GENERAL CASES – CRIMINAL LAW
1) Adamako – Gross negligence manslaughter. In the hospital Adamako went to get something and a tube detached and she suffocated. – D had to owe a duty of care to the victim, duty of care must be breached and the conduct of the D was so bad that he deserved to be punished.
Subjective recklessness: -
2) Woolmington Vs DPP (1935) All ER 1; Throughout the web of English Criminal Law one golden thread is always to be seen – that, it is the duty of the prosecutor to prove the criminal’s guilt – if, at the end of an on the whole case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to (the prisoners guilt) the prosecutor has not made out the case and the prisoner is entitled to an acquittal (Lord Sankey). Actus non facit reum nisi mens sit rea – An act does not make a man guilty, unless his mind be also guilty
3) R Vs Lambert, R V Ali and R V Jordan House of Lords (2001) All ER D (9): In some exceptional cases the defendants does have the burden of proving a defence e.g. the common law of defence of insanity or statutory defence, such as defence of diminished responsibility where the statute expressly provide this. It was held in that this does not breach Article 6 of European Convention on Human Rights Law – the right to a fair trial
4) R v Jones to Attorney General’s Reference (No. 6 of 2006),Where Prosecution Appeal the case change from where the trial judge agrees with the prosecutor, the decision will not have an impact on the acquittal of the defendant but will have impact on future cases.
5) Hill V Baxter (1958) Hysterical fugue, dissociate fugue or simply fugue, is a mental disorder the afflicted individual is prone to taking an expected trip in a unconsciousness such that he is unable to recall where he has been, or how he ended in particular place
6) Bailey (1983) Griffiths L: Automatism resulting from intoxication as a result of voluntary ingestion of alcohol or dangerous drugs does not negative the mens rea necessary for crime of basic intent, because the conduct of the accuse is reckless and recklessness is enough to constitute the necessary mens rea.
7) R v Hardie Westlaw; R v Bailey (1983) WLR 750 all England law report Where there is evidence that at the time of the alleged offence the defendant displayed any control, or was suffering from a disease of the mind or was guilty of prior fault the defence of automatism simpliciter will not lie.
8) P. R. Glazebrook) LQR 1960.Imposition of liability for omissions. A man in his spring cart, the reins are not in his hand but lying on the back of the horse trotting down the hill and killing a young child who runs across the car. Did he kill the child by driving the cart reckless, or by reckless failing to drive the cart?
9) Children and Young Persons Act 1933: Where statutes generally provided that actus reus is committee by omission e.g. failing to provide a police officer with a specimen of breath when requested to do so contrary to s.6 of Road Tract Act 1988; neglecting a child for whom you are responsible contrary to s.1(1) of the Children and Young Persons Act 1933: Section 1(1) if any person who has attained the age of sixteen years and has the custody, charge, or care of any child or young person under that age, wilfully…neglects…him… in a manner likely to cause him unnecessary suffering or injury to health… that person shall be guilty of an offence.
10) Gibbins and Proctor (1918): Offence interpreted as capable of being committed by omission include murder and manslaughter.
11) Fagan v MPC 1969, Santana Bermudez (2004), Miller 1983: Battery and assault are generally held to be incapable of commission by omission.
12) Ms B v NHS Hospital (2002): To treat a person against their wishes no matter how benevolent the motive would amount to an assault or works on unlawful trespass.
13) Carey (2006) ECWA crim 17 - If the result could have occurred regardless of his conduct then he cannot be said to cause the result.
14) Smith (1959) 2 QB 25: The defendant’s conduct must be an operating and substantial (or significant) cause of the result but does not have to be the main or only cause. The culpable act must be more that a minimal cause of the result
15) Blaue (1975) 1 WLR 1411: Victim must be taken as found. The defendant must take his victim as found.
16) Roger (2003) 1 WLR 1 37:
17) Finlay (2003) ECWA Crim 3868:
18) Kennedy (no.2) 2005 ECWA Crim 685(1867) 2 Cox 273:
19) Chiu-Cheng v R (1995) AC III): Mens rea does not mean wickedness in any moral or general sense nor does a good motive provide a defence to what is otherwise criminal behaviour
20) Yip Chiu-Cheung v R (1994) 3 WLR 515: Motive is generally irrelevant in criminal law. The law distinguishes between allowing to die which may include giving of palliative care which incidentally shortens life and killing –
21) R v Cox Winchester Crown 18 Sep 1992 12 BMLR - Mistaken believe may negate a defendant’s mens rea – a person who a person believe same to be a tailor dummy and a person who appropriate property belonging to another honestly believing it to be his own property.
22) Criminal Damage Act 1971: An offence of basic intent is one for which recklessness is sufficient mens rea. Negligence e.g.
23) Burglary contrary to section 9 (1) of the Theft Act 1968 (as amended by Sexual offences Act 2003) is an example of ulterior intent crime
24) In R v Moloney (1985) the House of Lords held that that two questions should be placed before the jury. First was death or really serious injury in a murder case a natural consequence of the defendant’s voluntary act? Secondly did the defendant foresee that consequence as being natural consequence of his act? The jury should then be told that if they answer yes to both questions, it is proper inference for them to draw the intended that consequence
25) Nedrick (1986) Lord Lane: The Jury should be directed that they were not entitled to infer the necessary intention unless they felt sure that the death or serious bodily harm was a virtual certainty – baring some unforeseen intervention – as result of the defendant’s actions and that the defendant appreciated that such was the cause.
26) Dalby (1982) supplied drugs to the victim, the victim injected the drug and died. Dalby was convicted for manslaughter he appeal and the appeal court allowed the appeal on the ground that there was no causal link between the supply and the death of S’such
27) Kennedy (No. 1) 1999 the defendant gave the decease a syringe containing heroine, the decease injected himself and died. The Appeal court dismissed Kennedy’s appeal against conviction manslaughter on the ground that self-injection by the decease was unlawful and as Kennedy assisted and willingly encouraged the decease acting unlawfully.
28) Dias R v Dias (2001) ECWA Crim 2986 Independent act of a person only breaks the chain if it was an extra ordinary occurrence rather than a normal fact of life
29) Wacker 2002 EWCA Crim 1944 the Court of Appeal held that a duty of care may arise even then defendant and deceased were involved in a joint unlawful enterprise.
30) Lewin v CPS (2002) ECWA 1048 – there was no duty of care because if could not have been foreseen that by D that his drunk friend who left in the car was being exposed to the risk of death.
31) Rufell (2003) 2 Cr App R (s) 53 Court of Appeal found that the defendant had breached a duty of care towards a victim by deliberately leaving the victim who had clearly been unwell outside in the cold weather and not bringing him inside
32) Moloney (1985) House of Lords held that foresight, in the absence of an intention to kill or cause serious injury would no longer suffice for murder. It follows that it will suffice for manslaughter. The defendant was unjustified in taking the risk (Lidar (2000) 4 Archbold news 3)
33) Campbel 1997 1 Cr App R 1999: Provocation is not a defence for attempted murder.
34) Wacker 2002 EWCA Crim 1944 Although the defendant bears an evidential burden in support of his plea, the burden of disproving provocation lies the crown.
35) Lewin v CPS (2002) ECWA 1048: The Court of Appeal held that a duty of care may arise even then defendant and deceased were involved in a joint unlawful enterprise. – there was no duty of care because if could not have been foreseen that by D that his drunk friend who left in the car was being exposed to the risk of death.
36) Rufell (2003) 2 Cr App R (s) 53 Court of Appeal found that the defendant had breached a duty of care towards a victim by deliberately leaving the victim who had clearly been unwell outside in the cold weather and not bringing him inside
37) Doughty (1986) 83 Cr App R 319. The defendant killer her baby claiming provocation by persistent crying. The appeal court agreed that the fact could be considered as provocation
38) In Bedder (1955) the impotent youth who killed a prostitute out of provocation arising from taunting. The Judge asks the Jury to ignore his impotence when considering whether a reasonable person would have reacted. The decision was heavily criticised.
39) Camplin – 15 year old boy who was raped and ridiculed. He killed the man who raped him and pleaded provocation.
40) Bedder - Lord Diplock said the principle expressed in Bedder no longer represented the law; the Judge should explain that a reasonable man is an ordinary person – not exceptionally excitable or pugnacious; the jury is entitled to take into account the defendant’s age and sex
41) Morhall (1995) 3 All ER 659: Decisions following Camplin – the approach in Camplin was followed in Morhall (1995) 3 All ER 659. D who has been sniffing glue was taunted by his addiction by V who also head butted him. D hit V on the head with a hammer, killing him. D contended his conviction that addiction to glue sniffing was a characteristic which should have been taken into account as affecting the gravity of the provocation. The Court of appeal dismissed his appeal on the grounds that a self-induced addiction was repugnant to the concept of a reasonable man referred to in s.3. The house of Lord allowed his appeal.
42) In Luc Thiet Thuan (1996) 2 All ER 1033. Privy Council held that brain damage which might have reduced powers of self-control of the defendant was not attributable to the reasonable man.
43) Dryden (1995) 4 All ER 987 – D suffering from obsessive personality traits and a depressive paranoid illness as a factor was considered against Camplin
44) Smith (2000) 4 All ER 289 – D fatally wounded his friend and put forward a number of defences including diminishing responsibility and provocation. The court of appeal allowed the defendant’s appeal and gave leave to appeal.
45) Jersey v Holley (2005) 2 AC 580: Court of Appeal decision following smith Jersey v Holley (2005) 2 AC 580. Holley an alcoholism hit the deceased with an axe for taunting him. The House of Lords ruled that the standard of self control to be expected was invariable safe for sex and age
46) Van Dongen (2005) ECWA Crim 1728 and Faqir Mohammed (2005) EWCA Crim 1880. Court of Appeal decision following Holley: The matter was not fully resolved.
47) Karimi (2006) All ER 759 that the conflict between Smith and Holley fully resolved. The Court of Appeal preferring as the definitive statement of the English law of provocation, the decision of the House of Lords in Morgan Smith rather than Holley
48) Rolfe (1939) Cr App R 4: Collins v Wilcock (1984) 3 All ER 374: A person commits a battery if he intentionally or recklessly inflicts immediate unlawful violence on another person.
49) Callis v Gunn (1964) 1 QB 495. Violence – Wrongly taking a persons fingerprint could be a battery
50) Pursell v Horn (1838) 7 L QB 228 -Throwing water at the victim not her dress is a battery.
51) Collins v Wilcock) 1984 3 All ER 371 - The tapping of a person on the shoulder by a police officer to get attention is unlikely to be a battery but subsequent restraint could
52) Wilson v Pringe 1962 All ER 440 - Ordinary touching in the course of duty is not battery –
53) Ref. (1990) 2 AC - Touching must be hostile to be a battery Lord Troch doubted whether the term hostile connoted anything more than contact beyond that which is ordinary. There must be voluntary action by the defendant for battery to occur.
54) Fagan v MPE1969 1 QB 439; DPP v Santana Bermudez (2003) All ER D - Batterylike assault could not be committed by omission Nov – Drug addict v Police man syringe
55) Martin 1881 8 QBD 54 -The application of force must not be direct – throw stone, spit, an implement to trip the victim
56) Haystead v Chief Constable of Derbyshire - Striking A thereby causing injury to B might amount to a battery to D –
57) Where a person freely consents to what would otherwise be a common assault, there is no offence e.g. taking injection, being in a crowd. There is however a limit
58) R v William - Consent must be real and any consent given will be vitiated if it has been obtained by fraud or duress
59) R v William 1923 I KB 340 D guilty of rape obtained consent to sexual intercourse by falsely representing that it was a breathing exercise to improve her singing voice,
60) Hergety v Shine 197813 Cox CC 124 and R v Clarance (1988) 22 QBD 23 - It was the rule that the fraud may go on to the very nature of the act and there was authority as to the consequence of the act was enough to vitiate a contract -
61) Bolduc v Bird (1967) 63 DLR (2d) 82 - In Clarence the defendant had sexual intercourse with his wife knowing that he has a venereal disease. She argued that that there has been an assault, because she is not aware of her husband’s disease. It was held that there was no deception as to the nature of the act, it was irrelevant if she was mistaken about a collateral detail of it. See
62) R v Tabassum (2000) the defendant was found guilty of indecent assault where he had examined the breast of women who had consented because the believed that it was for medical purposes. There was consent to the nature of the act, but there was no consent in relation to its quality
63) Sexual Offences Act 2003 - The offence of ‘indecent assault’ has been superseded by the Act
64) R v Dica (2004) ECWA Crim 1103 – the defendant infected two sexual partners with HIV, the court of appeal decided that Clarence was no longer useful application. The victim had not been raped but they had not consented to bodily harm. The case was followed in R v Barnes (2004) ECWA 3246 and R v Feston Konzani (2005) EWCA Crim 806. Konzani was convicted on three counts for infecting three women with HIV
65) Richardson (1998) 2 Cr App R 2000. The defendant a suspended dentist was convicted of assault occasioning actual bodily harm for treating 200 patients. The court of appeal quashed the conviction, the identity of a person did not extend to their qualifications or attributes
66) Nichol (1807) R & R 130: Duress may be implied from the relationship according to the case Nichol (1807) R & R 130 – where a school teacher committed an indecent act on a schoolboy and tried to argue that the boy had consented
67) Gillick v West Norfolk Health Authority (1996) AC 112.: Consent will not be vitiated by the defendant’s age provided the victim understands the nature of the act. Gillick v West Norfolk Health Authority (1996) AC 112. The House of Lords held that person under 16 could consent to advice and treatment without the need for any parental consent provided the child had the ability to appreciate the situation
68) Sexual Offences Act 2003 and the Tattooing of Minors Act 1969 (cf Burrell v Harmer [1967) provide that a child’s apparent consent will never be valid for the purposes of the criminal law.
69) In T v T (1988) - A person of full age may lack capacity to consent. the parent of a 19-year old woman was granted a declaration in relation to the termination of a pregnancy
70) Attorney General’s reference (No. 6 0f 1980) (1981) 2 All ER 1057: A true consent may be vitiated on public policy grounds where bodily harm was likely or intended and it was not in the public interest that such contract should be condoned. See
71) Donavan (1934) the defendant caned a 17-year old girl for his sexual gratification. Defendant convicted for both indecent and common assault. He appealed that the issue of whether the girl consented had not been put to the jury. The conviction was quashed because the jury had not been directed to consider whether Donavan’s conduct was likely or intended to cause bodily harm.
72) Attorney General’s reference (No. 6 of 1980) consent will only be a defence where the harm cause or intended was in the public interest. Street fighting was not such an activity
73) Slingsby 1955 (1995) Crim LR 570) where the victim died after having engaged in ‘vigorous’ sexual activity. The judge rule that it would be a contrary principle to treat as criminal an activity which would not otherwise amount to an assault merely because injury was caused. In an earlier case Boyea (1992) where the facts are similar and bodily harm caused, the defendant was found guilty of assault
74) Wilson (1996), Mrs. Wilson’s husband with a hot knife branded his initials into her buttocks with her consent. When it came to light and Mr Wilson convicted, the appeal court quashed his sentence activity between husband and wife should be visited by the sanctions of the criminal law where there was no aggressive intention.. Consensual activity between a husband and wife in the privacy of their matrimonial home is not in our judgement a proper matter for criminal investigation, let alone prosecution.
75) Emmet (1999) where defendant semi-asphyxiated and poured lighter fuel on the breast of his female partner his conviction for assault occasioning actual bodily harm was upheld by the Court of Appeal.
76) Adesanya (1974) The Times 16, July) -A person cannot consent to serious bodily harm (exceptions therapeutic surgery)
77) Barnes (2005) EWCA Crim 3246 it was held that criminal proceedings should only be brought against a player who injured another player in sporting event if his conduct was sufficiently grave to be properly categorised as criminal.
Other defences to Assault & Battery are self-defence and necessity
78) Offence Against the Person Act (OAPA) 1961 all require proof of the type of harm which is set out in the definition of
79) R v Rogers (Philips) [2005) EWCA Crim 28863 it was held that hostility demonstrated to foreigners because they were foreign could be just as objectionable as hostility based on a more limited racial characteristics ‘use of the word bloody foreigners
80) Flattery1877) 2 QBD 410 - Under common law the courts have suggested that deceit as the nature of the sexual rendered consent invalid (Flattery1877) 2 QBD 410 D was performing sexual intercourse but said it was a surgical operation
81) Elbekkay(1951) Crim LR 163:- S.76(2)(b) confirmed the common law position affirmed in Elbekkay(1951) Crim LR 163 whereby an attempt to impersonate V’s husband would invalidate consent. Section V extends it to any known person. This means if D impersonate a known personality
82) Gillard (1998) 87Cr App R 189 Administer was given wider meaning to include spraying victim with noxious fluid
83) Marlow (1964) 49 Cr Appp R- If a substance is not recognised as poison, it must be administered in such quantities as to render it harmful. Some poison wayfaring and strychnine are beneficial in small doses but fatal in large doses
84) Marcus (1998) All ER 833; CATO (1976) 1 WLR 110: Sleeping pills. Court of Appeal ruled that noxious substances are those substances which are hurtful, unwholesome or objectionable
85) Cunningham (1957) 2 QB 396: Mens Rea - Maliciously, intention or recklessness
86) Morarity v Brooks (1334) Wound is a break in the continuity of the skin
87) Moward (1967) - consent was negated by public policy exception
88) Rape remains the most serious of sexual offence, carrying a maximum penalty of life imprisonment
89) R v Ismail (2005) EWCA Crim 2936 - The court will make no distinction between the type of penetration and there is no presumption that one is more serious than the other. The offence of rape can clearly be committed by a man since penetration must be performed with a Penis, although the victim may be male of female
90) R v R (1992) 1 AC 599) The word unlawful had been removed because rape can take place in law relationship marriage rape within marriage is criminal.
91) Kaitamaki (1985) AC 147: Penetration is a continuous act from the moment of entry to the moment of withdrawal
Mens Rea of Rape
92) Morgan (1957) 2 All ER 347: Two types - intentional penetration and lack or reasonable belief that V was consenting Under the previous common law in D's belief would have to be honestly held (subjective) but not necessarily reasonable. SOA requires the belief to be both honestly held and reasonable (objective) in order to escape liability.
93) s.1(2) SOA 2003: Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps d has taken to ascertain whether B consents.
MISTAKES AS TO SORROUNDING CIRCUMSTANCES
94) Williams (Gladstone) 1984) Crim LR 163 is that a mistaken belief in the circumstances need only to be honestly held and does not need to be reasonable
95) O’Grady (1987) Crime LR 706: An honest mistaken belief in the surrounding circumstances of the commission of an offence does not apply where D is intoxicated – O’Grady (1987) Crime LR 706 d, who was heavily intoxicated, attacked and killed V believing (mistakenly) that V was attacking him with a glass. The court of appeal stated that no defence could be pleaded where D relied on a mistake induced by voluntary intoxication
MISTAKES RELATING TO MENS REA
96) R v G (2003): A failure to appreciate the consequences which flowed from an act can be a ‘defence’ as it can render the prosecution unable to proof a subjective mens rea. R v G (2003) that honest mistaken belief would negative mens rea
97) Woolin (1998): The same would be true in relation to intent, whether direct of oblique (Woolin (1998) since those state of mind are assessed subjectively
98) Majewski (1977) -Mens rea is an essential constituent part of criminal liability –
LEVEL OF INTOXICATION
99) Sheehan and More (1975) Crim LR 339 per pane LJ): Court has been keen to establish that a drunken intent is nevertheless an intent (Sheehan and More (1975) Crim LR 339 per pane LJ)
100) Voluntary intoxication
101) Thabo Mel (1954) or Fagan 1969: It is possible to construct liability where an act occurs but mens rea is formed later by imputing that D’s action as continuing Act
102) Cunninghan (1957) recklessness must involve actual foresight of a risk
103) Cadwell (1981): Alternative approach. Cadwell was overturned in R v G (2003) and is no longer a current law
104) Kingston 1994 ALL ER 352 - If the offence does not require mens rea (strict liability offences) involuntary intoxication would not afford a defence. Read Kingston 1994 ALL ER 352 IOLS Disks
105) Handle (1955) 3 ALL ER CR 848: If D takes drugs that will calm him down, it may not be considered reckless under Majeski in becoming intoxicated Handle (1955) 3 ALL ER CR 848. D take valium and set girlfriends house on fire
106) Article 2 of the European Commission on Human Rights enshrine in he Human Right Acts 1998 guarantees right to life
107) McCa v UK 1996: In English laws killing may be regarded as when it was in fact unnecessary but wrongfully believed to be necessary – McCa v UK 1996
108) Beckford 1988 AC 130: Common law will allow pre-emptive strike: When D deliberately provoked other or forced threat of force to be used against him he cannot rely on self-defence Browne 1982
109) Own (1998): Force used must be reasonable and not excessive
QUESTION OF PROPORTIONALITY
110) Clegg 1993 All ER CR 334: Self defence cannot be used to reduced charges e.g. from murder to manslaughter.Cannot be used as partial defence in the same way as provocation and diminished responsibility
111) London Borough of Southwark V Williams (1991) 2 ALL ER the respondent pleaded homelessness for trespass.
112) Duddley and Stevens (1884) – Three men killed the cabin crew boy to survive but convicted of murder
113) Re. A Conjoined twins 2001 2 WLR 480: Decision in R was left as in situation when there is no general defence of necessity for criminal. It maybe available when a) It is in the patient’s best interest; b) Statutory duty to Act (Police Officer) c).Exceptional cases – Police, Medical doctors, etc
114) Laverick Fechr (2002) Crim LR 34), Glazebook P. Criminal Law 1972, Cambridge Law Journal
115) Defence of necessity was not available but defence pf duress of circumstances should have been left to the jury
116) Connorary (1988) and Harris (1994): Developed in series of traffic cases Connorary (1988) and Harris (1994) until the court of Appeal in Brummel (1995) confirmed that the defence did exists and apply to all offences except murder and manslaughter
MENTAL DISORDER DEFENCES
117) M-Naghan (1983): Defence need to proof lack of mens rea by establishing D fulfil the various requirements of text of insanity M-Naghan (1983) - All men are presumed sane and therefore D must bear the burden of defence to disprove
118) Hemmesy (1989) 2 ALL ER 9: It is not important whether it is permanent or transient
119) Clark (1972) ALL RC 219: Defect of Reason – It must cause defect of reasoning. D did not know the nature and quality of the act. D who was insane threw a baby into fire thinking it was a log of wood
120) Windele (1952) 2 QB 826: D did not know that what he was doing was wrong. Legally wrong in Windele (1952) 2 QB 826 D Killed his wife by overdose of aspirin
121) Higgins (1801) E EA 5: The existence of the offence dates back to the case of Higgins (1801) E EA 5 and its ingredient are carefully illustrated b y the relative recent case of Goldman 2001 Crim LR 894
122) Race Relation Board v Appl (1973) QB 815; Invicta Plastics Ltd v Clare (1976) RTF 251: Incitement requires more that mere expression of desire that a consequent brought about. There must be element of positive and encouragement, threat or some pressure.
123) Most (1881) it is not necessary for the solicitation to be directed towards a particular individual, it may be addressed to a number of persons e.g. through a newspapers
124) DPP v Armstrong 2000 Crim LR 379: Mens Rea – The defendant intend or believe that the person that act will do so with mens rea required for the offence – DPP v Armstrong 2000 Crim LR 379
125) Claydon (2005) – the defendant charged and convicted with inciting a boy (14 years) to commit buggery.
126) Curr (1998) wrongfully decided and overruled by Claydon. The person incited need not actually commit the offence.
127) Offences that cannot be incited
128) Bodin (1979) you cannot be charged with inciting someone to aid, abet, counsel or procure an offence. You cannot therefore be guilty of inciting someone to be an accomplice
129) Criminal Law Act 1977, s.5(7) It is an offence to incite another person to commit a conspiracy. It may however be an offence to incite x to incite y to commit an offence, as long as this would not inevitably involve x conspiring with Y (Sirat (1986) 83 CR App R 41; Evans (1986) Crim LR 470
ACTUS REUS OF STATUTORY CONSPIRACY
130) Chrastny (1991) 1 WLR 1381): If a husband and a wife agree with a third person who is not also exempt then there is a conspiracy between the parties (Chrastny (1991) 1 WLR 1381). It was held that D1 may be convicted of conspiracy with D2 even though D1’s agreement is with his/her spouse as long as D1 has been told of the existence of D2 and he has agreed to play some part in the unlawful object.
131) S.2(2)(b) and section 2(2)(c) provides an exception if only the other party to the conspiracy apart from the defendant was either a person under the age of criminal responsibility or the intended victims of the relevant substantive offence
132) Hollinshead (1985) decided that an agreement to aid and abet the commission of an offence is not indictable conspiracy. The agreement must therefore be one which if carried out will amount to the commission of an offence by on the parties as principal offender.
133) Nick (1978): The decision of the House of Lords in Nick (1978) has been overruled by s.1(1)(b) of A. (The sub-clause (b) was added by section 5 of the Criminal Attempts Act (1981)
MENS REA OF STATUTORY CONSPIRACY
134) Anderson (1986) (Heavily criticised case) the House of Lords ruled that there was no need that a person charged with conspiracy intended that the offence was committed.
135) Anderson who conspired for the escape of two prisoners and supplied the diamond wire. He never believed the plan would success and was only interested in obtaining the money promised for the wire and that lacked the men rea
136) Edwards (1991): Anderson was not cited in Edwards (1991). D could not be convicted of conspiracy to supply amphetamine unless it could be proved that he intended to carry out the agreement. The case was adopted in McPhilips 1989). Appellant was a party to a plan to explode a bomb on the roof of an hotel. He pleaded guilty to conspiracy to cause an explosion, but pleaded no guilty to conspiracy to commit murder as he intended giving a warning to the police before the warning was detonated. His appeal was allowed.
137) Yip Chiu-Cheung (1994) WLR 514 the Privy Council held that the crime of conspiracy requires an agreement between two or more person with the intention of carrying it out. If only one person agree and the other (an agent) intends to frustrate it, there is no conspiracy
138) Anderson (1986) AC 27: A further problem with Lord Bridge’s ruling in Anderson (1986) AC 27 is that contrary to what Lord Bridge said, there is nothing in s.1(1) which requires active participation on the part of each conspirator.
139) Siracusa (1989) 90 Cr App 340 the CA said Lord Bridge could not have meant what he said His appeal was allowed. Participation in a conspiracy is infinitely variable; it can be active or passive. Liability for conspiracy relates to only those offence which would necessarily be committed
140) Reed (1982) it was agreed that an agreement to rob a bank if it is safe to do so is a criminal conspiracy
141) Attorney General’s reference (No. 4 of 2003) (2004) EWA Crim 1944: Lord Justice Latham “….the fact that the agreement to burgle or rob is contingent on the particular circumstance, does not affect the nature of the conspiracy.”
142) Gullefer (1990) 3 All ER 882 – Gullefer betting at Ramford greyhound races, when it appeared he was about to loose the race he jumped onto the track to distract the horse and have the race declared void, but failed. He was charged and convicted of attempted theft. He appealed and won that he had not actually committed the offence he was at the preparatory stage and had not embarked on the crime proper i.e. collecting his bet back.
143) Campbell (1991) 93 Cr. App R 199: Campbell decides to rob the post and was arrested before he strike. He was convicted of attempted robbery. He appealed that at the point he was arrested, he has changed his mind and was about to drive and his appeal was allowed. Why? He has not embarked on the act.
144) Jones (1990) 91 Cr App R 351 - Appellant got into car driven by his ex-mistress new lover and pointed a loaded sawn-off gun at his face. The victim managed to throw the again away, he was convicted and appealed and the court of appeal upheld his conviction for attempted murder. Once he entered the car and pull out the gun in the victim’s face with the intention of killing him, there were sufficient evidence
145) Geddes (1996) Crime LR 894 - Geddes enter
146) a school with large knife and length of ropes and masking tape. Evidence that he intended to kidnap a child. He was convicted of attempted kidnapping – Page 218. He appealed and his appeal was allowed. He had not moved from the realm of preparation into the area of execution. In this case lying in wait for the victim is not sufficient to amount to an attempt.
147) Tosti and White (1997) Crim LR 746
148) Attorney General’s reference (No. 1 of 1992) (1993): the court of appeal held that in the case of attempted rape, it is not necessary to proved that the defendant had gone as far as attempting penetration of the woman’s virginal. It is insufficient if there is evidence of acts which a jury could properly regard as more than mere preparatory to the commission of the offence
149) MENS REA OF ATTEMPT
150) Khan (1990): As far as the circumstances element of the actus reus is concerned, if recklessness as the circumstances in the actus reus will suffice for the full offence, then it will also be sufficient for the attempt (Khan (1990) – The defendant appealed his convicted for attempted rape on the ground that attempted rape require proof that the defendant intended to have sexual intercourse with a woman who does not consent and that it must be proved that he knew the woman was not consenting. The court of appeal dismissed his claim that the mens rea for rape and attempted rape is the same thing. The attempts relates to the failure to perform the physical activity.
151) Attorney General’s Reference (No. 3 of 1992. Defendant threw petrol bomb but it missed the car. Court of appeal held that reckless was sufficient.
ATTEMPTING THE IMPOSSIBLE
152) Shivpury (1987) House of Lord (Overruling the decision of the House of Lord in Anderton v Ryan) ruled that an impossible attempt is nonetheless an attempt. Defendant was found in possession of some bags of powder. He thought he was importing heroin. He typed his confession statement.) When analysed, the substance turned out to be a vegetable material similar to the stuff. He appealed that he could not be guilty of attempting to be knowing concerned in dealing with prohibited drug.
153) Taffe (1984) The defendant was enlisted by a person in Amsterdam to take some packages into the UK. He thought the packages contained currency and thought that importing currency into the UK was illegal. The package contained cannabis. He was not convicted of any offence, he did not intend to import cannabis as there is no offence of importing currency he could not be guilty of attempting to import it.
154) IMPOSSIBILITY AND THE INCHOATE OFFENCES
155) Incitement and Impossibility - Incitement and Impossibility is governed by the common law. Thus unlike statutory conspiracy and attempt, impossibility will provide a defence unless the impossibility results from the inadequacy of the means to be used to commit the offence.
156) Impossibility, conspiracy and attempt - that fact that the objective of the conspiracy or the attempt is impossible of performance does not preclude liability for statutory offence.
FRAMEWORK OF SECONDARY LIABILITY
157) Abbettors Act (AAA) 1861 S.8 of the Accessories and Abbettors Act (AAA) 1861 provides - whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.
158) Bryce (2004) EWCA Crim 1231 Potter L) stated: Persons who come within that statutory genus are variously designated ‘accomplice’, ‘accessories’ or ‘secondary parties’. It seems that, in one respect at least, the term ‘secondary parties’ is preferable because it emphasises that the secondary liability of an accomplice is derivative from the liability of the principal offender.
159) Attorney General’s reference (No. 1 of 1975) (1975) 2 All ER 684 Lord Widgery said that the words should be given their ordinary meaning
160) Howe (1987) AC 147: The former technical distinction between the various categories of secondary parties is now redundant (Howe (1987) AC 147. There is overlap between the terms and there are three modes of secondary participation:
161) Bryce (2004) EWCA Crim 1231 – On the instruction of a major dealer De had assisted D1, a hit man to kill a rival dealer, M. D2 had transported DI and a gun to a caravan near to M’s home so that D1 could wait for an opportunity to carry out the killing. D1 killed M more than 12 hours later. D2 appealed against his conviction of murder on the ground that what he did was insufficient to amount to adding and abetting murder as it was too remote in time and place to the killing; and was performed at a time when D1 had not yet formed the intent to commit any criminal offence.
162) Calhaem (1985) 2 All ER 266. D2 paid D1 to murder V who was having an affair with D2’s Solicitor, with whom D2 was infatuated. D1 armed with hammer, a knife and a shortgun went to V’s house but gave evidence that he by that point he had not intention of carrying out the plan. However, V screamed, as a result of which he went ‘berserk’ and hit her several times with the hammer killing her. D2 appealed her conviction arguing that the counselling required a substantial causal connection between the act of a secondary party and the commission of the offence. Her appeal was dismissed.
163) Giannetto (1997) 1 Cr App R 1 – The CA held that the fact that the principal had already decided to commit the offence would not relieve an alleged accomplice of liability. Any encouragement suffices.
164) Attorney General’s reference (No. 1 of 1975) (1975) 2 All ER 684. D2 had secretly lace D1’s drink with alcohol. As a consequence when D1 drove home he committed an offence of driving with an excess alcohol in his blood. It was said that To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking and taking appropriate steps to produce that happening.
165) Cogan and Leak (1975) the court of appeal held that a man could be convicted as an accomplice to rape even though the perpetrator was acquitted due to lack of mens rea.
166) DPP v K and B (1997) – The Divisional Court held that a person could be convicted or rape as a procurer, despite the fact that the prosecution was unable to rebut the presumption that the alleged perpetrator being under the age of 14, lacked capacity
167) Bourne (1952): although the principal offender was (correction page 229) excused of an offence on the grounds of duress, it was held that an offence had been committed in respect of which another party could be secondarily liable.
SECONDARY LIABILITY AND OMISSIONS
168) Rook (1993) 2 All ER 995 and accepted in Bryce (2004) that the mens rea requirement are the same whether the assistance or encouragement is given at the time of the offence or before, whether the secondary party is present or absent at the time of the offence is committed, and whether the parties share a common purpose or are participating in a joint enterprise. The elements are
169) (Clarkson 1971): The act of assistance, encouragement or procurement was done intentionally. If D2 accidentally assisted D1 to commit an offence, he will not attract secondary liability. (Clarkson 1971). Accused of aiding and abetting rape but on appeal his conviction was quashed because there was no evidence that Clarkson helped to hold down the girl or done any other acts of assistance or encouragement. In addition to actual encouragement, there must be intention to encourage. Mere presence, deliberate presence or non-interference to prevent a crime is not enough to give rise to secondary liability. Magaw LJ in Coney (1882)
170) Johnson v Youden (1950) IKB 544.: At the time of the assistance or encouragement or procuring D2 contemplated or foresaw the commission of the offence by D1. D2 must foresee the essential elements that constitute the actus reus of the offence (Johnson v Youden (1950) IKB 544. A principal may be guilty of an offence of strict liability without mens rea, the secondary party will not (Callow v Tilstone (1900) 83 Lt 411. It is sufficient that D foresaw a real or substantial risk or real possibility. It is not necessary that the secondary party intended the crime to be committed (NCB v Gamble (1959) 42 Cr App R 420 Delvin J. Lynch v DPP for Northern Ireland (1975) AC 653 – the defendant drove the perpetrator to a garage where he knew that the perpetrator intended to murder a policeman. Lord Morris – the intentional driving of the car was enough to render the accused liable ‘even though he regretted the plan or indeed was horrified by it’ (see also brook)
171) Bainbridge (1960) 1 QB 129: Foresight as a basis of secondary liability – it is sufficient at the time of acting D2 foresaw that D1 might commit an offence of the type which he actually committed without his knowledge of the precise crime intended. Bainbridge (1960) 1 QB 129. D2 was convicted of being an accessory to an offence of breaking and entering. He supplied D1 with oxygen cutting equipment which had been use to break into a branch of Midland Bank in Stoke Newington.
172) Lord J. Parker (1960) 1 QB 129 at 133, cf (1959) 3 All ER 200 at 202 ‘It was unnecessary that ‘knowledge of the particular crime which was in fact committed be proved that D2 knew the type of crime D1 intended and was in fact committed.
173) The principle was reinforce by the House of Lords in DPP for Northern Ireland v Maxwell (1978) All ER 140 1 WLR 1350. Maxwell a member of a terrorist organisation who drove a car while the others in another car planted bomb was convicted of doing an act with intent to cause an explosion and likely to endanger life, contrary to se.3(a) of the Explosive Substances Act 1883 and of an offence of being in possession of bomb with like intent under s.3(b). The principle is that a secondary party will be liable for an offence which he foresaw or contemplated might be carried out by the perpetrator. Read Smith & Hogan pp 189-190 and
174) Hyde and others (1991) 92 Cr App R 131 – three appellants participated in joint attack on a victim who died from a kick to the head. The three were convicted irrespective of the difficulty in determining who delivered the killer blow to the head. Court of appeal held that if D2 realises that D1 may kill or intentional inflict serious injury but nevertheless continue to participate with DI on the venture, that will amount to sufficient mental element for D2 to be guilty if murder. (Also Chan Wing-siu and others v R (1995) 80 Cr App R 117; Hyde (1991) 92 Cr App R 131; Hui Chi-Ming (1992) 94 Cr App R 236). The principle in Hyde was approved and applied by the House of Lords in Powell and Daniels (1999) AC 1. The appellant went with x to the house of a drug dealer who was killed. Intentionally being part of the group knowing that x had a gun and might kill with intent or cause grievous bodily arm was sufficient for conviction for murder.
175) (Udin) 1998; English (1974) All ER 545: Foresight as an act of the type committed by D1 – In cases involving homicide the use by DI of a weapon is significant factor in deciding whether the fatal acts were of a different type. If the character of the weapon used by the perpetrator was different from any weapon used or contemplated by the other parties – most importantly if it had a great ‘lethal propensity’ - the others attract no responsibility for the dead unless it is proved that they knew or foresaw the likelihood of the use of such weapon (Udin) 1998; English (1974) All ER 545 (The perpetrator used knife to kill a police sergeant Forth instead of wooden stick as agreed – the House of Lord allowed the appeal, the fact that he had intention to inflict serious harm was insufficient to make D2 responsible for death of the victim caused by the use of lethal weapon used by D1 with the same shared intention;
176) Anderson Morris (1966). Greatex (1999) 1 Cr App R 126 group of youths killed a victim who died from being hit by a bar to the head. The appeal was allowed. What was done was substantially different from the action within the common purpose.
177) O’Flaherty Mantell L): Whether the act is fundamental difference is a question of fact –it should be treated as a matter of fact and not law to avoid creating a complex body of doctrine as to whether one weapon differs in character from another and which weapons are more likely to inflict fatal injury.
178) (Anderson and Morris (1966) 2 All ER 644: D2 is not a party to the killing if the acts of D1 are fundamentally different from those foreseen – If the action of one participant can said to be a completely different type to those contemplated by the other, they are not regarded as party to the death and are therefore neither guilty of murder or manslaughter (Anderson and Morris (1966) 2 All ER 644 (DI killed with knife while the agreement with DI was to beat V up - D)
179) Day and Day (2001) EWCA Crim 1594: Where D1 Performs an act foresee by D2 but with a more serious intent - It was held in Gilmor that the secondary party is liable for the consequence to the extent of his own mens rea. D2 drove three men to a housing estate, knowing that a petrol bomb was to be thrown at a property. Three children died as a result of carbon monoxide poisoning from the resulting fire. D2 argued that he thought the intent was to frighten the occupants. His appeal was turned down and he was convicted of manslaughter. In Roberts, Day and Day (2001) EWCA Crim 1594 – Participants in joint enterprises all foresaw the same kind of physical violence being inflicted on their victim but different in their intent. Three of them were convicted.
180) Attorney General’s reference (No. 3 of 2004) (2005) EWCA Crim 1882 – D2 sent two men to apply pressure on to use a gun to frighten him but not to kill him. D1 fatally shot V in the head at point blank range and was convicted of murder. It was held that D2 was not guilt. The Court appeal accepted the argument that as matter of law an act cannot be outside the scope of joint enterprise if the only difference between what was foreseen and what was done was the state of mind of the primary party but held that he principal’s act in firing the gun so as to kill V was fundamental different in character to an act contemplated by D2. The court distinguishes Roberts, Day and Day on the basis that in that case the act was not fundamental different from what Day had foreseen.
181) Grundy (1977) EWCA Crim 526: A person can escape secondary liability for an offence by withdrawing before the offence is committed or has reach the stage of an attempt (Grundy (1977) EWCA Crim 526 although his acts of withdrawing may render him liable for other offences e.g. incitement and/or conspiracy
182) O’Flaherty (2004) EWCA Crim 526: What amount to effective withdrawal depends on the circumstances of the cased but it is clear that mere repentance does not suffice (O’Flaherty (2004) EWCA Crim 526. D2 must do enough to demonstrate that she is withdrawing from the joint enterprise.
183) Whitehouse 1994) 4 WWR 112: The communication must be timely and must serve unequivocal notice to others (Whitehouse 1994) 4 WWR 112, a decision of the court of Appeal of British Columbia approved by the Court of Appeal in Becerra and Cooper (1975) 62 Cr. App R 212 Grundy (1977) Crim L Rev. 543 and whitefeld (1983) 79 Cr App R 36. O’Flaherty (2004) it was not necessary that reasonable steps were taken to prevent the crime
184) R v Mitchell and King (1998) 163JP 75: it was held that while communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary where the violence is spontaneous. It is possible to withdraw by ceasing to fight, throwing down one’s weapon or working away.
185) Uddin (1999) QB 431, the court of appeal pointed out that if in the course of the concerted attack a weapon is produced by one of the participants, and the others, now knowing that he has it and that he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.
186) Morris (1983) All ER 292 and Lord Keith in Gomez (1993) (read the cases on IOLIS Disk. The judgement in Gomez has substantially widened the meaning of appropriation within the context of theft. Appropriation now bears such a wide meaning rending this aspect of the actus reus relatively easy to prove, that we must now rely on the mens rea of dishonesty to limit criminal liability to acts that are ‘blameworthy’ or manifestly wrong.
187) Hinks (2000) 4 All ER 833: The concept of appropriation has also been widened further by the recent case Hinks (2000) 4 All ER 833 – D deceptively over a period of time collected substantial sun money from V who was an elderly man of limited intelligence, claiming they were gifts. The House of Lords held that after Gomez, V’s consent to the appropriation was irrelevant and the receipt of money could amount to an appropriation. Provided D was dishonest, this could also amount to theft.
188) Hinks (R v Hinks is on IOLIS disk).: Read the judgement of Lord Hobhouse and Lord Huttion in Hinks (R v Hinks is on IOLIS disk). Both of these judges dissented from the majority decision. Using their judgement compile a list of arguments as to why the decision in Hinks should be reversed.
189) Oxford v Moss (1978) 68 Cr. App R 183 a student who illicitly read an examination paper but returned the paper to its rightful place was held not to be guilty of theft of the information on the paper.
190) Salmon Act 1986, Night Poaching Act 1826 and Deer Act 1991: Wild animal can be poached but this offence exists separately from the offence of theft and is deal with in
191) Animal carcass cannot be stolen unless it has been ‘reduced into possession’. If D traps a wild rabbit this would not constitute a theft, but once trapped the dead animal may be stolen by another person.
192) Woodman (1974) 2 All ER 955, ECC : Property can belong to you even if you don’t know it exists. In Woodman (1974) 2 All ER 955, ECC owned a disused factor and sold quantity of scrap metal to another company who collected most, though not all of it. D entered the property and took some of the remaining scrap metal, D was convicted of theft because the scrap metal was in control of ECC, even though they did not know it existed and even though they had sold it to another person.
193) Turner (No. 2) (1971) 2 All ER 441 D It is possible to steel something that you. In Turner (No. 2) (1971) 2 All ER 441 D. D left is car for repair in a garage and Secretly removed the car intending to avoid paying for the repairs. D was convicted of theft as the garage had possession and control of the car at the time that D appropriate it.
194) Meredith (1973) Crim LR 253. D left packed his car illegally while he attends a football match and the police remove the car to the police station. After the match D went to the police station and drove off without police permission. D was charged but acquitted of theft.
195) R v Gosh (1982) 2 All ER 689: If the facts of the case do not fit within s.2, it is necessary to assess D’s dishonesty according to the common law test set out in R v Gosh (1982) 2 All ER 689. subjective and objective test.
196) Landy (1981) and Feely (1973): bRead the Judgement of Lord Lane LJ in Ghosh. The Lord discusses the case of Landy (1981) and Feely (1973) (Gosh and Feely in IOLIS Disk, online for Landy . Whether someone’s behaviour is to be regarded as dishonest or not will depend upon an individual moral standard.
197) Lavender (1994) Crim LR 297: Treat as his own. In Lavender (1994) Crim LR 297. D took two doors from Council property and used them to replace another council property, he was convicted for theft. Division court held that the word disposed off should not be interpreted as selling or throwing away.
198) Fernandes (1996) Crim LR 753: it was held that s.6 may ‘apply to a person in possession or control of another’s property, dishonestly for his own purposes, deals with that property in such a manner that he knows he is risking its loss.
199) Marshall (1998) 2 CR App R 282 (online library)
200) Glazebbrook P Cambridge Law Journal 389, 191; Smith A. T. H. Theft or sharp practices Cambridge Law Journal 389, 21; Spencer J. Cambridge Law
201) DPP v Ray (1973) All ER 131 (in IOLIS)
202) A false representation may be made by word or conduct, by silence or by omission.
203) Fir Silverman (1988) the workman for the elderly lady and Rai 2000) who allowed the repair work on his disabled mother to be completed without informing after her death without informing Council.
204) Charles (1977) AC 177; Glimartin (1983) 76 CR App R 238; Lambie (1982) AC 449
205) Large v Mainprize (1989) : A deception can be carried out recklessly – Large v Mainprize (1989) and Goldman (1997) that the subject or Cunningham) form of recklessness applied and not the objective (or Cadwell) form of recklessness, which has now been overruled In R V G (2003)
206) Charles (1977) and Lambie (1982) – Cheque and Credit Card without fund. The attendants were not interested in whether D has funds his account provided the cheque is genuine. House of Lords held that the deception must have been operative in the sense that V in both case would not have taken the cheque/credit card if they had known that D was not authorised to use it, they accepted the cheque/credit because of his belief that D was so authorised.
207) Rashid 1977 2 All ER 237 and Doukas (1978) 1 All ER 1061
208) In some cases it may be a question of fact for the jury.
209) King (1987) 1 ALL ER 547. D received $500 from V for removing two trees after deceptively telling her that the trees are dangerous to the foundation of her house. CA held that D pay as a result of lies.
210) Laverty (1970) 3 All ER 432
211) Coady (1996) Crime LR 518 – Deception cannot be operative if it occurs after the property was obtained. D filled his tank at self-service petrol station and then told to assistance to charge it to his employers’ account (which he no longer had authority to do).
212) Preddy (1996) AC 815 the House of Lords rule that were a mortgage advance has been obtained by deception it cannot amount to property belonging to another person. Parliament has created a new offence to deal with obtaining money transfer by deception
213) S.1(3) expressly includes inducing another to lend and this include a hire purchase agreement (Widdowson (1986) Crim LR 233 but does not include mortgage advance because of the creation of s.15A of the Theft Act 1998 which overrides previous cases such as Halai (1983) which has held that mortgage advance was a service. The services must be obtained dishonestly
214) R v Preddy (1996) 3 All ER 481 (online library): Preddy and a number of other defendants in similar cases had escaped liability through the loophole
215) Brooks and Brooks (1982) 76 Cr App 66: D must ’make off’ although Brooks and Brooks (1982) 76 Cr App 66 makes it clear that this need not be done by stealth. This should bear their ordinary meaning – some form of departure from the spot where payment is required or expected. D boldly stood up and walked out of a restaurant without paying.
216) Aziz (1993) Crim LR 708 - D who was taken to a club and refusing to pay. At the police station, ran out and was caught, he claimed he had not made off from the point where payment was required. His argument was rejected, the spot is inside the taxi at the agreed destination where he refused to pay.
217) In Vincent (2001) 2 Cr App 150 – On the spot may or may not be required where D had made arrangement to pay at a later date. E.g.
218) Allen (1985) it was affirmed that D must have an intention never to pay, rather than an intention to pay later.
219) Corcoran v Anderton (1980) 71 Cr App R 104 – D snatched V’s handbag and ran away but dropped the handbag and made off without it. D was found guilty of robbery since by the time he dropped the handbag, the offence of theft was complete and force had been used in order to steal.
220) Dawson and James (1976) 64 Cr App R 170 and Clouden (1987) Crim LR 56 the defendants were convicted of robbery. Minimal amount of force is necessary and this need not amount to violence of ‘force’ in the ordinary word. Mere touching may suffice. The force must be used before or at the time of stealing not after the theft has taken place.
221) Hale (1978) 68 Cr App R 415. D1 was upstairs steeling the jewellery, D2 was downstairs tying V up. The CA held that the force was a continuing act and convicted them of robbery.
222) Collins (1972) 2 All ER 1105 (IOLIS Disk) – D who was naked (except for his socks) climbed up a ladder and onto the windowsill of V’s bedroom, intending to have sexual intercourse with V (with or without her consent). V. thinking D was her boyfriend, invited him to her bedroom where D and V has sexual intercourse. Only after this did V realised that D was not her boyfriend and D was accused of burglary under s.9(1)(a) of the Theft Act 1978
223) Read Brown (1985) Crim LR 212 and Ryan (1996) Crim LR 320 (Online)
224) B and S v Leathley (1979) Crim LR 314 – a freezer container that had been placed on a farmyard for goods storage, with locked doors, which has been resting on sleepers for two or three years, connected to the main electricity was held to be a building.
225) Royal Exchange Theatre Trusts v The Commissioners (1978) – the structure needs to be relatively permanent and complete (Manning and Rogers 1871) so the foundations of without complete walls or a roof would not suffice.
226) Walkington (1979) 2 All ER 716 - where D in a shop went behind the movable counter to put his hands in the till. He was permitted to enter the shop, but enter the other part of the building (behind the counter) as a trespasser from which he knew the public was excluded. D must enter as a trespasser. Trespass is not a criminal offence but a tort (civil wrong)
227) Jones and Smith (1976) 3 All ER 54. In this case D enter his father’s house, with his father’s permission. Once inside D and his friend stole two television set. He was convicted of burglary. The permission given was negated by the fact that he entered with the intention of stealing.
228) Clear (1968) 1 All 74 – The Court of Appeal clarified what was meant by a menace in the following terms - words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces… but threats and conduct or such nature and extent that the mind of the ordinary person or normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient.
229) Garwood (1987) 1 WLR 319 – D was accused of V of burgling his house and demanded from him ‘to make to make it quits’ for burglary. D also physically threatened V and threatened to tell V’s parent. The Court of appeal held that there a menace would not affect a person of ordinary firmness a menace had still been made where it did affect V, provided D knew that it would affect that particular victim, for example where the victim was especially infirm, young or timid.
230) Harvey (1981) 72 Cr App R 139 – S sold D a quantity of matter that D believed to be Cannabis for £20,000. S had actually sold them a harmless substance. D then kidnapped S’s wife and child and threatened to rape, maim and kill them unless S returned the money. D argued that he believe he had reasonable grounds for making the demand and that he was justified in making threats. The court of appeal held that there is a difference between making threats which are justified and making a threat which are proper. Treating to commit an act again V or other which are illegal can never be proper.
231) Cox v Riley (1986): The question as to whether a property is ‘damaged’ for the purposes of the Criminal Damage Act 1971 is one of fact and degree Cox v Riley (1986) – the defendant in this case would now be charged with an offence contrary to s.3 of the Computer Misuse Act 1990 – unauthorised modification of computer material – the case is still a good authority for certain other situations where materials is stored in electro-magnetic form such as audio or video tapes
232) What level of damage Gayford v Choulder (1988), Hardman v Chief Constable of Avon and Somerset Contstabury (1986), A(a juvenile) v R (1978), Morphitis v Salmon (1990) and Roger Knott (1898)
233) (Woolcock (1977); Lloyd v Director of Public Prosecutions (1992) 1 All ER 982: pairing the usefulness of property can also amount to ‘damage’ – removing a part of dismantling a machine. In such situation the defendant should be charged with damaging the machine and not part of the machine unless the part is damages
234) R v G (2004) AC 1034 Following the case of R v G (2004) AC 1034 recklessness in this context means foresight of consequences on the part of the defendant.
235) Smith (1974)1 All ER 632: It is no offence under s.(1) where a D intends to destroy or damage property which is his own property or which he honestly but mistakenly believes to be his own. Smith (1974)1 All ER 632
236) Cunningham (1957) 2 QB 396: The words intentionally and reckless in CDA 1971 were intended to reflect and clarify the interpretation by the Court of Appeal in Cunningham (1957) 2 QB 396 of the term malicious and how ‘recklessly’ was interpreted in case of Stephenson (1979) QB 695. Stephenson conviction for criminal damage was quashed by the court of appeal because the issue of whether he had foreseen a risk of damage had not been clearly left to the jury.
237) Cadwell (1982) AC 341 – House of Lords decided that in addition to being found of recklessness where he was aware of he risk of damage to property, a defendant would also be reckless where, although he was not aware of the risk he has not given though to the recklessness as it would appear to a reasonable person. This gave rise to ‘inadvertent’ recklessness in addition to ‘advertent’ (Cunningham). Many writers argue that this would lead to injustice as a defendant could be convicted of a serious offence where he had no state of mind for that offence.
238) Caldwell was overruled by the House of Lords in R v G (2003)
239) Castle (2004) All ER (D) 289 Court of Appeal held that Caldwell definition of recklessness was no longer appropriate and applied the decision in R v G (2004). e current definition of recklessness as it applies to criminal damage now accords with that c.18(c) of the draft Criminal Code (Smith and Hogan, p 899
240) Cooper (2004) EWCA Crim 1382: It must be proved that the defendant was aware of an obvious and significant risk of danger to life. Cooper (2004) EWCA Crim 1382. The link between criminal damage and itself and the defendant’s ulterior mens rea is important.
241) Lord Bridge in R v Steer (1987)
242) Drayton (Alan Clark) (2005) EWCA s – The defendant had been charged under s.1(1) and (3) of the Criminal Damage Act 1971. The defendant contended that the provision of s.1(3) was mandatory and that if something was not charged as arson then it was not an offence that was immediately known to law
243) Drayton (Alan Clark) (2005) EWCA s – The defendant had been charged under s.1(1) and (3) of the Criminal Damage Act 1971. The defendant contended that the provision of s.1(3) was mandatory and that if something was not charged as arson then it was not an offence that was immediately known to law
244) Jaggard v Dickinson (1980) 3 All ER 716: S.5(2)(a) is similar to s.2(1)(b) of the Theft Act 1968 (see Chapter 16). The only issue is whether the defendant’s belief was honestly held in Jaggard v Dickinson (1980) 3 All ER 716 it did not matter for these purposes that the defendant’s mistake was a drunken mistake as far as s.5(2) is concerned.
245) Chamberlain v Lindon (1998) the Times 6 April: The defendant will satisfy the requirement that his property or interest was in immediate need of protection if the threat to his property has already materialised: Chamberlain v Lindon (1998) the Times 6 April
246) Hunt (1977) Cr App R 105: Where the defendant has only a tenuous connection with his alleged purpose of protecting property this defence may not be available to him – Hunt (1977) Cr App R 105 – Defendant set fire to some bedding in a block of old people’s flat it was to draw attention to the fact that the fire alarm was defective and not to protect the property.
247) Hill and Hill (1989) Crim LR 136: It is for the court to rule as a matter of law whether or not the defendant’s purpose amounts to a purpose of protecting property – Hill and Hill (1989) Crim LR 136
248) Chamberlain v Lindon If a person acts with more than one purpose, it is sufficient that one purpose is to protect property (see)
249) In Kellener (2003) EWCA Crim 2846 - D decapitated a statute of Margaret Thatcher in an art gallery and was charged with criminal damage contrary to s.1(1). He argued that his damage was to bring attention to those policies of MT when she was prime minister which fostered materialism and continued to make the world more dangerous. His defence under section 5(2) failed.
250) Wang (2005) UKHL 9: In truth there is no evidence of lawful excuse that the jury could be asked to consider, the trial judge is entitled to withdraw that issue from the jury but the jury should not be directed by the trial judge to convict. This was approved by the House of Lords in Wang (2005) UKHL 9
251) R v Jones and Others (2004) EWCA Crim 1981 – The court of appeal held that he effect of s.5(2)(b) was that a defendant would be treated as having lawful excuse if at the time he acted, be believed the property in question was in immediate need of protection and that the means proposed to be adopted would be reasonable having regard to all the circumstances. It was immaterial whether the belief was justified provided that it was honestly held.
252) R v White (1910) – causation in fact could not be proven. The Defendant who put cyanide in her mother’s milk. Medical result evidence showed she died of heart attack before poison could take effect.
253) R v Smith (1959) and R v Dear (1996) – Causation in Law: Neglect by the victim would not exonerate the defendant including negligent medical treatment. Only if the defendants act provided the setting in which some other cause operate could causation be broken
254) R v Henningan (1971) – Legal causation. 20% responsible for road accident death was enough
255) R v Roberts (1971) – The victim who was sexually assaulted by the defendant died by jumping out of a moving car. D was held legally responsible for her death.
256) R v Pagget (1983) – D who used V as a victim and shot at the police and was held legal responsible for her death from the return fire
257) R v Blaue (1975) - Jehovah’s witness victim who refused a blood transfusion
258) R v Adams (1957) – Medical treatment would not break causation
259) R v Stone and Dabinson (1977) – the duty of care may be breached where there is a reasonably foreseeable risk to health.
260) R v Church (1966) – Constructive manslaughter which requires that the defendant intentionally committed a dangerous crime which resulted in the death of the victim.
261) R v Franklin (1833) – The illegal act required for constructive manslaughter must be a criminal act
262) DPP v Newbury and Jones (1976) – It is not necessary for the defendant to know that the act is criminal
263) R v Adamako (1995) – Killing by gross medical negligence. Doctor who left a patient in the theatre and who died from detachment of the tube. The judgement overruled R v Seymour (1883)
264) R v Lowe (1973)
265) R v Wacker (2002)
266) R v Marks (2003) – Voluntary acceptance of duty
267) Child and Young Persons Act (1933)
268) R v Pittwood (1902) – Railway crossing attendant case
269) R v Dytham – Policeman who watched while a man being thrown out of club house was being beaten to death
270) R v Instan (1893) – Anty gave D money for grocery and did not take care of the Anty. It was held that the arrangement was a domestic and did not legal duty of care
271) R v Gibbon and Proctor (1981) – Extreme neglect of an ill sister in law by a couple
272) R v Miller (1983) – the defendant sleeping rough who caused fire by his cigarette
273) Bratty v AG for Northern Ireland (1963) – Defendant not guilty if he muscles acted without the control of his mind
274) R v Quick (1973); R v Sullivan (1984) – Evidence of external factors causing transitory malfunctioning to establish a plea of automatism
State of Affairs Offences
275) R v Larsonneur (1983) – Defendant not convicted of being found in UK despite being forcibly taken brought into the jurisdiction by immigration authorities
276) Winzar v Chief Constable of Kent (1983) – Convicted of being found drunk on the highway despite being deposited there by the police.
277) AG’s Reference (No 2 of 1992) (1993) – Total loss of control is required for defence of automatism
278) R v Instan (1893) – Anty gave D money for grocery and did not take care of the Anty. It was held that the arrangement was a domestic and did not legal duty of care
279) R v Gibbon and Proctor (1981) – Extreme neglect of an ill sister in law by a couple
280) R v Miller (1983) – the defendant sleeping rough who caused fire by his cigarette
281) Three elements Intention (Direct – desired consequence is achieve) and Indirect (virtually certain consequence – R v Hancook and Shankland (1986); R v Nedrick (1986) and R v Woolin (1998); Recklessness and Gross Negligence (R v Adamako (1995) – breach of duty of care and creation of risk of death
282) R v Vickers (1957) – Mens reas for murder is intention to kill or cause GBH
283) R v Latimer (1886) – mens rea of particular crime and an act which causes the actus reus of the same crime
284) R v Prembliton (1874) – mens rea of a particular crime and does an act which caused another crime
285) AG’s Reference (No. 3 of 1994) (1997) – House of Lords confirmed the existence of the doctrine of transferred malice but declined to extend the principle to double transfer.
286) R v Jakeman (1983) – mens rea must coincide with the actus reus.
287) R v Thabo Meli (1954) - D attacked a man believing him to be dead threw his body over a cliff and he man died from exposure. The actus reus was considered as continuing
288) R v Church (1966); R v Le Brum (1992); AG’s and AG’s Reference (No. 3 of 1994) (1997) – the continuing act will continue as long as the D is about the business of committing or covering up the crime
289) R v Cunningham (1957) – The subjective and narrow concept of reckless. It imposes liability only on defendants who consciously take unjustified risk
290) R v Moloney (1985) – the ‘Golden Rule’ to prove intention which is often left to the jury
291) Cadwell (1987) – The old principle for recklessness, now overruled.
292) R v G (2003) – A person acts recklessly within the meaning of s.1 of the Criminal Damage Act 1971 with respect to: A circumstance when he is aware of a risk that it exists or will exists; A result when he is aware of a risk that will occur; and it is, in the circumstances known to him, unreasonable to take the risk. The case of 11 and 12 year old camping with their parents’ permission, read some newspapers and put fire to them which subsequently burn the wheel bin which also burn the co-op shop
293) R v Ghosh (1982) – A positive test for establishing dishonesty - Was the defendant dishonest according to the standards of ordinary decent people? If yes, did the defendant realise that what he was doing was dishonest by these standards?
294) Attorney General’s Ref 3 (1999) – Reversed CA 1996
295) R v Kingston (1994) – Morally blameless
296) Brutus v Cozen (1972) – Meaning to the Jury
297) R v Feely (1973) – Dishonesty -Concept of probability, the more probable the more real
298) R v Walker(…….) – Recklessness
299) R v Nedrick (1986)
300) DPP V Morgan – Recklessness
301) Gammon v Attorney-General for Hong Kong (1955(85) – Leading case on intention in statutory liability
302) Inchoate liability – Incitement (encouraging the commission of the offence); Conspiracy (agreeing to commit an offence) and Attempting (more than merely participatory) – Race Relations Board v Applin (1973); Invicta Plastics Ltd v Clare (1976) - incitement may be implied.
303) R v Banks (1873) – It must be communicated
304) R v Ransford (1874) – Where communication fail D is still guilty of attempted incitement.
305) R v Higgins (1801) – there is no need for the incitee act to on the incitement
306) R v Tyrell (1894) – The person that the law is designed to protect cannot be liable for inciting that offence
307) DPP v Armstrong (2000) – it was impossible to incite a police provocateur to provide child pornography
308) R v Fitxmaurice (1983) – You can be convicted of attempt to commit an impossible offence. Three men willing to rob a non-existing woman carrying wages from the bank.
309) R v Scott (1979) – The agreement must be communicated.
310) R v Anderson (1986) – co-conspirator provided wire cutters to facilitate escape and the court ruled that a defendant can be convicted of conspiracy without having the intention that the agreement be carried out, and secondly it is sufficient mens rea if, and only of the intended to play some part in the agreement course of conduct in furtherance of the criminal purpose contract it to Yip Chiu-Cheung v R (1994) – Where Privy Council ruled that it must be established that each conspirator want the agreement carried out.
311) R v Siracusa (1989) – To play some part would include doing nothing to stop the unlawful activity.
Common Law and Statutory Conspiracy
312) Criminal Justice Act 1987
313) R v Griffin (1993) - Definition of attempt – Criminal Attempt Act 1981
314) R v Gueller (1987) – Gone beyond mere preparation not the final act.
315) R v Campbell (1991) D arrested within 10 yards of the post office he intended to rob; R v Geddes (1996) – D was found in the boy’s toilet of a school where he intend to kidnap a pupil. The court held that in both cases they have not moved into execution stage. No contact with the victim.
316) R v Tosti (1977) – Ds got to the scene of the attempted burglary and touch the padlock. Held that the moment they started examining the padlock they moved beyond planning and preparation to execution.
317) R v Shivpuri (1986) – Distributing substances believed to be prohibited drug, but which was not. D was still liable because impossibility is not a defence to a charge of attempt.
Assault & Battery Non-Fatal Offences
318) Lodgen v DPP (1976) – actus reus of assault consists of causing the victim to apprehend immediate physical violence
319) R v Burstow; R v Ireland (1997) – Assault could be committed by words alone.
320) Cole v Turner (1705) – Actual infliction of unlawful physical violence including touching clothes R v Thomas (1985); Collins v Wilcock (1984) – touching in normal everyday life is excluded
321) DPP v Little (1991) – Found that not only common assault and battery were separate offence but also statutory offences by virtue of OAPA 1861
322) R v Miller (1954) – Defined the scope of ABH
323) T v DPP (2003) – Extended bodily harm to v’s momentary loss of consciousness following a kick to the head.
324) R v Chan-Fook (1993) – ABH include psychiatric injury but not mere emotion
325) R v Savage (1992) – The mens rea is either intention or recklessness. D three the content of a beer at V, but the glass slip from her hand and wound the victim and was convicted under s.47.
326) R v Gillard (1988) – Administering means causing to be taken including spraying CS Gas into someone’s face.
327) R v Duffy (1949): – defined provocation Offence (murder, theft, etc).
328) s.1(1) Theft Act 1968: A person who dishonestly (s.2) appropriates (s.3) property(s.4) belong to another(s.5) with the intention of permanently depriving the other of it(s.6) ….. is guilty of theft.
329) R v Turner No. 2 (1971) – the owner who removed his car without informing the garage proprietor
330) R v Lloyd (1985) – Permanently depriving deemed exist where the defendant intended to return the goods in a fundamentally different change so that all their value would have been lost
331) R v Fernandes (1995) – Treating the property as one’s own to dispose regardless of the other’s right
332) R v Dawson (1976) – when force has been used or threatened in robbery it is a question for the jury to decide
333) R v Hale (1978) – Force used after the appropriate has taken place would not amount to robbery
334) R v Robbinson (1977) – Honest belief in the D ownership of the property could lead to acquittal.
Burglary – Definition of building:-
335) Steven v Gourley (1859) – a structure of considerable size and intended to be permanent or at least endure for a considerable length of time.
336) B and S v Leathley (1979) – large freezer without wheel connected to electricity supply was considered a building while in Norfolk Constabulary v Seekings and Gould (1986) – a lorry trailer with wheels was not.
337) R v Collins (1972) – effective and substantial entry. R v Brown (1985) – D leaning throw broken window was considered substantial entry R v Ryan (1995) – D whose head and arm trapped inside a building by a window was held to have entered for the purpose of a burglary. Indication of very broad approach to ‘effective’ and/or substantial test established in CollinsR v Smith and Jones (1976) – D with permission to enter a building but exceed the expressed or implied permission will enter as a trespasser. D who stole father’s television set.
338) Blake v DPP (1993) – Biblical quotation written on a concrete pillar with a marker pen, spraying on pavement Hardman and other (1986), Roe v Kingerlee (1986) (application of mud to the wall of a cell). R v Henderson and Battley (1984) unauthorised dumping of waste on a building site; jumping on a policeman’s helmet Samuel v Stubbs (1972). A (A Jevenile) v R (1978) – a young football supporter who spat a policeman coat and Morphitis v Salmon (1990) (a scratch on a scaffolding bar) were not considered criminal damage since the coat did not require cleaning or other expenditure and the value of the scaffolding and its usefulness was not impaired.
339) DPP v Majewski (1984) – Intoxication negating mens rea, resulting from the voluntary consumption of alcohol or drugs generally recognised to be dangerous will constitute a defence to crimes of specific intent but not hose of basic intent.
340) AG for Northern Ireland v Gallaher (1963) – The defence of intoxication will not be allowed for deliberate intoxication.
341) R v Bailey (1983); R v Hardie (1984); Intoxication negating mens rea, resulting from the voluntary consumption of ‘non-dangerous’ drugs will constitute a defence to crimes of specific intent but also in relation to basic intent, provided the defendant had not been reckless in consuming them.
342) R v Kingston (1994) – Involuntary intoxication which does not negates intent will not provide a defence.
343) R v O’Grady (1987) – A mistake of fact made while the defendant was intoxicated was ignored for self-defence when the intoxicated defendant mistakenly belief he needed to defend himself
344) R v Dudley and Stephens (1884) – Defence of necessity would not be available to theft of food or homicide.
345) Re A (Children) (Conjoined twins: surgical separation) (2000) – Defence of necessity would be available at common law to doctors operating conjoined twins. Conditions – avoid inevitable and irreparable evil; no more should be done than reasonable necessary for the purpose to be achieved; the evil inflicted must not be disproportionate to the evil avoid.
346) Statutory defence; s.5(2)(b) of the Criminal Damage Act 1971; s1(1) of the Infant Life (Preservation) Act 1929 and s.1(4) of Abortion Act 1967
347) R v Willer (1986), R v Conway (1989) and R v Martin (1989): Defence of necessity in relation to traffic offences. R v Pommell (1995) recognised that the defence is not limited to traffic offences. Matters for the jury:
348) R v Howe (1987) - the defence is not available to murder; R v Gotts (1991) – it is not available to manslaughter; R v Sharp those who joined criminal groups; R v Shepperds (1988) – however if forced to commit an offence he could not have been expected to foresee when he joined the group the defence is available
349) R v Z (2003) - What has to be proved is that the accused anticipated his association with criminals could lead him to being involved in the type of criminality for which he is charged.
350) Re A (Children) (Conjoined twins: surgical separation) (2000) – If a 6-year old child firing a gun indiscriminately in school playground was shot and killed by a defendant to prevent further arm, the defendant would be able to rely on self-defence at common law.
351) Re v Owino (1995) – objective concept of reasonableness was to be applied in the context of subject interpretation to the circumstances in all cases of reasonable force for self-defence.
352) R v Donovan (1934) – Consent can be a defence to assault of theft if the victim expressly of implied consent and if the consent was valid
353) AG’s Reference (No. 6 of 1980) (1981) Consent not available to murder or manslaughter, deliberate infliction of bodily harm and a fight other that organised sport
354) R v Jones (1987); R v Atkin and Others (1992) - Available for rough horseplay, lawful sporting activities, medical and dental treatment by doctors; R v Wilson (1996) – Tattooing and branding for love on buttock,
355) Consent is invalid where there is non real understanding of the consent Burrell v Harmer (1967); consent to nature not quality of the act Tabassum (2000); impersonation R v Elbekkay (1995):
356) Caldwell, Morgan (1975) – Indicated logic v policy
357) Clegg (1995) – The role of the House of Lords
358) R v Haulage (1944) – A company could be guilty of an offence requiring mens rea