CRIMINAL LAW – COURSE SUMMARY

TOPIC 1: ACTUS REUS AND MENS REA

General Principles:

Crime: a public wrong deserving of punishment rather than, for example, simply a redress via the civil law
where compensation would be paid by the wrongdoer but usually no other penalty imposed by way of
punishment.
Criminal sanctions are designed to meet a number of different requirements: (i) punish offenders; (ii) reduce
crime; (iii) reform and rehabilitate offenders; (iv) protect the public; (v) enable offenders to make reparations
to victims.
 Imprisonment, community sentences and fines (paid to the court) can all be imposed.

Main goal of criminalisation: protection of society and punishment of offenders. There are two main schools
of thought:
 Moralist approach: criminalize conduct regarded as morally blameworthy even if no harm was
caused.
 Utilitarian approach: criminalize conduct which, additionally to being blameworthy, also causes
identifiable harm.

Fundamental principle of criminal law: should be clear, with any ambiguity being attributable in favor of
the defendant —> penalty on conviction must be within the limits prescribed by law.
The Rule of Law: there should be no criminal liability except for conduct specifically prescribed by law —>
offences should not be created to have a retrospective effect.

Classification of offences:

Primarily governed by s 17 of the Magistrates’ Courts Act 1980.

All criminal cases begin in the magistrates’ court.
All criminal cases are classified as summary only, either-way or indictable only offences.

—> Summary offences only:

Less serious crimes – must be tried in magistrates’ court and not in Crown Court.
Usually heard by three lay magistrates who are not required to have any legal qualifications. They rely on
their legal adviser. Alternatively, heard by a district judge who is a qualified solicitor/barrister.

—> Either-way offences:

Middle range of offences: could be tried in the magistrates’ court or in the Crown Court. – ie. theft (other
than low-value shoplifting), dangerous driving, burglary and certain types of assault.
The final venue for the trial of either way offences is laid down by ss 18–22 of the Magistrates’Court Act
1980.
 The trial must take place in the Crown Court (jury) if the magistrates conclude that the offence would
merit a higher sentence than they could impose if found guilty.
 With effect from May 2022, the magistrates’ sentencing powers increased to 12 months' imprisonment
per offence to reduce pressure on the Crown Courts.
 If magistrates can deal with case, D can choose between magistrates’ court or Crown Court.

—> Indictable offences only:

Most serious crimes (ie robbery, rape, murder). Must be tried at the Crown Court before a judge and jury.

Burden of Proof and Standard of Proof:

The guilt of the defendant is determined by assessing the evidence put before the court. In our jurisdiction, it
is not possible for a person to be convicted of an offence which they deny committing unless there is
evidence to prove that they committed the criminal behaviour in question.
In most cases, a guilty state of mind must also be proved.

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 —> Burden of proof:
Usually rests with the Prosecution. It extends to proving the guilty conduct and necessary state of mind
required to establish the criminal offence and also to disproving any potential defences.
 Woolmington v DPP: “Throughout the web of the English criminal law one golden thread is always
to be seen, that is the duty of the prosecution to prove the prisoner’s guilt …”

Exceptions:
 Defendants have to prove the defence of insanity if they wish to rely on it.
 Statutory defences where burden is on D to prove defence exists – i.e. diminished responsibility to the
offence of murder.

—> Standard of Proof:

It is the prosecution that has to satisfy the court beyond reasonable doubt that the defendant should be
convicted of the offence charged. = If the court is in any reasonable doubt after hearing all the evidence of the
case, the defendant must be acquitted as the prosecution has not discharged its burden.
Standard lower for defendant: if D is required to provide a defence, they only need to do so on a balance of
probabilities, ie more likely than not that defence exists.

—> Evidential burden:

Defendant will often have an evidential burden imposed on them = defence must raise some evidence of a
fact in issue so as to convince the court that the matter deserves consideration.
Thereafter, prosecution must disprove the issue beyond reasonable doubt.

Basic principles:

Key components of a criminal offence:

o Actus reus: guilty conduct by the defendant;
o Mens rea: guilty state of mind of the defendant; and
o Absence of any valid defence.
o For some crimes, no requirement to prove MR, but AR must always.
Actus reus will consist of one or more of the following components:
 An act (or sometimes failure to act); and/or
 The existence of certain circumstances at the time of D’s conduct; and/or
 Certain consequences flowing from D’s conduct.

Conduct crime: where an offence is described as a conduct crime, D must behave in a certain way and certain
circumstances need to exist before the AR of the offence is established. (Ie. Rape: lack of consent must be
proved as well as penetration).
Result crime: where an offence is a result crime, it is not enough that D acts in a certain particular way,
certain consequences must follow from that behavior before the AR is established. (Ie. Criminal damage must
cause property damage; murder must cause death)
State of affairs: offences of absolute liability: D fulfills AR of offence in circumstances in which they have
no control. - R v Larsonneur.

——

MENS REA:

Guilty mind (MR): mental or fault element that has to be established to secure a conviction for a criminal
offence.
D must be shown either to have intended something to happen, or to have been reckless as to whether
certain circumstances would exist or whether certain consequences would follow from their conduct.
 NB. sometimes the defendant can be convicted not because of what their state of mind was at the time
of their guilty conduct but what it should have been.
Motive: a defendant’s motive is not normally relevant to his criminal liability.

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Steane: British actor who lived and worked in Germany. During the Second World War, as a result of threats
to himself and his family, he broadcast the news on German radio over several months. His conviction for
doing acts likely to assist the enemy with intent to assist the enemy was quashed on appeal.
 D acted in order to save his family from the concentration camps and court concluded that he did not
intend to assist the enemy.
Is the motive behind a defendant’s actions is relevant in determining criminal liability? The answer is no.

Direct intent: Direct intent is one’s aim or purpose.

Indirect/oblique intent: requires the consequences of the defendant’s actions to be virtually certain to occur,
along with the defendant’s appreciation that they are so.
 Jury will consider two issues: (1) were the consequences virtually certain to occur? (2) Did D
appreciate (foresee) this?

s.8 of the Criminal Justice Act 1967 was enacted, confirming intention as a subjective concept and the
‘natural and probable consequences’ rule as one of evidence rather than a rule of law.
(a) the test is what the defendant themselves foresaw, not what a reasonable person would have; but
(b) what a reasonable person would have foreseen is a good indication, which a jury can take into account in
deciding what the defendant did foresee.

R v Moloney: D shot stepfather when heavily drunk.

1. Did they (the jury) think that death or really serious injury was a natural consequence of the defendant’s
act?
2. If so, were they satisfied that the defendant had foreseen death or really serious injury as a natural
consequence of their act?
If the answer to both was yes, the jury should be instructed that they had evidence from which intention could
be inferred (although they did not have to so infer).

R v Hancock and Shankland: two striking miners dropped a concrete block from a bridge onto a taxi which
was taking a miner to work, killing the taxi driver. When charged with murder, the defendants said they only
intended to block the road and scare the working miners into stopping work.
 HL decided that Moloney guidelines were unsafe and misleading, and suggested instead that
the jury questions should include a reference to probability.
R v Nedrick: It was held that if, in a murder case, the judge felt that the jury would benefit from some
guidance on the meaning of indirect intent, the following should be put to them:
(a) Did the jury consider that death or serious injury was virtually certain to occur as a consequence
of the defendant’s actions?
(b) If so, did the jury believe that the defendant foresaw death or serious injury as a virtual
certainty?

Leading authority: R v Woollin: D killed his three-month-old son by throwing him against a hard surface. It
was clear that the defendant had no desire (direct intent) to kill or seriously injure his son, but the question
remained as to whether, nevertheless, he could be said to have an indirect intent to do so.  court approved
test set out in Nedrick.
o Held: a judge giving such a direction to a jury today should explain that the jury may ‘find’ (not infer)
the defendant had an intent to kill or do serious injury if they are satisfied (a) that death or serious
bodily harm was a virtually certain consequence of the defendant’s voluntary act and (b) that the
defendant appreciated that fact.

DPP v Smith (1961) Objective irrebuttable presumption of law. A man intends the natural and
probable consequences of his acts.
S. 8 CJA 1967 Subjective rule of evidence restored.
Hyam v DPP (1975) Confusing decision. A person intends the consequence of his actions when he
foresees that consequence to be a highly probable result of his actions.
Mohan (1976) Knowledge of likely consequences is evidence of intention.
Moloney (1985) Foresight of consequences as a natural consequence is evidence of intention.
Hancock and Shankland (1986) The greater the probability of a consequence, the more likely it is that the
consequence was foreseen and that if that consequence was foreseen the greater
the probability is that that consequence was also intended.
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 Nedrick (1986) The jury are not entitled to infer intention, unless death of GBH was a virtual
certainty as a result of D’s actions and D appreciated that such was the case.
Woollin (1999) Confirmed Nedrick direction. Changed ‘infer’ to ‘find’, resulting in confusion
over whether Nedrick/Woollin laid down a rule of evidence or one of
substantive law.
Matthews and Alleyne (2003) Confirmed Nedrick/Woollin as a rule of evidence.

Intoxication and intention:

For the purposes of voluntary intoxication, offences have been loosely categorised into offences of ‘specific
intent’ and offences of ‘basic intent’.
 Ulterior intent: prosecution must prove an ‘extra’ element of mens rea against D before they can
secure a conviction. —> additionally, to establishing D committed AR with necessary MR,
prosecution must also prove additional MR: that they intended to produce some consequence which
went beyond the actus reus of the crime.
 I.e., Burglary: must be shown to have an ulterior intent, namely to steal, to inflict grievous
bodily harm, or to cause criminal damage once they are in the building. They do not actually
have to do any of these things but the extra state of mind (an intention to do one of them)must
be established
 Specific intent: crimes where the only mens rea that will suffice to convict a person of the crime is
the mens rea of intention (the recklessness of the defendant is not enough).
 Basic intent: traditionally defined as one where either intention or recklessness will satisfy the
required mens rea, for example criminal damage and most assaults.

A voluntarily intoxicated defendant will have no defence to a ‘basic intent’ offence, but he may be able to
use evidence of his voluntary intoxication to negate the mens rea of a ‘specific intent’ offence by arguing
that due to his intoxication he did not, in fact, form the necessary intention and thus is not liable: DPP v
Majewski [1977].

Recklessness:
A requirement for recklessness is that the defendant takes an unjustified risk so it follows that if they take a
risk that is justified, they cannot be reckless.
Was the risk justified? —> YES —> Did D personally foresee the risk? —> YES —> Did D go on to take the
risk? —> YES —> D is reckless. (If NO to any of these Q, D is not reckless).

Justification of risk: assessed according to the standards of a reasonable person.

 Courts will consider the social utility or benefit involved in taking the risk – they will ask whether
they would have considered there to be any merit in taking the risk if they had been in the defendant’s
position.
The test is whether the defendant foresaw a risk (subjective recklessness). –
 R v Cunningham: Case involving meaning of word ‘malice’ in the context of s.23 of the Offences
Against the Person Act 1861 (ie, maliciously administering a noxious thing so as to endanger life)
 ... malice must be taken not in the old vague sense of wickedness in general but as requiring
either (1) an actual intention to do the particular kind of harm that in fact was done; or (2)
recklessness as to whether such harm should occur or not (ie the accused has foreseen that the
particular kind of harm might be done and yet has gone on to take the risk of it) …
 —> recklessness was regarded as requiring proof that the particular defendant foresaw the
risk and went on to take it.

OUTDATED TEST: Metropolitan Police Commissioner v Caldwell [1982] – objective standard should be
imposed when assessing whether a defendant has behaved recklessly.

Definition of recklessness – current position: R v G and another: Report on Offences of Damage to Property
(Law Com No 29) published in July 1970 – overruled Caldwell and confirmed Cunningham.
The present law on recklessness can be summarised as follows:
(a) There is only one test for recklessness – subjective or Cunningham recklessness. This applies to any
criminal offence in which recklessness forms part of the necessary mens rea.

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(b) The test is whether this defendant foresaw a risk (subjective) of whatever is required by the specific
offence and went on to take it, and the risk is unjustified (objective).

Chief Constable of Avon and Somerset v Shimmen: a martial arts teacher was demonstrating his skills near a
window, he know of the risk but still performed. He kicked at the window and it broke. Because he perceived
just a small minimal risk, he was reckless.

Want or desire X to happen Direct intention

X is virtually certain to happen Evidence of oblique intention Woollin (1999) and Nedrick
(1986)
X is highly probable to occur Not sufficient for oblique intent Hyam v DPP (1975)
Amounts to recklessness (if the
risk taken was unreasonable
X is likely or will probably occur Not sufficient for oblique intent Mohan (1976)
Amounts to recklessness (if the Hancock and Shankland (1986)
risk taken was unreasonable)
X might possibly happen Recklessness (if the risk taken Cunningham (1957)
was unreasonable) R v G and another (2003)

Transferred malice:

R v Latimer: If a defendant has the ‘malice’ (intention or recklessness) to commit a crime against one victim
(or one particular piece of property), the malice is transferred so that the mens rea they had in relation to
their original victim is transferred to the actus reus they commit against another, unintended victim. ***
only works when AR committed is the same type of crime as D originally had in mind.
 Under the doctrine of transferred malice, the defendant’s intention in relation to X can be transferred
to Y where he commits the actus reus of that same offence in respect of Y.

The doctrine does not apply where AR committed in respect of Y relates to a different offence: Pembliton.

Maliciousness:

R v Mowatt: Lord Diplock: “… the word ‘maliciously’ does import upon the defendant… an awareness that
his act may have the consequence of causing some physical harm to some other person.”

Subsequent case law (Cunningham) has interpreted the word “malicious” to require proof of intent or
recklessness.

Negligence:
For crimes where the mens rea may be satisfied by negligence:
(a) A person is punished simply for failing to measure up to the standards of the reasonable person
(b) Although the defendant may have acted intentionally or recklessly, this is not required to establish
criminal liability; it is what the defendant did that is relevant.
(c) Because the test is objective, individual considerations are not taken into account.

I.e., s 3 of the Road Traffic Act 1988: ‘careless and inconsiderate driving’ - This crime is one of the relatively
few offences that exist where someone can incur criminal liability for falling below the standards of the
reasonable person.
McCrone v Riding: test to be applied in assessing whether an individual would be guilty of an offence of
careless driving —> standard is an objective standard, impersonal and universal, fixed in relation to the safety
of other users of the highway. It is in no way related to the degree of proficiency or degree of experience
attained by the individual driver … - referred to manner of the driving.
Road Traffic Act 1988, ss 2 and 2A: D must fall below standard of careful and competent driver.

Strict Liability Offences:

MR nor negligence are required for one or more elements of the AR.
Offences of strict liability are exceptions to the general rule that mens rea is required for criminal offences.
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S 5 Road Traffic Act 1988: driving while intoxicated.
The vast majority of strict liability offences have been created by statute. To determine whether an offence is
one of strict liability, the courts will look at the statutory definition.
Identification: wording of the statute. If statute is silent, presumption in favour of MR (rebuttable)
—> Factors considered: statute as a whole, social context/danger of activity; penalty/stigma of conviction;
whether offence is ‘truly’ criminal.

Sweet v Parsley: If the words of the statute make it clear that the offence is one of ‘strict’ liability, or if the
wording makes it clear that mens rea is required, that is the end of the matter: the court will proceed
accordingly.
Usually the higher the social stigma and the greater the penalty on conviction, the more likely that mens rea
will be required. (R v Brown)

Coincidence of AR and MR:

As a general rule AR and MR should coincide in time.

Thabo-Meli v R: Ds struck the victim on the head, intending to kill him. Believing V to be dead, Ds then
rolled the body over a cliff. In fact, V died from exposure at the bottom of the cliff.
 The Privy Council rejected the defendant’s argument that the actus reus and the mens rea did not
coincide, stating that the acts were to be viewed as one series of acts carried out in order to achieve
the defendant’s plan.

R v Le Brun: “single transaction” principle: D assaulted his wife and then tried to move her. His wife slipped
from his grip and banged her head on the pavement, thereby suffering a fractured skull from which she died.
 Held: where the unlawful application of force (hitting her) and the eventual act causing death
(dropping her) were part of the same sequence of events, the fact there was a lapse in time between
the two did not enable the defendant to escape liability.

Ignorance of the law:

There is no requirement for the defendant to appreciate that what they are doing is criminal.
Ignorance of the civil law can, however, sometimes provide the basis of a defence. For example, for the
offence of criminal damage the defendant must realise that the property destroyed or damaged does or might
belong to another.

Mistake of fact:
D who makes a mistake of fact which causes them to believe their conduct is innocent. A mistake of fact may
cause the defendant to lack some knowledge needed for the mens rea.
It is important to note that there is no separate defence of mistake. It is simply that the mistake may prevent
the prosecution from proving the necessary mens rea for the offence or provide the basis of a defence, for
example the defence of self-defence.
The Sexual Offences Act 2003 provides that a mistaken belief that the victim is consenting (for offences such
as rape) must be a reasonable belief.

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——

ACTUS REUS:

A defendant will not be liable for a criminal offence unless the actus reus of the offence is
proved: Deller (1952).
The actus reus elements of an offence are every element within the definition of the offence which is not
related to the state of mind of the defendant.
The actus reus of an offence may involve:
 an act or omission (conduct);
 the occurrence of a result (consequences);
 the existence of surrounding circumstances.

In order to establish the guilt of the defendant, the prosecution must prove each and every element of
the actus reus of the offence.

Conduct Consequences Circumstances

Conduct elements involve either an Consequence elements involve a Circumstance elements involve the
act or an omission to act by the result which must have been existence of a set of circumstances or
defendant. caused by the conduct of the ‘state of affairs’.
defendant. The actus reus of theft requires the
Conduct offences are ‘doing’ existence of certain circumstances: the
offences, although this term is Proof of causation is required. property stolen must belong to another.
misleading, as a conduct offence can The actus reus of rape also involves
involve an omission to act. Murder is also a ‘result crime’: surrounding circumstances: the absence
the result is the death of a human of consent to sexual intercourse.
Perjury contains a conduct element. being, and it must be established
The conduct is simply making a that the defendant caused the Some offences have no conduct or
statement on oath in judicial victim’s death. (There is consequence elements, but simply
proceedings which is known to be obviously also a conduct element depend upon the existence of a set of
false. (The fact that the statement to murder; an act or omission circumstances; these are often referred to
must be made ‘in judicial which causes death is required.) as ‘state of affairs’ crimes.
proceedings’ is a surrounding
circumstance.)

Voluntariness Requirement:
The final, and important, basic principle to bear in mind with regard to the actus reus is that the conduct of
the defendant must be voluntary.

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Hill v Baxter: a driver’s conduct in driving dangerously might be involuntary if he was stunned by a blow on
the head from a stone, or if he was attacked by a swarm of bees.

Bratty v Attorney General for Northern Ireland: an act which is done by the muscles without any control by
the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious
of what he is doing, such as an act done whilst suffering from concussion.

Where the defendant alleges that their conduct was involuntary, they may be advised to plead the defence of
automatism. Automatism can be successfully argued only if the defendant is blameless.
Broome v Perkins: In order for the defence of automatism to be successful, the defendant must suffer a total
loss of voluntary control.

Liability for omissions:

The general principle is that there can be no criminal liability for failing to act.
Exceptions: many statutory offences which incur liability for failing to act, ie. Road traffic.
 Statutory duty; contractual duty; voluntary assumption of responsibility; special relationship; duty to
avert a danger created.

—> Four recognised situations where D can commit AR by failing to act:

Special relationship (where there is a duty to act): R v Stone and Dobinson

R v Gibbins and Proctor: Ds convicted of murdering a 7-year-old child who died of starvation. D1 (father)
convicted as he had a duty to care for his child. D2 (not mother) convicted as she had assumed a duty towards
the child by choosing to live with the father.
 Special relationship parent-minor child —> under a duty to act.
Downes: duty imposed by statute upon a parent to act to provide medical assistance for his child.
R v Smith: D was charged with the manslaughter of his wife, who died after giving birth to a still-born
child.There was evidence that the wife had instructed her husband not to seek medical attention and he had
respected her wishes. By the time the wife changed her mind and the defendant called the doctor, it was too
late to save her life.
 D not convicted. If V is capable of deciding their own fate, D can be released from any duty to act.
 Case suggests that spouses also have a special relationship.

Voluntary assumption of responsibility:

R v Stone and Dobinson: V died of anorexia and Ds charged with manslaughter as V had a blood relation
(sister) and was taken in to live with them.
 Lane LJ: Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as
she required.There was ample evidence that each appellant was aware of the poor condition she was
in by mid-July. —> assumed duty of care.
R v Ruffell: D & V had taken a cocktail of drugs (heroin and cocaine) together at the defendant’s house. The
victim became very ill and fell unconscious. D assumed a duty of trying to revive V, but when he could not
rouse him, D left V outside the house. He was correctly convicted of manslaughter of that friend when he
failed to care for him properly.
 D assumed a duty of care over V because they were friends, V was a guest in the D’s house, and
because D had made some efforts to revive V.
Instan; D went to live with her 73-year-old aunt. The aunt became ill and the only person who knew of her
aunt’s condition was D. D failed to feed her or summon any medical assistance. She continued limiting in the
house and with the aunt’s money. When V died D was charged with manslaughter.
Nicholls: D took grandchild in her home and expressly undertook care of child. Child died as a result of
neglect and D was charged with manslaughter. Brett J held:
 If a grown-up person chooses to undertake the charge of a human creature helpless either from
infancy, simplicity, lunacy, or other infirmity, he is bound to execute that charge without (at all
events) wicked negligence; and if a person who has chosen to take charge of a helpless creature lets it
die by wicked negligence, that person is guilty of manslaughter.

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Contractual duty to act: failure to comply with contractual obligations may lead to criminal liability.
R v Pittwood: D was a railway crossing gate-keeper. One of his contractual duties was to open and close the
railway crossing gate so people could pass safely. He failed to close the gate on one occasion and a person was
killed by a train. —> D was convicted of manslaughter.

Statutory duty to act: Failing to act when required to do so under a statutory provision will usually lead to
prosecution for the omission itself.
Failing to act when there is a duty to do so imposed by contract or by a special relationship will usually
result in criminal prosecution for the consequences of that omission.

Duty to avert danger created (supervening fault):

R v Miller: D was a squatter who lay on a mattress in his squat, began to smoke a cigarette and fell asleep. He
awoke to find that the lighted cigarette had fallen onto the mattress causing it to smoulder. Instead of taking
steps to stop the smouldering, Mr Miller simply got up, moved to another room and went back to sleep. The
house caught fir. He was charged with causing criminal damage to the property.
 D had created a dangerous situation, he was then under a duty to take steps reasonably available to
him to prevent further damage.
DPP v Santana-Bermudez: Police officer asked D if he had any needles and sharps in his pocket. D said no.
Officer was injured by needle when searching pocket. D charged with s. 47 OAPA.
 ‘where someone (by act or word or a combination of the two) creates a danger and thereby exposes
another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis
for the actus reus of an assault occasioning actual bodily harm’.

Acts or omissions?

Dr Arthur: mother of child with Down syndrome told Dr. Arthur she did not want the baby to survive. Dr
Arthur gave the baby a drug, the purpose of which was allegedly sedative, to stop the baby seeking
sustenance. The baby died less than three days after birth and Dr Arthur was charged with murder.
 The jury acquitted the defendant: This is a ‘negative’ act, a mere omission for which no criminal
liability can be imposed on the doctor.

Airedale NHS Trust v Bland: Tony Bland – one of the victims of Hillsborough football stadium disaster, he
was in a persistent vegetative state: not conscious.
 The court accepted the medical evidence that the injuries suffered by Tony Bland meant there was no
prospect of any further conscious existence and granted permission to discontinue treatment and
feeding. Mr Bland died shortly afterwards.
 HL confirmed that doctors should seek court permission before withdrawing life-sustaining
treatment.
 Court confirmed that if a patient has refused life-saving treatment, for example for religious reasons,
not only is a doctor released from their duty to act but they would be committing a criminal offence of
assault if they did.
 The court was only concerned with omissions to act: there is still no legal right for a doctor to take
positive steps for the purpose of ending a patient’s life.

Thus, a doctor will be liable for murder or manslaughter where the doctor does a positive act which brings
about the death of the patient. The doctor also owes a patient a duty to act to provide medical treatment in
order to preserve the life of the patient.

The continuing act theory:

In Fagan v Metropolitan Police Officer: police officer asked D to move his car. D accidentally drove onto
the police officer’s foot, the officer shouted to get off. D refused to move and turned off the ignition. He was
convicted of assaulting a police officer in the execution of his duty. He appealed, arguing that he had been
convicted on the basis of an omission to act, but that an assault required a positive act. Appeal dismissed. The
Court agreed with D that an assault could not be committed by omission, but they interpreted D’s conduct of
driving onto the officer’s foot and remaining there as one continuing act, as opposed to a separate act and
omission.
——

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CAUSATION:

 Two main rules of causation: prosecution must prove D was the factual cause of the result and he was
the legal cause of the result.

—> Factual causation:

‘but for’ test: but for D’s actions, result would not have occurred - White.
R v Hughes: SC - proof of factual causation ‘is not necessarily enough to be a legally effective cause’, legal
cause must be proved as well.
White: D laced his mother’s drink with potassium cyanide, intending to kill her. She was found dead the
following morning and D was charged with her murder. In order to establish the actus reus of murder, the
prosecution had to prove that D had caused his mother’s death. However, medical evidence showed that she
died from heart failure and not from poisoning. D was acquitted of murder, as it could not be shown that he
was the factual cause of his mother’s death.
 He was convicted of attempted murder because he took steps which were more than merely
preparatory towards killing his mother + intention.
Mitchell: D became impatient whilst in a queue in the post office. He pushed the person in front of him, a 72-
year-old man, who fell forwards onto the next person in the queue, an 89-year-old woman. The woman fell
and broke her hip. She later developed a blood clot and died. D was convicted of manslaughter.

—> Legal causation:

‘chain of causation’: prosecution must prove there was no novus actus breaking the chain.
It is a matter for the jury to decide whether or not the conduct of the defendant has a sufficient link to the end
result to justify attaching blame to the defendant.
Dalloway (1847): D ran over child while driving a horse cart negligently. The jury acquitted the defendant,
suggesting that the jury thought that the child would have died even if the driver had been driving carefully.
De minimis principle: The prosecution must prove that the defendant’s conduct was a more than minimal
cause of the prohibited consequence (Cato (1976); Notman (1994); Kimsey (1996)).

‘Operative and substantial’ cause – Smith (1959): D will be the legal cause of the consequence if his conduct
was the ‘operating and substantial cause’ of that result.
‘Significant contribution’ – Pagett: D’s conduct must contribute significantly to the prohibited result.
 There may be multiple causes of a particular result - R v Broughton: there can be concurrent causes
of death and stated that the prosecution must prove that the defendant’s act (or omission) was a
significant contributory cause of death, rather than the sole or principal cause of death.
 Benge: the accused’s act need not be the sole cause of the result.

—> Novus actus interveniens:

Where the defendant’s conduct is a more than minimal or ‘operating and substantial’ cause of the result, the
defendant will be the legal cause of that result, unless there is a novus actus interveniens which breaks the
chain of causation —> if chain is broken D is acquitted.
The types of intervening event which might break the chain of causation are:
 an unforeseeable escape;
 ‘Escape cases’: chain will be broken by unforeseeable escape. —> D will not be liable for any
injuries that the victim sustains as a result of his escape from the defendant if that escape was
unforeseeable.
 The law distinguishes between acts of the victim which are reasonably foreseeable and
involuntary, and those which are unforeseeable and voluntary. The latter break the chain of
causation.
 Hayward: V’s escape did not break chain as D’s unlawful conduct in threatening and chasing
his wife was regarded as having caused the death of the victim.
 Curley: D threatened/chased V although no physical violence: CA - ‘The jumping out of the
window was contributed to by the appellant’s unlawful act.’

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  Roberts: woman jumped out of the moving car as a result of the D’s making sexual advances
and threatening her, and was injured. Held: her escape was reasonably foreseeable in the
circumstances.
 Mackie: test of reasonable foreseeability also applied here: 3 y-o ran from D fearful of being
harmed and fell down the stairs and died. D was convicted of manslaughter.
 Williams and Davies: Q: whether V’s conduct was within the ‘range of responses which
might be expected’ in the circumstances.- The test is: whether the deceased’s reaction … was
within the range of responses which might be expected from a victim placed in the situation
which he was. – introduced subjective element in rf test.
 Followed in Corbett.
 R v Tarasov and Tarasov: ‘immediacy’ of response by V not a legal requirement provided
that V was in fear of being hurt before escape.
 a voluntary act by a third party or the victim’s negligent medical treatment:
 3rd party act might break chain if the act is a voluntary one which contributes to the result.
However, an involuntary act of a third party will not break the chain of causation
 Padgett: D used girlfriend (V) as shield in shooting against police. Police shot back in self-
defence and killed V. Issue: whether police’s shooting broke chain. —> If the act of the
police in shooting back was a voluntary one, then the defendant would not be liable.
 CA: police conduct was reasonably foreseeable: acting instinctively in self-defence
—> involuntary act.
 Victim’s self-neglect or assisted suicide:
 Instances in which the defendant inflicts harm on the victim, who subsequently neglects
themselves, such as by refusing medical treatment, or choosing to commit suicide via
voluntary euthanasia.
 Holland: D cut V on finger. Cut got infected with tetanus. V refused to get treatment despite
strong medical advice. V died and D convicted of murder.
 CA: self-neglect by the victim does not release the defendant from liability.
 Dear: D stabbed V who later died for loss of blood. D argued V had attempted to commit
suicide by re-opening the wounds. CA held that D would be liable if his conduct ‘made an
operative and significant contribution to the death’. Did not matter it was not the sole cause of
death.
 The issue of whether a victim who chooses to commit suicide via voluntary euthanasia was
considered in the case of R v Wallace: D threw a glass of sulphuric acid into V’s face, causing
him permanent and life-changing injuries.
 15 months later, V requested voluntary euthanasia in Belgium, and he died after
doctors lawfully administered a lethal injection to him.
 Held: intervening acts of the victim and the doctors ‘were not discrete acts or events
independent of the defendant’s conduct, nor were they voluntary, if by this is meant
they were the product of the sort of free and unfettered volition presupposed by
the novus actus rule’; rather they were ‘a direct response to the inflicted injuries and
to the circumstances created by them for which the defendant was responsible’ (at
[61]).
 Causation could be found and new trial was ordered.
 or a natural event:
 A natural event which was not reasonably foreseeable (an ‘Act of God’) will break the
chain of causation.
 Foreseeability of event is a determining factor for liability. If natural event is foreseeable it
will not break chain of causation.
 Negligent medical treatment:
 General rule is that the conduct of a doctor, even if negligent, does not release the defendant
from liability.
 grossly negligent or ‘palpably wrong’ medical treatment will break the chain of causation –
Jordan. NB. Case not generally applicable today.
 Dr may be incur civil liability but that is a separate issue entirely to D’s liability.
 Smith: in order for the defendant to be liable, the original wound need not be the sole cause of
death, as long as it was still an ‘operating and substantial’ cause of death.

11
  Lord Parker CJ: “… Putting it another way, only if the second cause is so
overwhelming as to make the original wound merely part of the history can it be said
that the death does not flow from the wound.”
 Cheshire: negligent treatment 2 months after attack killed V when original wounds were no
longer life-threatening.
 Negligent medical treatment in this case was the immediate cause of the victim’s
death but that did not absolve the accused was so independent of his acts, and in
itself so potent in causing death, that they regard the contribution made by the
original attacker’s acts as insignificant.”
 The drugs cases:
 There are a string of ‘drugs cases’ on unlawful act manslaughter in which the issue arises of
whether a free and voluntary act by the victim precludes causation from being
established.
 Kennedy: D prepared syringe of heroin and handed it to V. V injected himself with the drug
and later died. —> HL held that a defendant was not to be treated as causing the victim to act
in a certain way if the victim made a voluntary and informed decision to act in that way.
 R v Field: D, who had falsely pretended to be in a caring relationship with V and had
persuaded him to change his will, manipulated V, and encouraged him to drink a large
quantity of strong whisky. V died from acute alcohol toxicity and Dalmane use (a drug
prescribed for insomnia). D was convicted of murder.
 V’s act in drinking the whisky was not a free, voluntary, and informed decision.

Thin skull rule: where the victim suffers from some latent, pre-existing physical condition, which renders him
unusually susceptible to injury, the defendant remains liable for the consequences of his conduct, no matter
how unusually serious they are. – Hayward.
Blague: D stabbed women who was a Jehovah’s Witness and refused blood transfusion once at the hospital.
CA was satisfied that the thin skull rule should apply in this case, and that the defendant should be liable for
the consequences of his actions (the victim’s death)

—> Surrounding circumstances/ ‘state of affairs’ crimes:

State of affair crime: includes elements of conduct, consequences, and surrounding circumstances (or just
two of these elements).
An example is that of the offence of theft, which has a conduct element (appropriation) and two surrounding
circumstances (property, belonging to another).
S. 4 of the Road Traffic Act 1988. The offence is committed when this state of affairs, of being unfit to drive
and in charge of the vehicle, exists. The defendant does not need to physically do anything.
 Ie. having an offensive weapon in a public place, contrary to s.1 of the Prevention of Crime Act 1953.
Winzar v Chief Constable of Kent: Police took D from hospital and left him on highway. D later arrested by
another petrol car for being drunk on a highway. Held: D guilty of the offence if he simply was drunk on the
highway.
Larsonneur: French citizen deported to UK against her will. Once in UK she was convicted of an offence of
being found illegally in the UK despite she had no choice in the matter.

TOPIC 2: ASSAULTS, CONSENT AND REASONABLE USE OF FORCE

Non-fatal offences agains the person:

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Hierarchy of 5 main non-fatal offences:

Summary offences Either way offences Indictable only offences

Assault Assault occasioning ABH Wounding or causing GBH with
intent
Battery Malicious wounding or inflicting Maliciously administering a
GBH poison, etc. with intent to injure,
aggrieved, or annoy
Maliciously administering a
poison etc. so as to endanger life
or inflict GBH

Common assault: Assault and Battery

Assault and battery, the least serious of the five offences, are summary only offences, charged under s.39 of
the Criminal Justice Act 1988. They carry a maximum sentence of six months’ imprisonment and/or a fine.

DPP v Taylor; DPP v Little: assault and battery are statutory offences, despite the fact that their elements are
defined under the common law.
Courts have confirmed that assault and battery can only be committed by a positive act and not by an
omission. – Fagan v MPC and DPP v Santana-Bermudez.

—> Simple assault:

Definition: any act which intentionally or recklessly causes another person to apprehend immediate and
unlawful personal force (Fagan v Metropolitan Police Commissioner).
Fear is not a necessary requirement of an assault. Enough V anticipated use of force, regardless of whether
they were afraid or not.

ACTUS REUS:
‘Causing the apprehension of immediate unlawful personal force’.

R v Ireland: words alone can amount to assault without any other gesture. —> whether silent telephone calls
could amount to an assault. – Held: they could be ‘depending on the facts’. A silent caller intends by their
silence to cause fear and the victim may fear the possibility of immediate unlawful personal force.

The threat must be of immediate unlawful personal force.

“Apprehend”: Logodon v DPP: D committed an assault where he opened a drawer and showed V a replica
pistol. He stated it was loaded and he intended to kidnap V.
 Held: assault was committed where by some physical act the defendant intentionally or recklessly
caused the victim to believe that unlawful force was about to be inflicted on him.

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“Unlawful”: conduct might be lawful when: self-defence or defence of another; consent; D uses reasonable
degree of force in the lawful chastisement of a child, or in order to effect a lawful arrest.
“Immediate”: Smith v Chief Superintendent of Woking Police Station – D looked through the windows of
the victim’s bedroom at night. V was scared. – Held: despite the closed window between D and V, there was
sufficient apprehension of immediate and unlawful violence in this case. V did not know what D was going to
do next, but the personal violence that she apprehended was held to be sufficiently immediate.
 Costanza: D who, amongst other things, followed the victim home from work, made numerous silent
telephone calls to the victim and telephone calls in which he spoke, sent over 800 letters to her home,
and sat outside her house in his car in the early hours of the day. – Held: The immediacy requirement
was satisfied in this case as the victim thought that something could happen at any time.
 Ireland; Bustow: immediacy requirement might even be satisfied in a situation involving a silent
caller, because the victim may fear that the silent caller is outside the door.
 However, words can also negate an assault: Tuberville v Savage: D put his hand on his sword and
said, ‘If it were not assize-time, I would not take such language from you.’ There was no assault here
as, there being no intention to assault, the victim could not have apprehended immediate personal
violence.
 Conditional threats: The law takes the view that such an imposition on the victim and the unjustified
restriction on their personal liberty is unwarranted and the defendant should still be liable for assault –
Read v Coker.
 Lamb: D pointed a revolver at V during a game of Russian roulette. V, who was a willing participant
in the practical joke, did not think that any harm would come to him and, thus, did not apprehend any
immediate personal violence —> no assault.

MENS REA:

R v Venna: intention or recklessness in relation to the ingredients of the Actus reus of an assault. —> an
assault/battery can be committed recklessly.
Subjective test for recklessness: R v Spratt: defendant must foresee the risk that the victim will apprehend
immediate unlawful personal force and go on to take that risk.

—> Physical Assault (or battery):

Definition: A person commits a battery if he intentionally or recklessly inflicts unlawful force on another
person: Collins v Wilcock.

ACTUS REUS: the infliction of unlawful personal force on the victim.

“Force”: V need not perceive the application of force before it occurs: a blow from behind is sufficient actus
reus for battery but would not be for an assault.
 The degree of force required for a battery is very slight and no harm to the person is necessary. – Cole
v Turner: ‘the least touching of another in anger’ was sufficient.
 Brown: hostile contact was required for battery.
 Collins v Wilcock: principle underlying the criminalisation of battery is ‘that every person’s body is
inviolate … The effect is that everybody is protected not only against physical injury but against any
form of physical molestation.’
 No injury is required.
“Unlawful”: deemed ‘lawful’ where a police officer lawfully arrests a person, where a child is subjected to
reasonable punishment, and where reasonable force is used in self-defence or the prevention of crime.
 Collins v Wilcock: defences includes implied consent which, according to Robert Goff LJ, allows for
‘the exigencies of everyday life’.
 Police officer (Wilcock) held Collins’ arm in order to detain her for questioning. Collins
scratched the police officer’s arm and was arrested for assaulting a police officer in the
execution of her duty.
 Held: conduct of the police officer was unlawful and amounted to a battery as it went beyond
the generally acceptable standards of physical contact.

Direct/indirect application of force: the application of force can be indirect, for example deliberately placing
an obstacle behind a door so the victim trips over it.

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  DPP v K (a minor): schoolboy who took some sulphuric acid to the toilets in order to test the reaction
of the acid with toilet paper. On hearing footsteps outside, he panicked and threw the acid in a hand
drier, the nozzle of which was pointing upwards. When another pupil used the hand drier, acid was
blown into his face. —> Held: D guilty of assault occasioning ABH.
 Haystead v Chief Constable of Derbyshire: held that the defendant was guilty of physical assault on a
baby when he punched the baby’s mother, causing her to drop the child. —> not essential that the
force should be so directly inflicted.
 Martin: D, intending to cause terror and alarm, ran out of a theatre, extinguishing the lights. He
placed an iron bar across the exit to the theatre. The audience panicked and rushed to the exit. A large
number of people were seriously injured in the crush and D was convicted of maliciously wounding
or inflicting GBH.

MENS REA:
Intention or recklessness in relation to the infliction of unlawful force on another person – Venna and Savage;
Parmenter.
Subjective Cunningham standard of recklessness is applied.

——

—> Assault Occasioning Actual Bodily Harm (Offences Against the Person Act 1861, s 47)

This offence carries a maximum sentence of five years’ imprisonment and is triable either way – either in the
magistrates’ court or the Crown Court.

ACTUS REUS:
(1) An assault (2) which occasions (3) ABH.
“ABH”: any hurt or injury calculated to interfere with the health or comfort of the victim. The harm does not
have to be serious and a bruise, scratch or swelling would suffice. – R v Miller.
 Examples in the Charging Standard Code of actual bodily harm that would lead to a s 47 charge include
those where there has been significant medical intervention and/ or permanent effects have resulted. Ie,
need for a number of stitches (but not steri-strips) or a hospital procedure under anaesthetic.
 Mental harm: ABH is capable of including psychiatric injury. However, it needs to be a recognisable
clinical condition, for example, anxiety neurosis or reactive depression. Strong emotions such as rage,
extreme fear or panic do not suffice. Neither would an hysterical or nervous condition – R v Ireland.
 Chan-Fook: any physical or psychiatric injury need not be permanent in nature, but it ‘should not be so
trivial as to be wholly insignificant’.
 T v DPP: temporary loss of consciousness was sufficient to amount to actual bodily harm.
 DPP v Smith: cutting off a substantial part of a person’s hair without consent amounted to actual bodily
harm. – Held: the bodily harm must be more than trivial or trifling, ‘bodily’ is concerned with the body
and applies to ‘all parts of the body’, and the meaning of ‘harm’ was not limited to ‘injury’ and extended
to ‘hurt’ or ‘damage’.

 Last element of AR is one of causation.

MENS REA:
R v Savage; R v Parmenter: the mens rea was intention or recklessness as to the assault only. The prosecution
did not have to prove that the defendant intended or was reckless as to the harm.
As a consequence, the element of causing actual bodily harm is relevant only to the actus reus of this
offence and not the mens rea; there is strict liability as to this aspect.
NB. no difference between MR for simple/physical assault and MR for s 47 of the OAPA 1861:
intention/recklessness as to causing the victim to apprehend immediate and unlawful personal force.

—> Maliciously Wounding or Inflicting Grievous Bodily Harm (Offences Against the Person Act 1861, s
20)

ACTUS REUS: to unlawfully wound OR inflict grievous bodily harm.

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“Unlawfully”: simply means that the act of wounding or inflicting grievous bodily harm was not done with
any lawful justification – R v Horwood.
 Ie. wounding or grievous bodily harm inflicted in self-defence or in defence of another would be
lawful.

“Wound”: A wound requires both layers of the skin to be broken – Moriarty v Brookes. - Cuts of any size or
severity or lacerations are the most common examples but, in theory, a scratch that draws blood will suffice.
 Note that bruising or internal bleeding are not wounds no matter how serious the bleeding, as the skin
has not been broken - JJC (a Minor) v Eisenhower —> it was held that a bruise or internal rupturing
of blood vessels is not sufficient. This case involved an injury caused by the victim being struck in his
left eye by a pellet from an air pistol.
 R v Beckett: a ‘slight scratch’ was not sufficient to constitute a wound. The continuity of the whole
skin must be broken.

“Inflict”: Martin: D could be convicted of inflicting GBH where by extinguishing the lights in a theatre and
placing a bar across the exit people sustained injuries when they panicked.

“Grievous bodily harm”: means ‘really serious harm’ (DPP v Smith) but case law provides no further
guidance, so the jury must decide. - Examples would be a fractured skull, severe internal injuries and broken
limbs.
 R v Bustow: psychiatric problems could amount to grievous bodily harm if they were severe enough.
 DPP v Smith: HL held that ‘grievous bodily harm’ should be given its ordinary and natural meaning.
Harm would be ‘grievous’ if it was ‘really serious’.

MENS REA: s 20 uses the word ‘maliciously’ when describing the mens rea. In the context of the
criminal law, ‘maliciously’ means intention or recklessness (Mowatt).
R v Savage; R v Parmenter: defendant need only intend or be reckless as to some bodily harm (ABH). In
other words, it is not necessary to prove that the defendant foresaw really serious harm (GBH).
Mowatt: D must intend or be reckless as to causing some harm. —> It is enough that he should have foreseen
that some physical harm to some person, albeit of a minor character, might result.
 Approved by HL in Savage; Parmenter.

—> Wounding or Causing Grievous Bodily Harm with Intent (Offences Against the Person Act 1861, s 18)

It is an indictable offence, so that it can only be tried in the Crown Court before a judge and jury. Maximum
sentence of life imprisonment.

The four ways of committing a s 18 offence are:

1. unlawfully and maliciously causing grievous bodily harm with intent to cause grievous bodily harm;
2. Unlawfully and maliciously wounding with intent to cause grievous bodily harm;
3. unlawfully and maliciously causing grievous bodily harm with intent to resist or prevent the lawful
apprehension or detainer of any person AND intention to cause ABH;
4. unlawfully and maliciously wounding with intent to resist or prevent the lawful apprehension or detainer of
any person AND intention to cause ABH.

ACTUS REUS: twofold – to wound OR to cause GBH.

No practical distinction between ‘inflict’ in s. 20 and ‘cause’ in s. 18: the word ‘cause’ is wider than the word
‘inflict’ – Lord Steyn: in the context of the Act of 1861 there is no radical divergence between the meaning of
the two words’. (R v Bustow)

MENS REA:
Intention to cause GBH; or
ULTERIOR INTENT- If the intention is to resist or prevent arrest, the prosecution must also prove that the
defendant ‘maliciously’ (intentionally or recklessly) caused some bodily harm.

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  Intention to resist arrest; (+ recklessly cause ABH) or
 Intent to resist or prevent the lawful apprehension or detainer of any person (+ recklessly cause ABH).

“Intention to cause GBH”: mere recklessness not sufficient (Belfon)

 D will have direct intent in relation to causing GBH if it is his aim or his purpose to do so, or his
intention may be oblique where GBH was virtually certain to occur and the defendant appreciated
this: Nedrick (1986) and Woollin (1999).
“Intention to resist arrest or to prevent the lawful apprehension or detainer of a person”: ‘maliciously’
(recklessness) - this form of the offence requires proof of two mens rea elements: (1) intention to resist arrest
(2) recklessness as to ABH.

——

CONSENT:

Implied consent: Generally speaking, consent is a defence to battery; and most of the physical contacts of
ordinary life are not actionable because they are impliedly consented to by all who move in society and
so expose themselves to the risk of bodily contact.

The general rule is that consent is only a defence to assault and battery. Consent is no defence to any injury
amounting to actual bodily harm: Donovan and Attorney General’s Reference (No. 6 of 1980).
Donovan: D beat a 17-year-old girl with a cane for his sexual pleasure. The girl was a willing participant. —>
CA: ‘it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily
harm is a probable consequence, and when such an act is proved, consent is immaterial’.
Attorney General’s Reference (No. 6 of 1980): exceptions to the general rule that consent is no defence to
harm amounting to ABH or GBH include: injuries sustained during properly conducted sports, lawful
chastisement or correction, reasonable surgical interference, and dangerous exhibitions.

—> What is valid consent?

The general position in criminal law had always been that the consent did not have to be fully informed to be
valid. —> If you knew the identity of the assailant and the nature of the act you were agreeing to, that was
sufficient.
R v Clarence (NOT GOOD LAW): D had sexual intercourse with his wife knowing he was suffering from a
sexually transmitted disease. His wife was unaware of this and was infected as a result. Clarence was charged

17
under s 20 of the OAPA 1861, but the court held he had not assaulted his wife as she had consented: she
knew D’s identity and nature of the act.
NOW: Consent is only valid if it is freely given by a fully informed and competent adult.
 Consent invalid if it is obtained by fraud as to the identity of the defendant (but not if he lies about his
qualifications) or by fraud as to the nature and quality of the act.
H v CPS: court rejected the submission that teachers in special needs schools must by their post ‘impliedly
consent’ to the use of violence against them by pupils.
Thomas: touching the ‘person’ of the victim includes the clothes he is wearing.

Section 79 of the Sexual Offences Act 2003 defines touching for the purpose of that Act, as including
touching with any part of the body, with anything else or through anything.
Duress may negative apparently valid consent. A threat to imprison V unless he submitted to a beating would
probably invalidate V’s consent to the beating.

—> Consent procured by fraud:

In offences against the person, D’s fraud as to the conduct does not necessarily negative V’s consent: it does
so only if it deceives V as to D’s identity or the nature of the act.
Approach confirmed by CA in R v Richardson: D (dentist suspended from practice) carried out dentistry on V
who complained to the police. – Held: consent given was valid: V knew identity and nature of act.
R v Tabassum: D claimed that he was medically qualified and carrying out a study on breast cancer (neither of
which were true). Three women allowed him to examine their breasts but complained that they would not
have done so had they known the truth. The defendant was charged with indecent assault. – case distinguished
from Richardson.
 CA focused on whether the ‘victims’ knew the nature of the act and stated that they must know the
nature and quality of the act if their consent was to be valid. – Held: c. Invalid.
Bolduc v Bird: where D1, a doctor, by falsely pretending that D2 was a medical student, obtained V’s consent
to D2’s presence at a necessary vaginal examination of V, it was held that there was no assault because the
fraud was not as to the nature and quality of what was to be done.

—> Capacity:
Consent obtained from a minor is invalid: Burrell v Harmer.
Those with a mental disorder or learning difficulty may lack sufficient capacity to give consent, as may
someone who is temporarily incapacitated by intoxication or otherwise. Burrell v Harmer.
Mental Capacity Act 2005: ‘a person lacks capacity in relation to a matter if at the material time he is unable
to make a decision for himself in relation to the matter because of a temporary or permanent impairment of,
or a disturbance in the functioning of, the mind or brain’.

—> Consent and sexual infection:

R v Dica: D infected his sexual partner with HIV. Prosecution argued D had valid MR in the form of
recklessness. – overruled Clarence: just because the victims consented to sexual intercourse with the
defendant, that did not mean they had consented to any risk of infection from that sexual intercourse. The
question of whether the victims had consented was a question of fact for the jury to decide.
R v Konzani: after being informed that he was HIV positive, D had unprotected sexual relationships with
three complainants. He did not inform them he was HIV positive; they all contracted HIV. – Held: A person’s
consent to the risks of contracting the HIV virus can only provide a defence to an assault charge if their
consent is informed.

—> Consent as a defence to assault:

Consent can be a defence to simple or physical assault provided no harm was caused or intended.
Attorney General’s Reference (No. 6 of 1980): consent not a defence to charge of s. 47. The court identified
the following as examples of when consent would be a valid defence to an assault which caused harm:
 Surgical operations
 Dangerous exhibitions (i.e. circus acts)
 Properly conducted sport, i.e. boxing and rugby.

Sports:

18
R v Barnes: criminal conviction in the course of a sporting event was reserved for those situations where the
conduct was sufficiently grave to be properly categorised as criminal, and this would depend on the
circumstances.
 CA: the level of criminality in such cases was to be assessed objectively (by the jury) and would be
determined by the type of sport, the level at which it was played, the nature of the act, the degree of
force used, the extent of the risk of injury and the state of mind of the defendant.

Rough Horseplay:

Jones and Others: schoolboys sustained serious injuries while playing. CA held that consent was available as
a defence because the boys were willing participants and they did not intend to cause injury.
R v Brown: consent can be a defence to other ‘lawful activities’ such as ritual circumcision, tattooing and ear-
piercing, even though harm is caused.
 Ds were group of sado-masochistic homosexual men who, over a long period of time, willingly
participated in the commission of acts of violence against each other, including genital torture, for the
sexual pleasure which it engendered in the giving and receiving of pain.
 CA held: consent not a defence: the activities were not in the public interest and could not, therefore,
be a ‘new’ exception to the general rule that a victim cannot consent to the harm.
The case was subsequently taken to the European Court of Human Rights by the appellants under the name
of Laskey v UK for breach of Art. 8 ECHR (right to respect for private life). Held: it was not a breach of the
Article as the interference of the State was necessary for the pursuance of a legitimate aim, namely, that of
protection of health.

R v Wilson: D, at the instigation of his wife and with her consent, used a hot knife to brand his initials on his
wife’s buttocks. D charged with s. 47. – CA held that there was no public interest argument in concluding that
such consensual activity between a husband and wife was unacceptable. Conviction quashed (similar consent
to a tattoo).
R v Emmett: the issue of consent was immaterial where there was a realistic risk of harm ‘beyond a merely
transient or trivial injury’.
R v BM: D was a tattooist and body piercer by trade, was charged with a s 18 offence after having (with the
victim’s consent) removed part of his ear, a nipple and split his tongue to resemble that of a lizard. – Held: a
person could not consent to such serious, irreversible injuries.
R v Dica: defence of consent would not be available where there was a deliberate infliction of grievous bodily
harm.
 The defence of consent would not be available where there was a deliberate infliction of grievous
bodily harm.
 Court suggested that knowledge of the risk of contracting HIV can be used as a defence by D.

—
REASONABLE FORCE DEFENCES:

—> Self-defence and prevention of crime: two defences: common law & s. 3 CLA 1967

The common law recognises that an individual may justifiably use force to act in self-defence in certain
circumstances. In addition, s 3(1) of the Criminal Law Act 1967 states:
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in
effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully
at large.
Burden of Proof: Where an accused wishes to rely upon self-defence they have an evidential burden to
discharge. = Although they do not need to prove the defence, they are required to raise it to make it a live
issue at trial.
 Then, the prosecution must disprove the defence beyond a reasonable doubt.

“Reasonable force”: question of fact for the jury to decide. – To argue self-defence successfully, the
defendant must argue that they used (objectively) reasonable force in the circumstances (subjectively) as they
believed them to be.
 There is no rule of law which states that the defendant must retreat before resorting to self- defence,
nor do they have to wait for their assailant to hit them first – R v Bird.

19
The test for reasonable force is an objective one and the defendant’s views are irrelevant.
Palmer v R: If there has been an attack so that defence is reasonably necessary it will be recognised that a
person defending himself cannot weigh to a nicety the exact nature of his necessary defensive actions. —> the
question is whether the defendant used reasonable force in the circumstances as they believed them to be.

—> Mistake:

R v Williams (Gladstone):
1. Is the defendant to be judged on the facts as they mistakenly believed them to be or as they actually were?
2. Should the defendant be judged on their mistaken belief only if their mistake was a reasonable one?

The answers to the issues are:

1. The defendant is judged on the facts as they believe them to be (albeit mistakenly).
2. No - the defendant is judged on the facts as they honestly believe them to be even if that honestly held
belief is unreasonable.
 Lord Lane: He must then be judged against the mistaken facts as he believes them to be. If judged
against those facts or circumstances the prosecution fail to establish his guilt, then he is entitled to be
acquitted.”
 If the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion
that the belief was not honestly held and should be rejected.

R v Martin (Anthony): D shot and killed burglar in his house. D argued he suffered from paranoid personality
disorder and so he perceived a greater danger to his physical safety than the average person in his situation. —
> Held: psychiatric evidence that the defendant would perceive a greater threat is not admissible.
However, evidence of D’s physical characteristics is admissible (ie threat against elderly lady rather than
young robust man).

=/= decisions contrasts with Shaw (Norman) v R: jury should look at the circumstances and the danger as
the defendant honestly believed them to be in deciding if the force was reasonable.
—> Professor Smith suggests that if Shaw is correct, evidence of the kind raised in Martin (psychiatric
evidence) would be directly relevant and should be admissible.

R v O’Grady and R v Hatton: CA held that a mistaken belief in the need for force is no defence if that mistake
is based on voluntary intoxication where the defendant has chosen to take drink or drugs.
o *** exception to the rule in Williams (Gladstone).

—> Can D rely on an unknown fact?

R v Dadson: The law says one cannot rely on facts of which he was unaware in deciding whether or not
she used reasonable force.

—> Criminal Justice and Immigration Act 2008, s 76:

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided
by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in
connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances-
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held
it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of
subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was
voluntarily induced.

20
To rely on s. 76, D need not to be a homeowner - all that is required is that they are not a trespasser and are in
or partly is a dwelling.
 Section 76 (5A): In a householder case, the degree of force used by D is not to be regarded as having
been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in
those circumstances.
 76 (6) In a case other than a householder case, the degree of force used by D is not to be regarded as
having been reasonable in the circumstances as D believed them to be if it was disproportionate in those
circumstances.

R (Collins) v Secretary of State for Justice: The effect of section 76(5A) is not to give householders carte
blanche in the degree of force they use against intruders in self-defence. A jury must ultimately determine
whether the householder’s action was reasonable in the circumstances as he believed them to be. – followed
by CA in R v Ray.
= whereas in non-householder cases, the focus is exclusively on the reasonableness of the force used by the
defendant; in householder cases, the focus is on the issue of proportionality.
R v Clegg: Currently the position is that self-defence is either successful, in which case the defendant is
acquitted, or, if they used excessive force, it fails and they are convicted.

—> Reasonable Chastisement:

R v Hopley: Parents can use force to discipline their children as long as it amounts to no more than moderate
and reasonable chastisement.
A v UK: a 9-year-old boy was beaten by his step-father with a garden cane, resulting in a number of bruises.
The step-father was charged with s. 47 and raised the defence of reasonable chastisement. He was acquitted.
 The boy then took his case to the European Court of Human Rights, claiming that his ill-treatment
amounted to a breach of Article 3 of the Convention which prohibits ‘torture and inhuman or
degrading treatment or punishment’.
 The Court decided that the UK was in breach of its obligation.

Parliament intervened: any punishment that causes visible bruising, grazes, scratches, minor swellings or cuts
could lead to prosecution and, if convicted, a term of imprisonment of up to five years (see Children Act
2004, s 58).
 —> these provisions enable the defence to be raised to a charge of physical or simple assault but not
to any offence brought under the OAPA 1861.

TOPIC 3: HOMICIDE AND THE PARTIAL DEFENCES TO MURDER

MURDER AND MANSLAUGHTER:

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THE ACTUS REUS OF HOMICIDE:

The defendant must cause the death of a human being.

Murder is the most serious offence of homicide. Manslaughter is a less serious offence of homicide. There are
two types of manslaughter: voluntary manslaughter and involuntary manslaughter.
All offences share a common actus reus. - Murder is the most serious of these offences and requires the
highest form of mens rea: an intention to kill or cause GBH.

The victim must be a human being:

D will only be guilty of murder (or manslaughter) if the victim is a reasonable creature in rerum natura (or a
reasonable creature in being).
The point for consideration here is at what point a foetus becomes a human being and is thus afforded the
protection of the law of homicide. It is not homicide to kill a child in the womb.
Where an abortion is unlawfully procured outside the scope of the terms of the Abortion Act 1967, the
offence of procuring a miscarriage is available under s.58 of the Offences Against the Person Act 1861.
Another offence of child destruction under s.1 of the Infant Life (Preservation) Act 1929 applies to the
destruction of a foetus which was capable of being born alive.
To be given the protection of the law of homicide the child must be wholly expelled from the mother’s body
and be alive (R v Poulton (1832) 5 C & P 329), and must have an existence independent of the mother. The
courts have said this means the child should have independent circulation and have drawn breath after birth.
 Reeves: the child is in being even if the umbilical cord has not been cut. A foetus in its mother’s
womb is not a reasonable creature in being and, thus, is not capable of being murdered.
 Mary - Re A (Children) (conjoined twins: surgical separation) – issue: whether weaker twin was a
human being. – Held: it was.
 The fact that Mary is dependent upon Jodie, or the fact that twins may be interdependent if
they share heart and lungs, should not lead the law to fly in the face of the clinical judgment
that each child is alive and that each child is separate both for the purposes of the civil law
and the criminal law.
 Attorney-General’s Reference (No 3 of 1994): D stabbed his pregnant girlfriend. As a result baby was
born prematurely and died after 120 days. – Held: NOT murder, but unlawful act manslaughter.
 Murder could not be committed where unlawful injury had been deliberately inflicted to a
mother carrying a child where the child was subsequently born alive and then died as a result
of the injuries inflicted while in the uterus. Their reasoning was that any mens rea the
defendant had in relation to the mother could not be transferred to the unborn foetus.

When does someone die?

R v Malcherek and Steel: A patient who is on a life-support machine is a reasonable creature in being and
capable of being murdered.
 V on life sustaining machine: brain dead – doctors disconnected machine and V died. – Court rejected
D’s argument that doctors killed V. – Held: D’s acts where an operating and substantial cause of death.
22
  Lord Lane CJ – legal definition of death: ... the irreversible death of the brain stem, which controls
the basic functions of the body such as breathing. When that occurs it is said that the body has
died, even though by mechanical means the lungs are being caused to operate and some circulation of
blood is taking place.
Airedale NHS Trust v Bland: If switching off the machine is a positive act, then the doctor is criminally
liable for the death of the patient, but if it is deemed to be an omission to act, it is lawful.
 HL held that switching off the life-support machine amounted to an omission rather than a positive
act, so a doctor would not be criminally liable for the patient’s death by withdrawing treatment.

Causation:

The defendant’s act must be a substantial or significant cause of the victim’s death. For causation to be
established the defendant’s act (or omission) must accelerate the death.
It is a question for the jury to determine – Clarke and Morabir.
R v White: D poisoned his mother’s drink intending to kill her. Although she suffered a fatal heart attack after
drinking a small amount of the liquid, medical evidence confirmed that her death occurred from heart failure
unconnected to the poisoned drink. – Held: D’s actions were not a substantial or significant cause of his
mother’s demise – D acquitted.

Both factual and legal causation MUST be established.

—> Factual Causation:

‘But for the defendant’s conduct, would the victim’s death have occurred in the way that it did?’ – R v White.
It is of course accepted that everyone has to die at some time, so the question developed by the courts is
whether the defendant’s conduct accelerated death. If it did, factual causation is established.
R v Cheshire: acceleration of death must be ‘significant’. ‘Significant’ means ‘more than negligible’.
Question of fact for the jury. – an acceleration of even a day or two can be sufficient

—> Legal Causation:

The question of legal causation is left to the jury to decide as a matter of common sense, but various
guidelines have emerged:
a) where an act by some other person intervenes between the defendant’s conduct and the end result;
(b) where some event occurs between the defendant’s conduct and the end result.

R v Pagett: D’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough
that his act (or omission) contributed significantly to that result …

Novus actus interveniens will NOT succeed if the court decides:

(a) that, despite there being an intervening event, the injuries inflicted by the defendant were still an
operating and substantial cause of death; or
(b) if there was an intervening act or event, this was foreseen or foreseeable. Here, the court must decide
whether it was foreseen by the defendant or foreseeable by the reasonable person that such an event
was likely to occur in the normal course of events.

Operating and substantial causes of death: R v Malcherek and Steel: Where a medical practitioner adopting
methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient
is for practical purposes dead, and that such vital functions as exist - for example, circulation - are being
maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the
person who inflicted the initial injury from being responsible for the victim’s death.

When V’s death is due to something other than physically inflicted injuries:
 R v Watson: Ds threw brick throw window of elderly man who suffered from a heart condition. Ds
entered his home and verbally abused him, he died 90 mins later. – Held: Ds convicted of
manslaughter. —> The test appears to be the same as in the case of physically inflicted injuries: if it
was foreseen or foreseeable that such an outcome could occur, the defendant can be said to have
been the legal cause of death.

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  R v Wallace: D threw sulphuric acid on her partner. V suffered horrific injuries, amputations and was
paralyzed. V applied for euthanasia in Belgium and died.
 CA rejected argument that doctors’ actions broke the chain of causation. —> The judges
stated that the question was whether it was reasonably foreseeable that the victim would
commit suicide as a result of his injuries.

—> Causation in cases of medical negligence:

R v Jordan: V died in hospital 8 days after being stabbed by D. —> CA held that the medical treatment
received by the victim was ‘palpably wrong’. The view of the Court was that where death followed from
normal medical treatment used to deal with an injury inflicted by the defendant (presumably, for example,
where death occurred from complications following surgery necessitated by the original injury), death could
be regarded as having been caused by the defendant; but where the treatment was ‘not normal’ the same
inference could not be drawn. —> D’s conviction was quashed.

R v Smith: ... if, at the time of death, the original wound is still an operating cause and a substantial
cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death
is also operating. Only if it can be said that the original wounding is merely the setting in which another cause
operates can it be said that the death did not result from the wound. Putting it another way, only if the second
cause is so overwhelming as to make the original wound merely part of the history can it be said that the death
does not flow from the wound …

R v Cheshire: D allowed to escape liability only where the negligent medical treatment was: ... so
independent of [the defendant’s] acts, and in itself so potent in causing death, that [the jury] regard the
contribution made by [the defendant’s] acts as insignificant …

R v McKechine: victim could not receive treatment for a pre-existing condition because of the injuries
inflicted by the defendant – Held: The Court of Appeal confirmed that the chain of causation between the
defendant’s attack and the victim’s death was intact because the assault had prevented an operation on
the ulcer which would have saved the victim’s life.

Judgement consistent with egg-shell skull rule:

R v Blague: ... those who use violence on other people must take their victims as they find them. This in our
judgment means the whole man, not just the physical man …

——

MURDER:

Most serious common law offence: mandatory sentence of life imprisonment.

The judge will also set a ‘tariff’, which is the minimum term that the defendant must serve in prison. After
this period, the defendant will continue to serve in prison unless and until the Parole Board considers the
defendant to no longer be a danger to the public.
Once the defendant has been released, he will remain ‘on licence’ for the rest of his life. This means that the
defendant can be recalled to prison if he commits a further offence.
Hutchinson v UK: no violation of Article 3 (inhuman or degrading treatment or punishment) in respect of life
sentence as domestic law provided a prospect of release.

Definition: murder is committed when a defendant unlawfully causes the death of a person with an intention
to kill or cause GBH.

ACTUS REUS:

The unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought. —>
AR: unlawful killing of a human being.

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“Unlawful”: a killing will be lawful where it is justified. Ie, where D kills another person while acting in self-
defence or in the defence of another. The defence of self-defence negates the unlawfulness of the killing.
 Re A (Children) (conjoined twins: surgical separation): a killing may also be rendered lawful
through the defence of necessity - relied upon by Brooke LJ to justify the operation, and, thus, the
killing.
“Under the Queen’s peace”: Where the defendant kills an enemy combatant during times of war, he has a
defence to a charge of murder.

The year-and-a-day rule: old rule – NOW: where the death occurs three years after the act or omission of the
defendant, the permission of the Attorney General must be sought before a prosecution for murder can be
brought (s.2, Law Reform (Year and a Day Rule) Act 1996).

MENS REA:

‘Malice afterthought’ – Vickers. This means an intention to kill or cause GBH – R v Moloney.

Entirely subjective test: whether the individual D intended to kill or to cause grievous bodily harm.

Mercy killing is no defence in English law: Inglis and R (Nicklinson) v Ministry of Justice.
Vickers: D struck the victim intending to cause her GBH. Held: he had sufficient mens rea to support a murder
conviction.
 The Court held that although s.1 of the Homicide Act 1957 abolished constructive malice, it expressly
preserves both express malice (an intention to kill) and implied malice (an intention to cause GBH).

Direct intent is a person’s aim or purpose. A person has direct intent in relation to something which he
desires and foresees.
Oblique intent requires the defendant to foresee the consequences of his actions as virtually certain to
occur: Nedrick and Woollin.

REFORM:

In 2006, the Law Commission recommended replacing the current two-tier structure of murder and
manslaughter with a new three-tier structure of general homicide offences: first degree murder, second
degree murder, and manslaughter.
o First degree murder: The offence of first degree murder carries a mandatory life sentence. It would be
committed where the defendant:
i. kills intentionally; or
ii. kills with an intention to do serious injury, coupled with an awareness of a serious risk of causing
death.
o Second degree murder: the maximum sentence for second degree murder is a discretionary life sentence.
This offence would be committed where the defendant:
i. Kills and intends to do serious injury; or
ii. Kills with an intention to cause some injury or a fear or risk of injury, and was aware of a serious
risk of causing death; or
iii. Kills and there is a partial defence to what would otherwise be first degree murder.
o Manslaughter: The maximum sentence for manslaughter is a discretionary life sentence. This offence
would be committed where the defendant:
i. Kills through gross negligence as to a risk of causing death; or
ii. Kills through a criminal act:
A. Intended to cause injury; or
B. Where there was an awareness that the act involved a serious risk of causing injury;
iii. Participates in a joint criminal venture in the course of which another participant commits first or
second degree murder, in circumstances where it should have been obvious that first or second
degree murder might be committed.

——
VOLUNTARY MANSLAUGHTER:

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Discretionary life sentence: A defendant who is convicted of manslaughter may be given a maximum sentence
of life imprisonment; this is merely a maximum sentence and is not a mandatory one.
Partial defences to murder: A person will be liable for an offence of voluntary manslaughter for one of three
special reasons:
 Diminished responsibility;
 Loss of control; and
 Suicide pact.

*** the partial defences only apply once the prosecution have proved the offence of murder.

—> Diminished Responsibility:

Diminished responsibility is a partial defence to murder which, if successfully proved by the defendant on the
balance of probabilities, reduces murder to voluntary manslaughter. It can only ever be pleaded as a defence to
a murder charge, not to any other offence.

Basis of defence: although the defendant has committed the actus reus of murder with the necessary
mens rea, they were suffering from a recognised medical condition which, whilst it does not give them the
legal defence of insanity, does provide them with a partial excuse for their actions.

s.2(2) of the Homicide Act 1957: the legal burden of proving diminished responsibility is on the defendant
and is only ‘on a balance of probabilities’.

The four elements of the defence of diminished responsibility are:

1. Abnormality of mental functioning; which
2. Arose from a recognised medical condition;
3. Substantially impaired D’s ability to understand the nature of their conduct, and/or form a rational
judgement, and/or exercise self-control; and
4. Provides an explanation for D’s acts and omissions in doing or being a party to the killing.

1. Abnormality of mental functioning:

R v Byrne (Parker CJ): “a state of mind so different from ordinary human beings that the reasonable man
would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not
only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an
act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that
rational judgment.”
It is the prosecution’s right to assess the medical evidence and to challenge it, and it is for the jury to
determine the issue – R v Blackman and R v Husain.

R v Challen: Court distinguished between battered person syndrome and the theory of coercive control:
‘[battered person] syndrome focuses on the psychological impact of repeated physical abuse, whereas
coercive control focuses on systematic coercion, degradation and control’.
 While the courts have long recognised the concept of ‘battered person syndrome and its significance
as regards the defence of diminished responsibility, the Court considered that coercive control might
be relevant in the context of diminished responsibility.

2. Abnormality must arise from a recognised medical condition:

If a medical expert testified that, at the time of the killing, a defendant was suffering from a condition included
in one of the lists of qualified medical experts, such as the World Health Organisation’s international
classification of diseases (ICD10), and this was accepted by the jury, the test will be met.
 CPS, Legal Guidance on Homicide: Examples of recognised medical conditions within these
classificatory lists are schizophrenia, phobic anxiety disorders, alcohol dependence syndrome, bipolar
affective disorder, depression and battered person syndrome.

26
Bunch: medical evidence is a practical necessity if the defence is to succeed.

R v Dietschmann: Evidence from two psychiatrists was adduced at trial – both agreed that at the time of the
killing the defendant was suffering from an abnormality of mind.
 Case in which a defendant’s abnormality of mental functioning arises from a combination of both a
recognised medical condition and voluntary intoxication. —> abnormality need not be the sole cause
of the defendant’s act in doing the killing.
 HL said that s 2 of the Homicide Act 1957 did not require the abnormality of mind to be the sole
cause of the defendant’s acts; indeed, the question is whether the defendant was suffering an
abnormality of mind at the time of the killing which substantially impaired their mental
responsibility.
R v Wood: confirmed that defence of diminished responsibility was not precluded by the mere fact that the
defendant consumed alcohol voluntarily before committing the fatal act.

—> Diminished responsibility and intoxication:

The courts have taken the approach that voluntary intoxication (whether through drink or drugs) ‘is not
capable of founding diminished responsibility’: per Hughes LJ in R v Dowds.

—> Intoxicant addiction:

Where the defendant consumes alcohol or drugs as a result of an addiction, such as alcohol dependency
syndrome, then there may be a recognised medical condition which gives rise to an abnormality of mental
functioning for the purposes of diminished responsibility: R v Foy [2020].
According to the case of Stewart [2009], whether the alcoholism would amount to an abnormality of mind
would be a matter for the jury and would depend on the nature and extent of the alcohol dependency
syndrome and whether the defendant had an irresistible craving for drink.
In the case of Tandy [1989] 1 WLR 350, the Court of Appeal held that the disease of alcoholism could
amount to an abnormality of mind for the purposes of s.2(1) of the Homicide Act 1957. However, in order for
alcoholism to amount to an abnormality of mind, the defendant’s craving must render his consumption of
alcohol involuntary.

3. Substantial impairment of D’s ability:

Section 2(1A) of the Homicide Act 1957 requires the substantial impairment of the defendant’s ability to
understand the nature of D’s conduct; and/or to form a rational judgment; and/or to exercise self-
control.
Byrne: extent to which the accused’s mind is answerable for his physical acts which must include a
consideration of the extent of his ability to exercise will power to control his physical acts.

R v Lloyd (1967): impairment to be ‘substantial’ it must be ‘more than trivial or minimal’.

R v Golds (2016): SC held that ‘substantial’ meant ‘important or weighty’. – question of degree.
Squelch (2017): the trial judge’s direction that ‘substantially’ means ‘less than total and more than trivial’
complied with the decision of the Supreme Court in Golds.

4. The abnormality must provide an explanation for the killing:

Causation must be established: s 52 (1B) of the Coroners and Justice Act 2009 provides that, for the partial
defence to succeed, any such abnormality of mental functioning must have been at least a significant
contributory factor in causing the defendant to do as he did.

It need not have been the only cause, the main cause or the most important factor, but it must be more
than merely trivial.

—> Diminished responsibility and legal insanity:

DR is only a defence to murder, but there is a different defence that a defendant may raise in relation to
any crime with which they are charged, that of ‘insanity’. ** insanity: complete defence.

27
M’Naghten’s Case: This requires the defendant to prove, again on the balance of probabilities, that they were
suffering from a ‘disease of the mind’ causing a ‘defect in reason’ so that either they did not know the ‘nature
and quality’ of their act, or they did not know their act was legally and morally wrong.
—

—> Loss of control:

Second partial defence, which has the effect to reduce murder to voluntary manslaughter—> it may only
provide a defence to murder.

Background: Section 3 of the Homicide Act 1957: Historically, provocation was a common law defence
which was then introduced into statute by s 3 of the Homicide Act 1957. It consisted of two tests which the
defendant had to overcome to be able to rely on it, namely:
1. Was the defendant provoked by things said or done (or both) to suddenly and temporarily lose their self-
control? (Subjective test)
2. Would the provocation have made a reasonable person lose their self-control and do as the defendant did?
(Objective test)
R v Martin (Jovan): the ‘statutory defence of loss of control is significantly different from and more
restrictive than the previous and superseded defence of provocation’
Provocation was abolished and replaced with a new partial defence to murder: Loss of control.

Loss of control:

ss 54 and 55 of the Coroners and Justice Act 2009. Section 56 of the Act both abolishes the common law
defence of provocation (by s 56(1)) and repeals s 3 of the Homicide Act 1957 (by s 56(2)(a)).
Section 54(5) places an evidential burden (on the balance of probabilities) on the defendant only – if they can
show sufficient evidence to raise the defence as an issue then the jury must assume the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not.

S. 54(6): where sufficient evidence is raised, then the defence of loss of control must be left to the jury.
 Jewell: insufficient evidence to leave the defence of loss of control to the jury —> defence was based
upon the defendant’s assertions that he had lost control.
Under s 54(8), just because one party to a killing successfully pleads the defence, this does not affect the
criminal liability of any other party.

S. 54(1)(a), (b), (c) —> The three elements which need to be satisfied are:
(a) The defendant’s acts and omissions in doing or being a party to the killing resulted from their loss of self-
control; and
(b) The loss of control had a qualifying trigger; and
(c) A person of the defendant’s sex and age, with a normal degree of tolerance and self- restraint and in the
same circumstances, might have reacted in the same or similar way to the defendant.

—> S. 54(1)(a):

Did this defendant’s involvement in the killing result from this particular defendant losing their self-control?
NB. Reasons need not be ‘sudden’ (s. 54(2)).
Revenge: 54(4) specifically states that the defence will not apply where ‘D acted in a considered desire for
revenge’.

Jewell: CA approved the meaning of loss of control provided by Professor Ormerod in Smith and Hogan’s
Criminal Law (13th edn, 2011): ‘a loss of the ability to act in accordance with considered judgment or a loss
of normal powers of reasoning’ (at [24]).
R v Martin (Jovan): ‘a panicky or scared response to aggressive conduct of another person is not of itself
necessarily indicative of the existence of an issue of loss of control (although highly relevant to the defence of
self-defence)’
R v Dawson and Dawson: CA stated that the ‘sustained and gratuitously violent nature’ of the assault in this
case was, on its own, insufficient to provide evidence of loss of control.

28
R v Goodwin: a defendant’s failure to positively assert loss of control will not necessarily be decisive of the
issue, but ‘it is a very powerful point against the issue arising’.

—> S. 54(1)(a): the qualifying trigger

S. 55 – Meaning of qualifying trigger:

(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence
from V against D or another identified person. ( —> The Fear Trigger)
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said
(or both) which — (—> The Anger Trigger)
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(6) In determining whether a loss of self-control had a qualifying trigger —
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing
which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited
the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

—> Fear trigger - SUBJECTIVE: applies where the defendant has a fear of serious violence.

R v Goodwin: CA stated that loss of control and self-defence are ‘legally distinct’ and drew attention to an
obvious distinction between the two defences, namely that ‘self-defence can arise where a defendant
genuinely believes that there will or may be violence directed at himself or another’, whereas loss of control
‘only arises … where there is a fear of serious violence’ (at [39]).

—> Anger trigger

OBJECTIVE: applies where something is said and/or done which amounted to circumstances of an extremely
grave character and caused the defendant to have a justifiable sense of having been seriously wronged.

Circumstances of extremely grave character:

 Zebedee (2013): The defendant killed his 94-year-old father by punching and strangling him. He
claimed that he had lost control as a result of the frustration and anger he suffered through looking
after his father. The jury presumably decided that this did not constitute ‘circumstances of an
extremely grave character’.
Justifiable sense of being seriously wronged:
 objectively assessed;
 In R v Meanza [2017]: D killed a care worker who attended D’s room at 2.46am to ask him to turn his
TV down following a complaint about noise. CA held that D ‘could have no justifiable grievance in
relation to hospital and restriction orders that were lawfully imposed’ upon him, ‘nor in relation to the
restrictions upon his relationship with his girlfriend’.

S. 55 does not apply to “honour killings” (ie s 54(4) excludes acts done in revenge).

—> Section 54(1)(c): similar reaction of a person of D’s sex and age:

This part of the defence adopts the approach of the majority decision of the Privy Council in Attorney-
General for Jersey v Holley [2005]: the law accepts that a person with a ‘normal’ degree of self-restraint
might intentionally kill another in some circumstances.
Age has an influence on the amount of self-control to be expected of a person. —> D should be judged
according to the level of tolerance and self-restraint to be expected of a ‘normal’ person of their age.

It has been argued that the defendant’s sex may be most relevant when considering the fear of serious violence
trigger, as set out in s 55(3) of the Coroners and Justice Act 2009.
 s 54(3) : ‘circumstances of D’ are all of D’s circumstances other than those whose only relevance to
D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

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Meaning explored in R v Rwjmanski: three components of loss of control are ‘distinct and require separate
consideration’ and that ‘the relevance of a mental disorder to each of the components is fact specific. It
depends on the nature of the defendant’s disorder, the effect it has on the defendant and the facts of the case’
 A mental disorder may be relevant to the defendant’s circumstances, that is, where the disorder was
relevant to the gravity of the qualifying trigger.

R v McGrory: Jury directed not to consider expert evidence that the defendant’s depression meant that
she had a reduced ability to deal with taunting in comparison with someone not suffering from depression.
Asmelash: voluntary intoxication is not a factor to be taken into account.

R v Camplin: Lord Diplock drew a distinction between characteristics which affect the level of self-control to
be expected of the defendant (‘control’ characteristics) and characteristics which affect the gravity of the
provocation to the defendant (‘gravity’ characteristics).

TOPIC 4: INVOLUNTARY MANSLAUGHTER AND THE DEFENCE OF INTOXICATION

Unlawful Act Manslaughter:

Unlawful act manslaughter arises where D intentionally commits an unlawful act which a reasonable person
would recognise exposes V to the risk of some harm and V dies as a result.
Larkin: D killed his girlfriend when she fell on a razor he was holding to scare off another man.

For unlawful act manslaughter the defendant must:

(a) intentionally do an act;
(b) the act must be unlawful;

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(c) it must be dangerous; and
(d) it must cause the victim’s death. - purely issue of causation

D need not intend to kill nor to foresee death of V. No requirement D knows the act is unlawful/dangerous.
Only MR element: intentional commission of an act.

Intentional act:

 First element to prove: D intentionally did an act.

 D must engage in a positive act. – Lowe: D willfully neglected his child resulting in the child’s death.
Not enough for a conviction of unlawful act manslaughter.

Unlawful act:

D’s crime requires proof of intention or recklessness (usually an assault).

R v Lamb: if there is no unlawful act, D cannot be guilty of this offence.
 D and V did not realize the cylinder of a gun rotated when the trigger was pulled – they believed no
bullet would be fired when D pulled trigger. – D’s conviction was quashed: absence of MR, there was
no criminal offence.
DPP v Newbury and Jones: DS pushed a paving stone over a bring into the path of a train. It smashed through
a window of a train killing the guard. Issue: was there an unlawful act?
 D did nit need to intend or foresee the risk of frightening or harming anyone. Thus, the unlawful act
could be, for example, criminal damage, burglary or theft, and need not be an assault.
Franklin: tort of trespass to the property not sufficient for constructive manslaughter. A civil tort should not
form the basis of liability for a criminal offence. The unlawful act must be a criminal offence.
Webster v CPS: There will be no liability for unlawful act manslaughter where D has a defence to the
unlawful act, such as where he is lawfully using self-defence.
Meeking: D pulled handbrake without warning when car driving by her husband was moving. This resulted in
an accident and V was killed. D committed the offence of interference with a motor vehicle and was was
sufficient to convict her.

The unlawful act must be dangerous:

Larkin: ‘a dangerous act’ is ‘an act which is likely to injure another person’. The act is dangerous if it presents
a risk of physical injury to another person.
M: Q of dangerousness is one of fact for the jury. + the reasonable bystander net not foresee the precise form
of harm which did ensue.
R v Church: An objective test is applied to the meaning of ‘dangerous’: the act must be dangerous from the
point of view of the reasonable man. It is whether all sober and reasonable people would think the act was
dangerous. Whether D did or not is irrelevant.
 The reasonable person does not need to recognise a risk of serious injury or death resulting from
the unlawful act; he/she must merely recognise the risk of some harm.
 Test confirmed in DPP v Newbury.

R v Dawson: In determining whether the reasonable man would have recognised a risk of some harm, the
reasonable man is deemed to have the knowledge that D had, or should have had, at the time of the offence.
 Held: Ds could not be guilty of manslaughter because V’s heart condition would not have been
obvious to the reasonable person.
R v Watson: D burgled the house of an 87 yo man with a heart condition. D verbally abused him and V died
from a heart attach 1hr later. – Held: the sober and reasonable person is attributed with the knowledge of D as
gained in the house.
 where the risk of harm becomes obvious to the reasonable person present at the scene of the crime,
D’s unlawful act becomes dangerous.
R v Ball (the Jonah example): the q is whether a sober and reasonable person who watched Jonah throughout
the whole of the unlawful act would consider that what Jonah did carried the risk of causing some harm.
 Here, D’s belief that act was not dangerous could not be attributed to the reasonable man.

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R v Bristow: CA confirmed that burglary could amount to an unlawful and dangerous act because here the
burglary in question was objectively dangerous. – Ds ran over and killed V as they were driving their van
away from the scene.

—> The Drugs Cases:

There have been a number of ‘drugs cases’ involving defendants who inject the victim with a Class A drug or
supply such drugs to the victim, who self-injects and then dies. The difficulty lies in identifying the unlawful
act which causes the death of the victim.

Defendant injects victim:

The unlawful act may be the malicious administration of a poison or noxious thing so as to endanger life or
inflict grievous bodily harm, contrary to s.23 of the Offences Against the Person Act 1861.
Cato: D and V heroin addicts. They prepared their own syringes and injected each other. V died.
 Held: administration of heroin to the victim by the defendant was a criminal offence under s.23 of the
Offences Against the Person Act 1861, which could amount to an unlawful act for the purposes of
unlawful act manslaughter.

Defendant supplies the drugs, victim self-injects:

Although both the possession of controlled drugs and the act of supplying a controlled drug to another person
are offences under the Misuse of Drugs Act 1971, the courts have struggled to justify convictions for unlawful
act manslaughter because of the difficulty of proving that the supply of the drug caused the death of the
victim.
Kennedy (No 2): the supplier of the drug is not guilty of unlawful act manslaughter because the free and
voluntary act of self-administration breaks the chain of causation.
 The House of Lords restored clarity to the law by responding: ‘In the case of a fully informed and
responsible adult’ D is never guilty of manslaughter if involved in the supply of a Class A drug
which is then freely and voluntarily self-administered by the person to whom it was supplied.
Dias: Self-injection is not in fact unlawful. Whilst it is unlawful to be in possession of or to supply a
controlled drug and to inject a drug into another person, it is not unlawful to take drugs yourself.
Rogers: D could be guilty of manslaughter where he played a part in the mechanics of the injection
which caused the victim’s death.

——

Manslaughter by Gross Negligence:

The Court of Appeal in R v Rose [2017] held that the prosecution must prove that:
1. the defendant owed an existing duty of care to the victim;
2. the defendant negligently breached that duty of care;
3. it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of
death;
4. the breach of that duty caused the death of the victim;
5. the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the
conclusion that it amounted to gross negligence and required criminal sanction.

R v Bateman (1925): a defendant could be criminally liable for causing death if they had been grossly
negligent. It is clear that ordinary negligence will not suffice: just because a victim’s family might be able to
sue for compensation for a victim’s death in the civil courts, it does not automatically follow that criminal
charges could be brought.
 ‘the negligence of the accused went beyond a mere matter of compensation between subjects and
showed such disregard for the life and safety of others as to amount to a crime against the state and
conduct deserving punishment.’
 Approved in Andrews v DPP (1937).

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Leading authority: R v Adomako (1995): D, an anaesthetist, was acting as such during an eye operation which
involved paralysing the patient, when a tube became disconnected from a ventilator. V suffered a cardiac
arrest and died. D was convicted of the manslaughter of the patient by breach of duty.
 the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has
been in breach of a duty of care towards the victim who has died. If such breach of duty is established
the next question is whether that breach of duty caused the death of the victim. If so, the jury must
go on to consider whether that breach of duty should be characterized as gross negligence and
therefore as a crime.
 The essence of the matter which is supremely a jury question is whether having regard to the
risk of death involved, the conduct of the defendant was so bad in all the circumstances as
to amount in their judgment to a criminal act or omission.

Following the case of Adomako, manslaughter by gross negligence can be established if all of the following
elements are present:
A duty of care owed by the defendant to the victim. In R v Willoughby [2004] : CA stated that whether a duty
of care exists is usually a matter for the jury once the judge has decided that there is evidence capable of
establishing a duty.
A breach of that duty of care.
A risk that D’s conduct could cause death. In R v Singh [1999] : ‘the circumstances must be such that a
reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even of
serious injury but of death’.
Evidence that the breach of duty did cause the death of the victim.
A jury’s conclusion that the defendant fell so far below the standards of the reasonable person in that
situation that they can be labelled grossly negligent and deserving of criminal punishment.

1. Duty of care:

Evans: duty of care is a question of law to be decided by the judge.

Wacker: D carried 60 illegal immigrants in a lorry – 58 suffocated to death. —> principles of negligence
applied to the offence of gross negligence manslaughter to determine whether D owed Vs a duty.
 CA: defence of illegality would not preclude a finding that D owed a duty of care.
 CA gave ‘duty of care’ the civil meaning by applying the ‘reasonable foreseeability’ test—the first
of these three factors from Caparo. However, the Court gave no consideration to the other factors
from Caparo.

Omissions:
Unlike unlawful act manslaughter, gross negligence manslaughter can be committed by omission, as well
as by a positive act.
R v Khan: D was a drug dealer who supplied a 15 yo with heroin. V overdosed and lapsed into a coma in D’s
flat. D left the flat and came back the next day to found V was dead, he moved the body onto waste ground.
 CA: manslaughter by omission is a ‘type of manslaughter arising from a breach of duty coupled
with gross negligence’
 CA confirmed that general principles with regard to duties to act apply to cases of manslaughter by
gross negligence. Thus, a person could be liable for this offence for failing to act but only where there
was a duty to do so.
R v Evans: D supplied her half sister with heroin. V overdosed and D chose not to seek medical assistance. V
died. D convicted of gross negligence manslaughter.
 CA held that D was ‘under a duty to take reasonable steps for the safety of the deceased once she
appreciated that the heroin she procured for her was having a potentially fatal impact on her health’.
 CA applied the ‘Miller’ principle: where a defendant becomes liable when he realises the danger that
he has created and he then fails to take reasonable steps to avert that danger.

2. Breach of Duty:

D will breach his duty to V where his conduct falls below that expected of a reasonable person. Where the
defendant has special knowledge or expertise, he will be expected to meet the standard of care expected of a
reasonable person with that knowledge or expertise: Adomako.

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 3. Serious and obvious risk of death:

R v Rose: 3rd element of gross negligence manslaughter requires proof that it was reasonably foreseeable that
the breach of that duty gave rise to a serious and obvious risk of death. The risk must be one of death, not
merely a risk of something serious.
 Foreseeability of such risk must be assessed with respect to the information available to the defendant
at the time of the breach of duty.

R v Kuddus: crim=/=torts: ‘proof of a foreseeable risk of death is not required to establish a tortious cause of
action’.
R v Winterton: D was a construction site manager who was convicted of gross negligence manslaughter in
respect of a labourer who died after a trench which had been dug to lay drainage pipes collapsed.
 Held: it was reasonably foreseeable that there was a serious and obvious risk of death to anyone in or
near the trench.
R v Broughton: D supplied his girlfriend with a cocktail of drugs while they were at a music festival. When
she fell ill, he failed to get her medical assistance and filmed her dying on a mobile phone. D was convicted of
gross negligence manslaughter on the basis that he owed her a duty to secure her timely medical assistance.
 There needs to be a clear focus on when the condition of the deceased reached the point of ‘serious
and obvious risk of death’.

4. Causation: usual rules apply.

5. Gross negligence:

Andrews v DPP: a very high degree of negligence is required for the offence of manslaughter. The
standard of negligence required for liability in the law of tort would not be sufficient. See quote from
Bateman above.
R v Rose: CA held that prosecution must prove that the circumstances of the breach were truly exceptionally
bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required
criminal sanction.

Intoxication:

Intoxication can only ever be a defence if it causes the defendant to lack the relevant mens rea for that
offence. It follows then that if the crime is one of negligence or strict liability, intoxication is irrelevant
because such crimes have no mens rea element.
Intoxication as a defence is therefore potentially important for crimes requiring proof of intention or
recklessness on the part of the defendant.
R v Kingston: D was given coffee which, unknown to him, was spiked with drugs. Following this, he
indecently assaulted a young boy. D would have not committed the offence had he been sober.
 The prosecution had to prove that the defendant had committed the offence with the necessary mens
rea. This had been established and therefore the defendant’s intoxication could not be relied upon
to provide a defence to the charge.

—> Having established that the defendant did, or may have, lacked mens rea due to intoxication, there are
two further questions to be considered before deciding that the defence may apply:
(a) Was the intoxication voluntary or involuntary?
(b) Is the crime one of basic or specific intent?

—> Voluntary intoxication:

Voluntarily:
If the defendant knew they were drinking but merely underestimated the amount or the effect it was having on
them, they are voluntarily intoxicated (R v Allen).
If they exceeded the dose or, for example, had alcohol with medication when they had been told not to, they
would be voluntarily intoxicated.
The fact that D would not have committed the offence had they been sober is irrelevant - Kingston.

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 —> Crimes of Specific and Basic Intent:

Even if D did lack mens rea, their intoxication will provide a defence only if the crime is one of specific
intent. If a crime is one of basic intent, voluntary intoxication can never be a defence.
Specific intent: crimes where the only mens rea that will suffice to convict a person of the crime is the mens
rea of intention (the recklessness of the defendant is not enough).

Leading case on voluntary intoxication: DPP v Majewski:

 where a specific intent is an essential element in the offence, evidence of a state of drunkenness
rendering the accused incapable of forming such an intent should be taken into consideration in
order to determine whether he had in fact formed the intent necessary to constitute the particular
crime.
 ‘the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness
at the time of committing an offence causing death can only, when it is available at all, have the effect
of reducing the crime from murder to manslaughter.’

His Lordship’s justification for the distinction between basic and specific intent was that a defendant who
reduced themselves by drink or drugs to such a condition that they did not know what they were doing is, by
definition, reckless. That recklessness is enough for the mens rea of basic intent crimes and, accordingly, such
a defendant should be liable.
R v Heard: voluntary intoxication will not provide a defence to any of the sexual offences as they require a
MR less than intention.

—> Involuntary intoxication:

Intoxication is only involuntary if either the defendant had no knowledge that they were taking any alcohol or
drug (for example, drinks are spiked) or they take a medically- prescribed drug in accordance with the
instructions and it has an unusual side effect.
A defendant who is involuntarily intoxicated may have a defence to any crime, whether specific or basic
intent, if they did not have the mens rea for it.
R v Kingston: involuntary intoxication may affect the sentence they receive but they are still guilty of the
offence.
R v Hardie: One situation where intoxication may be viewed as involuntary is where someone takes a non-
dangerous or prescribed drug which leads to unpredictable and aggressive behaviour that would not normally
be expected.
 CA: the question of whether it was reckless to take the drugs in this way should have been left to
the jury to decide and it was not.

Two crucial elements to be established if the defendant is to succeed in arguing involuntary intoxication:
 first, that the drug was ‘non-dangerous’, and
 second that the defendant’s reaction was unpredictable and not one that would normally be associated
with that particular drug.

—> Dutch courage:

Imagine a defendant who decides they want to cause a serious injury to their enemy – the victim. The
defendant goes to the pub and drinks several double brandies to give themselves ‘Dutch courage’. They
assault the victim causing severe injuries, but by the time of the attack the defendant had drunk so much that
they no longer possessed the intention to cause grievous bodily harm as required by s 18 of the OAPA 1861.
AG for Northern Ireland v Gallagher: D decided to kill his wife and drank most of a bottle of whiskey to
give himself ‘Dutch courage’. It was decided that a defendant could not rely on voluntary intoxication if they
had the mens rea for the crime before they started to drink.

—> Drunken Mistakes and Defences:

If a defendant has made a mistake as to the need to defend themselves because of their intoxication, they will
be judged on the facts as they honestly believed them to be.

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R v O’Grady: D had attacked the victim and had done so in the belief that he needed to defend himself.
O’Grady was raising the defence of self-defence but his belief in the need to defend himself had been
induced by his intoxication.
 CA: where a defendant was mistaken in their belief that any force, or the force they in fact used, was
necessary to defend themselves, and the mistake was caused by their voluntary intoxication, then the
defence of self-defence must fail.
R v Hatton: An intoxicated person whose mistaken belief was induced by drink or drugs has no defence to a
charge of manslaughter or murder.

—> Drunken Mistakes and Crimes of Specific Intent:

If, on a charge of murder for example defendants accept that they committed the actus reus and possessed the
mens rea of murder but are relying on a belief, induced by voluntary intoxication, in the need to defend
themselves, their defence of self-defence will fail (O’Grady) and they will be convicted of murder.

There is one anomaly in this area as a result of the case of Jaggard v Dickinson:
 As this was a criminal damage case, a defence of ‘lawful excuse’ exists under s 5(2) of the Criminal
Damage Act 1971. A defendant can rely on s 5(2)(a) if they honestly believe that the owner had
consented or would have consented had they known of the circumstances.
 D broke a window to get into a house that she thought belonged to her friend. She (correctly) believed
her friend would consent. Unfortunately, because she was drunk, D mistakenly entered the wrong
house.
 The crime is of basic intent, so defence would have failed. —> Despite this, the appeal court decided
that D could rely on s 5(2)(a) and her mistaken belief in the owner’s consent, even though this was a
drunken mistake resulting from her voluntary intoxication.
 NB. The effect of the legal authorities is that if the defendant commits criminal damage in the
mistaken but drunken belief that the owner would consent, they will not be convicted; but if the
defendant punches their victim in the mistaken but drunken belief they are under attack, they are
guilty of assault.

TOPIC 5: THEFT AND FRAUD

THEFT:

Theft is an offence which is triable either way and carries a maximum sentence of seven years’ imprisonment
upon conviction in the Crown Court (under s.7, Theft Act 1968).
Defined in s 1(1) of the Theft Act 1968 (TA 1968):

Actus reus – (i) appropriation, (ii) property and (iii) belonging to another
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Mens rea – (iv) dishonesty and (v) intention permanently to deprive.

All five elements must be present at the same time.

ACTUS REUS:

Appropriation: s 3(1): Any assumption by a person of the rights of an owner amounts to an appropriation,
and this includes, where he has come by the property (innocently or not) without stealing it, any later
assumption of a right to it by keeping or dealing with it as owner.
o Rights of the owner: right to use it, sell it, have possession of it, lend it, exchange it or even
destroy it.
o Later appropriation: Section 3(1) states that ‘where [the defendant] has come by the property
(innocently or not) without stealing it, any later assumption of a right to it by keeping or
dealing with it as owner’ also amounts to an appropriation.

—> Any single right:

R v Morris: not need to assume all of the rights of the owner over the property. The element of appropriation
will be satisfied if the defendant assumes any single right of the owner over the property.
The judges decided that an appropriation was:
(a) an act which adversely interferes with or usurps ‘any right of an owner’. It is an act which is unauthorized;
(b) an assumption of any one right of an owner. In other words, to appropriate the defendant had to usurp only
one of the many rights of an owner, not all of them.

—> Appropriation and consent:

Lawrence v MPC: in relation to s.1(1) of the Theft Act 1968, that there was: no ground for concluding that
the omission of the words ‘without the consent of the owner’ was inadvertent and not deliberate.
 Parliament by the omission of these words has relieved the prosecution of the burden of establishing
that the taking was without the owner’s consent. That is no longer an ingredient of the offence.

Conflict: Morris : ‘unauthorised act’ ; Lawrence: consent irrelevant.

Conflict resolved in DPP v Gomez: When theft is alleged and that which is alleged to be stolen passes to the
defendant with the consent of the owner, but that has been obtained by a false representation, then an
appropriation within the meaning of s 1(1) of the Theft Act 1968 has taken place.
 Must such a passing of property necessarily involve an element of adverse interference with or
usurpation of some right of the owner? No.
 —> Lawrence should be followed. HL in Gomez therefore confirmed that an appropriation occurred
even if the property passed with the consent or authorisation of the owner.

—> Inter vivos gifts:

Mazo: D had dishonestly taken advantage of her employer who was suffering from short-term memory lapses
and was vulnerable and suggestible. CA quashed her conviction on the basis that Gomez had decided that it
was possible to appropriate property given to the defendant by consent if that consent had been obtained
by fraud.
Mazo was criticized in Hopkins and Kendrick: on similar facts, here CA applied a wider interpretation of the
meaning of appropriation, stating that it is a neutral word to be looked at in isolation from any mens
rea concepts, such as dishonesty and fraud.
Leading authority: R v Hinks: issue: whether receipt of a gift could be held to be an appropriation where D
befriended a man of limited intelligence and got him to deposit 60k into his savings account.
 Held: there can still be an appropriation, even when there was a valid gift of property to the
defendant according to civil law (for example, when it was not obtained by fraud, duress or undue
influence). In legal terms, the acquisition of an indefeasible title to property is capable of amounting
to an appropriation.

—> Limitations on appropriation:

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R v Briggs: Briggs was charged with theft of the Reids’ account as Mr and Mrs Reid argued that their consent
to the transaction had been induced by fraud. This was because they thought the money would be used to
ensure that title (ownership) in the new house would be transferred to them.
 Held: The fact that Briggs had caused her relatives to perform an act in relation to their bank
account that would have been an appropriation if she had performed it herself did not render her
dishonest and deceptive conduct an appropriation.
 If the facts had been slightly different so that Ms Briggs had direct control over her relatives’
bank account and had authorised the payment to be made, then a clear act of appropriation could
have been established.

—> Bona fide purchasers:

Section 3(2) Theft Act 1968: Where property or a right or interest in property is or purports to be transferred
for value to a person acting in good faith, no later assumption by him of rights which he believed himself to
be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

—> Appropriation as a continuing act:

If a defendant had come by the item originally by stealing it, later assumptions of the rights of an owner
would not be an appropriation.
R v Atakpu: Ds driving cars which had been hired abroad by using false documents. The prosecution alleged
that the defendants intended to disguise the identity of the cars (to ‘ring’ them) and sell them in England.
 Held: Ds had already stolen the cars when they hired them, and any later assumption of rights
could not be an appropriation for theft. Their convictions were consequently quashed.
 In reality, thefts are invariably ‘instantaneous’ so that all elements of the definition are
established instantly
 Obiter —> theft ‘can also involve a course of dealing with property lasting longer and involving
several appropriations before the transaction is complete’. It is for the jury to decide when the
appropriation is complete, and an appropriation may last for as long as the thief is regarded as
being ‘on the job’.

—> Innocent purchaser for value:

Genuine purchasers who act in good faith:

Section 3(2) of the TA 1968 makes it clear that a person is not liable for theft if, when they acquired the
goods, two major conditions apply:
(a) the transfer must be ‘for value’, so payment must have been made. This need not necessarily be money, for
example the person could have exchanged other goods for the property;
(b) the purchaser must have acted ‘in good faith’ so they had no doubts or concerns about the transaction and
its legality, and believed that the seller was acting entirely properly.

** cannot rely in s 3(2) if stolen good was given as a gift.

Property: s 4(1) of the 1968 Act: ‘Property’ includes money and all other property, real or personal, including
things in action and other intangible property. What amounts to property?
 Money: any currency;
 Real property: land and things attached or fixed to it. For home owners, ‘real property’ would therefore
include the plot of land, the house and, if present, a garage. NB. circumstances in which land can be stolen
are actually very limited due to the provisions of s 4(2) of the TA 1968.
 Personal property: any tangible object that is not real property and would include, for example, cars,
books, televisions, furniture, jewellery, clothes, and even prohibited drugs unlawfully in the complainant’s
possession – R v Smith, Plummer and Haines.
 Other intangible property: intangible property which is not a thing in action. Ie. Patent or application for a
patent.
 Things in action: property which cannot be touched or felt but is something that can be enforced by a legal
action. Ie. bank or building society account. When you open an account, you deposit money into it. What
you have is a thing in action – the credit balance in your account, in other words, a right to sue the bank
for that money. Another example: copyright.

38
 o Examples include a share in a company, a debt, a copyright, a trademark, a credit in a
bank account, and an agreed overdraft.

Things in action:

—> Cheques and bank accounts:

R v Navvbi: a person does not commit theft from a bank if they overdraw on their account without authority.
Davenport: where a person pays cash into his bank account, the money becomes the money of the banker and
the relationship between banker and customer is that of debtor and creditor.
 This right is the thing in action which amounts to property for the purposes of the Theft Act 1968,
and, as such, this right is capable of being stolen.
Kohn: whilst the account was in credit or overdrawn but within the limits of the agreed overdraft facility (i.e.,
in situations (1) or (2) above), the defendant appropriated a thing in action when the cheques were paid into
the defendant’s account. In this situation, the bank had an obligation to honour the cheques. So, the ‘thing in
action’ was the legal right to enforce the debt against the bank.
Williams (Roy): the act of presenting a cheque to the bank and causing a decrease in the credit balance of the
victim’s bank account was an appropriation of a thing in action. The thing in action (credit balance) which
belonged to the victim was destroyed once the defendant presented the cheque to the bank and it was
honoured by the bank.
Governor of Pentoville Prison, ex parte Osman: The theft is complete when the cheque is dishonestly
presented at the bank, not when the account is actually debited.
Chan Man-sin v R: D was a company accountant who forged company cheques. These were used to take
money out of the company’s accounts and the monies were then paid into other accounts controlled by D. If
the account balance was reduced, the company had the right to sue the bank to recover its losses. The
defendant had therefore appropriated by dealing with the company’s account.
The two main things in action to be aware of, therefore, are:
(a) the credit balance of another’s account;
(b) another person’s overdraft facility.

—> Exceptions to property:

There are exceptions to the definition of property under both statute and case law. The case law exceptions
cover confidential information, electricity, corpses and body parts, and services.
Confidential information: not properly and cannot be subject to a charge of theft (ie trade secrets)
– Oxford v Moss.
 Electricity: Whereas gas and water are property and may be stolen, electricity does not amount to
property and cannot be stolen – Low v Blease.
o Separate offence of abstracting electricity – s. 13 Theft Act 1968
 Corpses and body parts: not property and cannot be subject of a charge of theft – Sharpe.
o ** Hair: cutting off hair is an assault and dishonestly keeping it amounts to theft.
 Services: do not amount to property and cannot be stolen, it amounts to obtaining services
dishonestly – s. 11 Fraud Act 2006.
Smith, Plummer and Haines: there is nothing in the provisions of the Theft Act 1968 that suggests that
‘property’ under s.4 ceases to be property for the purposes of theft if its possession or control is unlawful,
illegal, or prohibited (ie. Illegal drugs).

Land:

Very limited circumstances where land can be stolen. – s 4(2) TA 1968: a person cannot steal land except in
the following cases:
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator
of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or
anything forming part of it by dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of the land by
severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or
structure let to be used with the land.

39
 Wild plants and flowers:
Section 4(3) TA 1968: A person who picks mushrooms growing wild on any land, or who picks flowers, fruit
or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what
he picks, unless he does it for reward or for sale or other commercial purpose.

Wild creatures:
Section 4(4): Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a
wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either
it has been reduced into possession by or on behalf of another person

—
Belonging to another: s 5(1) TA 1968: Property shall be 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).

R v Turner (No 2): It is possible to steal property you own if somebody else has possession or control of it or
a proprietary right or interest in it at the moment of appropriation.
Meredith: D took his car from a police yard after it had been impounded by the police. The trial judge in the
Crown Court directed the jury to acquit the defendant after ruling that the police had no right to keep the
vehicle from the owner. This case conflicts directly with Turner (No. 2) and was decided after that case.
However, it is merely a first instance decision, so Turner (No. 2) carries more authoritative weight.

The property must belong to another at the time of the dishonest appropriation:

Edwards v Ddin: D not guilty of theft for driving away after filling tank with petrol: it was already in his
possession and control.
 Fall back provision: s 5(3) TA: offence of making off without payment.
DPP v Huskinson: D applied for Housing benefit and spent money on something else —> Held: not under an
obligation to deal with the money in any particular way and s 5(3) did not apply.
R v Wain: upheld the conviction of the defendant who had misappropriated money which he had raised for
charity and collected in a special bank account. He then transferred it into his own account.

Abandoned Property:

Property is only abandoned if the owner is completely indifferent to what happens to it and intends to give
up his proprietary rights and interests in the property without conferring an interest on another person.
Williams v Phillips: whether rubbish left outside a house for a local authority to collect could be regarded
as abandoned property. The court held that, where it was left outside for a specific purpose, here for the local
authority to collect, it remained property belonging to the householder. Moreover, once the rubbish was
placed into a local authority waste vehicle, it then became the property of the local authority.
R (Ricketts) v Basildon Magistrates’ Court: property given to charity is not abandoned: belonged to the
unknown donors of the clothing or, the charity shop had taken possession of the clothing when it had been
placed in its bin.
Woodman: by demonstrating an intention to exclude other people from the site, the company was in control of
the land and all property on it.

Lost Property:
Property which is merely lost is not abandoned, even if the owner gives up the search for it.
Hibbert v McKiernan: D trespassed on land belonging to a golf club and took lost golf balls. —> since the
golf club had intended to exclude others from interfering with the balls, there was a clear intention on the part
of the members of the golf club to exercise control over the balls.
Parker v British Airways: passenger who found a gold bracelet in the British Airways Executive lounge. It
was held that the passenger in taking the bracelet into his care and control acquired rights of possession except
against the true owner.

Property of the deceased:

40
Sullivan and Ballion: Ds removed £50,000 from the dead body of a drug dealer. Held: the property did not
belong to another at the time of the act of appropriation and directed an acquittal on the charge of theft.

Equitable interest:
Property may also belong to a person who has an equitable interest in the property. Where property is the
subject of a trust, the trustee holds a legal interest over the property and the beneficiary holds an equitable
interest.
Section 5(1) provides an exception, under which property will not ‘belong to’ a person who has an equitable
interest in the property which arose only from an agreement to transfer or grant an interest.
Section 5(2) provides that property which is subject to a trust belongs to the beneficiaries of the trust for the
purposes of theft. So, a trustee may be guilty of stealing the trust property from the beneficiaries.

Property received for a particular purpose: The obligation to deal with the property in a particular way must
be a legal one (under civil law).
Section 5(3) TA: Where a person receives property from or on account of another, and is under an obligation
to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds
shall be regarded (as against him) as belonging to the other.
Hall: D was a travel agent who received money from customers as deposits for flights to America. He paid the
money into the company account but did not supply the customers with their flights. He was convicted of theft
of the money, but the Court of Appeal held that although he was under a legal obligation to provide the flights
to America, he was under no legal obligation to deal with the money in a particular way. Consequently, the
money did not belong to another under s.5(3).
Davidge v Bunnett D had been given money by his flatmate to pay the gas bill: obligation arose.
Wain: Where a person is given money to pass on to another, there is an obligation to deal with the money in a
particular way.
Attorney General’s Reference (No. 1 of 1983): police officer received overpayment of £74 by her employer.
Held: that the property (the thing in action against her bank for the amount of £74.74) belonged to another
under s.5(4) of the Theft Act 1968.
Shadrokh-Cigari: where property is transferred to another person under a mistake of fact, the transferor
retains an equitable interest in the property.
Gilks: there must be a legal obligation to restore the money under civil law for s. 5(4) to apply.

MENS REA:

There are two parts to the mens rea of theft and it has to be proved that: (i) the defendant was dishonest; and
(ii) they had an intention permanently to deprive the owner of the property.

Dishonesty:

Negative aspect: s. 2(1), Theft Act 1968: three situations which mean D is NOT dishonest:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on
behalf of himself or of a third person; or
(b) 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; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the
property in the belief that the person to whom the property belongs cannot be discovered by taking
reasonable steps.

S 2(2): A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is
willing to pay for the property —> a willingness to pay is not an automatic defence to a charge of theft – it
will be a question of fact for the jury to decide.

Ivey v Genting Casinos (UK) Ltd: the test for dishonesty is simply the objective one which asks whether
ordinary decent people would find the defendant’s conduct dishonest. The defendant’s conduct must be
considered objectively but in the context of the defendant’s knowledge or honest belief as to the facts affecting
his conduct.

41
  The Supreme Court in Ivey removed the second limb of Ghosh and the defendant is now judged on
the basis of their actual knowledge or belief as to the facts.
 “A jury must now decide whether, according to the ordinary standards of reasonable and honest
people, what was done was dishonest.” (Para 74 of Ivey)
 Subjective: what was D’s knowledge or belief as to the facts?
 Objective: was D’s conduct dishonest by the standards of ordinary decent people?

Intention to permanently deprive:

* at the moment of appropriation.

S 1(2): does not require that the defendant intended to profit from the appropriation: ‘[i]t is immaterial
whether the appropriation is made with a view to gain, or is made for the thief’s own benefit’
R v Velumyl: if a person takes money from someone (in this case an employer) intending to repay it, there is
an intention permanently to deprive.
S 6(1): nevertheless to be regarded as having the intention of permanently depriving the other of it if his
intention is to treat the thing as his own to dispose of regardless of the other’s rights
 S 6(1) applied in R v Raphael: D took items and then offered them back to the owner for the owner to
buy

—> ‘treat the thing as his own to dispose of, regardless of the other’s rights’:

Cahill: Court applied a narrow meaning to ‘to dispose of’ (which it had taken from the Shorter Oxford
Dictionary), holding that it meant: ‘To deal with definitely; to get rid of; to get done with, finish. To make
over by way of sale or bargain, sell’.
DPP v Lavender: wider meaning —> ‘to deal with’: D convicted for taking the doors from a council property
in order to put them on his council property.
R v Marshall: D acquired used but unexpired tickets from passengers on London Underground and then sold
the tickets on.
 CA: by acquiring and re-selling the tickets, the defendant had intended to treat them as his own to
dispose of regardless of the rights of the Underground company.
 They had intended to deprive London Underground of the revenue they would have made from selling
tickets at the full price to new customers.
Vinall: Ds punched a young man on a bicycle, before DS then chased him and took his bicycle. The bicycle
was later found abandoned at a nearby bus shelter. While Ds were charged with robbery, the prosecution also
had to establish the offence of theft because theft is an element of robbery.
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  Held: the appropriation and intention to permanently deprive must coincide.
 Prosecution had to prove that the defendant intended to permanently deprive the victim of the bicycle
either at the time that he took the bicycle or at the time of the later appropriation of the bicycle when
the defendant abandoned it.
Zerei: D forcibly and violently took a car from V. – Held: taking the car by violence is completely different
from an intention to permanently deprive. Important fact: the car had been abandoned; which, applying Vinall,
could provide evidence of the state of mind of the defendant at the time that he took the car.
Waters: where D attaches a condition to the return of an item which would not be fulfilled or not be fulfilled
in the foreseeable future, then this may amount to an intention to permanently deprive.

Borrowing or lending property:

s.6(1) states that a borrowing or lending may amount to theft if it is for a period and in circumstances making
it equivalent to an outright taking or disposal.
R v Lloyd: was a projectionist in a cinema. He removed films to make ‘pirate’ copies and then returned the
films to the cinema within a few hours. The Court of Appeal held that ‘a mere borrowing is never enough to
constitute the necessary guilty mind unless the intention is to return the “thing” in such a changed state that it
can be truly said that all its goodness and virtue has gone.’
 Court ruled that there was still a practical value to the films as they could continue to be projected to
paying audiences. Consequently, the borrowing was not equivalent to an outright taking or
disposal under s 6(1).

Borrowing money:

Velumyl: D borrowed money from his employer’s safe, intending to return money of the same value. This was
held to amount to an intention to permanently deprive as the defendant intended to replace the money taken
with different notes.

Parting with property under a condition as to its return:

S 6(2): Without prejudice to the generality of [s 6(1)] above, where a person, having possession or control
(lawfully or not) of property belonging to another, parts with the property under a condition as to its return
which he may not be able to perform, this (if done for purposes of his own and without the other’s authority)
amounts to treating the property as his own to dispose of regardless of the other’s rights.

Conditional intention:

If a person intends to permanently deprive the owner of property only if a certain condition is met, he has no
intention to permanently deprive.
Easom: D picked up the V’s handbag from the floor in order to see if there was anything worth stealing in it.
He intended to steal anything that might have been worth taking. The handbag was attached, by a piece of
string, to the hand of V, who was a police officer. D’s conviction for theft was quashed in the Court of Appeal
because D had no intention to permanently deprive and a conditional intention to steal something worth
stealing was not sufficient.
Husseyn: ‘it cannot be said that one who has it in mind to steal only if what he finds is worth stealing has a
present intention to steal’. The Court held that the intention to steal (the requisite mens rea of attempted theft)
must accompany the step taken which constitutes the attempt (the actus reus of attempted theft).

——

FRAUD:

The Fraud Act 2006 is a piece of legislation designed to implement recommendations made by the Law
Commission (Law Com No 276) to overhaul the law in relation to situations where the defendant deceives
someone.
Section 1 of the Act provides for the offence of fraud, but does not define it, and s 1(2) sets out the methods
by which fraud may be committed:
 by making a false representation (s 2);
43
  by failing to disclose information (s 3); and
 by abuse of position (s 4).

—> Fraud by False Representation:

ACTUS REUS:

s 2 of the Fraud Act 2006:

(1) A person is in breach of this section (and so guilty of an offence under section 1) if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
Actus reus:
 Making a representation (conduct), and
 That representation must be false (circumstance).

Mens rea: in terms of mens rea, s 2 requires the defendant to:

(a) be dishonest; and
(b) intend, by making the representation, to make a gain for themselves or another, or to cause loss to
another or to expose another to a risk of loss; and
(c) know the representation is untrue or misleading, or know that it might be so.

False representations:

Section 2(2) of the Act states that a representation is false if:

(a) it is untrue or misleading; and
(b) the person making it knows that it is, or might be, untrue or misleading.
o Misleading: ‘less than wholly true and capable of an interpretation to the detriment of the victim’.
s 2(2)(b) also introduces a mens rea requirement. The defendant must either know that the representation is
untrue or misleading, or knows that it might be so.

—> What is a representation?

S. 2(3) FA: representation may be made about a fact, or about law. A representation includes a representation
about a person’s state of mind.
S 2(4): representation may be express or implied; made by words or by conduct; made in writing or orally.
Barnard: D entered a shop in Oxford wearing a university cap and gown. By an express representation that he
was a member of Oxford University, he induced the shopkeeper to sell him goods on credit. The Court held
that this amounted to deception and made an obiter comment to the effect that the defendant would also have
been guilty if he had said nothing.
Idrees v DPP: D got someone to sit driving test for him —> false representation was made by the defendant
when he booked the test online.
R v Nizzar: D worked on the till in a shop and informed a lady who had a £1 million winning lottery ticket
that her ticket had not won anything.
R v O’Leary: D visited the homes of two elderly victims who suffered from dementia, claiming that he had
done roofing repair work to their properties and demanding payment for this. In fact, he had not done any
such work.

S 2(3) includes a representation as to the state of mind of: (a) the person making the representation, or (b) any
other person.
Representations as to the state of mind of the defendant or any other person: if a defendant says (or implies)
that they will do an act in the future, or that some event will occur in the future, it usually implies a
representation, namely that the defendant genuinely intends to do the act or genuinely believes that the event
will occur.

Representation by conduct: DPP v Ray —> D decided not to pay at restaurant after main course, then
continued staying at the table —> conduct was a continuing representation of their present intention to pay
44
and their change of mind produced a deception, the effect of which was that they were treated as an honest
customer whose conduct did not call for precautions.
MPC v Charles: by using his chequebook and cheque guarantee card, he was making an implied
representation that he had an account with the bank and that he was authorised to use the chequebook and
cheque guarantee card.
R v Lambie: D exceeded the limit on her credit card but continued to use it. The House of Lords held that she
had falsely represented that she had authority to use the card by continuing to use it once she had
exceeded her credit limit.

S 2(5): Representation is made if it (or anything implying it) is submitted in any form to any system or device
designed to receive, convey or respond to communications (with or without human intervention).
Davies v Flackett: representation can be made to a machine as well as a person.

MENS REA:

Dishonesty: Ivey test applies + common sense.

Intention to gain or cause loss: Intention will take its ordinary meaning and will also cover foresight of
consequences as virtually certain to occur (Woollin).
 it is ‘by’ making the false representation that the defendant must intend to make the gain or cause the loss.
 In Gilbert [2012]: CA held that a causative link must be established between the intention to make a gain
for himself or another, or to cause loss to another or to expose another to a risk of loss, and the false
representation made by D.
S 5: defines ‘gain or loss’ —> can be in money or other property (real or personal), temporary or permanent.

The offence occurs as soon as the false representation is made.

—> Fraud by Failing to Disclose Information:

S 3 FA:
(a) dishonestly fail to disclose to another person information which they are under a legal duty to
disclose, and
(b) intend, by failing to disclose the information,
(i) to make a gain for themselves or another, or
(Ii) to cause loss to another or to expose another to a risk of loss.

Duty may be imposed by statute, by contract, a transaction of good faith, financial relationship.
This offence is entirely offender focused as it is committed as soon as the accused does the act, and it is
irrelevant whether anyone is actually deceived or any property lost or gained.
Whether or not there is a legal duty to disclose information is a question of civil law.
The Fraud Act 2006 does not define a ‘legal duty’, but the Explanatory Notes state that it includes ‘duties
under oral contracts as well as written contracts’. Examples where there is a legal duty to disclose would
include those derived from:
 statute (such as the provisions governing company prospectuses or the requirement to notify a change
in circumstances in relation to a welfare benefits claim);
 the fact that the transaction is one of utmost good faith, for example, contracts of insurance;
 the express or implied terms of the contract;
 ‘Duties under oral contracts as well as written contracts’
 the custom of a particular trade or market; and
 the existence of a fiduciary relationship between the parties (such as agent and principal).

Firth: D hospital consultant who deliberately failed to disclose that patients he had treated were private
patients, intentionally depriving the hospital of revenue. There is an employer–employee relationship in this
case.
R v D: representations that D had made to the local authority to the effect that she was no longer resident at a
property and thus should not be liable for council tax payments. —> the prosecution was unable to point to
any statutory authority or documentation from the local authority that imposed such a duty on the defendant.

45
Thus, there was no general legal duty to notify the local authority of her continued residence at the
property.

The mens rea required for an offence of fraud by failing to disclose information under s 3 is dishonesty and an
intention to make a gain for themself or another, or to cause loss to another, or to expose another to risk of
loss.

—> Fraud by Abuse of Position:

Section 4(1) of the Fraud Act 2006 provides that a person is in breach of this section if they:
(a) occupy a position in which they are expected to safeguard, or not to act against, the financial
interests of another person;
(b) dishonestly abuse that position; and
(c) intend, by means of the abuse of that position
(i) to make a gain for themselves or another, or
(Ii) to cause loss to another or to expose another to a risk of loss.

It is immaterial whether they succeed and whether any loss or gain is actually made.

MENS REA: dishonesty AND intention to make a gain for self or another or to cause loss to another or to
expose another to a risk of loss.
Examples made by the Law Commission of position of financial trust:
o Trustee and beneficiary;
o Director and company;
o Professional person and client;
o Agent and principal;
o Employee and employer.
o Family
o Voluntary work
R v Valujevs: unlicensed gang-masters abused their position by exploiting migrant workers, making unlawful
deductions from their wages and charging excessive rent payments. They were found to occupy a position that
was capable of being one in which they were expected to safeguard the financial interests of another.

Abuse of position: can be committed either by a positive act or by an omission.

R v Rouse: D was found guilty of fraud under s 4. He was the deputy manager of a care home with access to
residents’ bank and credit cards, and account details. As such, he was in a position in which he was expected
to safeguard, or not to act against, the financial interests of the residents.

TOPIC 6: ROBBERY AND BURGLARY

ROBBERY:

 Robbery is an indictable only offence with a maximum sentence of life imprisonment (under s 8(2)
of the TA 1968).
 A person is guilty of robbery under s 8(1) if the prosecution can prove the following:
1. that the defendant stole (committed an offence of theft); and
2. that the defendant either–
(a) used force on any person, or
(b) put or sought to put any person in fear of being then and there (immediately) subjected to
force; and
3. that the force or threat of force was immediately before or at the time of the theft; and
4. that the force or threat of force was used in order to steal.

—> Theft:

All five elements of theft must be present: specifically, there must be an appropriation of property belonging
to another (actus reus), dishonestly and with an intention permanently to deprive (mens rea).
46
R v Vinall: convictions for robbery quashed as there was no intention to permanently deprive.

—> ‘Force’:
R v Dawson: Ds jostled V, making it difficult for him to keep his balance, and at the same time another man
took V’s wallet. – CA upheld convictions. it was a matter for the jury in each case to determine whether force
had been used (or threatened).
R v Clouden: D approached the victim from behind and wrenched her basket out of her hands. The judges
confirmed that whether the defendant used force on any person in order to steal is an issue that should be left
to the jury but there was no distinction between applying force to the person or their property.
P v DPP: However, where only slight touching is used, say, for example, where a pickpocket takes items
from a victim’s jacket pocket, then this will not be sufficient to justify a conviction for robbery and a
charge of theft would be more appropriate.

Under s 8(1), the force or threat of force can be in relation to ‘any person’.
However, in cases where force is threatened rather than actually used, the intended victim of the force must be
aware of the threat.

—> When must force be used or threatened?

Must be broadly simultaneous with the theft.

It is necessary to determine when the theft is complete, as any force used or threatened after the theft will
not give rise to a charge of robbery (although the defendant could be charged with theft and assault).
R v Hale: whether appropriation is constituting at the time the force is used is a q for the jury.

—> In order to steal:

s 8(1) makes it clear that the threat or use of force must be made in order to steal.

MENS REA:
One element of the mens rea of robbery is that force must be used or threatened in order to steal.
As theft is a requirement of robbery, the defendant must be proven to have had the mens rea of theft: they
must be shown to be dishonest and to intend permanently to deprive the owner of the property.
D must at least be reckless as to the use or threat of force.

——
BURGLARY:

Either-way offence – on conviction in the Crown Court, the maximum term of imprisonment is 14 years for
burglary of domestic premises and 10 years for burglary of commercial premises.

In order to commit an offence under s 9(1)(a), the defendant must:

1. enter;
2. a building (or part of a building);
3. as a trespasser;
4. intending to commit one of the offences listed in s 9(2), namely, theft, infliction of grievous
bodily harm or criminal damage.

To be guilty of an offence under s 9(1)(b), the defendant must:

1. enter;
2. a building (or part of a building);
3. as a trespasser;
4. and commit theft or inflict grievous bodily harm, or attempt to steal or to inflict grievous bodily
harm.

The defendant must enter a building or part of a building as a trespasser.

—> Entry:

47
R v Brown: D leant in through a shop window for the purpose of stealing items from within the shop. Court
rejected his argument that he did not trespass as his whole body had not entered the building. —> there must
be an ‘effective’ entry for the purpose of burglary, but whether there had been such an entry was a question of
fact for the jury.
R v Ryan: entry of some part of the defendant’s body into the premises could amount to an effective entry: the
fact that, at that point, the defendant was incapable of committing any crime (he got stuck in the window) such
as theft was irrelevant.
The insertion of an instrument into a building was an entry by the defendant if it was used to commit an
offence (such as theft), as in such a case the instrument would be regarded as an extension of the
defendant’s body.
 However, it was not an entry if the instrument was used simply to enable the defendant to get into
the property, for example, to force open a door or window.

—> As a trespasser:
Essential element that D is a trespasser: if not established, there can be no burglary.
Under old law, the courts held that permission to enter obtained by fraud was not a true permission (R v
Boyle)
R v Jones and Smith: the question for the judges was whether he could be a trespasser given that, when
Smith entered, he did so intending to steal – presumably not something that was within his father’s
contemplation when he gave his consent to entry (exceeding terms of consent to enter).
 CA applied R v Collins: D could be a trespasser where they had permission to enter for lawful
purposes but instead entered for an unlawful purpose, and they knew or were reckless that they were
exceeding the terms of the permission given.

—> Mens rea of trespass:

The mens rea of trespass required for a charge of burglary was considered in R v Collins: the mens rea for
entry as a trespasser under s 9(1)(a) burglary was that, at the time of entry into the building, the defendant
must either know they were entering as a trespasser, or be reckless as to whether they were a trespasser.
Recklessness here would require the defendant to foresee the risk that they do not have permission to enter
and go on, without justification, to take that risk.
Under s 9(1)(a) of the TA 1968, the defendant must have the mens rea for entry as a trespasser at the time of
entry.
Contrast this with s 9(1)(b), where the offence is only complete once the defendant has committed or
attempted to commit grievous bodily harm or theft.

—> Entry into a building or part of a building:

S 9(4) of the TA: building includes an inhabited vehicle or vessel, and shall apply to any such vehicle or
vessel at times when the person having a habitation in it is not there as well as at times when he is.
The only time one has to enquire about whether a property is inhabited in order to determine whether it is
defined as a building, is where the property is a ‘vehicle or vessel’.
 A houseboat would qualify as it is inhabited, whether a camper van falls within the definition of
property depends on whether the van is inhabited – it counts as a building either if:
 It is a permanent home to someone; or someone is using it as a holiday home at the time of
the burglary.

—> Part of a building:

D must, for s 9(1)(a) burglary, enter a building or part of a building as a trespasser with the intention of either
stealing or inflicting grievous bodily harm in that building, or in that part of the building. (Similarly for 9(1)
(b)).
R v Walkington: D convicted of burglary when he went around a three-sided counter in a shop to get to the
till. —> CA held area was a separate part of the building as there was a physical demarcation suggesting that
the public were excluded from this section.
(a) that the management had impliedly prohibited customers entering that area and (b) that this
particular defendant knew of that prohibition’.

—> Differences between s 9(1)(a) and 9(1)(b):

48
 —> Conditional intent:

Attorney-General’s Reference (Nos 1 and 2 of 1979): conditional intent to steal was sufficient.

——

AGGRAVATED BURGLARY:

Criminals who are ‘armed’ when they commit an offence of burglary can also face liability for an aggravated
offence of burglary under s 10 of the TA 1968.
Aggravated burglary is an indictable offence only - meaning that it can only be tried in the Crown Court, and
carries a maximum sentence of life imprisonment to reflect the seriousness of criminals entering premises
armed with weapons.
The offence requires proof of all the elements of burglary for either s 9(1)(a) or s 9(1)(b) of the Theft Act
1968 but, in addition, the defendant must be in possession of a weapon at the time of the burglary.

—> Weapon:

The items which the law deems to be weapons are listed in the statute as follows:
 firearms including air guns, air pistols and imitation firearms whether capable of being discharged or not;
 a ‘weapon of offence’, meaning any article made or adapted for use for causing injury to or incapacitating
a person, or intended for such use; and
 explosives.

A weapon of offence is widely defined and could include:

(a) a machete as it has been made for use in causing injury:
(b) a broken bottle adapted for use in causing injury;
(c) a hammer intended for such use;
(d) a length of rope as this could be used to incapacitate a person; or
(e) handcuffs as these are intended for such use.

—> Knowledge:

The defendant must know they have the item with them but there is no need to prove that they intended to use
the weapon during the burglary.
R v Stones: any intention not to use the knife was irrelevant.
R v Kelly: the fact the screwdriver was used in the heat of the moment was not a defence to aggravated
burglary as the defendant had the intent to use it should the need arise.

—> At the time:

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The defendant must have the weapon with them ‘at the time’ of committing the burglary, and this varies
depending upon the offence with which they are charged.
 For s 9(1)(a) burglary, it is at the time of entry.
 For s 9(1)(b) burglary, the relevant time is when the ulterior offence (theft, GBH or attempted theft or
GBH) is committed.
R v Francis: Ds were found not guilty of aggravated burglary on appeal as the prosecution could not prove
that the accused had the sticks with them at the moment they intended to steal.
R v O’Leary: D took knife from kitchen of the house he entered into. Although he had not taken the knife into
the property, thus did not have it at the time of entry, he was guilty of aggravated burglary under s 9(1)(b)
because he had the weapon with him at the time he committed the theft.

TOPIC 7: CRIMINAL DAMAGE

The Criminal Damage Act 1971:

 s 1(1) – simple criminal damage;
 s 1(2) – aggravated criminal damage;
 s 1(3) and s 1(1) – simple arson;
 s 1(3) and s 1(2) – aggravated arson.

SIMPLE CRIMINAL DAMAGE (s 1(1)):

ACTUS REUS:
There are three elements making up the actus reus of the offence, namely:
(a) damage or destruction;
(b) of property;
(c) belonging to another;
(d) without lawful excuse.

—> Damage or destruction:

Gaylord v Chouler: damage need not be permanent. – D trespassed onto a field of knee-deep grass and
walked across it, causing damage to the value of 6d.
A (a juvenile) v R: the damage to property must be more than merely trivial or nominal. – D spat on a police
officer’s raincoat – faint mark on jacket. Acquitted.
Hardman v Chief Constable of Avon and Somerset Constabulary: there does not need to be extensive
damage. - drawings on a pavement made by using soluble chalks amounted to criminal damage as the local
authority incurred expense in cleaning it up.
Roe v Kingerlee: whether damage has been caused is a matter of fact and degree to be determined in a
common sense way.
 Usually, if expense is involved in restoring the property to its previous condition, the court is likely to
find that damage is established.
Cox v Riley: Erasing or altering computer programs or data computer discs has in the past also been held to
constitute damage - employee who deliberately erased a computer program from a printed circuit card at his
workplace.
Whiteley: D computer hacker who gained unauthorised access to a computer network. He altered data on discs
within the system and caused computers in the network to fail. He was convicted of criminal damage under
s.1(1) on the basis that he altered the state of the magnetic particles on the discs containing information, so as
to delete and add files.

—> Property:
Defined in s 10(1): covers property of a tangible nature, whether real or personal, including money and
the property referred to in s 10(1)(a) and (b). This includes certain animals (for example, pets) and plants (for
example, those growing in the garden).
Excludes intangible property.

—> Belonging to another:

Section 10(2):
(a) having the custody or control of it;

50
 (b) having in it any proprietary right or interest (not being an equitable interest arising only from an
agreement to transfer or grant an interest); or
(c) having a charge on it.
A person cannot be guilty of criminal damage of their own property. However, if the property also belongs to
another, you will be guilty of criminal damage.
Under s.10(3) of the Criminal Damage Act 1971, property under a trust belongs to any person having a right
to enforce the trust.
Under s.10(4) of the Act, property of a corporation solely belongs to the corporation even though there may be
a vacancy in the corporation.

—> Lawful excuse:

Section 5(2)(a): a defendant will have lawful excuse, and therefore a defence to a charge of criminal damage
under s 1(1) of the Act, if they argue that either:
(a) they believed they had the consent of the person who was entitled to give permission for the
damage to be caused (for example, they thought they had permission from the owner of the property);
or
(b) they believed they had the consent of the person who they thought was entitled to give
permission for the damage to be caused (for example, they thought they had permission from
someone whom they (wrongly) believed to be the owner of the property); or
(c) they believed they would have had the consent of the person entitled to give permission if that
person had known of the damage and the circumstances; or
(d) they believed they would have had the consent of the person who they thought was entitled to
give permission if that person had known of the damage and the circumstances.
Cairns: the offence is not one of destroying or damaging property without the consent of the owner. D need to
adduce evidence as to the lawfulness.

Belief in consent:
S 5(3) covers the case where D believes that the owner has consented to the destruction or damage.
Denton: D was not guilty of arson in setting fire to his employer’s mill when D believed that his employer had
encouraged him to do so.
Jaggard v Dickinson: subjective focus of s 5(3): ‘a belief can be just as much honestly held if it is induced by
intoxication, as if it stems from stupidity, forgetfulness or inattention’. —> a belief induced by voluntary
intoxication may be sufficient.
An honest mistake is sufficient for the defense of lawful excuse.

Defence of property:

Under s 5(2)(b), the defendant will have lawful excuse if they can argue that:
(a) he destroyed or damaged the property in question in order to protect property which he believed to be
vested in himself or another;
(b) they believed property (their own or another’s) was in immediate need of protection; and
(c) they believed that the means of protection they adopted (which led to the criminal damage) were
reasonable having regard to all the circumstances.

Section 5(3) makes it clear that in both s 5(2)(a) and (b), the defendant’s belief does not have to be reasonable
so long as it is an honestly held belief.

Jones: there is no requirement that the threat to the item of property D believed to be in need of protection is
a threat of unlawful damage.
The property must exist.
R v Hunt: the question of whether a particular act of destruction or damage was done in order to protect
property belonging to another must be, on the true construction of the statute, an objective test.
o CA applied an objective test to ‘in order to protect property’ under s.5(2)(b) —> D setting
fire to a room ‘was not done in order to protect property; it was done in order to draw
attention to the defective state of the fire alarm.

Whether the defendant believed the property was in immediate need of protection and whether the defendant
believed the means of protection adopted were reasonable in all the circumstances are judged subjectively.

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Hill; Hall: D convicted when using hacksaw blade to cut fence at the US military base, enter it and protest
against the present of US nuclear weapons in the UK.
 The Court of Appeal held that the trial judge must ask himself:
o did the defendant honestly believe that he was protecting property (the subjective test); (D’s
actual state of mind)
o on the facts as the defendant believed them to be, could the act amount to something done to
protect property (the objective test)?

Immediate need of protection —> Hill; Hall: there was no direct and proximate threat.
under s.5(2)(b), the defendant must believe that the property in question is in immediate need of protection.
 There was NO such belief in Johnson v DPP, where D changed locks on the doors of a house he was
squatting in. – Held: damage had not been done in order to protect property (the objective test), and
even if it had been, the defendant had no belief that the property was in immediate need of protection
(the subjective test).
Kelleher: D went into an art gallery and knocked the head off a statue of Lady Thatcher. He believed that
Margaret Thatcher’s policies had made the world a dangerous place to live in and would lead to the
destruction of the planet. —> D did not act in order to protect property belonging to another, he had
acted in order to gain publicity for his views.

Belief in reasonableness of the action:

There is no requirement that D’s belief be reasonable, still less that D’s conduct must meet some objective
standard of reasonableness.
DPP v Unsworth: court quashed D’s conviction for criminal damage to her neighbour’s trees which D claimed
to have cut down to protect the right to light that D believed she had.

MENS REA: Intention or recklessness:

The defendant must:

 intend to damage or destroy property or be reckless as to such damage or destruction; and
 know that the property belongs to another or be reckless as to whether the property belongs to
another.

R v G: the subjective test for recklessness applies.

R v Smith: where D believes the property is or may be their own but is mistaken he will lack the MR for
criminal damage.
 Held: if a person honestly believed property was their own then they lacked the mens rea. It did not
matter whether the belief was reasonably held as long as it was an honest belief.

——

AGGRAVATED CRIMINAL DAMAGE (s 1(2)):

To be guilty of this offence the defendant must:

(a) destroy or damage property (actus reus);
(b) intend to destroy or damage any property or be reckless as to whether any property is damaged or
destroyed (mens rea);
(c) intend by the destruction or damage to endanger the life of another or be reckless as to whether another’s
life might be endangered (mens rea).

There are two main differences with the simple offence of criminal damage:
1. First, for the simple offence, the defendant must destroy or damage ‘property belonging to another’,
whereas under s 1(2) the property damaged or destroyed can belong to another person or to the defendant.
2. Secondly, there is an additional element of mens rea (‘ulterior’ mens rea): D intended or was reckless as
to damaging or destroying property, but also that they intended to endanger the life of another or were
reckless as to whether the life of another might be endangered.

MENS REA:

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Two mens rea elements:
 there must be an intention to destroy or damage property or recklessness as to whether property
would be destroyed or damaged; and
 there must be an intention by the destruction or damage to endanger life or recklessness as to whether
or not life would be endangered.

!!! There is no requirement that life actually be endangered because this is not an actus reus element but is a
mens rea element.
Recklessness for the aggravated offence determined according to Cunningham.

R v Dudley: mens rea had to be considered at the time the defendant did the act which caused the damage.
Thus, if at that moment, the defendant intended to endanger life or was reckless as to that risk, in that they
foresaw the risk that life might be endangered and went on to take that risk, they were guilty notwithstanding
that no-one’s life was actually put in danger.
R v Steer: it must be proved the defendant ‘by the damage or destruction’ intended to endanger life or was
reckless to that possibility.

Asquith, Webster and Seamans; Warwick: CA held that s.1(2)(b) of the Act relates to the
damage envisaged by the defendant, not the actual damage caused by the defendant.

Thankar: If D intended only to endanger his own life by the damage to property, and did not foresee any
endangerment of the life of another person, he will not be guilty.

Brewis: if D sets fire to his own house in a suicide bid, he may be guilty of aggravated criminal damage if he
foresaw the risk to the lives of his neighbours.

‘Without lawful excuse’ does not have the same meaning for the aggravated offence of criminal damage. The
definition in s 5 does not apply to offences under s 1(2).
There are circumstances when the defendant may have lawful excuse (outside s 5) to the aggravated offence,
such as when the defendant damages property in order to prevent crime or in self-defence.

——

ARSON (s 1(1) and 1(3)):

Arson is criminal damage by fire. It is an indictable only offence which carries a maximum sentence of life
imprisonment under s.4(1) of the Criminal Damage Act 1971. Arson is provided by s.1(3) of the Criminal
Damage Act 1971.
A defendant will be guilty of arson if he commits an offence of criminal damage under either s.1(1) or s.1(2)
of the Criminal Damage Act 1971 by fire.

THREATS TO DESTROY OR DAMAGE PROPERTY:

Under s.2 of the Criminal Damage Act 1971, it is an offence to threaten to commit an offence under s.1 of the
Act (i.e., to destroy or damage property).
The threat is considered objectively – Cakmak.
There must be words or actions which, objectively speaking, constitute a threat, and it must be a threat which,
objectively considered, amounts to a threat to damage any property: Ankerson.

POSSESSION OF ARTICLES:

Under s.3 of the Criminal Damage Act 1971, it is an offence to be in possession of an article intending it to be
used to commit an offence under s.1 of the Act (i.e., to destroy or damage property).
A conditional intention to use the article in question should it prove necessary to do so is sufficient for this
offence: Buckingham.

RACIALLY OR RELIGIOUSLY AGGRAVATED CRIMINAL DAMAGE:

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Racially or religiously aggravated criminal damage is an offence under s.30 of the Crime and Disorder Act
1998 (as amended by s.39 of the Anti-terrorism, Crime and Security Act 2001). It is an either way offence
which carries a maximum sentence of 14 years’ imprisonment.

TOPIC 8: ATTEMPTS AND ACCOMPLICE

INCOHATE OFFENCES:
Inchoate liability:

Incohate offences:

ATTEMPT:

There are two types of scenario where a person could be liable for attempting to commit an offence.
 The first is an incomplete attempt, where the defendant has not done all the acts necessary to bring
about the offence, for example, if they are arrested before they kill the proposed victim.
 The second is a complete attempt, where the defendant has done all the acts necessary to commit the
offence but the desired result has not followed.

An attempt to commit a crime is an offence contrary to s 1(1) of the Criminal Attempts Act 1981. It is
known as an ‘inchoate’ offence – one which is incomplete in some way.
 If, with intent 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 attempting to commit the
offence.

—> Actus Reus: to do an act which is more than merely preparatory to the commission of the offence.
—> Mens rea: an intent to commit the offence.

s 1(4) of the Criminal Attempts Act 1981 specifies certain offences which cannot be subject to an attempt
charge. Ie. One cannot be charged with an attempt to be an accomplice.

ACTUS REUS OF ATTEMPT:

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s 4(3): AR of attempt is not complete unless the act is more than merely preparatory to the commission of the
offence. This is a question of fact for the jury to decide.

—> More than merely preparatory:

Boyle and Boyle: D damaged door of house they intended to burgle. Charged with attempted burglary. Held:
there was sufficient evidence for the jury to find that the appellants intended to commit burglary and that in
breaking down the door they did more than a merely preparatory act towards committing burglary.

R v Jones: D convicted of attempted murder.

1. Buys a shotgun and ammunition.
2. Shortens the barrel of the shotgun and loads it.
3. Waits for the victim at the school gates, knowing that he will shortly be arriving by car to drop off his
daughter.
4. Jumps into the car when the daughter gets out.
5. Points the loaded gun at the victim.
6. Releases the safety catch on the gun and puts his finger on the trigger.
 CA: there was sufficient evidence for the jury to decide whether there was an act that was more than
merely preparatory to the commission of the offence at point 5 above.

R v Gullefer: ‘It [the AR of attempt] begins when the merely preparatory acts have come to an end and the
defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular
case’.
—> look at what the defendant has actually done, then consider what else they need to do in order
to commit the offence.

Tosti: Ds were convicted of attempted burglary. They were seen to approach the door of a barn and examine
the padlock, but they ran off when they realised they were being watched. The defendants had hidden some
cutting equipment in a hedge nearby. Their appeal against conviction was dismissed.
 Held: there was sufficient evidence of an attempt to leave the offence to the jury, despite the fact that
the defendants had not got as far as trying to commit the burglary (the defendants were merely examining
the padlock while the cutting equipment was in a hedge).

MS, Application by Prosecution for Leave to Appeal: ‘no single factor, including proximity, constitutes a
uniform test that applies to all species of offences’.

There are three main points to determining the actus reus of attempt:
(a) the test is set out in statute - an act (not an omission) is needed which is more than merely preparatory
to the commission of the full offence;
(b) case law seems to suggest that significant steps need to be taken towards the commission of the full offence
but, as a matter of law, it is not necessary to establish that the defendant has done all they intend to do (Jones);
and
(c) whether an act is more than merely preparatory will be a question of fact in each case, provided the judge
feels there is some evidence that the defendant has ‘embarked upon the crime’ so that the matter can be left to
the jury.

—> Acts which are mere preparation: not attempts

Gullefer: D’s conviction for attempted theft was quashed on appeal. The defendant went to a greyhound
racing track and placed an £18 bet on a dog in the last race. Realising that his dog was losing the race, the
defendant climbed down onto the racetrack and waved his arms, attempting to distract the dogs. His aim was
to disrupt the race so that it would be declared void and then to claim his £18 stake back.
 CA: an attempt ‘begins when the merely preparatory acts come to an end and the defendant embarks
upon the crime proper.

Campbell: D’s conviction for attempted robbery was quashed. D was arrested after he had been seen lurking
around outside a post office. He was seen riding a motorcycle past the post office and walking up to and away

55
from the post office. He was carrying an imitation firearm and a threatening note. D claimed that he had
changed his mind about committing the robbery shortly before being arrested.
 Held: at the time of arrest, D had not even gained the place where he could be in a position to
carry out the offence.

Geddes: D’s conviction for attempted false imprisonment was quashed. He was found on school premises, in a
lavatory block. He had no right to be there. On being confronted by a police officer who happened to be on the
premises, D left the school. He discarded a rucksack in some bushes nearby. The rucksack contained a large
kitchen knife, some rope, and masking tape.
 Held: there was evidence of intention to kidnap a child but held that the defendant’s conduct
amounted to mere preparation. - based upon the fact that the defendant ‘had never had any contact or
communication with any pupil; he had never confronted any pupil at the school in any way’.
 Lord Bingham: The cases show that the line of demarcation between acts which are merely
preparatory and acts which may amount to an attempt is not always clear or easy to recognise. There
is no rule of thumb test. There must always be an exercise of judgment based on the particular
facts of the case.

MENS REA OF ATTEMPT:

Pace: MR of attempt is that the defendant must intend to commit all the elements of the full offence.
R v Whybrow: D wired up a soap dish to the electricity supply in order to electrocute and kill his wife. At his
trial the judge directed the jury that an intention to kill or cause GBH. Her was convicted of attempted murder.
only an intention to kill will do.
 If the offence is a result crime, the defendant must intend the prohibited result even if a ‘lesser’
mens rea would satisfy the full offence.
R v Millard and Vernon: CA: an intention to commit attempted criminal damage must be proved even
though recklessness is an adequate mens rea for the full offence.

—> The role of recklessness in attempt:

AG Reference (No 3 of 1992): on a charge of attempted aggravated criminal damage, the defendant must
intend to damage property so they must intend the consequence forming the actus reus of the offence, but they
can be reckless as to whether life is endangered because this is an issue of ulterior mens rea.
 There is no need for life to be endangered to establish the actus reus of the full offence and so
recklessness will suffice as to this element of mens rea in an attempted offence.

R v Millard and Vernon: distinguished, on the one hand, those more straightforward cases where the
substantive offence consists simply of the act that constitutes the actus reus – what he called ‘the result’.
Here, he said, when looking at the defendant’s mens rea, ‘for an attempt, nothing but conscious volition will
do’. He then contrasted that, on the other hand, with situations or cases where the substantive offence goes
beyond one result and one mens rea, and requires another state of mind directed to some circumstances
or act which the prosecution must prove in addition to proving the result.
o Ie. Attempted rape: The offence is not established without proof of an additional
circumstance (namely that the woman did not consent), and a state of mind relative to that
circumstance (namely that the defendant knew she did not consent, or was reckless as to
whether she consented).

R v Khan: for attempted rape, D must intend sexual intercourse either knowing of the lack of consent, or
being reckless as to the other’s consent.

—> Is foresight of consequences (oblique intent) sufficient?

Pearman: oblique intent same as in common law: the jury might infer the defendant’s intention from foresight
of the consequences, although foresight was not to be equated with intent.

—> Conditional intent:

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Conditional intent is adequate. – Ie. if someone puts their hand into the victim’s pocket intending to take
anything ‘if it is worth stealing’, that is an adequate mens rea for attempted theft.

Impossibility:

Section 1(2) of Criminal Attempts Act: Impossibility as to ends and impossibility of means are no defence to
a charge of attempting to commit an offence: impossibility will not prevent the establishment of the actus reus
of attempt.
MR in impossibility: section 1(3): D will be deemed to have the intent to commit a crime if, on the facts
which they believed to be true, they would have had such intent.

——

ACCESSORIAL LIABILITY:

SECONDARY PARTICIPATION (ACCOMPLICE LIABILITY):

A principal offender is usually the person who commits the actus reus elements of the criminal offence.
 Where two or more people commit an offence together they will be labelled co-principals.
 A person can also be charged as a principal offender where they have used an innocent agent to commit
the actus reus of an offence.
Accomplices are the persons who assist in the commission of an offence in some way, whilst not committing
the actus reus of the offence themselves.

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Under s 8 of the Accessories and Abettors Act 1861, it is provided that ‘whosoever shall aid, abet, counsel or
procure the commission of any indictable offence ... shall be tried, indicted and punished as a principal
offender’.
Similar provision dealing with accomplice liability for summary offences under s 44 of the Magistrates’
Courts Act 1980.

ACTUS REUS OF ACCOMPLICE LIABILITY:

The actus reus of accomplice liability requires the defendant to ‘aid, abet, counsel or procure’ the commission
of the offence.

AG Reference (No of 1975): CA confirmed that the words – aid, abet, counsel and procure – were to be given
their ordinary meaning.
 ‘aid’ – give assistance;
 ‘abet’ – give encouragement at the time of the offence;
 ‘counsel’ – give encouragement earlier, so before the crime is committed;
 ‘procure’ – bring about the offence.

Bryce: prosecutors should use the ‘catch-all’ phrase ‘aid, abet, counsel or procure’ when charging secondary
parties ‘because the shades of difference between them are far from clear’

Basically, a person will satisfy the actus reus requirements of accomplice liability if either:
(a) they help to bring about the crime by acting, advising, assisting or encouraging before the crime
occurs; or
(b) they are present at the scene of the crime in order to assist or encourage; or
(c) they are present at the scene of the crime and do assist or encourage.

R v Clarkson: mere presence at the scene of a crime is not, in itself, sufficient to amount to the actus reus
of being an accomplice. - To be liable as an accomplice in this situation, it must be established that the alleged
accomplice was present by prior arrangement with the principal, or actually encouraged or assisted the
principal (by words and/or actions) at the scene of the crime.

Aiding:

Aiding involves helping, assisting, or supporting the principal offender with the commission of the
offence. Aiding occurs before or during the principal offence.
 Ie. Driving the principal to the scene – DPP for Northern Ireland v Maxwell - or supplying the principal
with a weapon or with information which helps him to commit the principal offence – Bainbridge.

Abetting:

Abetting involves encouraging or inciting the principal to commit the offence. Abetting occurs during the
offence. An example would be shouting words of encouragement during the offence.
Abetting requires proof that:
 The defendant was present at the scene of the crime
 He wilfully encouraged the commission of the offence; and
 He intended to encourage the offence.

Coney: some active steps must be taken by word, or action, with the intent to instigate the principal’.
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Bland: D’s conviction as a secondary party to her boyfriend’s possession of drugs was quashed. The mere fact
that D shared a room with her boyfriend was not sufficient for a conviction.

Presence at illegal events/scene of a crime:

Wilcox v Jeffrey: illegal performance of American musician who was refused a permit to perform in the UK.
—> D was found to have encouraged the commission of the offence as he met the musician at the airport,
bought a ticket for the concert and attended the performance.
 It appears that paying to attend an illegal event could amount to encouragement of the crime.

Du Cros v Lambourne: unable to determine whether D was driver or passenger a speeding vehicle.
 Held: he was either the principal offender (the driver) or an accomplice, in that he had encouraged the
commission of the offence by failing to control the actions of the driver when he had a duty to do so as the
car was his.

Remaining silent, or failing to intervene at the scene of a crime where there is a right or a duty to act to control
the actions of the principal offender, can therefore amount to encouragement of the offence and lead to
accomplice liability.

Tuck v Robson: the licensee of a public house, who allowed his customers to drink after hours, was held to be
an accomplice to the offence of drinking after hours as he had the right (or a duty) to stop them and his failure
to do so, by his inactivity, amounted to encouragement.
R v Russell and Russell: the failure of one parent to intervene to protect their child from ill-treatment by the
other parent amounted to encouragement of the offence and led to accomplice liability. The passive parent
was under a duty to act and their failure to do so encouraged the crime.

Counselling:

Counselling involves advising, soliciting, encouraging, or threatening the principal to commit an offence.
Counselling differs from abetting as it occurs before the principal offence,
Giannetto: example of counseling:
 Supposing somebody came up to [the defendant] and said, ‘I am going to kill your wife’, if he played any
part, either in encouragement, as little as patting him on the back, nodding, saying, ‘Oh goody’, that
would be sufficient to involve him in the murder, to make him guilty, because he is encouraging the
murder.

Bryce: for secondary party liability there must be some causal connection between the act of the secondary
party relied on and the commission of the offence by the perpetrator’.

—> Link between principal and accomplice:

AG Reference (No 1 of 1975): there was no need for a mental link, indeed any contact, between principal and
accomplice where it was alleged that the accomplice had procured the commission of the offence.
o This was because procuring meant ‘producing by endeavour’ or setting out to ensure that something (in
this case a crime) happens and taking the appropriate steps to achieve this.

In cases of counselling and abetting, however, where advice or encouragement is given, there probably does
need to be a meeting of minds at some stage between accomplice and principal.
 ‘Meeting of the minds’ does not mean the parties must have discussed the matter before the crime occurs.
If the principal becomes aware of the accomplice’s encouragement or advice during the commission of
the crime, that will suffice to establish the actus reus of accomplice liability.

R v Calhaem; no need for a causal link in cases where the allegation is that the accomplice counselled the
principal.

R v Gnango: B pulled out a gun and began firing at the defendant (D), who returned fire. A passer-by was hit
in the head by a bullet from B’s gun and was killed. D was charged with murder on the basis that he had been
engaged in a joint enterprise with B.

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 Held: a person who aided, abetted, counselled or procured another to shoot at them was guilty of the
attempted murder of themselves.

(a) In cases of aiding (acts of assistance), (b) Where the accomplice is (c) In cases where the
neither a mental nor a causal link accused of abetting and accomplice is said to
between the principal offender and the counselling, a mental link is have procured the
accomplice is required; indeed, the required so the principal offence, there is no
principal may not even know of the must be aware of the necessity for a mental
assistance. Furthermore, there is no need to encouragement or advice but link with the principal
establish that this help influenced or there need not be a causal but there must be a
impacted their decision to commit the link. causal link.
crime.

Procuring:

Procuring means ‘to produce by endeavour’, that is, making something happen by taking appropriate steps
to produce that result. Procuring occurs before the principal offence.

AG Reference (No 1 of 1975): D secretly laced his friend’s drink with alcohol, knowing that his friend would
be driving home. His friend was stopped by the police on his way home and charged with driving whilst over
the prescribed limit. The defendant was acquitted after the trial judge ruled that there was no case to answer
because there was no shared intention between the defendant and his friend.
 Held: D had procured the offence. - means to produce by endeavour. You procure a thing by setting out
to see that it happens and taking the appropriate steps to produce that happening.

Establishing the commission of the principal offence:

R v Dias: CA held that D (who supplied V with drugs) could not be an accomplice as V had committed no
unlawful act by injecting himself with drugs. —> a person cannot be convicted as an accomplice unless the
actus reus (at least) of the principal offence is committed.

R v Cohan and Leak: L convicted as an accomplice to rape as he had procured the commission of the offence
by acting to ensure C had sexual intercourse with L’s wife without her consent. – Held: the fact that C was
acquitted of the principal offence (due to his belief in L’s wife’s consent) did not prevent L being
convicted as an accomplice.
 AR of rape had been committed by C – he had had sexual intercourse with L’s wife without her consent

Innocent agents:

In cases where an individual has used an innocent agent to commit the actus reus of the crime, the law will
usually charge the instigator of the crime as the principal offender rather than as an accomplice.

An innocent agent is someone who commits the actus reus of a crime but who is not guilty of the offence
either because they lack mens rea, or because they have a specific defence available to them.

R v Bourne: D forced his wife to commit an act of buggery with a dog. The wife was found not guilty of the
offence as she successfully raised the defence of duress.
 In this instance he was charged as an accomplice, the allegation being that he had procured an
innocent agent (his wife) to commit the offence.

Generally, the defendant would be charged as the principal offender acting through an innocent agent, but in
cases involving sexual offences, the appropriate charge is that of acting as an accomplice having procured the
commission of the offence.

THE MENS REA OF ACCOMPLICE:

There are two basic elements to the mens rea of an accomplice:

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Intention to do the act: The first element of accomplice mens rea requires proof that the defendant
intentionally (or deliberately) did the act that assisted, encouraged or procured the commission of the offence,
or intentionally spoke the words that advised, procured or encouraged the crime.
Knowledge of the facts: The second part of the mens rea involves a consideration of the alleged accomplice’s
knowledge or awareness of the circumstances of the principal offence.

—> Intention to do the act:

National Coal Board v Gamble: the defendant was accused of being an accomplice to an offence of driving
an overloaded vehicle on a public road. The driver said that he would risk taking the overload, so the
operator of the bridge gave him a weigh-bridge ticket which allowed him to leave the colliery.
Devlin J stated that there were two elements to the mens rea of an accomplice:
 An intention to aid (proved by a positive act of assistance voluntarily done); and
 Knowledge of the circumstances.
Operation did not want the offence to occur – irrelevant: : ‘... an indifference to the result of a crime does not
of itself negative abetting’.

Garrett v Arthur Churchill (Glass) Ltd and Another: The client paid D for the goblet and the defendant
handed it over, knowing that the client was going to attempt to export it without the required licence. D argued
that in giving the goblet he was merely fulfilling a binding contractual obligation and a refusal to comply
would render him in breach of contract.
 Held: the criminal law will take precedence over the civil law.

—> Knowledge of the circumstances:

Johnson v Youden: for a person to be convicted of aiding and abetting a crime, it must be shown that they
knew ‘the essential matters which constitute that offence’. He went on to say that D did not have to know
that a crime had been committed ‘because he may not know that the facts constitute an offence and
ignorance of the law is not a defence’

Crimes of strict liability required no MR. MR is nonetheless necessary for accomplices of these crimes.
Collins v Tillstone: D did not have within his contemplation all the circumstances of the offence, and thus
lacked the mens rea of accomplice liability.

Accomplice’s contemplation of all the elements of the offence need not be specific:

R v Bainbridge: CA held the accomplice must know a ‘crime of the type in question was intended’. As long
as the type of crime is known, for example that a burglary is to occur, D need not know the exact details such
as the time and location of the planned offence.
 NB. although the detail need not be known by the accomplice, an awareness that the principal was
going to commit some form of illegal act was insufficient to establish the mens rea of accomplice
liability.
 The accomplice must have a specific type of offence, such as theft, within their contemplation.

Maxwell v DPP for Northern Ireland: D did not know exactly what the principal was going to do, but he
knew when he acted as a guide that he was taking part in an attack either on the pub or on the people therein,
and that the weapon or weapons to be used must have been in the car he was guiding. —> He knew that a
“military” operation was to take place. —> convicted.

Can an accomplice be liable for

There can be no liability as an accomplice unless the actus reus of the principal offence is committed.
R v Howe: if the accomplice had a higher mens rea than the principal, it is possible for the accomplice to face
a more serious charge than that of the principal provided the actus reus of the offence is committed.

R v Gilmour: Whilst the principals intended to cause death or grievous bodily harm and so were guilty of
murder, Gilmour only believed they were going to cause criminal damage. Because of this, his conviction
as an accomplice was overturned and replaced with one for manslaughter.

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To conclude, the accomplice may be guilty of a more or less serious offence than the principal based on their
own level of mens rea where different offences share the same actus reus.

The Liability of the Accomplice when the Principal goes beyond the Scope of the Plan:

R v Jogee; Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7 :

the principal offender, H, stabbed the victim (F) to death in the hallway of a house using a knife which he took
from the kitchen. Jogee remained outside with a bottle during the altercation but shouted to H to do something
to F and, at one stage, came to the door and threatened to smash the bottle over F’s head. H was convicted of
murder and Jogee as an accomplice to the same offence. Jogee appealed and the Supreme Court took the
opportunity to review previous authorities on this area of the law.
 The judges concluded that a wrong turn had been made over 30 years previously which should be
corrected. In particular, an error was made in equating foresight of the ‘new’ offence with intent to
assist. The Court held that ‘the correct approach is to treat [foresight] as evidence of intent’ from
which the jury can infer intention, and it stated that foresight and intention are not synonymous.
 The Court held that the prosecution does not have to prove whether the defendant was a principal or
an accessory, ‘it is sufficient to be able to prove that he participated in the crime’ (at [88]).

A defendant can only be convicted as an accessory to murder if he ‘intended to assist the intentional
infliction of grievous bodily harm at least’ and this ‘will often … be answered by asking simply whether he
himself intended grievous bodily harm at least’ (at [98]).
Where the defendant is party to a violent attack but he does not have the intention to assist in the causing of
death or GBH, but the victim dies as a result of an escalation of violence, the defendant will be guilty of
manslaughter rather than murder.
If the defendant encourages or assists an unlawful act which all sober and reasonable people would
recognise carried the risk of some harm and death results, the defendant will be guilty of unlawful act
manslaughter (at [96]).
There is one qualification to this, namely that ‘it is possible for death to be caused by some overwhelming
supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might
happen and is of such a character as to relegate his acts to history’; in such a case the defendant will not be
criminally responsible for the death (at [97]).

Application of Jogee in R v Crilly: The case against the defendant related to his foresight, which might be
evidence of intent, but did not equate to intent. —> The Court granted exceptional leave to appeal in this case
because the evidence against the defendant was not so strong that the jury must have found the requisite intent
to cause really serious harm had the issue been left to them by the judge.

—> An overwhelming supervening act:

R v Tas (Ali): whether the use of a weapon that the defendant did not know was being carried or was to be
used in the attack made the fight of a wholly different nature from the fistfight envisaged.
 It as a question of fact and degree whether D’s conduct was so distanced in time, place, or
circumstances from the conduct of the perpetrator that it would not be realistic to regard the
perpetrator’s offence as encouraged or assisted by it.
 The Court of Appeal held that D took the risk that the others involved in the joint enterprise with him
would go further than to inflict ‘some harm’, and that the use of a knife in the circumstances was not
an overwhelming supervening act which relegated the earlier acts to history.

Issues concerning derivative liability:

—> Principal must be capable of committing an offence:

Accessorial liability is derivative liability: this means that the liability of the secondary party is derived from
the liability of the principal offender.

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Where the principal has not committed the actus reus of an offence, there can be no accessorial liability -
Thornton v Mitchell.

—> Can a secondary party be liable when the principal is acquitted?

The liability of a secondary party is not dependent upon the conviction of the principal.
Where the actus reus of the principal offence is present, but the principal is acquitted because he lacks
the mens rea for the offence, a secondary party may be liable for aiding, abetting, counselling, or procuring
the principal offence.
Cogan and Leak - (see above)
DPP v K and B: Ds were convicted of procuring a rape, despite the fact that the principal had not been
apprehended and was doli incapax. The defendants were two girls, aged 11 and 14. They threatened and
bullied the victim into removing her clothes and having sexual intercourse with a boy.

Withdrawal from the Plan:

In all cases it is a question of fact for the jury to decide whether the accomplice has withdrawn from the plan.
The answer to this question will depend upon two factors:
 the stage at which the defendant has attempted to withdraw; and
 the method by which he did so.

Withdrawal before the crime is committed may be established by proof that the accomplice communicated the
fact of their withdrawal to the principal.
However, if physical (rather than verbal) assistance has been given, communication of the fact of withdrawal
may not suffice.
Withdrawal at the scene of the crime requires something more than communication of the fact of withdrawal.
This ‘something more’ will be a matter for the jury to decide in each case, but could be satisfied by physical
intervention to prevent the crime being committed.

Withdrawal before the offence begins:

 Words alone may suffice, however, where the withdrawal takes place before the crime occurs.
 In R v Grundy: an alleged accomplice who provided information to a principal and then spent two
weeks trying to persuade him not to commit the crime was ruled by the trial judge not to have
effectively withdrawn from the plan.
 However, a defendant must communicate his withdrawal. Failing to turn up at the scene of the
planned crime at the agreed time does not amount to unequivocal communication of
withdrawal: Rook.

Withdrawal during the offence:

R v Becerra:
This case involved two defendants who, along with a third man, committed a burglary of a house. Becerra
used a knife to cut the telephone wires and then passed the knife to Cooper. The defendants were disturbed by
a tenant in the property. Becerra said, ‘Come on, let’s go’, and he left through a window along with the third
man. Cooper was unable to escape through the back door. When confronted by the tenant, Cooper stabbed
him, killing him. Becerra appealed against his conviction for murder, claiming that he had withdrawn.
However, the Court of Appeal held that Becerra had not effectively withdrawn.
 Roskill LJ: the action necessary to ‘break the chain of causation and responsibility’, to ensure
that the accomplice had effectively withdrawn from the plan so as to avoid liability, depended ‘upon
the circumstances of each case’. However, he went on to say that there was one essential element to
an effective withdrawal:
 Where practicable and reasonable there must be timely communication of the intention to abandon
the common purpose ... What is ‘timely communication’ must be determined by the facts of each case
but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will
serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds
upon it he does so without the further aid and assistance of those who withdraw.

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In R v Becerra, the words ‘come on, let’s go’ followed by the accomplice’s act of going through the window
were not sufficient to amount to an effective withdrawal. Roskill LJ stated the further action which would be
required to withdraw would be a stage at which nothing less than physical intervention to prevent the crime
would suffice but declined to say when that was necessary.

It is suggested that some physical intervention may be required, for example by the defendant taking the knife
away from the principal offender.

Withdrawal from spontaneous violence:

Where the criminal offence has arisen spontaneously, that is, through spontaneous violence, unequivocal
communication of withdrawal is generally also required: Robinson.
 CA held that communication was usually required for withdrawal, ‘in order to give the principal
offenders the opportunity to desist rather than complete the crime’.

Can Anyone be an Accomplice?

Anyone may face liability as an accomplice provided they are above the age of criminal responsibility which
is 10 years old or more, and provided they are fit to stand trial. Accomplices have the same general defences
available to them as do principal offenders.
There are, however, some people who are unlikely to face liability as an accomplice even though they may
have encouraged or assisted in the commission of an offence.

The victim of an offence cannot be an accomplice to that offence:

R v Tyrrell: the conviction of Tyrrell as an accomplice to a sexual offence committed against her was quashed
as the offence committed by the principal offender (engaging in sexual intercourse with a girl under the age of
consent) was designed to protect her as she was a girl under the age of 16. Lord Coleridge CJ was of the
opinion that it had never been the intention of Parliament to punish those for whose protection the law was
passed.
 Lord Coleridge CJ said that it had not been the intention of Parliament to punish such girls ‘for the
offences committed upon themselves’.
 The rule in Tyrrell’s case protects only the ‘victim’ of the offence. It does not protect any other young
girl charged as an accomplice.

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