OVERVIEW OF CRIMINAL LAW
- Most criminal cases begin and end in Magistrate courts
- 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).
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 R Vs Lambert, R V Ali and R V Jordan House of Lords (2001) All ER D (9) Jul that this does not breach Article 6 of European Convention on Human Rights Law – the right to a fair trial
Where Prosecution Appeal the case change from R v Jones to Attorney General’s Reference (No. 6 of 2006), 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.
Essay questions involve – academic question focused on the issues raised in the question. An analysis of the issues rather than a descriptive of everything you know about the area of law. Areas (Introduction, discussions of issues raised and conclusion
Generally a definitive answer is not required Substantive criminal law does not include law of evidence and procedures
ELEMENTS OF AN OFFENCE
Actus reus – external element
Mens rea - element of offence
The offence of criminal damage contrary to section 1(1) of Criminal Damage Action 1971is used to exemplify analysis of actus reus and mens rea of criminal offence.
A criminal offence might be statutory or offence at common law
The definition of an offence is found in the common law or at the section of a statute.
Murder is unlawful killing of a human being with malice aforethought
Actus non facit reum, misi mens sit rea
If all the element of actus reus cannot be proved, the defendant cannot be criminally liable no matter how guilty his mind is.
Lawful excuse is a defence
ACTUS REUS – AUTOMATISM – SMITH AND HOGAN, C4 pp 48-51
Automatism – The defendant conduct in every criminal case must be a voluntary act
Where a defendant has no control over what he is doing is he said to be acting as an automaton
Limit to the defence of automatism – where defendant exercise some control, where the conditions which give rise to automatism can be brought under the ambit of the rule of insanity, where there is prior fault on the part of the defendant
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 Hill V Baxter (1958)
Automatism resulting from the disease of the mind constitutes insane automatism
Where a defendant is successful with a plead of sane automatism the judgment will be not guilty acquittal without qualification. Medical evidence of by defendant, prosecution to prove otherwise
Where a defendant is successful with a plead of insane automatism the judgment will be not guilty by reason of insanity, called special verdict. For murder mandatory definite stay in a psychiatric hospital for other offences Section 3 of criminal procedures act. Defendant to prove plea of insanity
It is M’naghten rules which set out the defence of insanity. For the defence to succeed it must prove that at a particular time the defendant was suffering from a defect or reason caused by a disease of the mind so as not to know the nature and quality of his act of if he did know not to know what is wrong.
Insanity is legal concept and not a medical one
Hyperglycaemia (high blood sugar), sleepwalking and epilepsy have been held to be diseases of the mind for the purpose of distinguishing between same and insane automatism
Post-ictal stage – the period of confusion following epilepsy seizure
The lot of mankind means the fate or natural circumstances of human being
Prior Fault
Sane automatism is subdivided into self-induced automatism and non-self induced automatism
Non-self induced Automatism - concussion caused by a blow to the head, hypoglycaemia or a swam of bees in the car. This is a defence for both crimes of specific and basic intent.
Self induced Automatism - which arises from voluntary intoxication by alcohol or dangerous drug. This is not a defence to crimes of basic intent although it will be a defence to crime of specific intent where the automatism prevent the defendant from forming the necessary mens rea for the crime .concussion caused by a blow to the head, hypoglycaemia or a swam of bees in the car. This is a defence for both crimes of specific and basic intent.
Murder is expressed as specific intent offence and thus requires proof of an intention on part of the defendant, to kill or cause grievous bodily harm.
A basic intent offence could be described as one for which proof of recklessness or negligence on the part of the defendant is sufficient
The doctrine of prior fault does appear to require an awareness of risk on the part of the defendant
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 (Bailey (1983) Griffiths L.
The defence of automatism simpliciter has been severely limited by the courts.
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.
Research - Find case of R v Hardie Westlaw; R v Bailey (1983) WLR 750 all England law report; Insanity, automatism and burden of proof
Whether the prohibited conduct is an act or an omission, such conduct must be voluntary in order to attract criminal; liability.
Where a person’s conduct is not under the control of his conscious mind so that his bodily movements are unwilled and involuntary he as acting as an automatism. This will negate the actus reus and mens rea of any offence which he might be charged
ACTUS REUS – OMISSIONS
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? (P. R. Glazebrook) LQR 1960.
There is no general liability for failure to act under the common law of England and whales. e.g. a stranger watching a man drown
France has adopted a general principle of liability for failure to act.
There is no general liability for failure to act under the English and Whale law. However France has adopted a general liability for failure to Act
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.
In Common law it will first be determine if an offence is capable of being committed by omission before deciding whether a defendant is bound by duty to act.
The burden is however on the prosecutor to prove all the other ingredients of the offence i.e. actus reus and mens rea
IS THE OFFENCE CAPABLE OF BEING COMMITTED BY OMISSION
Offence interpreted as capable of being committed by omission include murder (Gibbins and Proctor (1918) and manslaughter. Battery and assault are generally held to be incapable of commission by omission. Fagan v MPC 1969, Santana Bermudez (2004), Miller 1983.
Was the defendant under a duty to Act?
Where there is a duty it is not an onerous one.
Circumstances and reasonable standard – a stranger and a lifeguard? Reasonable standard is an objective test.
No legal sanction is imposed for a breach of moral duty.
Lord Coleridge Every moral obligation involves a legal duty, but every legal duty is found on moral obligation
Boundaries of legal duties are unclear
Determinant of legal duty – relationship between parties, voluntary undertaking, contractual duty, created the situation which gave rise to danger
Duty to act under common law – Duty arising out of a contract; created a dangerous situation, aware of it and failed to take steps to rectify it; there is a duty arising out of the relation e.g. husband/wife; a person has assumed a duty to care for another;
DISTINGUISHING BETWEEN ACT AND OMISSION
The problem with distinguishing between acts and omission tends to arise in the area of medical treatment when a decision needs to be made whether to end a course of treatment which is perceived to be futile
To treat a person against their wishes no matter how benevolent the motive would amount to an assault or works Ms B v NHS Hospital (2002) on unlawful trespass.
Can an existing duty cease? A crime can be committed by an omission, but there can be no omission in the absence of duty to act.
No therapeutic purposes, treatment that does not alleviate the condition
New categories of duty - State of affairs, situational crime
The circumstance element of actus reus – situational offences
The conduct element of the actus reus of an offence can include an act, an omission or a state of affairs
ACTUS REUS
‘Result’ crimes where the definition of actus reus requires the prosecution to prove that the defendant’s conducts caused the prohibited result, or consequences.
Result crime require a proof of causation as one o the elements of the actus reus of the offence charged. But the issue arises mainly in cases of homicide.
Causation and liability
Causation is an element of actus reus of result of crimes.
Never make an assumption as to a defendant state of mind or as to anything else for that matter. If you have not been given sufficient information in a question to come to a determinative conclusion on guilt or innocence then point this out.
FACTUAL CAUSATION
Factual causation is determined by reference to ‘sine qua non’ (or but for) test. It is the condition for proof of causation but it is not sufficient in itself to determine the causal link.
If the result could have occurred regardless of his conduct then he cannot be said to cause the result. Carey (2006) ECWA crim 17
Constructive manslaughter which requires proof of an unlawful and dangerous act which causes death.
It was not the imputable (legal) cause of her death
Causation by omission
A defendant causes a result which an element of an offence when a) he does not an act which makes a substantial and operative contribution to its occurrence or b) he omits to do an act which he is under a duty to do according to the law relating to the offence and the failure to do the act makes substantial and operative contribution to its occurrence.
If the factual causation is established it must be proved that the defendant’s conduct was the legal cause.
Legal causation
Legal cause of an offence according to legal principle
Expert opinion is necessary but not definitive
Legal causation is a last ditch attempt to exonerate from liability and jury are wary of allowing it to succeed – terms, operating, substantial, substantive significant to define a legal cause
OPERATING AND SUBSTANTIAL CAUSE
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. Smith (1959) 2 QB 25
The culpable act must be more that a minimal cause of the result
The result that must be attributable to the culpable act
If under the circumstances the act of the defendant could have save the child.
Negligent treat could only break the chain of causation where it was so independent of the defendant act, an in itself so potent in causing the death that the jury regard the contribution made by the defendant’s act as insignificant
Victim must be taken as found SMITH AND HOGAN C4 pp 66-67 nd The defendant must take his victim as found Blaue (1975) 1 WLR 1411
INTERVENING CAUSES
Once the defendant’s conduct has started a chain of event he will be legal responsible for the result unless the chain is broken by some novus actus interveniens or supervening event where is was not reasonably foreseeable and has operated to render the defendant original conduct no longer an operating and substantial cause but merely part of the background history
An act done instinctively for the purposes of self-preservation will not break the chain of causation
A free deliberate and informed intervention (i.e. fully voluntary act) may have the effect of breaking the chain of causation
Escape cases – where the defendant frightened the victim to the extent the victim has killed or injured himself trying to escape will not break the chain of causation provided the victim’s reaction was not so daft
KILLING BY FRIGHT
When a victim dies as the result of fright cause by the defendant then the defendant cannot claim he is unaware of the victims condition
Neglect by victim – the defendant is likely to be held responsible if the victim neglect to treat of wound inflicted that later causes death.
For the causal link to be established it must be reasonably foreseeable. The defendant must take the victim as he finds.
MEDICAL INTERVENTIONS SMITH AND HOGAN
Death cause by unrelated medical treatment will not hold the defendant liable.
ACT OF GOD/NATURE
A attempted to kill B and while running was struck by lightening – not a case of reasonable foreseeable, but where B fell off a cliff, it was reasonable foreseeable.
UNLAWFUL ADMINISTRATION OF CONTROLLED DRUG
– the Court have chosen to deal with those involve in drug misuse
Kennedy (No. 1) 199 Cr App R 54
Dias (2002) ECWA Crim 1
Roger (2003) 1 WLR 1 37
Finlay (2003) ECWA Crim 3868
Kennedy (no.2) 2005 ECWA Crim 685(1867) 2 Cox 273
MENS REA SMITH AND HOGAN C5 PP 56-57
Mens rea is a legal term of art which refers to a number of states of mind that the law treats as criminal and without which there will be no criminal liability
In addition to proving the defendant committed the actus reus of the offence for which is charged, it must be proved that he had the requisite mens rea – or mental element – at the time of the commission of the actus reus.
Negligence is not a form of mens rea. It is determine by reference to an objective standard
There are however a large number of offences (usually statutory) which may be committed without mens rea or negligence in respect of at least one of the actus reus. These are strict liability offence
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 (Chiu-Cheng v R (1995) AC III)
Doctrine of absolute liability – liability based upon conduct and causation regardless of any mental element
St. Augustine and Theodore of Tarsus were proponents of requirement of some metal element before blame-worthiness
Maxim ‘reum non facit nisi mens rea’
Leges Henrici Primit
Actus non facit reum, misi mens sit rea
Motive is generally irrelevant in criminal law –Yip Chiu-Cheung v R (1994) 3 WLR 515
The law distinguishes between allowing to die which may include giving of palliative care which incidentally shortens life and killing – 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.
Basic, specific and ulterior intent offences
An offence of basic intent is one for which recklessness is sufficient mens rea. Negligence e.g. Criminal Damage Act 1971
To gain conviction for crime of specific intent nothing less than intention must be proved. Example murder. Proof of recklessness is insufficient for murder but sufficient for the basic intent crime of manslaughter.
The distinction between basic and specific intent crimes is of importance where the defendant as raised self-induced intoxication as evidence of lack of mens rea. Such evidence is relevant for crimes of specific intent but not for those of basic intent.
Ulterior intent crime – requires mens rea in relation to mens rea which goes beyond the actus reus
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
A person of guilty of burglary if he enters a building or part of a building as a trespasser and with intent to commit any such offence as stealing anything, inflicting grievous bodily arm or doing unlawful damage
Actus reus of burglary is committed as soon as the defendant enters as trespasser. The basic mens rea, is mens rea which does not go beyond the actus rea, knowledge or recklessness on his part as the fact which made him a trespasser. The ulterior mens rea is the intention to commit other offences
Further examples wounding with intent to cause grievous bodily arm and wounding causing grievous bodily arm with intent to resist or prevent arrest contrary to section 18 of the offence Against the Person Act 1861
The requisite mental element may relate to
The defendant conduct; and/or
The relevant circumstances; and/or
(for result crimes) the consequences
Intention
Many of the court of appeal and house of lords decision relating to the meaning of intention have arisen where the defendant has been charged with murder
Oblique intention occurs where the defendant did not desire the consequence but could still be held to have intended it
In Moloney the House of Lords held that that two question 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
Lord Bridge nature consequence 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.
To a rule of substantive law so that they were satisfied beyond reasonable doubt that the defendant foresaw the consequence as being virtually certain they must find that he intended it.
Lord Steyn foresight was merely evidence of, but not to be equated with intent
Recklessness - could be described and unjustifiable risk taking
A person is reckless if, knowing that there is a risk that a consequent may result from his conduct, or that a relevant circumstance may exist, he takes that risk and it is unreasonable for him to do so having regard to the nature of the risk which he knows to be present. Deliberate conscious risk
Lack of foresight of the risk entitles the defendant to an acquittal.
Coincidence of actus reus and mens rea
Where an offence requires mens rea the prosecution must prove that the accuse had mens rea at the time he did the act (or omitted to act) which caused the actus reus (Jakeman (1982) 76 Cr App R 223)
Transferred malice – If A intend to kill B, kills to C having mistaken him for B the doctrine of transferred malice will apply and A will be guilty of murder
If A intend to destroy B properties, destroys C properties having mistaken it B’s - the doctrine of transferred malice will apply and A will be guilty of criminal damage
Malice will not be transferred where the actus reus is not that which was intended. The Actus reus and mens rea must coincide
Negligence - A person is negligent if he is unaware of the risk in question but ought to have been aware of it if having foreseen it he does takes steps far below the standard of conduct which would be expected of a reasonable person.
There are few offence of neglect
Sexual Offences Act has imported an objective into rape – reasonable belief that the other party is consenting
Gross negligence of manslaughter is an offence of negligence
House of Lords Adomako (1993) AC 171 disapproving Seymon (1983) 2 AC 493 and approving Bateman (1925) 19 Cr App R 6
Strict liability: An offence where in relation to actus reus neither mens rea nor negligence need to be proved in order to secure conviction
An offence of strict liability must be voluntary
Public nuisance is a common law office of strict liability Shorock 1993 – Acid House Party Show.
Most action taken in public nuisance are civil action in tort
Strict liability offences are usually statutory, many if not all of which are regulatory offences normally punishable by fine
Where the definition of an offence contains a word which import mental element e.g. knowledge, wilful, malicious etc then it is not a strict liability
When the definition is silent or ambiguous as to require a mens rea it is a question of interpretation
Presumption of mens rea is a universally accepted principles – Sween v Pearsly 1970 AC 133 HL R V WLR 328, Mohammed (2002) ECWA Crim 1956
Statutory context of the words – the court may look at other provisions of the Statute (Cindy v Le Cocq (1984) 13 QBD 207
Subject matter of the offence
Shera v de Rutz3en 1885. External factor should only be considered where parliamentary intention was not clear from the statute
Classes of Exception - wright J. M Shera Prince Case (1878) LR 2 CCL 154 S Ba (Minor)
Principal classes of exception – i) Class Acts not criminal but prohibited in public interests; 2) Another class comprehends public nuisance, criminal in form, only a summary mode of enforcing civil right
Lord Scarman – presumption of mens rea may perhaps be strong where the offence was truly criminal in character
Privy Council imposed strict liability for an offence with a maximum fine of £250,000 and three years imprisonment
Court of appeal decided that possession of firearm was a strict liability offence
Unlawful homicide – Murder and Manslaughter
Homicide means killing of a person it may be lawful or not. There is no offence of homicide as such
Two important offences of unlawful homicide are murder and manslaughter
Homicide Act 1951 drew a distinction between degree of Murder capital and non-capital – life imprisonment
Murder Act 1965 life imprisonment
Murder and manslaughter are distinguished not in terms of mens rea but in the present of one of three mitigating defences – provocation (provide a reasonable person could not have done), diminished responsibility (abnormality of the mind that substantially diminished responsibility – mental problem) and suicidal pact)
HOMICIDE IN CONTEXT
Incidence of murder is low in England and Whales. Over a 10 years period - 0.1% of total violent crimes, 7% were found guilt.
Murder (Abolition Death Sentences) Act 1967 imposes life imprisonment for murder instead of the previous death sentence
Criminal Justice Act requires Judge to state maximum sentence before options such as
Whole life – multiple victims and pre-destined planning, child abduction and sadistic notion
30 Years – killing police officer, may be release on condition as the sentence continue for the rest of the life
Distinction between Murder and Manslaughter
Types – Manslaughter by an unlawful and involuntary Act – constructive manslaughter – killing somebody unintentionally through an unlawful act; Manslaughter by gross negligence and reckless manslaughter
Murder and voluntary manslaughter - same mens rea but presence of one of the three mitigating defences.
ACTUS REUS OF MURDER AND MANSLAUGHTER
Death is cessation of cardiopulmony system i.e. absence of heartbeat and breathing
Conference of Royal Medical College 1970 – Once there has been an irreversible cessation of the brain system a person will be regarded as medically as dead even when they have been medically
Condition of brain stem death known as persistent vegetative state does not legally amount to death – Amendale NHS Trust v Bland (1993) All ER 821. There is no general definition of death in common law but House of Lords accepted the definition in this case.
The killing must be of ‘any reasonable person ,rerum natura’ that is a human life in being
Life begins when a child has an independent circulation or it has breathed after birth
It is not murder or manslaughter to kill a foetus in the womb or in the process of leaving the womb.
It is not a murder or manslaughter if the foetus is injured in the womb and emerges stillborn (i.e. born dead), but where the child is born and died later that amounts to killing a human being. There is however a difficulty with convicting for murder because it requires proof of an intention to kill or cause injury to a human being and foetus is not.
All that is required for constructive manslaughter is unlawful and dangerous act leading to death in circumstance where it was foreseeable that it might hurt anyone at all.
It is neither murder nor manslaughter to kill an alien enemy in the heat of war, but murder to kill enemy soldier who have be captured or surrender.
Within the Queen’s Peace - Offences Against the s.9 Person Act 1861 and S.3 of the British Nationality Act 1948 murder or manslaughter committed by a British citizen outside the united Kingdom may be tried and punished in England.
Within a year and a day was abolished by Law Reform Act 1996 section 1. A person can be charged irrespective of amount of time provided he has not been convicted twice
THE MENS REA OF MURDER
Malice aforethought is misleading and the modern formulation is of the mens rea is an intention to kill or cause GBH (1985) AC 905)
Meaning of Intention – if he knew that death of grievous bodily harm was virtually certain to result from his actions then the jury are entitled but not obliged to find the he intended to kill or cause GBH
if he foresaw a risk of death but at a lower level than virtual certainty i.e. foresaw that death of grievous bodily harm was probable from his actions then it is not sufficient to amount to an intention to kill
An intention to cause grievous bodily harm – it is well established that an intention to call grievous bodily hard will suffice for murder (Vickers 1957 2 QB 664, Cunningham 1982 AC 556)
INVOLUNTARY MANSLAUGHTER
Manslaughter by an unlawful and dangerous act (constructive manslaughter) – there are three elements i.e. defendant intentionally perform unlawful act, the unlawful act was dangerous; and the unlawful act caused death
The essence of constructive crime is that liability for one offence is based upon the commission of another less serious offence. Most commonly assault or battery.
It is not every unlawful act will suffice for constructive manslaughter e.g. an offence whose basis is negligence is not an unlawful act for the purposes of construct manslaughter - House of Lords Andrews (1937).
An omission will not suffice Lowe (1973)
It is generally accepted that the better approach is demonstrated by the case of lamb (1967)
However a person may be convicted necessary that the prosecution prove all the elements of the crime upon which liability for manslaughter is convicted for manslaughter without proof of all the element of the base crime
Dangerousness – for the purpose of constructive manslaughter an unlawful act is dangerous is all sober and reasonable people would inevitably recognise that the unlawful act subjected the victim to the risk of some arm, albeit not serious hard
The unlawful act was a legal cause of death – ordinary principles of causation
MANSLAUGHTER AND THE ADMINISTRATION OF DRUGS
In 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
In Kennedy (No. 1) 1999 the defendant gave the decease a syringe containing heroine, the decease injected himself and died. The Appeal court allowed 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. Reconsidered in 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
MANSLAUGHTER BY GROSS NEGLIGENCE
Requirements –
Requirements of a duty of care. 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. 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. In 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
There must be a breach of duty amounting to gross negligence – the conduct of the defendant must be so bad in all the circumstances so as to amount a criminal act or omission
The breach cause the death – the breach was the cause of the death in accordance with the normal causation principles
RECKLESS MANSLAUGHTER
Requirements –
In 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)
The three forms of involuntary manslaughter are distinguished from murder by their fault elements. Mens rea of murder is an intention to kill or cause GBH. Manslaughter by unlawful act requires proof of an unlawful act which caused death and which carried an objective risk of some harm. Manslaughter by gross negligence is committed where death has resulted from a serious breach of a duty of care. The basis for liability for reckless manslaughter is foresight of the risk of death or serious injury
PROPOSED REFORM
Law Commission – A new homicide act for England and Whales (Dec 2005) Consultation paper No. 177 The Commission argued that the existing offence of murder and manslaughter are too broad.
RESEARCH POWELL AND DANIELS ENGLISH (1999) 1 AC 1. WWW.LAWCOM.GOV.UK/DOCS/CP177_OVERVIEW_WEB.PDFQUIREMENTS OF A DUTY OF CARE.
VOLUNTARY MANSLAUGHTER - THE DEFENCES OF PROVOCATION AND DIMINISHED RESPONSIBILITY - SMITH AND HOGAN C14 PP 442-463
Both defences are available only on a charge of murder and if successfully pleaded reduce liability to manslaughter
Provocation is not a defence for attempted murder (Campbel 1997 1 Cr App R 199)
Ingredients of defence – Did the defendant as a result of provocation lose his or her self-control? Subjective question. There must be a sudden and temporary loss of self-control.
The defence is not available to someone who killed out of calculated revenge. Sudden; temporary loss of self control. Render. Subject to passion at to make him for the moment not master of his mind
Many commentators have expressed the view that the requirement of sudden loss of self-control imports into the defence an inherent ‘gender bias’ in favour of men
Cumulative provocation – Cumulative effects of earlier provocation that triggers the last straw causing temporary loss of self-control
The loss of self-control must be a result of provocation – if there is no evidence of provocation but speculative possibility of provocative words or conduct the judge should not direct the jury to consider provocation
The provocative conduct need not be unlawful
Would a reasonable person have done as D did? Objective question
Although the defendant bears an evidential burden in support of his plea, the burden of disproving provocation lies the crown. 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. 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. In 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
There must be a breach of duty amounting to gross negligence – the conduct of the defendant must be so bad in all the circumstances so as to amount a criminal act or omission
The breach cause the death – the breach was the cause of the death in accordance with the normal causation principles
Kennedy (No. 1) 1999 the defendant gave the decease a syringe containing heroine, the decease injected himself and died. The Appeal court allowed dismissed Kennedy’s appeal against conviction manslaughter on the ground that self-e appeal on the ground that there was no causal link between the supply and the death of S’such
The loss of self-control must be a result of provocation. There has to be some evidence of something said or done to provoke the homicide reaction
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
Before 1957 defence was not available where the alleged provocation took the form of words. Provocation from verbal insult
Provocation need not come from the deceased. Doctrine of transferred malice. A provoked D and D threw a blow out of provocation which incidentally killed B.
Would a reasonable person have done as D did?
Law before 1957. 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 in when considering whether a reasonable person would have reacted. The decision was heavily criticised.
Camplin – 15 year old boy who was raped and ridiculed. He killed the man who raped him and pleaded provocation.
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
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.
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.
A different approach
Dryden (1995) 4 All ER 987 – D suffering from obsessive personality traits and a depressive paranoid illness as a factor was considered against Camplin
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.
Leave to appeal to the House of Lords in a criminal case is granted only if it is certified by the Court below that a point of law of general public importance is involved in the decision of the Court.
Though alcoholism might be attributed to a reasonable person the transitory effects of alcohol should not.
By allowing abnormal psychiatric conditions to be attributed to the reasonable man, an element of diminished responsibility incorporated into the law of provocation
Introduction of a variable standard of self-control, undermines the foundation of defence.
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
Court of Appeal decision following Holley: Van Dongen (2005) ECWA Crim 1728 and Faqir Mohammed (2005) EWCA Crim 1880. The matter was not fully resolved.
It was in James; 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
Established approach in precedent required the Court of Appeal to follow its own decisions and those of the House of Lords rather than a decision of the Privy Council
Those established principles had been altered by the Lords of Appeal in ordinary sitting on the board of Privy Council in Holley.
Once it is established that the decision of the privy council could take precedence over the House of Lords, the Court was bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. SMITH AND HOGAN C14 pp 463
The Law Commission Proposal – a successful pleas of provocation would reduce ‘first degree murder to second degree murder, but would not be a partial defence for second degree murder
Diminished Responsibility – The defence of diminished responsibility is a statutory defence applying only to murder. It was introduced following the Royal Commission on Capital Punishment (Cmnd 8932 1949-1953) as a compromise solution to problems concerning mandatory death penalty
If D plead diminished responsibility, then he must prove on the balance of probabilities (s.2(2); Dunbar 1958
The defence may not run unless there is a medical evidence of abnormality
The availability of the defence is for the Jury and not for medical experts.
Ingredient of defence - abnormality of the mind, resulting from retarded development of mind or any inherent causes or induced by injury; that substantially impaired his responsibility for the killing.
BATTERY
A person commits a battery if he intentionally or recklessly inflicts immediate unlawful violence on another person. Rolfe (1939) Cr App R 4: Collins v Wilcock (1984) 3 All ER 374
Actus Reus – Infliction of immediate unlawful violence on another person
Any application of force is sufficient and no harm or injury need be cause
Violence – Callis v Gunn (1964) 1 QB 495. Wrongly taking a persons fingerprint could be a battery
Throwing water at the victim not her dress is a battery. Pursell v Horn (1838) 7 L QB 228
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 (Collins v Wilcock) 1984 3 All ER 371
Ordinary touching in the course of duty is not battery – Wilson v Pringe 1962 All ER 440
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 Ref. (1990) 2 AC
There must be voluntary action by the defendant for battery to occur.
Batterylike assault could not be committed by omission Fagan v MPE1969 1 QB 439; DPP v Santana Bermudez (2003) All ER D Nov – Drug addict v Police man syringe
The application of force must not be direct – throw stone, spit, an implement to trip the victim Martin 1881 8 QBD 54
Striking A thereby causing injury to B might amount to a battery to D – Haystead v Chief Constable of Derbyshire
CONSENT AS A DEFENCE TO ASSAULT & BATTERY
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
Consent must be real and any consent given will be vitiated if it has been obtained by fraud or duress (R v William
Fraud – Rv 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,
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 - Hergety v Shine 197813 Cox CC 124 and R v Clarance (1988) 22 QBD 23
Fraud: nature of the act
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 Bolduc v Bird (1967) 63 DLR (2d) 82
In 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
The offence of ‘indecent assault’ has been superseded by the Sexual Offences Act 2003
In 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
Consent to unprotected sex is not the same things as risk of contracting the infection
Fraud: Identity of the Person
Fraud as to the identity of a person may vitiate consent. Where the defendant represents that he is the husband/boyfriend of the victim.
In Richardson (1998) 2 Cr App R 200. 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
Duress
Consent given under duress may also be vitiated. Consent must be freely given and not induced by threats or fear.
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
Capacity
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
In doubtful cases or where there is parental disagreement the child should be made a ward of Court, which can be approached for its permission
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.
A person of full age may lack capacity to consent. In T v T (1988) the parent of a 19-year old woman was granted a declaration in relation to the termination of a pregnancy
Public Policy
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 Attorney General’s reference (No. 6 0f 1980) (1981) 2 All ER 1057
Where the act has a social purpose which the courts consider to be a valid one the consent will be valid and will negate any criminal liability, even if the act is dangerous i.e. medical treatment, properly conducted sports, and personal adornment such as ear piercing and tattooing.
What need to be considered is the social utility of the defendant’s conduct as determined by the court. The principles are not always clear
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.
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
Sado-Machocism – Sado-Masochistic homosexuals who for sexual pleasure perpetrated acts of violence against each others. Could lead to conviction for offences contrary to sections 47 and 20 of Offence Against Persons Act
Lord Lane of the House of Lords said Sado-Masochistic libido does not come within the category of good reason (or public interest) nor can the injuries be described as transient or trifling.
In 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
In 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.
In a later case of 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.
Therapeutic medical treatment, including surgery, where the patient consented, is lawful treatment
No matter how altruistic the doctor’s motive if a patient has not consented the treatment will subject to any defence which may be available amount to battery or more serious offence
Within certain limits consent is valid in respect of such practices (body adornment/mutilation) even though result in bodily harm provided it is not done for sexual gratification.
A person cannot consent to serious bodily harm (exceptions therapeutic surgery)
Courts have been unwilling to accommodate foreign cultural practices involving children such as incision of cheeks’ (Adesanya (1974) The Times 16, July)
Consent will operate to prevent a battery provided such contacts as occur are those which can reasonably be expected in the game
If the rules allow for dangerous conduct which the law deems unacceptable, it is open to the court to rule that the consent of the party is invalid
In 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.
Lawful correction or chastisement – it was lawful at common law for parents to use moderate and reasonable force to discipline their children provide the child is old enough to understand its purpose.
To administer corporal punishment in spite of anger or for the purposes of gratification of where degree of force used was unreasonable was unlawful
Following the S
Other defences to Assault & Battery are self-defence and necessity
Aggravated non-fatal offences against the person
Assault and Battery require no proof of any harm suffered by the person
The offences contrary to section 47, 20 and 18 of the OAPA 1961 all require proof of the type of harm which is set out in the definition of the offence
Require proof of actual bodily arm
Wound is a break in the continuity of the skin which interferes with health or comfort of which it is more than transient.
Grievous bodily harm is the most grave of the non-fatal harm
Administrative offence
Assault occasioning actual bodily harm sec. 47 of the Offence against the Person Act (1986) provides – any assault occasioning actual bodily harm is an offence carrying a maximum of fine of five years imprisonment
For this offence the prosecutor the defendant committed an assault or batter and the assault cause actual bodily harm
Physical Injury – the wound or injury need not be serious but must be more than transient or trifling and includes any injury likely to affect the health or comfort of a person, including temporary loss of consciousness
In Cham fork if the alleged offence is psychological in nature it is not capable of amounting to actual bodily harm. Unless expert evidence of an identifiable psychological injury is adduced
Psychiatric Injury as actual bodily harm – actual bodily harm includes any hurt or injury which interferes with the health or comfort of the prosecutor and that includes an hysterical or nervous condition.
MENS REA SMITH AND HOGAN C9
The mens rea for the offence is identical to that required in respect a common assault or battery. The occasioning of actual bodily harm is an additional Actus Reus element but there is no mens rea in respect of it.
MALICIOUS WOUNDING OR INFLICTING GRIEVOUS BODILY HARM
Wounding requires that continuity of the whole skin is broken. Thus a scratch is not a wound, neither is an internal rapture of the blood vessel
A cut to the urethra or inner cheek would be.
Grievous bodily harm – serious bodily harm
Inflict imposed a requirement of assault. There can be no infliction of grievous bodily harm without assault
Grievous bodily harm is inflicted where the defendant has directly or violently inflicted it by assaulting the victim or where the defendant had done something which though not in itself a direct application of force directly result in force being applied to the body of the victim
Any difference between inflicting and causing has been eliminated as far as grievous bodily harm is concerned
The mens rea for the offence under section 20 is expressed as maliciously. This has been interpreted as requiring proof that the accused have intended or foreseen that the unlawful act might cause some harm, albeit not serious harm
The maximum penalty for an offence under s.20 is a term of imprisonment not exceeding five years
WOUNDING OR CAUSING BODILY HARM WITH INTENTATION
Six possible form of this offence are
maliciously wounding with intent to do grievous bodily harm
causing grievous bodily harm with intent to do grievous bodily harm
malicious wounding with intent to resist arrest
maliciously causing grievous bodily harm with intent to resist arrest
maliciously wounding with interest to prevent arrest
maliciously causing grievous bodily harm with intent to prevent arrest
Offence ii-vi are ulterior intent crime i.e. mens reas goes beyond actus reus. It follows that it is not sufficient to merely prove the basic element of the offence but the ulterior interest
Maliciously has not application as it is neither practically nor grammatically possible to cause grievous bodily harm with the ‘intention’ to do grievous bodily harm
Intention and intention alone is necessary with respect to the ulterior motive
Harassment is both a crime and a tort. It is now governed by the Protection from Harassment Act 1997 SMITH AND HOGAN pp 996-1003
In 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
WOUNDING OR CAUSING GRIEVOUS BODILU ARM WITH INTENT
physical har is identical to that required in respect a common assault or battery. The occasioning of actual bodily harm is an additional actus reus element but there is no mens rea in respect of it.
CONSENT
Consent posed a number of problems in common law before the 2003 Act was passed and the law was unclear as to what consent really meant
Was it different to mere submission? Will V has to communicate her positive consent or could it be presumed from her (his) lack of protest? Could consent given under threat or whilst intoxicated be valid
Section 74 provides general definition of consent, s.75 provides a set of circumstances in which consent is conclusively (or automatically) deemed invalid.
In approaching problem, it makes sense to use these three sections in reverse orders. If the consent issue falls under s.76, you clearly state that the consent is invalid and proceed to the mens rea issue without further consideration of secs. 75 and 74. Similar treatment for secs. 75 and 74
It is only when it is outside s.75 or 75 that you need to consider the more general issue of whether the consent is freely given
CONCLUSIVE PRESUMPTION ABOUT CONSENT
S.76(2) stipulates that consent will be invalid if
The defendant intentionally deceived the complainant as to the nature of the relevant act The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant
The above scenarios not only invalidate the consent but deemed to indicate that the defendant does not have a reasonable belief that V consented
Obtaining consent by deceit renders the offence more serious . Read page 603 of SMITH AND HOGAN
Nature and Purpose
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
S.76(2)(a) goes further to include the purpose of the act.
Deception renders the consent invalid it does not matter whether or not deception caused V to consent
Deception as to Identify
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
There must be a causal link between the deception and the obtaining the consent as the section does not use induced
EVIDENTIAL PRESUMPTION ABOUT CONSENT
Section 75 of SOA set out circumstance which gives rise to evidential presumption that consent is invalid. evidential presumption as opposed to conclusive presumption is rebuttable.
Induced was not us
ADMINISTRATION OF POISON AND OTHER DESTRUCTIVE OR NOXIOUS THINGS
There are two statutory offences contrary to section 23 and 24 of the Offences Against the Person Act (OAPA) 1962
It is not necessary to prove that any force or violence was used in relation to administration
Maximum penalty on conviction under s.23 is 10 years, s.24 5 years
Both sections requires proof of the same element i.e. administer or caused to the administer to be taken by the victim some poisons or some other noxious or destructive things
Actus Reus - administration, caused to the administer, cause to take
There will be no offence of administration until the victim consumes the substance, but offence of attempt
In Gillard (1998) 87Cr App R 189 Administer was given wider meaning to include spraying victim with noxious fluid
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
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
Mens Rea - Maliciously, Cunningham (1957) 2 QB 396 intention or recklessness
Morarity v Brooks (1334) Wound is a break in the continiuty of the skin
Moward (1967) - consent was negated by public policy exception
A fractured skull is likely to amount to grievous bodily harm
Mens rea - intention to cause grievous bodily har
Maliciously wording is wrong
SEXUAL OFFENCES SMITH AND HOGAN C17 pp 592-626, Sexual Offence Act 2003, Protecting the Public - Strengthening protection against sex offenders and reforming the law on sexual offences. Criminal Law Text and Material, Lacey N. Unspeakable subject (Oxford: Hart Publishing 1998) Horder J. and S. Shute 'The wrongness of Rape, Childs, M. Sexual autonomy and the Law
The criminal law is only concerned with act of a sexual nature which are non-consensual
Other forms of touching another person which are non-consensual may be assault but are not sexual offences, the latter usually being more serious charges.
Offence of rape and assault by penetration and sexual assault
Concepts of consents
Law of sexual offences incorporates some forms of behaviour which are inherently unlawful because they are considered to be harmful because they are considered to be immoral e.g. bestiality or sexual assault on a young child
Social context of sexual offences - Where sexual activities are carried out without the consent, construction of criminal offences in this area is difficult as legislatures have to balance the protection of potential victims from harm and immoral conduct with the personal autonomy of citizens and their freedom to engage in the sexual activities of their choice
Rape - violence may not be used, the victim and perpetrator may know each other or even be in intimate relationship Read Clarkson and Keating
The level of sexual offending
It is difficult to know the level of sexual offending because most are not reported and where report the trauma of giving evidence scares victim and defendant off in most cases
THE LAW REFORM PROCESS - SMITH AND HOGAN C17 pp 592-598
In 2000 the home office began a process of reforming the law on sexual offences because it was thought to be antiquated and inconsistent with modern moral and social standard.
It started with the publication of a consultation paper called setting the boundaries (2000) www.homeoffice.gov.uk/documents/set_summ.pdf and download the PDF.
A while paper called Protecting the Public was published in 2002 - Read chapter 2 and 3 of the white paper in the Study Pack
Sexual offences Act was eventually passed in 2003
The proposal sought to criminalise activities under previous law such as date rate and the use of date rape drug.
The reform sought to modernise and clarify the law on rape, sexual assaults and consent to incorporate sexual activities which previously lay outside the law on sexual offence.
RAPE SMITH AND HOGAN C17 'Sexual Offence' pp 614-622
Rape remains the most serious of sexual offence, carrying a maximum penalty of life imprisonment
Under previous legislation, rape consisted of unlawful sexual intercourse without consent and could only be committed by a man upon a woman.
A person (A) commits an offence if he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis and B does not consent.
The court will make no distinction between the type of penetration and there is no presumption that one is more serious than the other. R v Ismail (2005) EWCA Crim 2936
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
The word unlawful had been removed because rape can take place in law relationship marriage R v R (1992) 1 AC 599 rape within marriage is criminal.
Penetration is a continuous act from the moment of entry to the moment of withdrawal Kaitamaki (1985) AC 147
Mens Rea of Rape
Two types - intentional penetration and lack or reasonable belief that V was consenting
Under the previous common law in Morgan (1957) 2 All ER 347, 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.
s.1(2) SOA 2003: Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
ASSAULT BY PENETRATION SMITH AND HOGAN C17 pp 622-623
Actus reus of assault by penetration
Assault by penetration is committed where A intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else, B does not consent to the penetration and the penetration is sexual
Penetration for this offence must be vagina and anus only and does not include mouth.
It include other part of body such as fingers, toes, tongues
The offence can be committed by a man or woman
As with rape penetration is a continuing act and consent must be valid throughout the act in order to avoid liability
Mens Rea of Assault by Penetration
Two types - intentional penetration and lack or reasonable belief that V was consenting
There is no mental element in relation to the sexual nature of penetration. D cannot escape liability for a sexual offence by claiming that he intended to injure V rather than derive sexual pleasure from the act.
SEXUAL ASSAULT - SMITH AND HOGAN C17 Sexual Offences pp 624-625
Actus Reus of sexual assault
A person (A) commits an offence if he intentionally touches another person (B), the touching is sexual and B does not consent to the touching.
There need not be any force or hostility although lack of consent is essential
Touching includes: touching with any part of the body, anything else, through anything i.e. touching by object or through clothing
The width of the offence is however, limited by the requirement that the touching is sexual.
Mens rea of sexual assault
The sexual act must be carried out intentionally and D must lack reasonable belief in V's consent
CAUSING ANOTHER TO ENGAGE IN SEXUAL ACTIVITY SMITH AND HOGAN pp 625-626
A commits an offence if he (or she) intentionally causes another (B) to engage in sexual activity without B's consent.
There does not need to be any physical contact between D and V in order for the offence to take place. D may force V to engage in sexual activities with another with themselves or even to act as prostitute
The offence may be committed by merely saying something which causes them to engage in sexual activity.
There must be causal link between what D said or done and V's sexual act
In a case where this may be in doubt, you can apply the same legal principles of causation as apply to other criminal offence
Fort the purpose of this offence, the act must have taken place and it must be sexual, but any sexual activities will suffice
s.4(4) of SOA 2003 created an aggravated form of the offence where sexual activity involves a different type of penetration. These are:
Penetration of B's anus or virginal
Penetration of B's mouth with a person's penis
Penetration of a person's anus or virginal with a part of B's body or by B with anything else
Penetration of person's mouth with B's penis
Where D causes another person to engage in any of these acts, the maximum penalty is higher, life imprisonment as opposed to 10 years under standard offence
MENS REA - The mens rea of this offence requires that D intentionally causes V to engage in sexual act and he lacks a reasonable belief in V's consent
THE MEANING OF SEXUAL SMITH AND HOGAN C17 pp 6120613
Two types - intentional penetration and lack or reasonable belief that V was consenting
Section 78 - For the purposes of this Act penetration, touching or other activity is sexual if a reasonable person would consider that
Whatever the circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual
CONSENT SMITH AND HOGAN C17 pp 598-611
Consent in an essential ingredient in both the actus reus and mens rea of all sexual offences.
in other to establish liability it must be shown that V did not consent to the sexual activity and D did not reasonably belief that V consented to the act otherwise no liability
Two types - intentional penetration and lack or reasonable belief that V was consenting
Section 78 - For the purposes of this Act penetration, touching or other activity is sexual if a reasonable person would consider that
Whatever the circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
because of its nature it may be sexual and because of the circumstances or the purpose of any person in relation to it (or both) it is sexual
GENERAL DEFINITION OF CONSENT SMITH AND HOGAN 14 SOC
For the purposes of the Act a person consents if he agrees by choices and have the freedom and capacity to make that choice
It emphasises freedom and capacity of the victim to choose whether to consent or not.
Lack of consent to sexual act is an essential element of sexual offences
V must consent and the consent must be valid
DEFENCES S&K pp 247-3456
FAILURE OF PROOF AND JUSTIFICATION DEFENCES
Defences such as intoxication and mistake, if successfully pleaded essential resulted in the actus reus or men reas for the substantive offence not being proven, in which case there can be no liability
Some defences justify conduct which otherwise is criminal
Some defences are excusatory in that they lessen liability for behaviour which is wrong
In problem question, it is advisable always to discuss the core actus reus and men rea element of an offence before considering whether a defendant can plead any of these defences
If the constituent part of a crime cannot be proven, then there can be no liability with or without a defence
FAILURE OF PROOF DEFENCES SMITH AND HOGAN CII pp 273-287, 290, 295
Mistake may give rise to a defence in a number of ways
A mistake as the facts may negative actus reus providing factual mistake is essential to the actus reus
Mistake as to law is easily dealt with as ignorance is not excuse in law
S.2(1) of the Theft Act 1968 – if D mistakenly thought that the property appropriated belongs to him – honest mistake/mistake of fact
Mistake as to the fact – stealing Robert’s walled instead of John’s
S.76(2) – Where consent will be void
Using violence against V causing the complainants to fear that immediate violence would be used against him
Causing complainant to fear that violence was being used or would be used against him
The Complaint was unlawfully detained at the time of the relevant act
Complainant was asleep or otherwise unconscious at the time of the relevant Act
Disable complainant is unable to communicate whether consented or not
Complainant is stupefied of overpowered at the time of the relevant Act
These evidential presumptions are aimed at situation where V was force or lack capacity to consent
Disability, unconsciousness or intoxication
If V is subject to threat of losing job or promiscuity is being revealed, an evidential presumption would not exist
MISTAKES AS TO SORROUNDING CIRCUMSTANCES
D may make factual mistake as to the circumstances surrounding his commission of an offence
If such surrounding circumstance is not relevant to the actus reus or mens rea of the offence, then it may give rise to a substantive defence such as self-defence or duress.
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
Drunken Mistakes
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
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
The same would be true in relation to intent, whether direct of oblique (Woolin (1998) since those state of mind are assessed subjectively
In order to negative mens rea for rape and sexual offences, D’s mistaken belief on V’s consent must be reasonable as well as honestly held
INTOXICATION
In some circumstances a defendant who is heavily intoxicated through drinking alcohol or taking drugs may be afforded a defence.
The defence is very limited
The court will take a dim view of any crime committed under influence of voluntary intoxication as a matter of public policy
Where a defendant is heavily intoxicated, whether voluntary or involuntarily, they may be able to claim that they did not form the mens rea because they were not in control of their mind at the time of committing
Mens rea is an essential constituent part of criminal liability – Majewski (1977)
LEVEL OF INTOXICATION
It is necessary to establish that a defendant was intoxicated enough to consider a defence. The more intoxicated you are the more likely you have a defence
But this as a defence is based on denial of mens rea
Court has been keen to establish that a drunken intent is nevertheless an intent (Sheehan and More (1975) Crim LR 339 per pane LJ)
Voluntary intoxication
D will only be afforded a defence where he is voluntarily intoxicated of he has committed a crime of specific intent
If D is charged of basic intent the defence of intoxication will not be available
Basis intent crime is one which can be committed recklessly
A specific intent crime is one which only intent will suffice as mens rea
The rule that voluntary intoxication can only be a defence to specific intent crime and not basic intent crime is based on the notion of prior fault.
The approach to voluntary intoxication in Majeskwi has been subjected to much criticisms on number of ground as it lacks legal reasoning and accuracy
Differences in mens rea an actus rues breaches the principle of contemporaeity
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 Thabo Mel (1954) or Fagan 1969
Cunninghan (1957) recklessness must involve actual foresight of a risk
Alternative approach, Cadwell (1981)
Cadwell was overturned in R v G (2003) and is no longer a current law
INVOLUNTARY INTOXICATION
Where a defendant becomes intoxicated involuntarily, he could not be blamed for the act because of lack of mens rea for the crime
The Defendant’s lack of mens rea.
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
SOPORIFC DRUGS
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
These defences are failure of proof defences i.e. failure to proof the offence
Failure to proof mens rea or actus reus there can be no criminal liability at the onset.
JUSTIFICATORY DEFENCES SMITH AND HOGAN Defences pp 329-345
JUSTIFICATIONS 315-329
Such defences may apply where criminal liability is established through proof of all the necessary actus reus and men rea but due to specific circumstance surrounding the case D may be partially or wholly not to blame for his actions
Substantive defences are therefore defences to a fully constituted crime
Some defences excused criminal conduct
Conduct which is justified is permissible and therefore not wrong – excusatory defences
Rationale
D caused some harm to V to prevent greater harm occurring
Acting in response to morally wrong conduct by V. V forfeited the right to protection under criminal law
Acting in order to uphold high rights under the law
Public officer such as Police may be permitted to break the law to prevent crime or in carrying out their statutory duties
Usually called defence of self, public defence or private defence
Forced used must be necessary
There must be real or perceived threat from V towards D
Necessary force must be judged from D’s perspective (subjective)
It the mistake was advised by intoxication it must be reasonable
Article 2 of the European Commission on Human Rights enshrine in he Human Right Acts 1998 guarantees right to life
Life can only be regarded as lawfully taken where it is absolutely necessary.
In English laws killing may be regarded as when it was in fact unnecessary but wrongfully believed to be necessary – McCa v UK 1996
Common law will allow pre-emptive strike Beckford 1988 Ac 130
When D deliberately provoked other or forced threat of force to be used against him he cannot rely on self-defence Browne 1982
Force used must be reasonable and not excessive Own (1998)
QUESTION OF PROPORTIONALITY
Self defence cannot be used to reduced charges e.g. from murder to manslaughter Clegg 1993 All ER CR 334
Cannot be used as partial defence in the same way as provocation and diminished responsibility
NECESSITY
Crime to protect a greater harm occurring – choosing lesser of two devils
The courts have been reluctant to accept the defence of necessity
London Borough of Southwark V Williams (1991) 2 ALL ER the respondent pleaded homelessness for trespass.
Duddley and Stevens (1884) – Three men killed the cabin crew boy to survive but convicted of murder
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
It is in the patient’s best interest
Statutory duty to Act (Police Officer)
Exceptional cases – Police, Medical doctors, etc
:
Further reading. Laverick Fechr (2002) Crim LR 34), Glazebook P. Criminal Law 1972, Cambridge Law Journal
Defence of necessity was not available but defence pf duress of circumstances should have been left to the jury
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
Being a branch of duress all requirement of duress must be satisfied.
Duress of circumstances requires an imminent threat of death or serious injury whereas necessity does not, it merely requires some evil
Duress of Circumstances may excuse D’s conduct where Duress of Necessity justify D’s consent
Duress of Circumstances is not available for murder or attempted murder
It is possible to plead Duress of Circumstances (as opposed to threat) provided all the usual requirement of the defences of duress are proven
Duress of necessity can only be used in specific and unusual circumstances
EXCUSATORY AND MENTAL DISORDER DEFENCES SMITH AND HOGAN C11 pp 247-345
EXCUSATORY DEFENCE pp 296-315
Excusatory defences are available to a defendant who is compelled to act under pressure of threat from another or from circumstances in which he finds himself
These defences excused conducts which are legally wrong but not blameworthy because of those threats.
There are conditions on its applicability because it is a concession to human frailty
MENTAL DISORDER DEFENCES SMITH AND HOGAN C pp 250 – 273
Insanity – mental disorder and a malfunctioning of the mind which negates the blame for the defendant conduct
Reason – the objective of punishing those who have done wrong and making him responsible for his action. This objective cannot be fulfilled by punishing a defendant who clearly lacks mental ability for his action
The defences may be viewed as denial of mens reas
A defendant who plead insanity must first be judged fit to plead or stand trial
Where D plead insanity, the defendant must prove the actus reus to the offence to ensure that there may be prima facie liability
The corporeity of the defence of insanity
Where D plead insanity the defence must prove the actus reus of the offence to ensure that there may be prima facie liability they do
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
Disease of the mind – Lord Diplock – A disease of the mind was therefore an impairment to the mental faculties of reason, memory and understanding
The cause of the disease are not important and it does not matter whether the disease is organic as in cases of epilepsy or functions
It is not important whether it is permanent or transient Hemmesy (1989) 2 ALL ER 9
Defect of Reason – It must cause defect of reasoning Clark (1972) ALL RC 219
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
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
Sane automatism - a plea of same automatism may be said to be a denial of actus rea
Lack of controlled consciousness has resulted from external cause and it must be complete
Automatism and Intoxication
In case of intoxication from voluntary consumption of non-prescribed drugs or alcohol the court has applied the rule of Majewski
If the offence is one of specific intent, D may be acquitted provided there was complete loss of control
If it is a basic intent, the success will depend on what cause the intoxication
Defence will fail if D voluntarily consume
INCHOATE OFFENCES SMITH AND HOGAN C12 pp 350-359
INCITEMENT
Incitement is a common law office punishable with a fine and imprisonment at the discretion of the court
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
Person is guilty of incitement if D incites another to do an act which if done will involve the commission of a crime
The actus reus requires that D incites another to do an act which, if done , will involve the commission of an offence by the other
Mens rea – he intend or belief that the person incited if he acts as incited will do so with the mens rea required for the offence
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 – Race Relation Board v Appl (1973) QB 815; Invicta Plastics Ltd v Clare (1976) RTF 251
The incitement need not be effective
Actus reus element requires some form of encouragement, persuasion – some incitement – on the part of the defendant, which need not actually be effective, but must have come to the notice of the person intended to act
In case of 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
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
Claydon (2005) – the defendant charged and convicted with inciting a boy (14 years) to commit buggery.
Curr (1998) wrongfully decided and overruled by Claydon. The person incited need not actually commit the offence.
Offences that cannot be incited
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
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
A person may be guilty of inciting an attempt to commit an offence but this will be very rare – Smith & Hogan pp 356-357
INCITEMENT AND IMPOSISIBILITY
Incitement and impossibility is governed by the common law. 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 – Smith & Hoggan p. 421
Summary
Incitement is a common law offence punishable with a fine and imprisonment at the discretion of the court. Incitement requires more a mere expression of desire, there must be in addition some element of persuasion or encouragement, threat or some other form of pressure
CONSPIRACY – SMITH AND HOGAN C12 pp358-400
The essence of the offence of conspiracy is an agreement with one or more other parties to commit an offence.
Criminal Law Act (CLA) 1977 reformulated what was a common law offence to statutory offence
STATUTORY CONSPIRACY
There cannot be conspiracy unless there is a concluded arrangement. When the agreement is concluded, the offence is completed irrespective of whether the parties thereafter seek to put the agreement into effect or not.
Wheel conspiracy is when each conspirator is agreeing with a central figure, often in ignorance of the other members of the conspiracy who have each formed a similar agreement with the central figure.
S.1(1) of the Criminal Law Act 1977 as amended by s.5 of the Criminal Attempts Act 1981 provides
ACTUS REUS OF STATUTORY CONSPIRACY
There must be an agreement between two or more parties
S.2(2)(a) provides that a person cannot be convicted of statutory conspiracy if the other person with who he agrees is a) his spouse or b) a child under the age of criminal responsibility (10 years) or intended victims of the relevant offence
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.
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
THE AGREEMENT
There must be an agreement which if carried out in accordance with the intentions of the parties will necessarily amount to the commission of an offence
Prior to the creation of statutory offence in 1977, an offence of conspiracy could be committed even if what was agreed would not have amounted to a crime if carried out. An agreement to commit tort would suffice
The meaning of an offence in s.1(1) of the CLA 1977 refers to offence triable in England and Wales. S.1(4) and includes both summary and indictable offences
Court of Appeal in 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.
IMPOSIBILITY AND CONSPIRACY
The fact that the objective of the conspiracy is impossible of performance does not preclude for statutory offence.
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
The D must know of the existence of the other party
S.1(2) requires D and at least one other party to the agreement to know that any relevant circumstance will exist when the conduct constituting the offence is to take place
If strict liability and recklessness as to circumstances in the actus reus are sufficient mens rea for the substantive offence, they are insufficient to establish a conspiracy
If there are only two parties and one of them has a genuine but mistaken belief as the relevant circumstance, then there is no conspiracy
It is necessary for the parties to actually agreed for the commission of the offence
In 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.
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
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.
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
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.
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
CONDITIONAL INTENTION
There will often be a conditional element in a conspiracy.
In Reed (1982) it was agreed that an agreement to rob a bank if it is safe to do so is a criminal conspiracy
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.”
EXEMPTIONS FROM LIABILITY OF STATUTORY CONPIRACY
S.2(1) Criminal Law Act 1977 - The intended victim cannot be charged as a party to the offence
A person convicted of statutory conspiracy is liable to a sentence of imprisonment for a term not exceeding the maximum provided for the offence he has conspired in.
ATTEMPT – SMITH AND HOGAN C12 pp 400-419
S.1(1) of the Criminal Attempts Act (CAA) 1981: provides if with the intention to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of an attempting to commit an offence
S.1(4) this section applies to any offence triable in England and Wales
ACTUS REUS
The actus reus of attempt is the doing of an act which is more than merely preparatory to the commission of the substantive offence
The actus reus of attempted theft is quite different from that which will give rise to liability for attempted murder.
It is not enough that D has considered committing an offence, he or she must have taken steps to commit it.
Susan who planned to killed John, bought gun bullet, ladder, moved to his window, remove the safety catch, and shot but missed. Was this an attempt or not? Although S.4(3) provides of CAA 1981 provides that it is a question of the jury, the judge must decide whether what was done could amount to an attempt for the purpose of the Act.
Only if the judge is satisfied that there is evidence upon which the jury could properly conclude should he rule that there is an attempt
If there is such evidence the issue must be left for the jury to decide as a question of fact. If not, the judge must direct the jury to acquit.
Two types of attempt
Complete attempt – done everything that is necessary to achieve the intended objective but failed for some reasons
Incomplete attempt - Done an act that is more than mere preparatory but has not taken the last step
What will amount to acts more than preparatory is the problematic issues
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.
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.
There is much variation in the type of the conduct required for the range of offences that may be attempted and is usually a matter of case-by-case consideration.
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
Geddes (1996) Crime LR 894 - Geddes enter
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.
Read Tosti and White (1997) Crim LR 746
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
MENS REA OF ATTEMPT
S.1(1) the defendant must have acted with intent to commit an offence
Although an intent to do grievous bodily harm (GBH) will suffice for murder, only an intention to kill will suffice for attempted murder.
In O’Toole it was held that recklessness as to causing damage will suffice for the offence of arson, the attempted offence requires proof that D intended to cause damage
For attempt any consequences in definition must be intended. e.g. Rape intended penile penetration. Theft intended permanent deprivation.
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.
This was followed in 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.
If the defendant had achieved what he wanted to achieve (sexual intercourse, damage, and permanent deprivation) would he have been guilty of the full offence? If he the answer is yes he is guilty of an attempt to commit the offence.
ATTEMPTING THE IMPOSSIBLEs1(2) of the CAA 1981 provides that a person may be guilty of attempt even though the facts are that the commission of the offence is not possible.
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.
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.
S.4 maximum penalty for attempted murder is life imprisonment
OFFENCES WHICH CANNOT BE ATEMPTED
A person cannot be guilty of attempting a summary offence, assault or battery
S.1(4)(a) & S.1(4)(b) a person cannot be guilty of attempting to conspire, aid, abet, counsel or procure an offence, but can be guilty of attempting to incite.
Although some attempt can be committed by omission e.g. murder, it appears an attempt to kill by omission (e.g. a parent withholding food from a child could not be charged for attempted murder under CAA s.1(1) requires an act which is more than preparatory.
IMPOSSIBILITY AND THE INCHOATE OFFENCES – SMITH AND HOGAN C12 419-426
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.
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.
The decision of the House of Lords in Nock (1978) has been overruled by s.1(1)(b) of the act (the sub
PARTIES TO CRIME – SMITH AND HOGAN C 8 pp 164-214
Principal – the person who commits the actus reus of an offence with the appropriate mens rea is known as the principal
Joint Principals – if two people stab V and the combined effect of their attack is the death of V, both are liable for the death of V as principals and will be guilty of murder or manslaughter according to their own mens rea.
Innocent Agency – A defendant may be liable as principal even though (correction page 226 – even although) actus reus is the immediate result of the conduct of another. This is known as the principle of innocent agency and applies where a person intentionally causes the actus reus of an offence to be committed by a person who is himself innocent because of lack of mens rea or lack of capacity
If D intending to kill, gives a poisoned apple to E and asks him to give it to V and E not knowing the apple is poisoned, give it to V who eats it and dies, D will be guilty of murder as principal.
FRAMEWORK OF SECONDARY LIABILITY
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.
The section does not create an offence of being a secondary party. Both of them are guilty of the same offence.
Terminology
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.
MODE OF PARTICIPATION
The Act describes four types of secondary participation – aid, abet, counsel and procure.
In 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
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:
Encouraging the principal to commit the offence
Assisting the principal to commit the offence and
Procuring the commission of the offence
Bryce said ‘as far as the charging of secondary parties is concerned, it is frequently advisable … to use the ‘catch-all-phrase’ ‘aid, abet, counsel or procure’ because the shades of difference between them are far from clear.
THE COMMISION OF THE PRINCIPAL OFFENCE
Secondary liability is derivative and this it only attached when the principal offence has been committed. Thus an inciter becomes a secondary party when the incite commits the offence incited.
ACTUS REUS – The actus reus of secondary liability consists of an act (or possibly an omission) which aids, abet, counsels or procures the commission by the perpetrator(s) of the principal offence
Aid – any type of assistance given prior to the commission of the offence will suffice
Sine qua non or ‘but for’
The fact the D would have committed the offence even without assistance does not preclude D2 liability as a secondary offence nor it is necessary that the principal offender was aware that that the assistance was given.
There must be a connection between the assistance and the commission of the offence. It must actually assisted the principal in the commission of the offence, whether it did do is a question of fact for the jury.
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.
The CA held that the fact that there was a delay between the assistance and killing did not negative secondary liability.
Abet or counsel – Abetting and counselling are similar in terms. Both involve inciting or encouraging the commission of an offence.
The advice or an encouragement must have come to the attention of the principal offender, but as with adding, there is no requirement that the encouragement was a sine qua none of the offence.
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.
In 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.
PROCURE
ome 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.
In 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.
It was held that D2 procured the offence.
For this form of secondary liability, there is no requirement that the parties have communicated with each other. It is most relevant in case where the offence committed is one of strict liability.
It may also apply to crimes requiring mens rea in situation where D2 has caused D1 to commit the actus reus of an offence but its not guilty as principal due to lack of mens rea, incapacity or the availability of defence.
Cogan an 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.
In 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
In Bourne (1952) although the principal offender was 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 – SMITH AND HOGAL C8 pp 177-170
D may incur liability for failure to act where either there is recognised legal duty to act or where he has a right to control the actions of the principal
The mens rea for secondary liability consist of several elements quite distinct from the mens rea required as a principal offender.
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
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)
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)
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. 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. 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
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 to found conviction for murder.
Level of foresight – Powell and Daniels; English Lord Hutton stated that the secondary party is subject to criminal liability if he contemplated the act causing death or possible incident of the joint venture, unless the risk was so remote that the jury can take the view that the secondary party genuinely dismissed it as altogether negligible
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; 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.
This principle is justified as far as killings with intend to do GBH are concerned. But if the parties had intended to kill, the use of a weapon different from that contemplated should not relieve the other parties of liability
Whether the act is fundamental difference is a question of fact – O’Flaherty Mantell L) 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.
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)
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. 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.
Liability for unforeseen consequences – Where De is liable for the acts done by D1 his liability extend to unusual or unforeseen consequences of D1’s Act, but if one goes beyond what has been tacitly agreed as part of the common enterprises, his co-adventurer is not liable for the consequences of that unauthorised act.
The Secondary party may be liable for a more offence than the perpetrator – If D1 assists or encourages D2 who suffers from abnormality of the mind to kill V, D1s liability will be reduced to manslaughter on ground of diminished responsibility, but D1 will be guilty of murder (s.2(4) of the Homicide Act 1957)
The doctrine of transferred malice applies in cases of secondary liability as it does generally. This if D2 encourages D1 to fatally shoot V and D1 misses and inadvertently kills X, D2 and D1 will both be guilty of murder of X. It would be different I D1 Deliberately killed X, he is not guilty of murder (Reardon)
WITHDRAWAL
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
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.
Withdrawal is ultimate question of fact and degree for the jury. The nature if encouragement/assistance and the nature of action said to constitute withdrawal are equally important.
Communication to the other parties is generally regarded as necessary and may be sufficient if where the mode of participation consist of giving material assistance. (Grundy)
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
In 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.
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.
In Bryce that if D2’s intention is to hinder the carrying out of the offence then there can be no liability as a secondary party.
OFFENCES AGAINST PROPERTY 1 – THEFT AND DECEPTION – SMITH AND HOGAN Theft and Related Offences C18 pp 645-710; C19 Offences Involving deception and fraud pp 740-791
The offences involve dishonesty on the part of the perpetrator ‘blame’ element
THEFT – SMITH AND HOGAN C18 pp 645-710
Definition; Theft Act 1968 (TA 1968) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
All five elements must be proved i.e. appropriation, property, belonging to another, dishonestly, and intention to permanently deprive. Appropriation is not an offence itself and the actus reus is complete with it alone.
Appropriation – s.3 of TA 1968 – Any assumption by a person of the rights of the owner….and this includes where he has come to the property (innocently or not) without stealing it, any later assumption of a right to it by keeping it or dealing wit it as owner.
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.
Gomez should really have been charged with obtaining property by deception under s.15 of the Theft Act
Offences involving ‘obtaining by deception’ are by definition, committed with the consent of the owner although that consent had been given under deception.
The reception of being convicted of theft on these facts means the offence of theft and ‘obtaining property by deception’ considerably overlap.
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.
Indefeasible right to the property (transaction is valid under civil law, unlike Gomez where the contract of sale would have been voided in contract law because of misrepresentation)
Appropriation is now virtually meaningless as the consent of the owner is irrelevant and manner by which the property is appropriate is irrelevant. (In Hinks, the appropriation was essentially committed by omission failure to return the money to V.
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.
PROPERTY
S.4(1) of TA 1968 defines property as – Property includes money and all other property, real of personal, including things in action and other intangible property
Very wide definition, it doesn’t have to be physical (intangible) to be stolen, but it must be capable of appropriation
Intangible property may include – a thing in action (chose in action) (debt could be stolen from whom it is owed); a credit balance in a bank through wire transfer to another person). It is a thing in action i.e. the amount the bank owed the account holder; a cheque is a thing in action; Land is tangible asset, but it is unlikely to be stolen in tangible form, A person’s rights over the land are more valuable and these are intangible
S.4(2) expressly states that land is not property for the purposes of the offence of theft, subject to exceptions – right to land may be stolen by trustees, s.4(2)a tangible part of land such as topsoil or sand can be stolen by someone ‘not in possession’ i.e. someone other than the owner, tenant or trustee. S.4(2)(b) tenant cannot steal fixtures which form part of the property such as fixed cupboards, shelves or appliances s.4(2)(c)
As the TA was drafted in 1968 it is silent on other form of intangible property such as data, information.
Information cannot constitute property even though it may have considerable value
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.
S.4(3) deals with wild flowers, mushrooms, fruit and follage, which cannot be stolen by picking unless they are picked for commercial purposes or for sale.
S.4(4) suggest that wild animals are property but cannot be stolen unless they have been kept in captivity (for example in zoo)
Wild animal can be poached but this offence exists separately from the offence of theft and is deal with in Salmon Act 1986, Night Poaching Act 1826 and Deer Act 1991
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.
BELONGING TO ANOTHER
When a property is dishonestly appropriated, it must belong to another person in order for that appropriation to amount to theft,
Property is regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest. The definition hinges on ‘possession or control’ as well as legal ownership. The definition has some unusual result. Property belong to more that one person at a time. D goes into supermarket and takes a loaf of bread from the shelves and places it in his shopping trolley, that point the loaf of break belongs to both the supermarket (the legal owner) as well as D (who has possession an control of it)
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.
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.
In 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.
The essential difference between the two case is that in Turner the garage ad an equitable interest in the car called a ‘lien’ which entitled them to hold on to the car until their bill is paid. The police in Meredith case did not have a lien over the car,
Subsections 5(2)-(5) expand the definition of belonging to another further detailing situations where property may ‘belong to another’ even where person does not have possession or control of it or any proprietary interest in it. . Read Subsections 5(2)-(5) of the Theft Act 1968
MENS REA
Dishonestly – S.2 of the TA 1968 gives a guidance on dishonestly i.e. number of situations that could be regarded as dishonest such as
In approaching a question on theft or robbery, you should start with s.2. If one of the situation in s.2 (does not apply) applies (ERROR) D will not be regarded as dishonest and there is no need to consider the common law definition of definition of dishonesty. If s.2 does not apply or if you are answering a question involving a different offence, go straight to the common law definition.
Situations in which D would not be regarded as dishonest under s.2 are:
If he appropriates the property in the believe that he in law the right to deprive the other of it, on behalf of himself and a third party
If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it.
If he appropriate the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps
Section 2(2) expressly precludes a defendant from claiming to be honest simply on the grounds that they were willing to pay for the property
Any of the beliefs listed above will prevent liability for theft or robbery provided they are honestly held by D. The belief does not need to be reasonable, it is left for the jury to determine the reasonableness of the belief
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.
Whether someone’s behaviour is to be regarded as dishonest or not will depend upon an individual moral standard.
Read 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
Lord Jane was combine subjective and objective elements in a two part test
First whether according to the ordinary standards of reasonable and honest people what was done was dishonest, If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised what he was doing was by those standard dishonest. The first part is entirely objective, while the second is both
INTENTION TO PERMANENTLY DEPRIVE
The second part of the mens rea for theft is an intention to permanently deprive the owner of the property. (Direct or oblique (indirect, disguised) intent would suffice)
If D has intention to return the owner, but if the intention is to treat thing as his own to dispose of regardless of the others right, or the borrowing is for extended period of time and/or if the property, when returned is worthless.
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.
In 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.
Read Marshall (1998) 2 CR App R 282 (online library)
Glazebbrook P Cambridge Law Journal 389, 191; Smith A. T. H. Theft or sharp practices Cambridge Law Journal 389, 21; Spencer J. Cambridge Law Journal 222;
DECEPTION OFFENCES – SMITH AND HOGAN C19, pp 740-783
MEANING OF DECEPTION
Theft Act 1968 and 1978 contain a number of offences which involve obtaining something by deception. Taking off without payment is an exception always discuss as anomaly among deception offences
S.15(4) of the TA 1968 – ‘deception’ means any deception (whether deliberate or reckless) by words or conduct as to the fact of law including a deception as to the present intentions of the person using the deception or any other person.
FALSE REPRESENTATION
Deception in criminal law is similar to the concept of misrepresentation in contract law, in that it involves false representation.
AS TO LAW OR AS TOFACT OR AS TO PRESENT INTENTIONS
D who is 17 says, I am 18 – deception as to fact
D said the law permits you to sell alcohol to a 17-year old – deception as to law
D’s father tells the bartender, ‘1 am purchasing an alcoholic drink for myself and not for my 17-year old son. Deception as to present intentions. D’s intention must have be made in relation to his present intention. If he later changes his intention after making the representation this does not amount to criminal offence
BY WORDS OR CONDUCT
Identify how the deception was representation was made. D saying something or by conduct according to s.15.
Read the case of DPP v Ray (1973) All ER 131 (in IOLIS)
A false representation may be made by word or conduct, by silence or by omission.
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.
Read Charles (1977) AC 177; Glimartin (1983) 76 CR App R 238; Lambie (1982) AC 449
DELIBERATE OR RECKLESSNESS
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)
If D honestly belief the representation to be true he is not reckless and has not practice a deception. In order to be reckless, D must be aware of a risk that the representation is false.
DISHONESTY
In proving a deliberate or reckless false representation, D must also be found to be dishonest as a mens rea element for all deception offences.
S.2 of the Theft Act does not apply to the deception offences and the meaning of dishonesty must be assessed using the test set out in Ghosh.
Deception may, be definition, be dishonest, since it involves making a false representation or laying, for the purpose of the offences
For the purpose of Deception Offence it is obtaining which must be dishonest
OBTAINING BY
The actus reus requirement of all deception offences is that D obtains something (properties, services, a pecuniary advantage, etc) by the deception). There must be a causal link between deception and obtaining.
The deception must be operative. V does not believe D representation to be false or ready to part with the property in spite of the deception, then the deception offence is not proved.
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.
The test for causation appeared to be ‘if you had know that D was acting dishonestly would you still have completed the transaction? In Charles and Lambie the House of Lords presumed the answer to be ‘no’ despite what V had said in evidence.
Read cases of Rashid 1977 2 All ER 237 and Doukas (1978) 1 All ER 1061
In some cases it may be a question of fact for the jury.
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.
Laverty (1970) 3 All ER 432
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).
OBTAINING PROPERTY BY DECEPTION
S.15 of the TA 1968 set out the offence and s.34 assisted with the general definition
OBTAINS – s.15(2): A person is treated as obtaining property if be obtain ownership, possession or control of it and ‘includes’ obtaining for another or enabling another to obtain.
PROPERTY – Bears the same definition as applied to theft s.4(1); s.34 state that s.4(2-4) expressly do not apply. It does not include land.
BELONGING TO ANOTHER PERSON – The same meaning as that applied to theft.
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
INTENTION TO DEPRIVE
The same meaning as that applied to theft.
OBTAINING SERVICES BY DECEPTION
S.1(2) of the TA 1968 set out the offence as follow:
Where another is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.
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
OBTAINING A PECUNIARY ADVANTAGE BY DECEPTION
S.16 of the TA 1968 set out the offence.
S.16(2) originally created 3 types of offences, s.16(2) (a) caused difficulty and was repealed in 1978 with offences in ss.1 and 2 of the TA of 1978.
We now have two types of pecuniary advantage in s.16(2)(a) and (c) as follows:
D is allowed to borrow by way of overdraft, or to take out any policy or insurance or annuity contract, or obtains an improvement of the terms on which he is allowed to do so.
D is given opportunity to earn remuneration or greater remuneration in an office or employment, or to win money be betting.
The list of the type of pecuniary advantages is in s.16(2)
As with other deception offences, the deception must cause the pecuniary advantage to be bestowed upon D and D must obtain the pecuniary advantage dishonestly.
OBTAINING A MONEY TRANSFER BY DECEPTION
This offence is contained in S.16A of the TA 1968.
The section was inserted by the Theft (Amendment) Act 1996 as a response to the difficulties the courts had had in deciding which offence covered the dishonest obtaining a mortgage advance by deception
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
The new offence under s.15A assigns liability for the dishonest obtaining of money transfer by deception. A money transfer is defined in s.15A(2) as follows:
A money transfer occurs when (a) a debit is made to one account, (b) a credit is made to another, and (c) the credit results from the debit or the debit results from the credit
The offence now covers any electronic transfer or money including cheque transfers which are made electronically
Loan is a service under s.1 of the TA 1978
As with other deception offences, the money transfer must be obtained by the deception and dishonestly.
EVASION OF LIABILITY BY DECEPTION
This offence is set out in S.2 of the TA 1967. There are three offences which are:
DISHONEST REMISSION OF LIABILITY
s.2(1)(a) states that
It is an offence to secure the remission of the whole or part of any existing liability (even if that liability has only just arisen) to make payment, whether one’s own or another
The liability must already exist and the creditor is induced to waive all or part of it. e.g. claiming to be a student to get 20% discount at the point of payment whereas she was not.
INDUCING A CREDITOR TO WAIT
s.2(1)(b) states that
It is an offence to dishonestly induce a creditor (or any person claiming payment on behalf of the creditor) to wait for payment or to forgo payment, with intent to make permanent in whole or in part on any existing liability to make payment or with intent to let another do so.
The liability must already exist and the creditor is induced by the deception to wait or forgo payment, D must intent to make permanent default on the payment (or intend to let another do so). It would not be an offence if D makes the creditor wait for payment, intending to make payment at a later stage.
e.g. Diana claiming her hair cut was a birthday present from her mum, which has already been paid for when the booking was made to avoid payment whereas nothing has been paid for.
DISHONESTY OF ABATEMENT OF LIABILITY
s.2(1)(c) states that
It is an offence to dishonestly obtain by deception any exemption from or abatement of liability to make a payment.
No existing liability should exist for this offence. The deception occurs in respect of prospective liability and the deception induces in all or part of that future liability. e.g. claiming to be a student to get 20% discount before the service is provided whereas she was not.
MAKING OFF WITHOUT PAYMENT
s.3(1) of the TA 1978 states that
A person who, knowing that payment on the spot for any goods supplied or service done is required or expected of him, dishonestly makes off without having paid as required r expected and with intent to avoid payment of the amount due shall be guilty of an offence.
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.
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.
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.
Allen (1985) it was affirmed that D must have an intention never to pay, rather than an intention to pay later.
OFFENCES AGAINST PROPERTY 2 – ROBBERY, BURGLARY AND BLACKMAIL: SMITH AND HOGAN C18 pp 710-829
ROBBERY – SMITH AND HOGAN C18 pp 710-715
The offence of robbery is set out in s.8 of the Theft Act 1968 and is defined as follows:
A person is guilty of robbery is he steals and, immediately before or at the time of doing so, and in order to do so, he refuses or force any person to puts or seeks to put any person in fear of being then and there subjected to force.
STEALS
The first pre-requisite of the offence is that D steals. All the element of theft must be proved.
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.
FORCE
What distinguishes robbery from theft is the use of threat to use robbery. It may be referred to as violent form of theft commonly referred to as ‘mugging’.
Robbery is more serious than theft and carried the maximum penalty of life imprisonment.
Minimal amount of force is necessary and this need not amount to violence of ‘force’ in the ordinary word. Mere touching may suffice. In both Dawson and James (1976) 64 Cr App R 170 and Clouden (1987) Crim LR 56 the defendants were convicted of robbery. Read
The force used, however minimal, must be used in order to steel i.e. causal connection between force and steal.
S.8 the force need not be directed at the owner of the property
The force must be used before or at the time of stealing not after the theft has taken place.
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.
MENS REA
It is essential that the mens rea of theft is proved. S.8 is silent on as to whether there needs to be any mens rea in relation to the force used or threatened.
Force used or threatened accidentally will not suffice.
BURGLARY – SMITH AND HOGAN C21 pp 811-829
The offence of robbery is set out in s.9 and 10 of the Theft Act 1968. A person is guilty of burglary if:
He enters any building or part of a building as a trespasser and with the intent to commit any such offences as is mentioned in sub-section (2) below
Having entered any building or part of a building as a trespasser, he steals or attempts to steel anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
Commonly regarded as a property offence because it involved an element of trespass
It need not involve unlawful acquisition of property by D and may in fact involve trespass in order to commit an offence against the person
It carry two maximum penalty depending on whether the burglary took place in a dwelling house (14 years) or in commercial or other premises (10 years)
ENTERS A BUILDING OR PART OF A BUILDING AS TRESPASSER
‘Enters’ has been contentious, whether a whole body, part of a body or using another person or an instrument.
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
Read Brown (1985) Crim LR 212 and Ryan (1996) Crim LR 320 (Online)
Entry for the purpose of burglary does not have to be force and the offence is no longer described as breaking and entering.
S.9(4) gives further guidance
An inhabited vehicle or vessel… at times when the person having a habitation in it is not there as well as at times when he is
This would include a caravan or houseboat which is inhabited
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.
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.
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)
Under civil law a trespass is committed where D intentionally, recklessly or negligently enters the property without the owner’s or occupier’s consent
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.
S.9(1)(a) once the essential actus reus elements are satisfied, the TA 1968 sets out three ways in which burglary can be committee.
If D enters a building or part of building as trespasser with intent to commit one of the ulterior offences listed in s.9(1) (theft, inflicting grievous bodily harm, criminal damage) then he may be guilty of burglary even though the ulterior offence is not committed.
Intent to commit one of the ulterior offences is required, burglary is a specific intent crime. This may be important where D is intoxicated and pleads the defence of intoxication.
S.9(1)(b) The second form of burglary occurs
Where D enters a building or part of building as trespasser and actually commits one of the subsidiary offence s.9(2)(b) (theft or attempted theft, inflicted of attempted infliction of grievous bodily harm (GBH).
All actus reus and mens rea requirements of the ulterior offence must be established for the charge of burglary. So where D enters a building as trespasser and once inside he steals, he may be guilty of both theft and burglary
Criminal damage is not a subsidiary offence for the purposes of s.9(1)(b)
TRESPASS WITH INTENT TO COMMIT A SEXUAL OFFENCE
S.9(1)(a) used to include rape as one of the subsidiary offence, but after the Sexual Offence Act 2003, rape was removed from s.9(1)(a) of the TA 1968 an replaced with a new and separate offence of trespass with intent o commit a sexual offence (s.63) of the Sexual Offence Act (SOA) 2003 as follows:
A person commits an offence if
He is a trespasser on any premises
He intends to commit a relevant sexual act (one contained in Part 1 of SOA 2003
He knows that, or is reckless as to whether, he is a trespasser
This is wider than burglary, does not require entry into a building or part of it but merely trespassing in premises, which may include land, temporary structures. The ulterior offence need not be committed, but D must have the intent to commit the offence at the time of trespassing.
AGGRAVATED BURGLARY
S.10 set out the more serious form of burglary of the TA 1968. The actus reus and mens rea element of the offence are identical to those of standard burglary offence in s.19. The additional actus reus element that D at the time of committing the burglary, has with him one or more of the following:
a firearm or imitation firearm
a weapon of offence
and explosive
The offence carries a higher maximum penalty
BLACKMAIL – SMITH AND HOGAN C 20 pp 800-809
The offence of robbery is set out in s.21 of the Theft Act 1968. The offence is defined as follows:
A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces. The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
DEMAND
Demand can be implicit or explicit, orally or in writing or by gesture. Once made the actus reus is complete whether it is received or v complies with the demand. There is no attempted blackmail committed by act or omission. The mens rea requires view a the demand was relate to loss or gain
MENACES
Demand by menaces suggest that a treat of some sort is necessary as reinforcement of the demand
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.
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.
UNWARRANTED
The menace must be unwarranted
S.22(1) provide guidance by stating that a demand with menace is unwarranted unless making it does so in the belief:
That he has reasonable grounds for making the demand; and
That the use of the menaces is a proper means of reinforcing the demand
The test is subjective and D’s honest belief will suffice without any requirement that is reasonable by the standards of the ordinary reasonable person.
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.
A VIEW TO GAIN FOR HIMSEL OR ANOTHER OR INTENT TO CAUSE LOSS TO ANOTHER
This requirement provides the mens rea of the offence. Gain and loss are both defined by s.34 in terms of money and other property. Non-pecuniary gain such as sexual pleasure, or loss, such as damaging V’s reputation, will not suffice.
CRIMINAL DAMAGE – SMITH AND HOGAN C14 pp 890-900
SIMPLE CRIMINAL DAMAGE – SMITH AND HOGAN C24 pp 890-900
S.1(1) of the Criminal Damage Act 1971 provides that a person
... who without lawful excuse destroys or damages any property belonging to another intending to destroys or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence
The actus reus is the damage or destruction to property belong to another
DESTROY
Simple enough – demolishing, killing an animal, spraying weedkiller on somebody’s cherished plant.
Destruction of property could also amount to theft.
DAMAGE – SMITH AND HOGAN C24 pp 890-894
Damage to property need only be slight to result in a person being charged with the offence. Scratching a car or cracking a window are likely to be sufficient interference with the integrity of the property to amount to criminal damage
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
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)
Impairing 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 (Woolcock (1977); Lloyd v Director of Public Prosecutions (1992) 1 All ER 982
PROPERTY – SMITH AND HOGAN C24 pp 894-895
S.10(1) defines what is property is something which is destroyed or damaged does not fall within the definition of property contained in that section there can be no offence of criminal damage.
Study S.10(1) of the CDA 1971 and S.4 of TA 1968
BELONGING TO ANOTHER – SMITH AND HOGAN C24 pp 895-897
For the offence to lie S.10(1), the property damaged must belong to another.
S.10(2) defines what belong to another
Property is regarded as belonging to any person who has custody or control of it, has a proprietary right or interest in it (this includes situation where the property is subject of a trust and it is provided that the person to whom it belongs is any person have a right to enforce the trust; has a charge on it
Read s.10(2) of the CDA 1971 and S.4 of TA 1968
The actus reus of criminal damage requires proof that the defendant without lawful excuse destroyed or damaged property belonging to another
MENS REA – SMITH AND HOGAN C24 pp 897-900
Actus reus as to criminal damage is the same but liability for the destruction of one’s or other property with the intention to endanger the life of another person
Following the case of R v G (2004) AC 1034 recklessness in this context means foresight of consequences on the part of the defendant.
Where the indictment reflects the alternative between intentionally and reckless damage it is the responsibility of the Judge to make the different issues very clear to the Jury
Reckless criminal damage is a basic intent crime and therefore self-induced intoxication is no defence.
INTENTIONAL DESTRUCTION OR DAMAGE TO PROPERTY BELONGING TO ANOTHER PERSON
It must be proved that the D intended by his conduct to destroy of damage property belonging to another
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
RECKLESS DESTRUCTION OR DAMAGE TO PROPERTY BELONGING TO ANOTHER PERSON
Criminal Damage Act 1971 replaced Malicious Damage Act 1861
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.
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 argues 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.
Caldwell was overruled by the House of Lords in R v G (2003)
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)
The 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
AGGRAVATED DAMAGE – SMITH AND HOGAN C24 pp 912-917
S.1(1) of the Criminal Damage Act 1971 provides that a person
... who without lawful excuse destroys or damages any property whether belonging to himself or another:
intending to destroys or damage any property or being reckless as to whether any property would be destroyed or damaged; and
intending by this destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered shall be guilty of an offence
ACTUS REUS Damage to property need only be slight to result in a person being charged with the offence. Scratching a car or cracking a window are likely to be sufficient interference with the integrity of the property to amount to criminal damage
MENS REA
The basic element is the same as that for simple criminal damage, there can be no requirement that the defendant be aware that the property belongs to another
This offence is known as ‘ulterior intent’ crime i.e. in addition to the prove basic intent crime, the ulterior mens rea’ for the crime must be proved
Intention or recklessness as to whether life is endangered is a mens rea and not actus reus requirement. It does not matter whether or not life is endangered. Proof of the defendant’s intention or recklessness as to this is sufficient.
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.
Read the opinion of Lord Bridge in R v Steer (1987)
ARSON – SMITH AND HOGAN C24 pp 916-917
S.1(3) of the Criminal Damage Act 1971 provides that
An offence committed under this section by throwing or damaging property by fire shall be charged as arson
There are two forms of arson: one under s.1(1) and one under s.1(2) combined in each case with s.1(3)
The statute is silent as to whether the mens rea is required as to the fire aspect of the offence, but smith is of the view that the offence requires not only the intentional or reckless destruction of or damage to property but the intentional or reckless destruction of or damage to property by fire.
Where there is a endangerment to life there should be separate counts of:
Arson with intent to endanger life and
Arson being reckless as to whether life would be endangered
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
RACIALLY OR RELIGIOUSLY AGGRAVATED CRIMINAL DAMAGE SMITH AND HOGAN C24 pp 917-918
S.30 of the Crim e and Disorder Act 1998 (as amended by section 39(5)(b) and 6(b) of the Anti-Terrorism, Crime and Security Act 2001) provides that:
A person is guilty of an offence under this section if he commits an offence under s.1(1) of the Criminal Damage Act 1971…which is racially or religiously aggravated for the purpose of this section
DEFENCES
A number of general defences e.g. mistake, self-defence and duress or circumstances can be pleaded on a charge of criminal damage
LAWFUL EXCUSE – SMITH AND HOGAN C24 pp 900-911 and 915-916
Where the defendant claims lawful excuse the burden or proof remains on the prosecution to prove that he did not have such lawful excuse.
Given the endangerment to life element in s.(2) it would only be in fairly exceptional circumstances that a defendant would succeed.
S.5(1)(a) and (b) set out two situations where a defendant will have defence to a simple criminal damage as:
Where the defendant beliefs that a person entitled to consent to the destruction or damage has consented to it, or would do so if that person knew of the circumstances, or
Where the defendant acted in order to protect property or a property interest (either his own or another’s) in the belief that the property or interest (either his own or another’s) in the belief that the property or interest was in the immediate need of protection and the actions were reasonable in all the circumstances
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.
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
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.
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
If a person acts with more than one purpose, it is sufficient that one purpose is to protect property (see Chamberlain v Lindon)
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.
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
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.
The only objective element that the jury would need to consider was whether it could be said that on the facts as believed by defendant, criminal damage amount to something done to protect another’s property
Is the defence of lawful excuse under section 5 of the Criminal Damage Act 1971 available to a defendant who act sot protect the property of another abroad from damage that will be caused by the executive’s lawful exercise of prerogative power to wage war
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