Friday, March 28, 2008

CRIMINAL LAW - CASE LIST3

CASE LIST
CONTINUING MENS REA

Ø Thabo mei (1954) – continue actus rea – D threw V off a cliff thinking he was dead
Ø Fagan (1969) – packed on policeman’s leg.

STRICT LIABILITY

Ø Walkington (1979) – entering part of a building and being held responsible
Ø Smith Morgan (2001)
Ø DPP v Morgan (1976) – Mistake of fact will result in acquittal where no mens-rea

INTENTION AND RECKLESSNESS

Ø Hyam v DPP (1957) – implied malice aforethought
Ø Cunningham (1982) - Implied malice aforethought
Ø C v G and Elliot – mentally subnormal girl constructed murder
Ø Caldwell (1992) – unjust definition of reckless ness
Ø Elliot (1993) – unfairness in establishing objective standard
Ø Smith (1990) – a man who placed bomb on a plane to frighten people and not to kill them
Ø R & G (2003) – subjective meaning of recklessness
Ø McNaghten rule on insanity

OMISSION

Ø R v Pittwood (1902) – contractual duty. Railway crossing
Ø R v Gibbens and Proctor (1918) – Family duty. Parent
Ø R v Stone and Debbinson (1977) \- Victim’s reliance on D’s assurance
Ø R v Millier (1983) – Duty to mitigate consequence of D’s action

CAUSATION

Ø R v White (1910) – But for, D’s conduct was not legal cause of death
Ø R v Jordan (1958) - Wrong medical treatment
Ø R v Smith (1959) - Right medical treatment
Ø R V Malcherek (1981) – removal of life support did not break causation
Ø R v Cheshire (1991) - medical negligent would not break the chain of causation
Ø R v Blaue (1975) – Thin skull principle
Ø R v Miller (1954) – causation lead to criminal offence
Ø AG’s Ref (No. 4 of 1980) 1981 – Where D kills one or other act sufficient to establish manslaughter, it is not necessary in order to find a conviction to proved which one
Ø R v Lamb (1967) – mens rea is an essential element. Shut friend acquitted.
Ø R v Dear (1996) - Defendant’s neglect. D assaulted for sexual act on child
Ø R v Dias (2001) – Only third party extra ordinary event can break chain of causation
Ø Lewis v CPS (2002) – Duty of care exist in joint enterprise
Ø Rufell (2003) – Duty of care with unwell victim left in the cold

MANSLAUGHTER

Ø R v Church (1966) – Constructive manslaughter
Ø R v Adamako (1994) – Gross negligence manslaughter

ASSAULT AND BATTERY

Ø Ireland v Burstow (1998) – inflicted means cause
Ø DPP v Little (1992) – where there is a battery the defendant charge with assault by beating
Ø Martin (1881) – Indirect battery
Ø Smith v Working Police (1983) –
Ø Mowath (1968) – intention to inflict wound with foresight of some harm
Ø Read v Coker – fear of immediate assault is battery

INTOXICATION

Ø R v Majewski (1977) – Voluntary intoxication as defence for specific and not basic
Ø AG’s Ref. (No. 2 of 1992 (1993)
Ø R v Lipmann (1970) – some form of control
Ø R v Bailey (1983) - some form of control
Ø R v Sullivan (1984) - External cause is absolute necessary for automatism

AUTOMATISM/INSANITY

Ø Braddy v AG for Northern Ireland (1963) – Total loss of control is automatism
Ø AG’s Ref. (No. 2 of 1992 (1993)
Ø R v Lipmann (1970) – some form of control
Ø R v Bailey (1983) - some form of control
Ø R v Sullivan (1984) - External cause is absolute necessary for automatism
Ø Queen v Falconer (1990) – it is presumed that D has mental capacity for his action
Ø Hyperglycaemia – high blood sugar level (internal) Hypoglycaemia (low blood sugar level) external (brought about by insulin treatment).

DRUGS

Ø R v Hardie (1955) – effect of non dangerous drug is a defence for basic/specific
Ø R v Kingston (1984) – involuntary intoxication is a defence

DURESS

Ø R v Shyler(2001) - Accomplice to murder – no advantage of defence of duress
Ø R v Wright (2001) - ;;; ;;; ;;;
Ø R v Martin (1989) - ;;; ;;; ;;;
Ø R v Howe (1987) - ;;; ;;; ;;;
Ø R v Gotts (1992) - ;;; ;;; ;;;
Ø R v Ortiz (1986) - ;;; ;;; ;;;
Ø R v Grahams (1982)- ;;; ;;; ;;;
Ø R v Conway (1989) - Confirmed the existence of the duress
Ø R v Gillick (1985) - ;;; ;;; ;;;

NECESSITY
Ø Re A (Conjoined Twins) (2000) - Medical necessity
Ø Re F (1990) - Line between duress and necessity
Ø R v Dudley and Stephens (1884) -- held that necessity was not a defence to murder
Ø DPP v Lynch – Duress was a defence for murder (participant)
Ø Abortion Act 1967 - Bourne (1938), Newton and Stungo (1958), Adams (1957) terminally ill
Ø R v Willer (1986); R v Conway (1989); R v Martin (1989) defence of necessity for traffic offences

MISTAKE

Ø Latenock (1917) – mistaken belief induced by intoxication should be considered as a defence by the jury but would fail because reckless is enough
Ø DPP v Morgan (1976) – Mistake of fact will result in acquittal where no mens-rea
Ø DPP v B – Mistake of fact will result in acquittal where no mens-rea
Ø R v Majewski (1977) – Mistake from voluntary intoxication as defence for only specific, heavily criticise
Ø R v O’Gardy (1987) - Same
Ø R v O’Connor (1991) – same
Ø R v Hatton (2005) - same
Ø Williams (Gladstone) (1984) – mistake as to surround circumstance could be a def.
Ø R v G (2003) – Honest mistaken belief would negative direct or oblique intention would negative mens res
Ø Woolin (1998) – honest mistae

SELF DEFENCE

Ø R v Williams (Gladstone) 1984) – reasonable for self defence
Ø Re A (Children) – Conjoined twins – reasonable force to prevent 1 injury many
Ø R v Owino (1995) – subjective interpretation

CONSENT

Ø R v Jones (1987); R v Atkin and Others (1992) - Available for rough horseplay, lawful sporting activities, medical and dental treatment by doctors;
Ø R v Wilson (1996) – Tattooing and branding for love on buttock,
Ø Burrell v Harmer (1967)Consent is invalid where there is non real understand of the consent
Ø Tabassum (2000) consent to nature not quality of the act; impersonation R v Elbekkay (1995):

PROVOCATION

Ø R v Duffy (1949) – defined provocation
Ø R v Ahluwalia (1992) – Homicide Act 1957 did not provide a new definition of provocation, it remain a common law and not statutory defence
Ø Luc Thiet Thuan v the Queen (1997)
Ø R v Smith (Morgan) – 2001 – characteristics attributable to a provoked D. All relevant characteristics
Ø Attorney General for new Jersey v Holley (2005) – Age and Sex as the only characteristics
Ø R v James (2006) – Age and Sex as the only characteristics
Ø R v Karimi – Age and sex as the only characterists

DIMINISHED RESPONSIBILITY

Ø R v Dunbar (1957) – Defendant to prove on balance of probabilities
Ø R v Byrne (1960) – Defendant to prove same
Ø R v Dietschmann (2003) – Drunkenness and diminished responsibility
Ø an definition of provocation, it remain a common law and not statutory defence
Ø Luc Thiet Thuan v the Queen (1997)
Ø R v Smith (Morgan) – 2001 – characteristics attributable to a provoked D. All relevant characteristics
Ø Attorney General for new Jersey v Holley (2005) – Age and Sex as the only characteristics
Ø R v James (2006) – Age and Sex as the only characteristics
Ø R v Karimi – Age and sex as the only characterists

INSANITY

Ø Luc Thiet Thuam
Ø R v Smith (Morgan) – 2001 – characteristics attributable to a provoked D. All relevant characteristics
Ø Attorney General for new Jersey v Holley (2005) – Age and Sex as the only characteristics
Ø R v James (2006) – Age and Sex as the only characteristics
Ø R v Karimi – Age and sex as the only characterists

DISHONESTY

Ø Ghosh Test

APPROPRIATION

Ø Lawrence (1972) – early principle on appropriation
Ø Gomez (1993) - set the wide application
Ø Gallasso (1993) – affirmed Gomez
Ø Mazo (1997) – affirmed Gomez
Ø Hinks (2000) – affirmed Gomez – if there is dishonestly there is appropria.

CRIMINAL DAMAGE

Ø Lloyd v DPP(1991) – Damaging a clamp lock was considered a criminal offence
Ø Gomez (1993) - set the wide application
Ø Gallasso (1993) – affirmed Gomez
Ø Mazo (1997) – affirmed Gomez
Ø Hinks (2000) – affirmed Gomez – if there is dishonestly there is appropria.
Ø 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).
Ø A (A Jevenile) v R (1978) – a young football supporter who spat a policeman coat and
Ø Morphitis v Salmon (1990) (a scratch on a scaffolding bar) were not considered criminal damage

BURGLARY

Ø Steven v Gourley (1859) – a structure of considerable size and intended to be permanent or at least endure for a considerable length of time.
Ø 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.
Ø 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.

ASSAULT AND BATTERY

Ø Lodgen v DPP (1976) – actus reus of assault consists of causing the victim to apprehend immediate physical violence
Ø R v Burstow; R v Ireland (1997) – Assault could be committed by words alone.
Ø 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
Ø DPP v Little (1991) – Found that not only common assault and battery were separate offence but also statutory offences by virtue of OAPA 1861
Ø R v Miller (1954) – Defined the scope of ABH
Ø T v DPP (2003) – Extended bodily harm to v’s momentary loss of consciousness following a kick to the head.
Ø R v Chan-Fook (1993) – ABH include psychiatric injury but not mere emotion
Ø 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.
Ø R v Gillard (1988) – Administering means causing to be taken including spraying CS Gas into someone’s face.
Ø R v Duffy (1949): – defined provocation Offence (murder, theft, etc).
Ø 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.
Ø R v Turner No. 2 (1971) – the owner who removed his car without informing the garage proprietor
Ø 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
Ø R v Fernandes (1995) – Treating the property as one’s own to dispose regardless of the other’s right
Ø R v Dawson (1976) – when force has been used or threatened in robbery it is a question for the jury to decide
Ø R v Hale (1978) – Force used after the appropriate has taken place would not amount to robbery
Ø R v Robbinson (1977) – Honest belief in the D ownership of the property could lead to acquittal.

COMMON LAW AND STATUTORY CONSPIRACY

Ø Criminal Justice Act 1987
Ø R v Griffin (1993) - Definition of attempt – Criminal Attempt Act 1981
Ø R v Gueller (1987) – Gone beyond mere preparation not the final act.
Ø 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.
Ø 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.
Ø 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.

INCOHATE OFFENCES

Ø Race Relations Board v Applin (1973); Invicta Plastics Ltd v Clare (1976) - incitement may be implied.
Ø R v Banks (1873) – It must be communicated
Ø R v Ransford (1874) – Where communication fail D is still guilty of attempted incitement.
Ø R v Higgins (1801) – there is no need for the incitee act to on the incitement
Ø R v Tyrell (1894) – The person that the law is designed to protect cannot be liable for inciting that offence
Ø DPP v Armstrong (2000) – it was impossible to incite a police provocateur to provide child pornography
Ø R v Fitxmaurice (1983) – impossible offence. Three men willing to rob a non-existing woman carrying wages from the bank.
Ø R v Scott (1979) – The agreement must be communicated.
Ø R v Anderson (1986) – 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.
Ø R v Siracusa (1989) – To play some part would include doing nothing to stop the unlawful activity.

SEXUAL OFFENCES - RAPE

Ø Billam (1986) – Life sentence
Ø Millberry, Morgan and Lackenbry -
Ø Ragusa (1993) -10 years imprisonment for forced oral sex
Ø Townsend (1995) – touching or stroking is sexual assakt
Ø Osman (2000) – touching or stroking
Ø Cagan and Leak (1979) – causing sexual activity duress
Ø DPP v K & B (1997) – underage
Ø Lambert (2002) – reverse onus with the presumption of innocence
Ø Elbekkay (1995) – Partners impersonation
Ø B v DPP (2000); K (2002)- proof of mens rea over age

THEFT CRIMINAL DAMAGE

Ø Lloyd v DPP(1991) – Damaging a clamp lock was considered a criminal offence
Ø Gomez (1993) - set the wide application
Ø Gallasso (1993) – affirmed Gomez
Ø Mazo (1997) – affirmed Gomez
Ø Hinks (2000) – affirmed Gomez – if there is dishonestly there is appropriation





RECENT CASES – 2007

Ø R v Abu Hamza (2006) – Convicted of terrorism abroad
Ø R v Saik (2006) – freed because he lacked mens rea when he exchange foreign currency
Ø R v Curtis (2006) – not to over convict or under convict. The judge should leave the option of manslaughter to the jury even where the parties agreed that it was not necessary. D killed his girlfriend and claimed he lacks mens rea
Ø R v Dhaliwal (2006) – Bodily hard is restricted to known psychiatric illness
Ø R v Hendy (2006) – diminished responsibility and provocation - Dietschmann (2003) had not propounded any new law but affirmed law existing since R v Gittens (1984)
Ø R v Smith (2006) – cutting somebody’s hair without permission is an assault’
Ø R v Atham (2006) – who pleaded necessity for using cannabis failed in his attempt
Ø R v Mullaly (2006) – who drove while drunk saying police were there

RECENT CASES – 2006

Ø R v Mitchel (2004) – lack of lawful excuse to remove clamp on a vehicle wrongly packed
Ø R v Sofoniou (2004) – confirms the retroactive effect of s.1(3) of TAA 1996 Mortgage was a service
Ø DPP v Santana-Bermudez (2004) – you can by word and deed possess actus reas when you exposed someone to a risk of injury which materialised
Ø R v Willoughby (2005) – unlawful and dangerous act manslaughter are not mutually exclusive. D can be guilty by both route
Ø R v Faqir Mohammed – reasonable man
Ø R v Claydon (2005) – incitement cannot be made out where the incitee is legal incapable
Ø R v Hassan (2005) – you can rely on duress where you voluntarily associate with criminals
Ø R v Wang (2005) – the jury had no power to pre-empt the jury by directing it to convict
Ø R v Carey and others (2006) – it was considered remote when D punched the victim and she died of previously unknown heart attack 109 yards away

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