CRIMINAL LAW - RECENT CASES

CRIMINAL LAW - RECENT CASES

Unlawful homicide: murder and manslaughter

1) R v Coutts [2006] UKHL 39: D killed V during consensual sexual activity which involved the use of a ligature made from a pair of tights which he had tied around her neck. He claimed that he had not intended to kill or cause V grievous bodily harm. Although he was a neck fetishist, he was not violent and had never before armed anyone when using such ligatures during sexual activity. D was charged with murder and convicted. The trial judge, with the support of the prosecution and the consent of the defence, did not leave an alternative count of manslaughter to the jury. He directed the jury that they should convict of murder if satisfied that the appellant had committed that offence and, if not so satisfied, acquit. The Court of Appeal dismissed his appeal, where he contended that a manslaughter verdict should have been left to the jury for their consideration irrespective of the parties’ wishes. The narrow question raised by the appeal is whether, on the facts of this case, the trial judge should have left an alternative verdict of manslaughter to the jury. The broader question, of more general public importance, concerns the duty and discretion of trial judges to leave alternative verdicts of lesser-included offences to the jury where there is evidence which a rational jury could accept to support such a verdict but neither prosecution nor defence seek it. (Lord Bingham)

The House of Lords allowed D’s appeal, ruling that on a charge of murder the alternative verdict of manslaughter should normally be left to the jury – unless, for example, it would result in an unfair trial – if there was material to support it, irrespective of the wishes of the parties. It did not serve the interests of justice where a defendant who had committed a lesser offence was either convicted of the greater offence or acquitted. His punishment would either be too harsh or he would not receive the measure of punishment his crime deserved. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. (Lord Bingham) Lord Hutton’s view was that in this case, the lesser offence would have been manslaughter by unlawful and dangerous act. V’s consent to the use of the ligature would not have been legally valid: Brown [1994] HL; Emmett [1999] CA.

2) R v Dhaliwal [2006] 2 Cr App R 24. In this case the Court of Appeal, following the case of Chan-Fook [1994], held that the ambit of ‘bodily harm’ was restricted to recognised psychiatric illness although it was stated per curiam that unlawful violence on an individual with a fragile and vulnerable personality which is proved to be a material cause of death, even if the result (death) is suicide, is arguably capable of amounting to manslaughter.

Voluntary manslaughter: the defenses of provocation and diminished responsibility

3) R v Hendy [2006] EWCA Crim 819 D killed V while suffering from an abnormality of mind and while intoxicated. The trial judge directed the jury as follows:

1. Have the defence satisfied you that it is more likely than not if the defendant had not taken drink he would have killed as he in fact did? If the answer is ‘no’, the verdict is ‘guilty of murder’. If the answer is ‘yes’, proceed to… 2.

2. Have the defence satisfied you that it is more likely than not that if the defendant had not taken drink he would have been under diminished responsibility when he killed? If the answer is ‘no’, the verdict is ‘guilty of murder’. If the answer is ‘yes’, the verdict is ‘not guilty of murder, but guilty of manslaughter by reason of diminished responsibility’.

D was convicted of murder and appealed. The prosecution conceded that the trial judge had not directed the jury in accordance with Dietschmann [2003] (see page 114 of the subject guide), but that the direction was in accordance with the law as it was at the trial, which took place before the decision in Dietschmann. The issue for the Court of Appeal was, therefore, whether the House of Lords in Dietschmann made new law or whether the decision represented the law as it always was. The Court held that the trial judge had misstated the law as it was at the time of the trial and stated per curiam that the House in Dietschmann had not been propounding any new principle of law but merely explaining what the law had been since the enactment of the Homicide Act 1957 and since R v Gittens [1984].

Aggravated non-fatal offences against the person

4) DPP v Smith [2006] EWHC 94 (Admin): The issue for the court was whether cutting a person’s hair without their consent could amount to an offence contrary to s.47 of the Offences Against the Person Act 1861. The Divisional Court of the Queen’s Bench held that evidence of external bodily injury or a break in or bruise to the surface of the skin was not required for the purposes of actual bodily harm within s.47 of the Offences Against the Person Act 1861. Hair was part of the human body which was intrinsic to each individual and the cutting off of a substantial part of a person’s hair, without that person’s consent, in the course of an assault was capable of amounting to the offence contrary to s.47 even where it did not leave any mark or break the skin. Chan Fook [1994] and Ireland [1998] HL followed.

Failure of proof and justificatory defences

5) R v Altham [2006] EWCA Crim 7: The defendant was charged with an offence contrary to s.5(2) of the Misuse of Drugs Act 1971 – he had been smoking cannabis (a controlled drug) for 15 years to alleviate the constant pain he suffered as the result of injuries he had suffered in a road traffic accident. The Court of Appeal held that the trial judge had been entitled to hold that the defence of necessity should not be left to the jury. The role of the defence according to Scott Baker LJ ‘cannot be to legitimise conduct contrary to the clear legislative policy and scheme…’. Further, the state was not in breach of its obligation under Article 3 of the European Convention on Human Rights by not permitting him to take any steps that were necessary to alleviate his medical condition notwithstanding that those steps breached the criminal law: it had done nothing to subject the appellant to either inhuman or degrading treatment and thereby engage the absolute prohibition within Article 3.

Excusatory and mental disorder defences

6) DPP v Mullally [2006] ALL ER (D) 49 (Nov) - The defendant drove a car having consumed excess alcohol after the police were in attendance, having responded to her call to them. The Divisional Court of the Queen’s Bench held that the Justices had fallen into error when they decided that her response to the threat was objectively reasonable. According to the Queen’s Bench Division, once a reasonable person knew that the police were in attendance, they would have concluded that they would have been given protection by the police. The Justices were wrong to have acquitted the defendant and the matter would be remitted to them with a direction to convict.

Inchoate offences

7) R v Abu Hamza [2006] EWCA Crim 2918 - The Court of Appeal held that it was an offence contrary to s.4 of the Offences Against the Person Act 1861 for a person to incite a foreign national in England or Wales to commit murder abroad. The offence was not restricted to situations HM/N/where those committing the murders were to be British subjects. Section 4 enacted the ingredients of substantive offences. It did not lay down rules of jurisdiction and there was nothing in the wording of the section to suggest that the conspirators, or the person incited, should be British subjects.

8) R v Saik [2006] UKHL 18 - The case for the prosecution was that D, who operated a currency exchange office, had in the course of that business converted sterling which was or represented the proceeds of drug trafficking or other criminal activity into foreign currency. D’s appeal against conviction to the Court of Appeal failed but he succeeded in his subsequent appeal to the House of Lords. Conspiracy to commit an offence is a different harm from the actual commission of the substantive offence in that conspiracy imposes criminal liability on the basis of a person’s intention. For the purposes of conspiracy, knowledge required proof of a true belief, even where a lesser form of mens rea (or no mens rea) was required for the substantive offence.