ELEMENT OF OFFENCES

ELEMENT OF AN OFFENCE

The guiding principle of English criminal law is that the prosecution has to prove his case beyond reasonable doubt before an accuse could be convicted – Woolington (1935)

MENS REA

This relates to the mental element of an offence. Stephenson J in Tolson (1889) express doubt on the clarity of using the same term, mens rea, for various offences such as murder, criminal damage, sexual assault, etc. Lord Diplock Miller (1983) suggested some positive act whereas failure to act or omission is insufficient (Deller (1952). If all the element of an offence cannot be proved the defendant cannot be found criminally liable however guilty his mind.

Lawful excuse. If D belief that he has lawful excuse or mistaken belief would negate criminal liability. If law is an element of an offence, lack of knowledge can exonerate from criminal liability Deller. If lawful is a difference, lack of lawful excuse cannot excuse Dadson.

AUTOMATISM

Brady v AG of NI (1961) – Denning
Woolmington (1935)
Bill (1984)

Limitation

Prior fault
Some form of control
Insanity (any conduct within the ambit of insanity)
M’Naghten Rule. Every person is same enough to be responsible for his criminal liability until the contrary is proven

In R v Bridges, Lord Jane said that where defence of automatism is raised by the defendant, the following questions fall to be decided before the defence is left to the Jury;

a) Whether a proper evidence fundamental to the defence of automatism has been laid?
b) Whether the evidence shows the case to be one of insane automatism i.e. whether it is M’Naghten rule or one of non-insane automatism

The categorisation of sane and insane automatism based on external and internal factor raises the following problems:

a) Focus on the source and not the effect of the incapacity;
b) Conceptual difficulty, it is the impairment rather than the underlying disability condition which justify availability of defence. Defendant can be placed in different category in spite of the fact that they acted in similar involuntary condition

If the effect of the disease is to impair the facility severely as to have the consequences referred to in the latter part of the rule. Insanity is a defect of reason caused by a disease of the mind so as not to know the nature and quality of the act. Omission is properly applied to failure to do things which there is some kind of duty to do or at least thing where it is reasonable to expect a person to do.

Convention view maintains that the criminal law should be reluctant to impose liability except in clear and serious cases. While we owe negative duties to all people, we should owe positive duties only to circumscribed group of people with whom there exist special relationship.

For the purpose of public policy, co-operative or social life it may be fair to place citizen under obligation to render assistance to other individuals in certain situation. If there is general duty to assist, there is possibility that more people can come to the assistance of people in need. However, where citizen are force to perform such duties, people may expose themselves to danger from unbalance, unstable and dangerous to others.

ACTUS REUS

Offence of mere omission are rarely found at Common Law Dytham (1979) and Smith where the court found a defendant was under a duty to act in particular situation and has unreasonably failed to do so, the burden remains with the prosecution to prove all other ingredient of the offence, any remaining elements of the actus reus and mens rea required for particular offence need to be proved.

Offences capable of being committed by Omission

Gibbins and Proctor (1918) - murder, manslaughter, assault and battery have generally been held to be incapable of commission by omission.

Fagan v MPC (1969) – Authority for the proposition that offence of assault cannot be committed by omission, but Santana Bermudex (2004) (pins in the pocket of D that injured a policeman) and Miller (1983) creating dangerous situation and failure to act.

Whereas assault only requires proof that Defendant caused V to apprehend unlawful violence, battery requires the application of unlawful violence. Can it be said that D apply force by omission.

Section 18 of Offence Against the Person Act (1861) may be committed by omission, Section 20 would require proof of infliction or wound. S.47 can be committed by omission.

Constitution Law Review Commission proposed that liability for omission is OAPA 1861 should be confined to murder, manslaughter and propose offences causing serious injury with intent, unlawful detention, kidnapping, abduction and aggravated abduction fortiori damage to property cannot be committed by omission.

There are cases where the court have held some offences as capable of being committed by omission even where the statute did not say so e.g. Shama (convicted of falsifying documents) for omission to fill a form. S.2 (1) of Theft Act for failure to report private patients. However, in Ahmed does act in Eviction Act 1977 does not want to satisfied by omission.

Where an offence is capable of being committed by omission, the court must determine whether the defendant was under a duty to act. It is not an onerous. There is no sanction for moral duty, but moral opprobrium, but sanction for legal duty. Scope of moral duties – friends, sisters, brothers, neighbours. Khan and Khan, Lewin v CPC (2002) – Spain friend who died while being left in car, Istan (1893), Gibbens v Proctor (1918); Pittwood (1902); Miller (1983).

The conduct element of actus reus usually require proof of a positive act on the part of the defendant. Legal duties would depend on relationship between parties, voluntary undertaking, contractual duty, created situation, assumed duties to care (R v Nicholls (1875); Stone and Debinson (1979). Law can imposed a duty to act which will result in criminal liability for an omission.

Stone and Debinson (1979)

a) There is a distinct possibility that she might have been saved if she received medical attention two weeks before her death
b) Undertaken the duty of caring for Fanny with gross negligence failed in that duty and failure cased Fanny’s death and they are guilty of manslaughter
c) The jury must satisfy the following question before they can convict for manslaughter;
a. That the defendant undertook to care of person who by reason of infirmity cannot take care of himself
b. That the defendant was grossly negligent in regard to that duty of care
c. That by reason of such negligence the person died
d) The defence argued that the Judge direction to the jury on 1 & 2 was incorrect as there was no sufficient evidence that the appellant had chose to undertake the lodger, they do are not entitled to do nothing
e) The court reject that proposition for the fact Fanny was a relation, Debbinson undertook duty of care and they were obliged to either summon help or care for Fanny themselves.

The appeal in Debinson failed.

Bateman: Indifference to an obvious risk, appreciation of such risk, coupled with determination nevertheless to run it are both example of recklessness. The criticism was that eh direction was unduly favourable to the defendant.

Medical Treatment

In medical treatment the problem of distinguishing between act and omission tends to rise – Aridale NHS Trust v Blend (1993) removal of nasogastic tube was an omission. Re. A (Co-joined Twins Surgical Separation) 2001; Ms B v An NHS Hospital (2002) – Treatment against patience which was an assault, but doctor who perform positive act to end a patient life would be guilty of murder R v Cox (1982); Adamako (1995) Gross Negligent Manslaughter.

Singh (Gurphal) 1999: CA held that the question of whether a situation gave rise to a duty to act was one of law for the judge to determine. Khan and Khan 1998: The question of extent of duty to care in drug supply case was not considered by the Judge and the jury was given no direction and the convictions were quashed (Swinton LJ). In willoughby (2004)

Circumstances element of the actus reus. Find the definition of the following offence

Theft contrary to s1(1) of the Theft Act 1971
Criminal Damage contrary to s1(1) Criminal Damage Act 1971
Theft contrary to s1(1) of the Theft Act 1971
Rape contrary to s1(1) Sexual Offences Act 2003
Common law murder
Bigamy contrary to s.51 of the Offences Against the Person Act 1861.
Larsonneur (1933): Strange and unfair result. D brought to UK against her will, charged and convicted as an alien.
Winzar v Chief Constable of Kent (1983) – Drunken man taken to the street by Police and charged for being found drunk on highway – situational offence.

Result crime – prosecutor need to prove that the defendant’s conduct cause the prohibited result. Where causation is the issues, the prosecution must prove that the defendant conduct is the factual and legal causation of the result. The decision whether the defendant conduct caused the result is one for the jury after applying the legal principles which must have been explain to them by the trial judge Pagget (1983).

CAUSATION AND LIABILITY


Factual causation – sino qua non (but for) test. Defendant’s conduct must actually be demonstrated to have been the sine qua non of the result – White 1910.

 But for is the starting point and a question of fact for the jury.
 Causation by omission
 Legal Causation: The Judge will direct the jury as to whether something is capable of being the legal cause according to legal principle
 Expert evidence will play a role, but it is not determination. Jordan is not explicitly overruled and is not followed but described on Malchene as very exceptional and in Smith as very particular case depending upon its exact fact
 Words like operating, substantial, substantive and significant would often be used to describe legal cause.

The defendant conduct must be an operating and substantial (or significant) cause of the result but it does not have to be the main or only cause Smith (1959) - Solder who was stabbed but the victim was wrongly treated Lord Parker said if at the time of the death the original wound is still operating cause and a substantial cause, then the death can properly be said to be the result of the original wound is merely the setting in which another cause operate. If the second wound is overbearing as to make the original wound merely part of history it be said that the death does not flow from the wound. Lord Widgery said ‘the culpable act must be more than a minimal cause of the result. Cheshire (1991); Smith (1959) negligent medical treatment could only break the chain of causation if it is so independent of the defendant act and so potent in causing death Carey (2006). Victim must be taken as found Blaue (1975) Jehovah witness.

INTERVENING CAUSE

Novus actus interveniens – supervening event. An act done instinctively for the purpose of self-preservation will not be an intervening cause Paggett (1963) – using girlfriend as shield while shooting at police. A free deliberate and informed intervention may have the effect of breaking the chain of causation.

ESCAPE CASES

Williams and Davis (1972) Stuart-Smith LJ where deceased reaction in jumping from the moving car was within the range of expectation and not daft, the jury might bear in mind particular characteristics of the victim and the fact that in the agony of the moment he might have acted without thought and deliberation. READ ROBERS (1971) AND WILLIAMS AND DAVIES (1972).

Killing by fright Haywood (1908). The abnormal state of deceased health did not question D responsibility Dawson (1985); Wilson (1989).

Neglect of Victim: Holland D would still be responsible for V whom he injured and later died when tetanus entered the wound. In blaue, Holland said ‘an omission to act on the part of the victim will not break the chain of causation.

MEDICAL INTERVENTIONS

 Jordan (1956) Palpably wrong treatment when the wound almost healed
 Smith (1959) evaded intervening act by throwing up operating and substantial cause
 Cheshire (1991)
 Gowans (2003) – Robbed and seriously injured victim who later died of blood poisoning. Appeal against conviction dismissed.

CRIMINAL CONVICTION AND THE CARELESS DOCTOR

 Died by cardio-respiratory arrest due to gunshot wound in the abdomen
 Died as a result of failure to recognise reason for breathlessness due to some respiratory obstruction
 D responsibility were not reckless and indifferent

The question is whether the Judge had correctly applied the principle of causation given that his interpretation of careless medical treatment could virtually never break the chain of causation.

The three issues for consideration are:

a) The death would not have occurred but for D’s act
b) Acceleration of death was more than mere trivial – body on seashore principle
c) Reasonable forceable – body on the sea
d) D must be taken as found.

Jordan original injury had almost healed.

The trial judge did not agree that the trial judge was right in raising recklessness.

 Causation is a fact for the jury
 D’s act need not be the sole cause provide it constitute the significant cause
 Intervening act must be so independent of the act of D
 Clear distinction between blameworthiness of the causative effect
 In case of negligent treatment the Jury should be told to consider it so independent of the act
 A wound is not operative cause of death because it caused other problem

Act of God - very nervous principle and distinct.

Unlawful Administration of controlled drug cases:


 Kennedy(No 2) 1995
 Dias (2002)
 Rogers (2003)
 Finlay (2003)
 Kennedy (No. 2) 2005

The person who supplied drug for immediate injection to an adult user who injected himself and dies as a result may be guilty of manslaughter by an unlawful act.

Did the issue of where a third party’s free deliberate informed act is regarded in law as to break the chain of causation deserve urgent attention by the House of Lords.

Mens rea does not indicate wickedness in any moral or general sense (Dodman 1998) and good motive does not provide a good defence to what is otherwise criminal behaviour – Chiu-Cheng v R (1995) – Doctor and mercy killing but Adams (1957) if the motive is to rely. Early motion of absolute liability based on conduct and causation regardless of any mental element. Perjury being the earlier offence which requires some form of mental element.

House of Lords in Bland Lord Goff said. Airdale NHS Trust v Bland (1993) – Doctor may apply painkiller to alleviate pains even when he know that an incidental effect of the application will be to terminate patient life. (Gillick and A (Children)

Mistaken belief may negate mens rea. However, for basic intent offence recklessness is sufficient mens rea. Nothing less than intention on the part of the defendant must be proved for specific intent offence. Ulterior intent crime is one which requires mens rea in relation to a consequence which goes beyond the actus reus of the – burglary – trespass.

INTENTION

Oblique intention occurs where the defendant did not desire the consequence but could still be held to have intended it. In Moloney (1985), the House of Lord through Lord Bridge said two questions should be placed before the jury;

 First the death or really serious injury in a murder case (or whatever relevant consequences must be proved to have been intended in any other case) a natural consequence of the defendant voluntary act.

 Did the defendant foresee that consequence as being a natural consequence of his act?

The jury should then be told that if they answer yes to both questions, it is proper inference to them to draw that he intended the consequence. Look at contrasting authority in Steance (1947)

This question was refined by the House of Lords in Hancook and Shankland:

 The jury should be directed that they were not entitled to infer the necessary intention unless they felt sure that death or serious bodily harm was a virtual certainty – bearing some unforeseen intervention is a result of the defendant act and that the defendant apprehend that such was the case (Nedrick [1986]). Woollin (1998): Substantial risk that he would cause injury would be open to the jury to find that he intended to cause injury and the jury should convict him.

The Court of Appeal certified the following question

Serious bodily harm was a virtual certain consequence of D voluntary act and D appreciated that fact. Woollin draws a line between intention and recklessness and it is desirable to preserve that clearly throughout the criminal law.

RECKLESSNESS

Caldwell (1982): A defendant could be reckless despite not having foreseen the risk, provided that the risk was obvious one. Intention could be shown by proof of reckless disregard to perceived risk.

Malice must be taken not in the old vague sense of wickedness in general but as a requirement:

a) An actual intention to do the particular kind of harm and infact was done
b) Recklessness as to whether such should occur or not

Attorney General Reference (No. 4 of 1980): If an accuse kills another by one or two other different actus reus of which it caused death and is sufficient act to establish manslaughter, it is necessary in order to found a conviction to prove which on cause death.

TRANSFERRED MALICE

For transferred malice the actus reus and mens rea must coincide. However, Lord Miller AG Reference (No. 3 of 1994): TM is a fiction and lack sound intellectual basis.

NEGLIGENCE

The Sexual Offence Act of 2003, the person must have reasonable belief that the other is consenting.

GROSS NEGLIGENCE MANSLAUGHTER

Adamako (1995); HL in disapproving Symour (19930) and approving Bateman (1925) ruled that ordinary principle of negligence applied for the ascertainment of whether or not a defendant had been in a breach of a duty of care towards a victim who had died. Where a breach of duty was established, it had to be determined whether the breach had caused the death of the victim. If it had then the jury having considered all circumstance agree on gross negligence manslaughter.

STRICT LIABILITY OFFICE

An offence in relation to one or more element of the actus reus, neither mens rea nor negligence needs to be proved to secure conviction.

Presumption of mens rea: HL said in Sweet v Parsley (1970) that mens rea is an essential ingredient of every offence unless some reason can be found for that that is not necessary; B (A Minor) 2000; Mohammed (2002) Court of Appeal said contracting state were permitted under certain circumstances to enact offence that are strict liability.

The statutory context of the words: The court may look at other provisions in the statute towards their direction as to whether subject matter of the offence – Sheas v De Ritzen (1895) consider the actual word.

ACTUS REUS OF MURDER AND MANSLAUGHTER

Sir Edward Coke (1552 – 1634). The actus reus of murder is committed if D unlawfully killed any reasonable creature in rerum natural under queen’s peace. Double transfer of intent. Mother-foetus-baby. S.3 of British Nationality Act (1948).

INVOLUNTARY MANSLAUGHTER

Manslaughter by unlawful and dangerous act. Constructive manslaughter. An omission will not suffice.

He submitted that a Duffy direction is based on a failure to comprehend the true meaning and impact of s.3 of Homicide Act 1957. Lord Diplock said that section repealed all previous rule of law. The act did not redefine provocation it is still a common law offence. However the longer the delay and stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.

The subjective element of provocation would not and a meeting line be negativated simply because of delayed reaction in such case provided that there was at least at the time of killing and sudden and temporary lost of self-control

Last straw basis – Thortorn (2) 1995 Lord Taylor said the loss of self control must be a result of provocation Accott (1997). If there is no evidence of provocation but merely ‘speculative possibility’ of provoking work or conduct the judge should not dire the jury to consider provocation. The common sense of the jury will prevail upon it not to bring a perverse verdict where the fact do not justify the conclusion.

The objective question – would a reasonable man do as D did. Bedder (1954) impotency in youth was removed as the characteristics of the reasonable man. Camplin. Characteristics of D should be attributed to the reasonable man. 15 years old boy raped. Morhall (1995) – Glue sniffing man. HL recognised this characteristics.

DIMINISHED RESPONSIBILITY

The defence is available according to s.2(4) of the Homicide Act 1957 and only applicable to murder and not attempted murder (Campbell [1997]). D must proved on the balance of probability the diminished responsibility. If the evidence is uncontested and there is nothing in the fact or circumstances to cast doubt on it the jury is bound to accept – Byrne (1960); Matherson (1958); Kitzko (1976); Sander (1991); Salmon (2005).

Aetiology - It must result from a condition of arrested or retarded development of mind or any inherent causes or be induced by disease or injury. Llyord (1967) – The impairment must be more than trivial or minima but it need to be total – substantial impairment of responsibility. DR includes abnormalities in self-control and intense emotional disorders and it unnecessary to show that the condition border on insanity (Seers [1984]). Court of Appeal held that it was misdirection to tell the jury that the test of DR whether a person can be described as partially insane or on the borderline of insanity.

In Di Duca (1959) It was held that the transient effect of alcohol or drugs (intoxicants) do not constitute an abnormality of the mind and cannot diminished responsibility (Dietschmann [2003])

Activity 8.4

The part of law of general importance in the case of drunken D, diminished responsibility is:

 Does D have to show that if he had not taken drink (a) he would have killed as he in fact did and (b) he would have been under diminished responsibility when he did do?
 If not, what direction ought to be given to the jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of the mind?

The first part of the question is negative. Intoxication cannot be taken as something which contributed to his mental abnormality. Both mental impairment and drink may take a part and D might not have killed if he didn’t take the drink. If this part is taken the question is:

 Despite the drink, his mental abnormality substantially impaired his mental responsibility for his act. OR
 Has he failed to satisfy you that, If he has, you will find him not guilty of murder.

Abnormality due to alcohol might diminished only if it were such a degree that either the brain had been injured resulting in impaired judgement and emotional response or, where the brain had not been so damage, the accused was unable to resist taking a first drink.

REFORM

 Replacing ‘abnormality of mind’ with ‘abnormality of mental function’ which substantially impairs D’s capacity to understand, judge or control himself.
 Substituting ‘underlying condition’ or ‘developmental immaturity’ and for the cause listed in the parentheses
 Incorporating a requirement that the abnormality was a significant case of D’s act


EXAMINATION QUESTIONS

David and Victoria had been married for several years. Victoria has suffered many years of violence and abuse from David as a consequence suffered from extreme depression. One evening on his way out of the house, David insulted Victoria, calling her hideous (ugly, revolting, dreadful) and revealed that he was having an affair with her sister. Feeling extremely depressed, Victoria drank a half bottle of whisky. A few hours later, David returned, and with a sneer, told her that he had a wonderful evening. Victoria picked up a bottle of whisky and intending to cause David serious injury hit him on the head. David died from the injuries sustained.

Discuss Victoria’s liability for homicide of David.


Murder

Murder is committed where a person, intending to kill or intending to cause grievous bodily harm and in the absence of a defence, unlawfully kills another human being (Moloney 1985); (Vickers 1957). It is instructive not that it is clear from the facts of the question that Victoria killed David and did so with intention to cause serious injury. Therefore she will be convicted for murder unless she takes advantage of the defence of either provocation and or diminished responsibility, both of which reduced liability to manslaughter.

The actus reus of murder consist of causing the death of a human being. Based on the fact of the question, David died from the injury sustained when Victoria hit on the head.

The mens rea for murder requires proof of an intention to kill or cause grievous bodily harm (Vickers 1957) and GBH means serious bodily harn (Sounder 1985). Victoria intends to cause serious injury which is adequate intention for murder.

DEFENCE

Provocation

There are two elements to the defence. The first, subjective element, concerns the question of whether the defendant as a result of provocation, suffered a temporary loss of self control (Duffy [1949]). The jury when considering this issue, may take into account anything said or done or a combination of things said and done (s.3 of the Homicide Act of 1957; Acott (1997) The comments made by David immediately before Victoria killed him may be considered by the jury to be the last straw precipitating a loss of self-control and the spontaneously of her response is a good evidence that the loss of self-control was sudden and temporary (Ahluwalia, Thorton).

The second element of the test – the objective test – requires the jury to consider whether the provocation would have caused a reasonable man to do as the defendant did (s.3 of the Homicide Act 1957).

Following Holley and James; Karimi Victoria’s depressive condition may not be taken into account by the Jury, nor may her drunkenness. However, the jury should be directed to consider whether a woman with ordinary powers of self-control having experienced a history of abuse would have reacted as Victoria did.


Diminished Responsibility

Alternatively, Victoria may be able to take advantage of the defence of diminished responsibility, which, like provocation, reduces liability from murder to manslaughter 9s.2(3) of the Homicide Act 1957. The burden is on the defendant to prove, on the balance of probabilities (s.2(2); Dubar (1958), that she was suffering from an ‘abnormality of the mind’ resulting from a condition of arrested development of mind or any inherence causes or induced by diseases or injury, that substantially impaired his responsibility for the killing (s.2(i).

In Byrne (1960) it was held that 'abnormality of mind' means a state of mind so different from that of an ordinary people that the reasonable man would term it abnormal and may include conditions which affect the powers of self-control of the defendant. Victoria's depressive condition may amount to an abnormality of the mind provide the pleas is supported by psychiatric evidence (Dix [1981].

If the jury are of the opinion that both the mental abnormality and the drink played a part in impairing Victoria’s mental responsibility and caused her to kill David she is not precluded from relying on the defence but the effects of the alcohol may not be taken into account. If the jury are satisfied that, despite the drink, her depressive condition amounted to a mental abnormality substantially impairing her responsibility then the defence should be allowed (Dietschmann).

The question whether the abnormality impaired the defendant's mental responsibility is also one for the jury. In Llyod (1967). It was held that the impairment need not be 'total' bit there must be more than 'trivial' degree of impairment.

SIMPLE NON-FATAL OFFENCES AGAINST THE PERSON

Common Assault

Battery and assault are both summary offences and the fine on level not exceeding 5 or imprisonment for not more than six months or both.

The offence of assault is committed when a person intentional or recklessly causes another person to apprehend the application of immediate unlawful violence and battery is committed where a person intentionally or recklessly inflicts immediate unlawful violence on another person. S.47 of the Offences Against the Person Act 1861: Fagan v MPC (1969) approved Savage and Parmentar (1991); Venna (1975) Australian case.

The actus reus of is committed when a person intentional or recklessly causes another person to apprehend the application of immediate unlawful violence. What was going on the mind of the victim is important. Where the victim is not aware of D’s act, there would be no assault or where he is aware but knows that the threat would not be carried out (Turberville v Savage [1969]). Pointing a loaded gun is assault unless the person is aware that it is unloaded R v St. George (1841). The issue is apprehension and fear.

Any unlawful touching of another person without consent of the person and lawful excuse is battery. It need not necessary be hostile, rude or aggressive. Lord Lane CJ in Faulkber v Talbot (1981). Immediate depends on the circumstances and does not mean instantaneous. Immediacy connotes proximity in time and proximity in causation.

Something more than mere omission is requires Fagan v MPC (1969). Words may negate assaults (Turberville v Savage (1969). Words or silence might also constitute an assault based on the fact of the situation.

R v Ireland and Burstow (1998) Silent telephone calls, causing psychiatric injury. Things said and done are assault. If gesture can be an assault, word could be too.

Mens rea for assault is intention or recklessness which is subjectively proved beyond reasonable doubt that the defendant fore the risk of causing the victim to apprehend it. If there is any doubt the defendant must be acquitted. Santana-Bermudex (2003) - Act was stretched to include omission.

SPORTS, LAW OF ASSAULT AND CONSENT

Lawful correction of chastisement.

Article 3 of European Convention on Human Rights provides a right not to be subjected to inhuman and degrading treatment. In A v UK (Human Rights: Punishment of a Child) 1998. Acquittal of stepfather of a young boy who have bitten a boy of about 5-8 a number of times causing injury was considered a breach of the article.

Child Act 2004 – chastisement is lawful provide there is no injury.
Education Act 1996 – provide guidance for treatment of children in school.

AGGRAVATED NON-FATAL OFFENCES AGAINST THE PERSON

 S.47, 20, 18 of the OAPA 1861 requires in addition to other elements of proof of the type of arm which is set out in the definition of the offence
 S.47 – You must consider whether there is an assault of battery, consider the possible criminal liability of Simon who, while Paul was asleep, hit Paul on the head with an iron bar causing him to suffer momentary unconsciousness.
 Smith is likely to be charged with the offence of assault occasion actual bodily arm.
 Consider explaining the different element of battery whether the fact of the question indicate that the offence can be established
 If so consider whether momentary loss of consciousness might amount to actual bodily harm.
 If so consider whether battery caused the actual bodily harm – there is the issue of causation
 If all the above can be proved beyond reasonable doubt, then Simon will be guilty of an offence contrary to s.47

Actus reus: physical injury, psychiatric injury. D’s conduct cause the actual bodily harm. Roberts (1971).

In Wilson (1984) it was decided that there can be proof of GBH without assault.


SAVAGE AND PARMENTER

 The two appeals (R v Savage and R v Parmenter) were taken together because they each raised the issue of mental element which the prosecutor have to establish in relation to offences under two sections of OAPA 1861. S.20 Unlawfuly and maliciously wounding or inflicting grievous bodily harm and s.47, assault occasioning bodily harm.

 The mens rea is the awareness that the act may have the consequence of causing some physical harm to some other person

 The test for malicious is a subjective and not objective one

 The Recorder in the case omitted to direct the jury that they had to find that Mrs Savage foresaw that some physical harm would follow as a result of what she did.

 As a result of coming into effect of Criminal Justice Act 1988 s.38, common assault is no longer a possible alternative on a trial of indictment for more serious offence, unless originated or by way of mention in a specific count alleging common assault is added to the indictment.

 S.6(3) of Criminal Law Act 1967 – Where one person on trial on an indictment for any offence, except treason or murder, the jury find him not guilty of offence specifically charge, but the allegation in the indictment amount to or include (expressly or impliedly) an allegation of another offence falling within the jurisdiction of the court of trial, the guilty may find him guilty of that offence.

 The two question are:
o Did the allegation of wounding import an allegation of assault?
o Did that assault, albeit, unintentionally, occasioned actual bodily harm?

 The court reject the view put forward by Mrs. Savage that some element of
recklessness had to be established for the of assault occasioning actual bodily harm to be proved.

 First point of law: whether a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to s. 20 of OAPA 1861

 Whether a verdict of guilty of assault occasioning actual bodily harm cab be returned upon proof of assault and if the fact of that actual bodily harm was occasioned by assault

 If it is proved that an assault has been committed and that actual bodily harm has resulted from that assault, where a verdict of assault occasioning actual bodily harm may be returned in the absence of proof that the defendant intended to cause some ABH or was reckless as to whether harm would be caused

 The House must conclude that it decision in Reg v Wilson (Children) 1984 was wrong for Savage to succeed.

 Spiteful or something like that is not malicious

 Are we sure that he inflict GBH of the nature described in the indictment? If the answer is yes, are we sure that he should have foresee some harm, albeit a minor character, might result? If the answer to that question is yes, he is guilty. If the answer is kno, he is not guilty.

Reg v Mowade (1965). The direction above was faulty.

Positive and negative proposition: To find conviction under s.20 it must be proved that the defendant actually foresaw that physical to some other person would be the consequence of his act, subject to the negative qualification that the defendant need not actually foreseen that his harm would be as grave as that which eventually occurred.

The risk that the juror would belief that they were being directed to ask themselves whether the appellant actually foresaw which he ought to.

Whether they could and should substitute for the conviction which they had quashed, alternative verdicts of guilty under s.47 of OAPA

Curious development: Two different divisions of the Court of Appeal (Criminal Division) had contemporaneously but unwittingly, delivered on the necessary intent of s.47, but unfortunately reached opposite conclusion i.e. Savage v Reg v Spratt (1995).

Court of Appeal concluded that the subject type of recklessness furnished the test for s.20 and s.47 and that this had been directed by CA in Reg. v Venna (1976)

 Savage and Spratt were in harmony where the defendant neither intends not address his mind to the possibility that there will be any physical contact at all, and then the offence under s.47 would not be made out. However, they were in conflict as to whether intent is required in relation to the consequences of the assault.

 The CA preferred the decision in Spratt case i.e. Did the appellant subjectively intend or recognised the risk of physical harm.

 Point of law: (1) Whether in order to establish an offence under s.20 of OAPA, the prosecutor must prove the defendant actually foresee that his action would cause the particular type of harm or whether it is sufficient to prove objective he ought to foresee. (2) Whether the particular kind of harm to be foreseen may be physical harm, or harm of the nature, the degree and the nature of the harm which actually occur.

 Serially.

 Is a verdict of guilty of assault occasioning actual bodily harm a permissible alternative of a count alleging wounding contrary to s.20 of the Act?

 The counsel tried to persuade the Lordship that the decision in Springfield was correct and should never have been overruled.

 Affirmative a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative on a count alleging wounding contrary to s.20 of the Act.

 Can the verdict be returned or must prosecution also prove that D intended to cause some ABH or reckless.

 The mens rea required for ABH is that for common assault

 A robber was the case

 Was it the natural result of what the alleged assailant said or did in the sense that he would have reasonably foreseen as the consequence of what he was saying or doing.

 It is where the victim did something so daft or so unexpected that no reasonable man could have expected to foresee it. Voluntary act on the part of the victim could which could not be reasonably foreseeable which break the chain between the assault and the harm or injury

 Whether the victim’s conduct was the natural consequence of the assault

 Preferred the decision in Spratt

 In order to establish an offence under s.20, must the prosecution prove that the defendant actually foresee that his act will cause harm or is it sufficient to prove that he ought to have foreseen

 Cunningham s. 47 of the Act unlawfully and maliciously administering, etc

 Misdirected by the trial judge as to the meaning of maliciously in s.23 of the Act.

 Malice – Actual intention to do particular type of harm or recklessness as to whether harm was done. It is not limited to or indeed requires an ill will towards the person injured.

 To establish an offence under s.20, the prosecution must prove either the defendant and that he actually foresee that his act would cause harm

 In order to establish an offence under s.20, is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must have intended or foresee either wounding of grievous bodily harm/

 It is enough that he should have foreseen some harm to some person.

 A person should not be criminally liable for the consequences of his conduct unless he foresee a consequence falling into the same legal category

 It runs contrary to the decision in Roberts. It is quite unnecessary that the accuse should either have intended or have foreseen that violent act might cause physical harm.

RACIAL OR RELIGIOUS AGGRAVATION

Common assault racially or religiously aggravated, attracts 2 years imprisonment. It carries maximum penalty of 7 years under s.20 and s.47 of OAPA 1861; s.25 of Crime Disorder Act 1998 is amended by Anti-Terrorism, Crime and Security Act 2001; R v Roger (Philip) 2005 – Hostility to foreigners (bloody foreigners)

S.18 wounding and causing grievous bodily harm. For ulterior intent crime, the ulterior intent must be proved, even if the purpose was not achieved. HL in Mandar (1995) held that a Judge is entitled to leave to a jury a conviction under s.20 as an alternative to s.18 because the term ‘causing’ is wide enough to include ‘inflicting’. Intended wounding s.18, recklessness s.20.

ADMINISTERATION OF POISON OR OTHER DESTRUCTIVE OR NOXIOUS THING

s.23; s.24 of OAPA 1861 Act. Marcus (1981) – Cato (1976).

Actus reus – Administer; causing to be administer and causing to be taken. Cadman ( 1825) – there will be no administer if the substance is not taken.

OFFENCE AGAINST THE PROPERTY – THEFT AND FRAUD

Theft is the most important offence in the Theft Act 1968. A person is guilty of theft if he dishonestly appropriate a property belong to another with the intention to depriving the other of it. S.2-6 of the Theft Act offer limited guidance of the offence. In order to establish liability, the five element of the offence have to be proved.

Appropriation:

s.3 Any assumption of the rights of the owner. Is it assumption of all or any of the rights of the owner? The House of Lords in Morris (1983) clarified this issue

For the purposes of ss 1 and 3(1) of the 1968 Act the term 'appropriates' meant taking possession of an article and assuming any of the owner's rights in it: it was not necessary for the prosecution to prove that possession was taken without the owner's consent or that the defendant had assumed all the owner's rights. Accordingly, taking an article from a supermarket shelf with a view to carrying it to the check-out was an appropriation of the article for the purposes of s 3(1) since it amounted to the assumption of one of the owner's rights, that of removing the article from the shelf, notwithstanding that the taking would not have been without the owner's consent at the time. It followed that the defendant had appropriated the articles, within s 3(1), when he removed them from the shelves. Moreover, even if he did not have a dishonest intent at the time and had thus come by the articles without stealing them, nevertheless his su`bsequent switching of the price labels amounted to a 'later assumption of a right to [them] by keeping or dealing with [them] as owner' and therefore an appropriation within s 3(1). The appeal would accordingly be dismissed (see p 453 j, p 454 d g h, p 455 b c g to j and p 456 e f, post).

The decision in Morris was later confirmed in Gomez (1993). In Lawrence the House of Lord ruled that V’s consent while appropriate to the issue of dishonesty, was never relevant in determining appropriation.

The respondent, who was employed as the assistant manager of an electrical goods shop, was approached by B, who asked to be supplied with quantities of electrical goods from the shop in exchange for two stolen building society cheques which were worthless. The respondent agreed and asked the shop manager to authorise the supply of the goods against the cheques. The manager told him to find out from the bank whether the cheques were acceptable and the respondent later pretended to have done so and told him that the cheques were 'as good as cash'. The cheques were then used for the purchase of goods to the value of over £16,000 and were later dishonoured on presentation. The respondent was jointly charged with B and another with theft. At his trial it was submitted that there was no case to answer, on the ground that the electrical goods were sold to B pursuant to a contract of sale between B and the shop (the owners of the goods) and although it was conceded that the contract had been induced by the fraudulent misrepresentation of the respondent and that the manager would not have agreed to the removal of the goods had he known the truth, the manager had expressly authorised the goods to be removed and therefore there had been no 'appropriation' within s 1(1)a of the Theft Act 1968. The judge rejected that submission and the respondent then pleaded guilty. He appealed on the ground that the judge's ruling was wrong. The Court of Appeal held that there had been no appropriation and accordingly it allowed the respondent's appeal and quashed his conviction. The Crown appealed to the House of Lords.

Held (Lord Lowry dissenting) – A person could be guilty of theft, contrary to s 1(1) of the 1968 Act, by dishonestly appropriating goods belonging to another if the owner of the goods was induced by fraud, deception or a false representation to consent to or authorise the taking of the goods, since it was the actual taking of the goods, whether with or without the consent of the owner, in circumstances where it was intended to assume the rights of the owner that amounted to the 'appropriation' and the fraud, deception or false representation practised on the owner made the appropriation dishonest. It was irrelevant that the taking of the goods in such circumstances could also constitute the offence of obtaining property by deception under s 15(1)b of the 1968 Act. It followed that the respondent had been properly

The effect of the judgement in Gomez has substantially widened the meaning of ‘appropriation’ within the definition of theft. The actus reus is wide and we must now rely on mens rea of dishonesty to limit criminal liability to acts that are ‘blameworthy’ or manifestly wrong. Hinks (2000) further widens appropriation. D who befriended an elderly man who withdrew money and gave her as gift. It was considered appropriation being committed by omission, because the money were obtained dishonestly and the consent of giver does not matter. Appropriation is now virtually meaningless as the consent of the owner is irrelevant and the manner which property is appropriated is irrelevant.

PROPERTY

s.4(1) of Theft Act 1968 – Property includes money and all other property, real or personal, including things in action and other intangible property. Wide and includes intangible properties such as debt, credit balance in a bank action (through illegal transfer) (things in action – a debt by the bank to the account holder); a cheque is intangible; land (person’s right over land). S.4(2) land is not a property for the purposes of the offence of theft. Rights over property can be stolen by trustee. S.4(2)(a) tangible part of land such as topsoil or sand can be stolen; tenant can steal property he leases, like fixtures. In Oxford v Moss (1978) information cannot constitute property. S.4(3) deals with wild flowers, mushrooms, fruit which cannot be stolen by picking unless for commercial purpose of sale. S.4(4) suggest wild animals are property but cannot be stolen unless they have been kept in captivity i.e. reduced to possession..


BELONGING TO ANOTHER

s.5 (1) Property shall be regarding as belonging to any person having possession or control of it. Property can belong to more than one person. Woodman [1974] – scrapped sold but not all were collected by the buyer for being in possession and control, D was ruled to have stolen from them. You can steal something you own Turner (no.2) [1971]. D secretly removed his car he gave for repair to avoid paying the bill, he was convicted of theft as the garage was in possession and control (proprietary interest in respect of the bill for the repairs). However in Meredith (1973) D who car was towed away by police for illegal packing, removed the car without police permission and was acquitted of stealing because the police has not lien (proprietary interest on the property).
MENS REA

The first of the two mens rea for theft are dishonestly and permanently deprive the owner of the property. In approaching a question on theft and robbery, start with s.2 if one of the situations therein applied, D will not be regarded as dishonest and there is no need to consider the common law definition. If s.2 does apply, go straight to common law definition. Honest belief. S.2(2) precludes D from claiming to be honest simply on the ground that he was willing to pay for it. Common law definition of dishonest R v Ghosh (1982). The court of appeal set out two tests both subjective and objective elements.

Whether someone’s behaviour is to be regarded as dishonest or not will depend upon an individual’s moral standard

Held – (1) The question whether an accused person had acted dishonestly could not be determined completely objectively by the jury applying their own standards of honesty, because for the purposes of s 1(1) of the 1968 Act acting dishonestly described not a course of conduct but a state of mind which could not be established independently of the knowledge and belief of the accused. In determining whether the accused had acted dishonestly, the test was first whether the accused's actions had been dishonest according to the ordinary standards of reasonable and honest people and if so, whether the accused himself had realised that his actions were, according to those standards, dishonest. Thus a genuine belief by the accused that he was morally justified in acting as he did was no defence if he knew that ordinary people would consider such conduct to be dishonest (see p 696 a b e g to j, post); R v Waterfall [1969] 3 All 1048, R v Royle [1971] 3 All ER 1359, R v Gilks [1972] 3 All ER 280, R v Feely [1973] 1 All ER 341, Scott v Comr of Police for the Metropolis [1974] 3 All ER 1032, R v Greenstein [1976] 1 All ER 1 and R v Landy [1981] 1 All ER 1172 considered; R v McIvor [1982] 1 All ER 491 disapproved.
(2) In so far as the judge had misdirected the jury, there had been no miscarriage of justice because once the jury had rejected the defendant's explanation of what had happened (which they clearly had), the finding of dishonesty was inevitable whichever of the tests of dishonesty was applied. The appeal would accordingly be dismissed (see p 697 a b, post).


This brings us to the heart of the problem. Is 'dishonestly' in s 1 of the 1968 Act intended to characterize a course of conduct? Or is it intended to describe a state of mind? If the former, then we can well understand that it could be established independently of the knowledge or belief of the accused. But if, as we think, it is the latter, then the knowledge and belief of the accused are at the root of the problem.
In determining whether the prosecution has proved that the defendant was acting dishonestly,

a) a jury must first of all decide 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,
b) then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest.

INTENTION TO PERMANENTLY DEPRIVE

The second part of the mens rea for theft s.6. The issues with permanently deprive includes:

 Treating as own to dispose of? Lavender (1994) D who remove two doors from council flat to repair another was convicted of theft for treating the door as his own without authorization from the owner
 In Fernades (1999) s.6 may apply to a person in possession or control of another’s property who dishonestly and for his purpose death with that property in such a manner that he knows he is risking its lost
 Borrowing may be equivalent to outright taking where the borrowing extended for a period or was returned as worthless. Lloyd (1985) Returning a borrowed film which can still be shown was held not to amount to theft.

FRAUD ACT 2006

Fraud Act 2006 was passed to redefine the types of property offences. The original of the act could be linked to the following events:

 The Theft Act 1968 originally contained two offences – s.57 Obtaining property by deception and s.16 obtaining a pecuniary advantage by deception;
 The new Theft Act 1978 added two further offence – s.1 obtaining services by deception and s.2 evading liability by deception
 In 1996 the Theft (Amendment) Act inserted s.15A obtaining money transfer by deception into the Theft Act 1968. This was a consequence of the loophole in R v Preddy (1996)

All these offence required D made a false presentation, obtained something by that false representation (there has to be a causal link between the deception and the obtaining) and D has to be dishonest. The common element had not be a problem but the obtained.

THE FRAUD OFFENCES

 Fraud by false presentation (s.2 of the Fraud Act 2006)
 Fraud by failing to disclose information (s.3 of the Fraud Act 2006)
 Fraud by abuse of position (s.4 of the Fraud Act 2006)
 Obtaining services dishonestly (s.11 of the FA 2006)
 Making off without payment (s.3 of TA 1978)

The offence of false presentation is designed to be a general offence negating the need to identify precisely what is obtained and how it is obtained. The false presentation may be expressed or implied, as to fact or law or as to the state of mind of the defendant or another. The mens rea is that the defendant knows that the representation is or might be false, intend to cause loss to another or make a gain and is dishonest. This is similar to the concept of misrepresentation in contract law. S.2(2) states that a representation is deemed ‘false’ if it is untrue or misleading. It is a straight forward question for the jury.

False presentation as to fact or law or as to the state of mind

 D, who is 17, says ‘I am 18 years old’ – Deception as to fact
 D then say to a bartender, ‘the law permits you to sell alcohol to a 17-year old. Deception as to law
 D enters a restaurant and orders a meal. In fact D has no money and no credit card with which to pay for the meal. Deception as to D’s state of mind. D is representing to the waiter, by his conduct, that he intends to pay for the meal.

False representation may be expressed or implied

 DPP v Ray (1973)
 Charles (1977)
 Gilmartin (1983)
 Lambie (1982)

False representation using a system or device

The provision is a much clearer way of criminalising whole electronic frauds;

 D uses foreign coins in a vending machine to obtain a bar of chocolate
 D dishonestly uses his mother’s credit card to buy a CD in a shop and enters her CHIP and PIN number on the machine
 D buys a car insurance on the internet and enters his age as 35 on the form, when in fact D is 19
 D send e-mail to v claiming to be a member of staff at V’s bank, asking V to confirm her name, address and credit card pin number for security check.

CAUSATION

D does not actually have to cause any loss or make any gains. The intent to do so would suffice for the offence. Whether or not V loses or D gains, there is no requirement that the gain or loss is in any way linked to the false presentation. In effect fraud had become a conduct crime and had ceased to be a result crime because the actus reus now consist entirely of the conduct of making the false presentation and there is no need to prove any particular consequence (or result) of the conduct. The act create an inchoate offence.

MENS REA

The actus reus are wide and ambiguous and s.3 contains three mens rea element which must be established before the offence is complete.

 That D knows that his representation is or might be false or misleading
 That D intends to make or gain for himself or another or intends to cause loss to V
 That D is acting dishonestly


D knows that his representation is or might be false or misleading
The mens rea covers both deliberate or careless deception. The mens rea may overlap with the question of whether D was dishonest, which involved asking a related question about whether D was aware that his action may have been dishonest in the minds of others.

D intends to make or gain or cause a loss

The mens rea here is rather more strict and clear. There is no recklessness here. The consequence need not occur. D’s purpose was to gain or cause loss or he foresaw such gain or loss as virtually certain consequence of his action, in which case the jury are entitled to find intend (woolin). S.5 gives further insight on the type of gain or loss intended to cover s.34(2) of Theft Act in terms of money or property and not non-pecuniary gain. S.11 is not covered

Dishonestly

The final mens rea is the element that D must be found to be dishonest. Dishonestly bears the same meaning as for theft. S.2 of the Theft Act of 1969 applies and the test of dishonesty must be assessed using the test set out in Ghosh


FRAUD BY FAILURE TO DISCLOSE INFORMATION

D has committed an offence if he dishonestly fails to disclose information which he is under a legal duty to disclose with intent to gain for himself or cause loss to another. S.3 is narrower than s.2 and only apply to where there is a legal duty to disclose. Legal duty will apply where there is a duty to disclose under civil law and criminal law and civil law are expected to coincide.

The mens rea consist of dishonestly and intent to make gain or cause loss and bears the same meaning as in s.2 offence.


FRAUD BY ABUSE OF POSITION

S.4 creates a new offence of fraud by abuse of position. D commits this offence if occupies a position in which he is expected to safeguard, or not to act against, the financial interest of another person, and dishonestly abuse that position, intending to gain for himself or cause loss to another. This is a very vague offence with a potentially wide application.

The mens rea elements are dishonestly and intent to make gain or cause loss and bears the same meaning as in s.2 offence.

The actus reus elements are that D occupies a relevant position and that he abuses that position

Position to safeguard, or not to act against, the financial interest of another

Necessary relationship will be present between Trustee and Beneficiary, Director and Company, professional person and client, agent and principal, employee and employer or between partners. The scope of provision remain wide and the meaning of ‘not at arms length’ is very unclear.

Abuse

Once it is established that D is in relevant position of trust, the jury must then satisfied that D did an act or committed omission which abused that position

OBTAINING SERVICES DISHONESTLY

S.11 replaces the old offence of obtaining services by deception to cover wholly automated or electronic offence. It has wide applications. D commits this offence if he dishonestly obtain services for himself of another and that that services has been, is being or will be paid for, but the D does not pay for its, either in part or in full. Free services are not covered by the offence.

The mens rea elements are requirements that D obtains these services by dishonestly (so a causal link must be established between obtaining the services and D dishonestly) and D knows that the services are not meant to be free. What was obtain is the services and not the monetary value of services. There does not need to be any false representation on the part of the defendant in order to commit this offence, any form of dishonesty will suffice. Dishonesty bears the same meaning as in s.2 offence.

MAKING OFF WITHOUT PAYMENT

This offence is set out in s.3 of Theft Act 1978. It does not require deception but was created to close loophole discovered in DPP v Ray (1973)

D must make off – Brooks and Brooks (1982) – some form of departure from where payment is expected. Payment must be required of expected at the spot. Aziz (1993) – D who refused to pay for taxi and ran off when taken to the police station and later claimed that he did not run off where payment was expected. Vincent (2001) stayed at a hotel and agreed to pay at a later date with the manager. D must intend to avoid payment. In Allen (1985) it was affirmed that D must have an intention never to pay rather than pay later. at the PolicS.11 replaces the old offence of obtaining services by deception to cover wholly automated or electronic offence. It has wide applications. D commits this offence if he dishonestly obtain services for himself of another and that that services has been, is being or will be paid for, but the D does not pay for its, either in part or in full. Free services are not covered by the offence.

The mens rea elements are requirements that D obtains these services by dishonestly (so a causal link must be established between obtaining the services and D dishonestly) and D knows that the services are not meant to be free. What was obtain is the services and not the monetary value of services. There does not need to be any false representation on the part of the defendant in order to commit this offence, any form of dishonesty will suffice. Dishonesty bears the same meaning as in s.2 offence.

OFFENCE AGAINST PROPERTY – ROBBERY

Section 18 of the Theft Act 1978 – a person is guilty of robbery if he steals and immediately before or at the time of doing, and in order to do so, he uses force on any person or puts or seek to put any person in fear of being then and there subjected to force.

Steal

The first pre-requisite – all the element of theft must be proved. In Corcoram v Anderton (1980) D snatched V handbag and ran away, but dropped the bag in the process of running. D was found guilty of robbery since by the time the bag dropped the offence of theft was complete and force was used in order to steal.

Force

Force is the difference between theft and robbery and in away it is the violence form of theft and carries a maximum penalty of life imprisonment. A minimal amount of force in necessary and needs not amount to violence. Dawson and James (1976) Clouden (1987) mere touching may suffice. Force must not be directed at the owner of the property – s.8 of Theft Act. The force must be used before or at the time of the act and not after (Hale [1978]) D1 steals jewelry upstairs as D2 was tying V. There must be intention to use force or threatened to use force, accidental force will not suffice Dawson and James (1976).

BURGLARY

Burglary contrary to s.9 and s.10 of the Theft Act 1968

A person is guilty of burglary if:

a) Enters a building or part of a building as a trespasser and with intent to commit any such offence mentioned in sub s.(2)
b) Having enters any part of a building as a trespasser, he steals or attempt to steal anything in the building or inflicts or attempt to inflict on any person therein an grievous bodily harm

The maximum penalty for burglary in a personal house is 14 years imprisonment and 10 years in a commercial property

Enters a building as a trespasser

Leading case Collins (1972) with Brown (1985)

The appellant was a young man of 19 and the complainant a girl of 18. One evening the appellant had had a good deal to drink and was desirous of having sexual intercourse. Passing the complainant's house he saw a light on in an upstairs room which he knew was the complainant's bedroom. He fetched a ladder, put it up against the window and climbed up. He saw the complainant lying on her bed, which was just under the window, naked and asleep. He descended the ladder, stripped off his clothes, climbed back up and pulled himself on to the window sill. As he did so the complainant awoke and saw a naked male form outlined against the window. She jumped to the conclusion that it was her boyfriend, with whom she was on terms of regular and frequent sexual intimacy. Assuming that he had come to pay her an ardent nocturnal visit she beckoned him in. In response the appellant descended from the sill and joined her in bed where they had full sexual intercourse. After the lapse of some time the complainant became aware of features of her companion which roused her suspicions. Switching on the bed-side light she discovered that he was not her boyfriend but the appellant. She thereupon slapped him and went into the bathroom. The appellant promptly vanished. He was subsequently charged
[1972] 2 All ER 1105 at 1106
with burglary with intent to commit rape contrary to s 9(1)(a)a of the Theft Act 1968. The complainant stated that she would not have agreed to intercourse if she had known that the intruder was not her boyfriend. In the course of his testimony the appellant stated that he would not have entered the room if the complainant had not beckoned him in. There was no clear evidence whether, when the complainant beckoned him, he was still outside the window or had entered the room and was kneeling on the inner sill. The judge directed the jury that they had to be satisfied that the appellant had entered the room as a trespasser with intent to commit rape and that the issue of entry as a trespasser depended on the question: was the entry intentional or reckless? The appellant was convicted and appealed.
a Section 9, so far as material, provides:
'(1) A person is guilty of burglary if—(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below
'(2) The offences refered to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question … or raping any woman therein … '
Held – (1) There could not be a conviction for entering premises 'as a trespasser' within s 9 of the 1968 Act unless the person entering did so knowing that he was a trespasser and nevertheless deliberately entered or was reckless whether or not he was entering the premises of another without the other party's consent (see p 1110 c, post).
(2) The crucial question for the jury, therefore, was whether the Crown had established that, at the moment that he entered the bedroom, the appellant knew that he was not welcome there or, being reckless whether or not he was welcome, was nevertheless determined to enter. That in turn involved consideration whether he was inside or outside the window at the moment when the complainant beckoned him in (see p 1110 d, post).
(3) It followed that the appeal would be allowed since the jury had not been invited to consider the vital question whether the appellant had entered the premises as a trespasser (see p 1111 h, post).
Per Curiam. The common law doctrine of trespass ab initio has no application to burglary under the Theft Act 1968 (see p 1111 f, post).

Entry for the purpose of burglary does not have to be forceful and the offence is not longer described as ‘breaking and entering’.

Building includes bunks s v Leafthley (1979); Freezer connected to a house was held to be a building; relatively permanent structure (Royal Exchange Theatre v The Commission (1978) and complete (Manning and Roger (1987); Walkington, going beyond where permission was given for entrance Dip his hand being the till (Jones and Smith [1976])


Burglary is a specific intent crime and this may be important where D is intoxicated and plead the defense of intoxication.

s.9(1)(b) Theft, Grievous Bodily Harm and Criminal Liability. The mens rea and actus reus of the ulterior offence must be established for the charge of burglary.

s.8(1) Trespass with intent to commit sexual offence requires

 Trespass on any premises
 Intent to commit relevant sexual act
 He knows that or reckless as to whether, he is a trespasser


AGGRAVATED BURGLARY

S.10 of the Act. The mens rea and actus reus of the offence is identical to those of standard burglary with an additional actus reus that at the time D committee the crime, he has with him or more of the following:

 A firearm or imitation fiream
 A weapon of offence
 An explosive

BLACKMAIL

s.21 of the Theft Act 1968. The key elements of the offence are;

 Demand – Demand could be explicit or implied and in any form whatsoever, a very wide meaning according to the act. Treacy v DPP (1971). The offence may complete whether V complies or not. The demand must relate to gain or loss of property and there is no such offences as attempted blackmail.

 Menaces – A threat of some sort is necessary as a reinforcement for the demand. Court of Appeal I Clear (1968) clarified menace in the follows terms (words of conducts which would not intimidate or influence anyone to respond to the demand would not be menaces…. But threats and conducts of such natures and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient.). The standard may be lowered where V in any case is particularly susceptible to threat (Garwood [1987]) e.g. young, infirm or timid.

 Unwarranted – s.21 A demand with menace is unwarranted unless the person making it does so in the belief a) that he has reasonable ground for making the demand b) that the use of menace is a proper means of reinforcing the demand. The test is subject and D honest belief will suffice without any requirement that it is reasonable by any standard of the ordinary person. There are limit in Harvey (1981) D kidnapped the wife and children of S who sold him a worthless substance as cannabis and threatened to kill and maim them unless S returned his money arguing that he was justified to make the threat. The court of appeal held that making a treat to commit an act against v or other which are illegal can never be proper.

 A view to gain for himself or another or intent to cause loss to another – the mens rea of the offence. Gain or loss are defined by s.24. Non-pecuniary gain, such as sexual pleasure, or loss, such as damaging V’s reputation will not suffice.

CRIMINAL DAMAGE

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 destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence

ACTUS REUS

The actus reus of simple criminal damage is the destruction or damage to property belonging to another. It is necessary to consider the meaning of ‘destroy’, ‘damage’, ‘property’, ‘belonging to another’ as they apply under the act.

Destroy

Examples of damaging include demolishing a building, killing an animal. This has not created much problems for the court and the level of damage cause will be taken into account by court when determining sentencing for a person convicted for criminal damage. Destruction of property could also amount to theft.

Damage

Damage to a property needs only be slight to result in a person being charged with the offence. Cox v Riley (1986) whether a property is damaged for the purpose of Criminal Damage Act is fact and degree.

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). Another issue is the level of interference. 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 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 Criminal Damage Act 1971 and S.4 of Theft Act 1968

Belonging To Another

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

a) who has custody or control of it
b) 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; or
c) 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

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. There is a difference between kicking a ball into the street and breaking a window mistakenly as a result. It follows that D must know or be reckless that the property belong to another person

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.

Caldwell (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

Actus reus for aggravated criminal damage is same as that for criminal damage, but additional element of intending to endanger life. The offence cover D damaging his property.

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. The defendant must intend or be reckless as to endangerment of life by reason of the criminal damage.

Read the opinion of Lord Bridge in R v Steer (1987)

HOUSE OF LORDS
LORD BRIDGE OF HARWICH, LORD GRIFFITHS, LORD ACKNER, LORD OLIVER OF AYLMERTON AND LORD GOFF OF CHIEVELEY

30 MAY, 2 JULY 1987
Criminal law – Damage to property – Damage to property with intent to endanger life or being reckless whether life would be endangered – Causal connection between damage and danger – Defendant firing shots at house – Persons inside house endangered by bullets but not by damaged property – Whether necessary to prove danger to life resulting from damage to property – Criminal Damage Act 1971, s 1(2).
The defendant went to the house of his former business partner, against whom he had a grudge, and fired several shots at the house with an automatic rifle. No injuries were caused to the partner or his wife inside the house and there was no suggestion that any of the shots had been aimed at either of them. The defendant was charged with and convicted of, inter alia, damaging property being reckless whether the life of another would be endangered thereby, contrary to s 1(2)a of the Criminal Damage Act 1971. He appealed, contending that s 1(2) only applied if property was damaged and the damage in turn caused danger to life, whereas any danger to the defendant's partner and his wife had been directly caused by the bullets fired by the defendant and not by the damaged property. The Crown contended that 'intending by the destruction or damage' in s 1(2)(b) referred to the act which caused the destruction of or damage to property and that it was not necessary to prove that the destruction of or damage to property was the cause of the danger to life. The Court of Appeal allowed the defendant's appeal and quashed the conviction, holding that a person could only be convicted under s 1(2) of recklessly endangering the life of another by damaging or destroying property if it was proved that the danger to life resulted from the destruction of or damage to property. The Crown appealed to the House of Lords.
a Section 1 is set out at p 834 g h, post
Held – For a person to be guilty of the offence under s 1(2) of the 1971 Act of destroying or damaging any property with intent to endanger the life of another by the destruction or damage or being reckless whether the life of another would be thereby endangered the prosecution had to prove that the danger to life resulted from the destruction of or damage to the property and it was not sufficient for the prosecution to prove that the danger to life resulted from the act which caused the destruction or damage. It followed therefore that the defendant was not guilty of the offence charged and the appeal would accordingly be dismissed (see p 835 h j, p 836 a and p 837 e to j, post).

Activity 18.5

The point of law certified by the House of Lord is:

'Whether, upon a true construction of s. 1(2)(b) of the Criminal Damage Act 1971, the prosecution are required to prove that the danger to life resulted from the destruction of or damage to the property, or whether it is sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.'

should be answered as follows: on the true construction of s 1(2)(b) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.

ARSON

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.

It was held that that to charge as arson meant a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect the penalty

Racially Or Religiously Aggravated Criminal Damage

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 –

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.

It is obvious from these case that 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 acts to protect the property of another abroad from damage that will be caused by the executive’s lawful exercise of prerogative power to wage war?

General defences may be available to a person charged with criminal damage. There is also the defence of lawful excuse which is partly defined in s.5 of the Act. The beliefs required by s.5 need only be honestly held and there is requirement of reasonableness and it is irrelevant that they result from intoxication (Jaggard v Dickinson [1980])