could be convicted of attempting to commit aggravated criminal damage contrary to s1(2) CDA when he was merely being reckless as to whether life was endangered. It was enough for the crown to establish a specific intent to cause damage by fire and that D was reckless as to whether life would be endangered. Is the concept of "lives be thereby endangered" a consequence or a circumstance, it is a consequence as there is an act of danger which puts lives in danger and it is a circumstance as arson was committed in a situation where lives could be endangered
3 different views on how to interpret these cases....
Recklessness as to circumstances but not consequences: A D must intend to do his or her action and cause the consequences of that action, but can be reckless as to the circumstances of his or her action
recklessness to circumstances or consequences test: A D must intend to do his or her action, but can be reckless as to the consequences or the circumstances of that action of recklessness is sufficient for the complete offence
The missing element test: this requires the court to decide what the missing element is in the attempt, what would mean that the full attempt would have been committed - this was applied in the attorney general case
if the D's intent to commit a crime was based on circumstances i.e. Dave rushes into the bedroom to kill his wife if he finds her in bed with another man. In the case of Husseyn the D was charged with attempting to steal sub aqua equipement from a van. He opened the bag and looked to see if there was anything worth taking. The CA held that it could not be said that he had intended to take the equipement so he could not be found guilty of attempting to steal it. However, if the indictment was drafted carefully i.e. "attempting to steal from a holdall" then one could be charged with conditional intent
This is set out in the CAA 1981: The actus reus requirement is that the D must do something more preparatory (more serving to prepare). It is not possible to commit an attempt by an omission.
R v Geddes:
Geddes entered a boys lavatory and had a cider can, large knife and some rope, the prosecution alleged that he was planning to kidnap. At trial it was argued that he could not be convicted as he had done nothing more than what was merely predatory. His appeal was allowed as his steps were not seen more as merely predatory.
R v Campbell: D had an imitation gun and was within a yard of a post office ready for robbery. It was held that he could not be convicted as he did nothing more than what was merely preparatory.
MORE THAN MERELY PREPARATORY:
Jones: in this case the D got into the V's car and pointed a sawed off loaded gun at V. He still had the act of unleashing the trigger. This was seen as more than merely preparatory. Mens rea, Mohan : The defendant was in his car at a near dangerous speed, a police officer had signalled him to stop, he slowed down, and then sped back up, nearly knocking over the police officer, who fortunately got out of the way. The defendant was convicted of attempted murder.
Impossible attempts...this is where the D is trying to commute an offence which he or she cannot complete. The D cannot be charged.
In the case of Taaffe: The D imported onto the country packages with which he believed contained foreign currency. He thought that this was illegal which it is not. Therefore, he could not be convicted of attempting to import foreign currency
Impossibility through ineptitude...
this is where the D is trying to commit a crime but the means he or she is using are inadequate to commit the offence, the D is still guilty. Such as where Ray tries to poison Lucy's tea, but puts in so little poison that it has no effect on her well being
Here is where the crime simply cannot be committed, For example if D tries to kill V when he thinks V is sleeping but in fact V is already dead. In these cases the D can still be guilty under sections 1(2) and (3) of the CAA 1981. For the purposes of impossible attempts the facts are taken to be the facts as the D believed them. So if the D believes that he or she is dealing with illegal drugs then they can be convicted of this offence
R v Shivpuri:
D confessed in dealing illegal drugs, it was found that the substances in the suitcase was not illegal. He was charged with an attempt to commit the offence of being knowingly in dealing with prohibited drugs contrary to section 170(1)(b) of the Customs and Exicise Management Act 1979, his appeal was dismissed at both CA and HOL.
Attempts and abandonment .....if the D changes his mind at last minute and runs off they may still be guilty of attempt
Serious Crime Act 2007:
The key differences between these offences and accomplices is that for the latter the person encouraged or assisted must go onto commit the offence. However, for the SCA offences there is no need to show that an offence resulted. So if A gives B a gun and asks him to kill C, A should be charged as an accomplice if B does go on to kill
The three offences can be found in sections 44,45 and 46 of the Act, they all involve doing "an act capable of encouraging or assisting the commission of an offence"
Doing an act which is capable of encouraging or assisting the commission of an offence
If the D wants to encourage another to commit a crime but his act is so inept that it could noe help anyone is a crime, no offence will be committed i.e. if someone tries to send some poison but in actual fact sends sugar. However, if A sends poison and B decides not to use the poison, A can still be capable of assistance
Ormerod has also suggested that "the most marginal of acts must suffice"
The case of R v James Jones: shopkeeper was selling equipment of smoking and gave advice on "tomatoes", which was believed to be advice about the growing of cannabis. The jury upheld his conviction.
Section 65(1) also states that threats or pressuring someone can also amount to
Mens rea for section 44:
intended to assist or encourage the commission of the offence, foresaw or intended that P would have the mens rea of the offence, foresaw or intended that any circumstances which are elements of the actus reus of the offence that is assisted or encouraged will be present
Mens rea for section 45:
this is to be used where the D believes that the act will be of assistance or encouragement and that the offence will be committed. There is no need to show that the D wants the offence to be committed. Andrew Ashworth suggests that a belief "is to act without any significant doubt on the matter"
Schduale 3 of the Serious Crimes Act lists a series of offences to which section 45 cannot apply. This includes conspiracies, attempts and some statutory incitement
R v Gullefer:
The defendant, seeing that the dog he had backed in a greyhound race was losing, jumped onto the track and attempted to distract the dogs by waving his arms. He hoped that the stewards would declare "no race" whereupon punters would be entitled to have their money back and he would recover his £18 stake. He was convicted of attempted theft and appealed on the ground that his acts were not sufficiently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft.His conviction was quashed. Lord Lane CJ questioned, Might it properly be said that when he jumped on to the track he was trying to steal £18 from the bookmaker? He had not gone beyond mere preparation. It remained for him to go to the bookmaker and demand his money.
The act provides a defence for a person acting reasonably this is set out in section 50 - this helps people such a shopkeepers
Central issues: this law is that the principle is the person whose acts of omissions amount to the actus reus of the offence, whilst the accomplice is the person who assists the principle in the commission of the crime. A person can be an accomplice by aiding, abetting, counselling or procuring an
Who is the principle?:
This is the person who actions constitute the actus reus of the offence
Cases which illustrate this: A and B both stab C. The combined effort of both A and B kills C, they are both guilty as joint principles. A gives B a knife telling him to stab C. B is the principle and A the accomplice. A gives B poison, saying that it is medicine for C. B gives the poison believing that it is medicine, A is guilty of the offence B is an innocent agent and not guilty
R v Giannetto: G made threats to his wife and paid Welch to kill her, after his wife's murder G was arrested. He was convicted on the basis that either he or someone on his behalf killed her.
This only applied to result crimes i.e murder and not conduct crimes i.e. rape - seen in the case of Morgan 1976
this is a person whose act causes harm to the victim but who is "innocent" either because he/she lacks criminal capacity or they are unaware of the act he or she is doing. Where an innocent agent is involved the principal is the person who "causes:" the innocent agent to perform the actus reus and the innocent agent is not guilty of any crime. In the case of Micheal is like the above situation
Professor David Ormerod has argued that some acts cannot be committed through an innocent agent "it is impossible to say that D has personally com
Complicity, the actus reus
There are five ways in which one can be an accomplice. Aiding, abetting, councelling, procuring, party to a joint enterprise
The Accessories and Abettors Act 1861 section 8, states these functions (not joint enterprise), this sets out crucial points about the law of complicity
There must be an offence committed by the principle. If the principle does not go onto commit an offence then the accused is not guilty of the accessory. However the SCA 2007 sections 44 to 46 mean that a person can be guilty of an offence for doing an act which was capable of giving assistance or encouragement to a crime, even if the principle does not go onto commit it
The accomplice is charged with basic offence, for example, the accused will be charged with murder
It is necessary to prove only that the D was an accomplice in one of the four ways or liable under the doctrine of joint enterprise
Lord Widgery CJ said that the words should be given their ordinary meaning
Aiding: this covers offering help or assistance to someone. This includes giving someone a piece of equipment or some information which helps them commit a crime, it has to be shown that there was some help to the principal in committing the crime. Many cases will involve the parties meeting so the assistance can be provided, however, there does not need to be any meeting, the principal does not even need to be aware that they are being assisted. Practically assisting.
Abetting: the dictionary term for this is including to "incite, investigate or encourage". Devlin J in NCB v Gamble: proposed that abetting was encouragement at the time of the offence whilst counselling was prior to the offence. Encouragement at the time of the event.
Counselling: this involves encouraging, inciting or investigating the offence. There is no need to show that the counselling has caused the offence. Such as if A suggests to B "that they should go and kill C" and B replied they already planned to, A can still be a councillor. Encouragement before the event.
Abetting, the case of Coney 1882:
The defendants were engaged in prize fighting. It was held that prize fighting in public was unlawful, notwithstanding the consent of the individuals involved.
- They were seen to be aiding it because of them watching the show
- The fight would not have happened if there was not the attendance of the spectators
- With abetting the principal must know, they have to be encouraged by D2
- With counselling this is the provision of advice
- In the case of Baker: this is where S wrote to P with advice on how to break into a safe using explosives
- Counselling can be seen to occur prior to the act
R v Calhaem:
Calheam had become infatuated with her solicitor. She hired a private detective, Zajac to kill Rendell, who had been having an affair with the solicitor. Z testified that he did not intend to kill R but rather to act out a charade and pretend that he had tried to kill her. However, when Z came face to face with R she started to scream and panicked and went berserk and Z killed her. C appealed on the basis that it had to be shown that her words of counselling were a substantial cause of the killing and that Z at the time of the killing had abandoned his own agreement. However, her appeal was dismissed
In Bryce the CA explained that even in counselling there had to be some casual connected between the counselling and the principal's crime, even though that requirement is given a "broad interpretation"
to procure has been defined as "to produce by endeavour". This can be seen as encouragement to cause the event. The accomplice in some sense has caused the principal to commit the offence. In the case of Attorney-General's Reference (No1 of 1975): B added alcohol to A's drink and when A later drove home he was above the alcohol limit, B's act had procured A to commit a drink driving offence. This is contrasted with the case of Beatty v Gillbanks: where officers of the salvation army knew that a meeting in Weston Super-Mare was likely to produce a violent reaction from a group known as the skeleton army - and it did. However, they could not be said to have procured the violence as they were not endeavouring to.
Procuring is like innocent agency however, the crucial difference is that with procuring the principal is not entirely innocent
this arises where two or more people together embark on the commission of a criminal offence. The two parties may expressly agree to commit a particular crime or this may be an unspoken understanding.
However, there are difficult cases where in the course of committing the agreed crime, the principal goes onto commit a different one. Where A and B are committing a burglary together and are interrupted by a security guard whom A then murders. Then B can be convicted as an accomplice to the murder, through the doctrine of joint enterprise
However, the crime must be committed in the course of or incidental to their common purpose, do if a burglary is committed and then on the way back B scratches a car this cannot be seen as a common purpose
In the case of Gnango: two men were firing at each other and in the course of this a passer by was killed, could they be liable of joint enterprise? The CA rejected the argument that they were acting with a common purpose and so could not be said to be embarking on a joint enterprise
The modern view of the courts is that joint enterprise is simply a way of the four other sections.
Omissions and accomplice liability:
simply being present at the scene of a crime does not render you an accomplice. In the case of Clarkson where the D came across a man committing a rape and simply watched he was not found to be the accomplice of rape
However, there are some exceptions....
If a police constable requests that citizens assists in the suppression of a breach of the peace and they refuse then this can constitute an offence
if under the normal law on omissions you are under a duty to protect someone. Such as, a father who stands by and watches someone injure his child
Where a person has the legal power to prevent a crime and does not do so then they may be an accessory. In the case of Rubie v Faulker: a driving instructor was convicted as an accessory to a dangerous driving offence after failing to intervene to prevent his pupil from dangerously driving
If the person's presence effectively encourages the principle then this may amount to being an accessory, but only if the accomplice is aware that the principal is encouraged by his or her presence. In the case of Francom the victim was subjected to torture in a flat which the D was present. It was held that, given the length of time for which he was present, the jury was entitled the infer that the D's presence must have encouraged the principals
The requirement is that he or she does his or her acts of as siting intending to assist the principle and FORESEEING that the principal might go onto commit the offence with acts of encouragement
To convict an accomplice it must be shown that at the time of the actus reus, he or she had the mens rea
R v Bryce:
In this case B drive X to a caravan near the V's house so that he could wait for the chance to kill the victim. X killed the V the next day. The trial judge argued that B would be an accessory if he deliberately assisted X by taking him to the caravan together with the gun, knowing that it was in order to assist X to kill or cause really serious harm. The appellant appealed his claim (a) that the judge had left the jury with the impression of assistance however slight would be sufficient to amount to the actus reus of being an accessory (b) that the judge had failed to direct the jury that there had to be an intention to assist the principle to kill (c) that the judge had failed to make it clear that a person could only be an accessory to murder if at the time of assistance the principal had the necessary intent for murder. His appeals were dismissed
The Bryce test:
(1) Bryce requires that the D must have realised that his or her act could assist the principal and that he or she intended to assist the principal
(2) The D must have foreseen that there was real possibility that the principal would commit the crime he or she did. That is, he or she foresaw that the principal might comma the crime in the circumstances which would amount to the offence
The D must have realised that his or her act could assist the principal and that he or she intended to assist the principal
The D must have foreseen that there was a real possibility that the principal would commit the crime he or she did
Powell and English: with Powell, a dealer opened the door and he was shot, powell claimed that he was there just to buy cannabis and should not have been classed as in a joint enterprise. In the case of English, English and Weddle were charged with murder of a police sergeant, it was claimed that it was a joint enterprise. However, English claimed that he had fled the scene before Weddle pulled out his knife. There were two questions posed in the appeal. Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party may kill or must the secondary party of had the intention
If the lethal act that is carried out by the primary is fundamentally different from the acts foreseen or intended by the secondary party, can the secondary party be liable - THE APPEALS WERE ALLOWED
1. it is enough if the accomplice foresaw that the principal might commit the crime
2. The test is subjective "what did the D see?"
3. Powell makes it clear that it is enough for the D to foresee that the principal might, not that she defiantly will, go on to commit the offence. It is enough that the accomplice thought there was a real, not negligible, possibility that the principal would commit the offence
4. Under the powell test it is the act of the principal and not the consequence. A foresaw that B would kill C, foreseeing the act which caused the death would constitute to the mens rea of murder
5. It is not necessary to show that the accomplice knew exactly where or when the accomplice would commit the offence. In the case of Maxwell v Dpp: the accomplice was not sure what offence the principal might commit and foresaw a range of possible kinds of offences. It was held that he was guilty because the principal had committed one of the kinds of offences he had foreseen
Powell test cont....
6. the accomplice is not liable if the principal does an act which is fundamentally different from that foreseen by the accomplice. With the case of English the principal's act was not foreseen by the accomplice and so it was "outside the scope of joint enterprise" this was also seen in the case of Rafferty: where the D foresaw that the principals would hit the victim, but they drowned him. This was seen as fundamentally different from hitting and so the D was not an accomplice to the killing
The fundamentally different rule applies only where the principal deliberately departs from the plan. So if the principal carries out the plan but accidentally someone else is injured then the accomplice can still be liable
7: Powell developed a special rule in relation to weapons, if the accomplice knew that the principle had a weapon with him or her then the accomplice is deemed to foresee that the P will use this weapon. It is not necessary to see exactly how the weapon will be used. If the accomplice knew that the principle had a weapon, but the principal used a weapon of a similar kind then the accomplice is still liable. This "weapons rule" creates only a presumption. In other words, the alleged accomplice will not be guilty if he or she can persuade the jury that even though he or she knew that the principal had a gun he or she did not foresee that the principal would use the gun
8: In Johnson v Youden: it was emphasised that the D must foresee or know circumstances of the act that render him a criminal
9: The accomplice must foresee that the principal will act with the necessary mens rea of the offence. So a D can be an accomplice to murder if he or she foresaw that the principal would oil with either an intent to kill or cause GBH.
R v Rahman:
A fight broke out between a group in which the deceased was killed, after being stabbed, hit and kicked. The parties stated that they were parties to the enterprise however, their intention was to caused serious bodily harm and they did not foresee that anyone else in the group intended to kill. The appeal was dismissed "I consider that even if the primary perpetrator intended to kill the victim, an alleged accessory should not escape a murder convictions because he only foresaw or expected that the perpetrator intended to cause serious injury" (Lord Neuberger of Abbotesbury)
R v Mendez:
The following cases are more clearer on the current state of the law...
- A dispute broke out when some electronic games had gone missing and a fight broke out and a group of partygoers chased the victim, armed with wood and metal bars. Thompson has stabbed the victim. The Ds appealed on their conviction of joint enterprise on the basis that the judge had failed to direct the jury properly on joint enterprise.
- Where the common purpose was not to kill but to cause serious bodily harm, the secondary party will not be liable if the direct cause of death was a deliberate act of the principal party which was unforeseen by the secondary party
Summarising the current law on accessories:
The actus reus of being an accessory is aiding, abetting, counselling or procuring the principal's offence OR being a party to a joint enterprise
The mens rea is (1) the D must intend to assist or encourage the principal and (2) foresee that the principal might go on to commit the offence or an offence of the similar kind, with the mens rea of the charged offence. An accomplice cannot be liable if the act is fundamentally different to the one foreseen. If the accomplice knows that principal had a weapon when it is presumed that they will foresee that the principal will use this (or a similar weapon)
Selling of a dangerous item:
If a shopkeeper knows that what he is selling will be used for a commission of a crime, then they will be liable as an accessory this position was taken in the case of NCB V Gamble: "he may be indifferent to whether the third man lives or dies and interested only in the cash profit made out of the sale, but he can still be an aider or abettor" - this is not true when the shopkeeper has no idea that the item is being bought for a crime
Conviction of a secondary party and acquittal of principal:
1: As long as it can be proved that someone committed the offence and that the accomplice aided, abetted, counselled or procured him or her, the accomplice can be convicted
2: Cogan and Leak: Mr Leak terrorised his wife into having sex with leak, he had told Cogan that she wanted to have sex with him. The principal was acquitted as he lacked mens rea, however Leak was acquitted for procuring rape
3: The principal has been acquitted because there is no evidence that the actus reus was performed, in such case no one can be convicted as an accomplice
4: The principal has been acquitted because of a special defence can happen such as the defence of coercion
5: The principal has been convicted of an offence which the accessory could not have committed. Such as a women has assisted a man in rape even where she could not do this herself - she can still be convicted.
A secondary can be guilty of a greater offence than the principal
To escape liability for a secondary party it must be shown that a withdrawal has taken place prior to the committed offence
Where a provision in a statute is designed to protect a class of persons such as in the case of Tyrell where a 16 year old abetted a man to have sex with her, she could not be convicted as the offence was designed to protect under 16 year olds and not to criminalise them