PRINCIPLES OF CRIMINAL LIABILITY REVISIONElements of a crime: Actus Reus + Mens Rea +The Absence of a Valid Defence ACTUS REUSThe physical element of the defence: an act, a failure to act (an omission) or a ‘state of affairs’. Forsome crimes, the actus reus must also result in a consequence e.g. for murder or for ABH.Actus Reus must be voluntary – Hill v Baxter (automatism)State of affairs: where D is convicted even though they did not act voluntarily. Larsonneur; WinzarOMISSIONSNormal Rule = an omission cannot make a person guiltyComparison with other legal systems = good Samaritan law exists in some systems e.g. France.Exception to the normal rule : • An act of Parliament can create liability for an omission e.g. failure to report a road traffic incident, failing to provide a specimen of breath • For common-law crimes an omission is only sufficient for the actus reus if there is a duty to act. a. A contractual Duty (Pittwood) b. A duty because of a relationship (Gibbins & Proctor) c. A duty which has been taken on voluntarily (Stone & Dobinson) d. A duty through one’s official position (Dytham) e. A duty which arises because the defendant has set in motion a chain of events (Miller; Santana – Bermudez)Clarification needed in certain areas: • Discontinuance of medical treatment – if it is in the best interests of the patient then it is NOT an omission which can form the actus reus of murder (Airdale NHS Trust v Bland) • Unlawful Act Manslaughter – cannot be committed by an omission because there must be an unlawful ACT (Lowe) • Gross Negligence manslaughter can be committed by an omission. If a duty of care exists then the D can be liable if an omission or failure to act causes death.
CAUSATIONWhere a consequence must be proved (RESULT RATHER THAN CONDUCT CRIMES), then theprosecution has to show that the D’s conduct was: • The factual cause of the consequence • The legal cause of the consequence • There was no intervening act which broke the chain of causationFactual‘But for Test’ – (White; Pagett)LegalConduct which is more than a ‘minimal cause’ of the consequence but not necessarily a ‘substantialcause’ (Kimsey – More than a slight or trifling link)The Thin Skull Rule – taking the victim as you find them (Blaue)Intervening ActsIn order to break the chain of causation so that D is not responsible for the consequence, theintervening act must be sufficiently independent of the D’s conduct and sufficiently serious. • Act of the victim themselves - if D causes the victim to react in a foreseeable way then any injury to the victim will be considered to have been caused by D. (Roberts, Marjoram); If the victim acts in an unreasonable and unforeseeable way then it may break the chain of causation (Williams); Where the wounds caused by D were still an ‘operating and significant cause’ the jury are entitled to convict D, even if V had effectively decided to commit suicide by allowing the wounds to continue to bleed (Dear). • Act of a third party - Where the D’s conduct causes a foreseeable action by a third party, then the D is likely to be held to have caused the consequence. (Pagett). o Medical treatment: Provided that the injury caused by D was still an operating and substantial cause of death, D would be guilty (Smith); D’s act need not be the sole or even the main cause of death, provided that his acts contributed significantly to the death. ‘Unless the negligent treatment was so independent of D’s acts and in itself so potent in causing death, that the jury regard the contribution made by the D as insignificant’. (Cheshire); But where treatment is ‘palpably wrong’ it will break the chain of causation (Jordan).
o Life Support Machines – The switching off of a life-support machine by a doctor when it has been decided that the victim is brain dead, does not break the chain of causation (Malcherek) • A natural but unpredictable event – e.g. ambulance crash which kills a victim who suffered minor injuries etc. ACTIVITY: Have a look the following problem questions and assess whether or not D is the factual and legal cause of the consequence.John, who has learning difficulties, is a member of his schools under-16 mixed hockey team. Theteams captain, Ken, constantly criticises John in front of the other members of the team for beingoverweight and slow. During a particularly rough game against a rival school, John lost the ball toKatie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously,"you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katienext moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick.After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher,Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see herdoctor in the morning. Katie ignored this advice and went out to party where she danced until tenoclock. However, that night Katie collapsed and was taken to hospital, where she died. It was laterdiscovered that her death was due to a blood clot caused by the blow to her leg, and that her lifecould have been saved if she had received prompt medical treatment.Consider whether John may be criminally liable for Katies deathCausation - Johns blow was clearly the factual cause of Katies death, on the "but-for" test inWhite, so the issue is whether the conduct of either Lisa or Katie amounts to a novus actusinterveniens. Katies conduct in ignoring Lisas advice would seem to fall within the principle oftaking ones victim as you find her: Blaue. If V failed to seek medical treatment (Holland) or acts ina way which exacerbates the risk of death (Wall) this will not normally break the chain ofcausation (Dear) - although it may be relevant to sentence if D is convicted of manslaughter. Lisais slightly more problematic: she clearly has a duty of care towards Katie and it could be arguedthat she failed to discharge this by merely giving and would not warrant taking Katie to hospital.Candidates may argue that Lisa should have administered first aid, and draw analogies with casesinvolving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may beaware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughterfor failure to diagnose and treat MRSA). However, it seems very unlikely that Lisas conductwould be held to have broken the chain of causation.
June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavyand un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost hertemper and for a moment she did not care whether she hurt Mary or not. Although it was strictlyagainst the nursing homes rules, she grasped Mary under the armpits and physically hauled herinto the wheelchair. The wheelchair toppled under Marys weight, crushing Kitty against the wall.Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tellanyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticedthat Marys arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned outthat Marys arm was broken and the hospital decided to keep her in for a few days. Meanwhile,Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had comeby her injury. That night, Kitty collapsed and died from internal bleeding. Marys broken arm healedwell but while she was in hospital she contracted MRSA and subsequently died from that infection.Consider whether June may be criminally liable for the deaths of Kitty and Mary. Causation issue – candidates may draw analogies with cases involving negligent medicaltreatment such as Smith, Jordan, Cheshire or Adamako (some may be aware of Misa and Srivastave(2005), where doctors held guilty of gross negligence manslaughter for failure to diagnose andtreat MRSA). However, it could be argued that the risk of picking up an infection while in hospitalis a predictable consequence of injuring someone and would not break the chain of causation.Charlie became very depressed after his girlfriend Ruby, ended their relationship and marriedDavid. He wrote dozens of letters to Ruby, begging her to leave David and come back to him.Eventually, David went to see Charlie at his flat, and told him that this behaviour would have tostop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. Theblow fractured Davids skull, which was abnormally thin. Charlie immediately summoned anambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital,Davids heart had stopped beating and he was no longer breathing. David was rushed to theintensive care unit and placed on a life-support system. The doctors told Ruby that even if Davidsurvived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, sowhile the doctors were out of the room, she disconnected the machines that were keeping himalive.Consider whether Charlie and Ruby may be criminally liable for Davids death.Causation – whether Davids death is legally attributable to the actions of Charlie or Ruby. Thisdepends on whether David was still alive when Ruby turned off the life support system. Under theconventional criteria (no heartbeat, not breathing) David was dead when he reached hospital;however, the courts have shown willingness to accept the medical criterion of brain-stem death.In Malcherek and Steel, the CA upheld convictions for murder where victims were on life-supportmachines and the doctors switched off the machine after tests showed that the victims werebrain-dead. The CA recognised that brain death is the accepted medical criterion of death, but didnot actually decide that this is the legal definition of death. In Airdale NHS Trust vBland, there are dicta in the House of Lords to the effect that brain-stem death is the legal test ofdeath. Charlie – if Charlie’s actions were held to be the legal cause of death, he may be guiltyof murder or manslaughter depending on his state of mind when he struck David.
MENS REAINTENTION‘a decision to bring about, in so far as it lies within the accused’s power, the prohibitedconsequence, no matter whether the accused desired that consequence of his act or not’ (Mohan)MOTIVE IS IRRELEVANT IN DECIDING WHETHER D HAD INTENTIONDIRECT INTENTIONThe defendant set out to achieve a particular result or consequence. They foresaw a particularresult as a certainty and wanted to bring it about. Defined in Moloney as: ‘a true desire to bringabout the consequences’.INDIRECT/OBLIQUE INTENTION (foresight of consequence)Where D intends one thing but the actual consequence which occurs is another thing. Here it is aquestion of foresight of consequence. If, in achieving the other thing, D foresaw that he would alsocause the actual consequence, then he may be found guilty.Case Law: • Moloney: HL’s confirmed that even where it was not someone’s desire, purpose and so on, the jury is entitled to infer that he still intended a result where D knows that the result is a natural consequence of his actions & D realised this. • Hancock & Shankland: In such cases the probability of death or injury arising from the act done is important, because "if the likelihood that death or serious injury will result is high, the probability of that result may be seen as overwhelming evidence of the existence of the intent to kill or injure." • Nedrick: ‘The jury should be directed that they are not entitled to INFER the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. The decision is one for the jury to be reached on a consideration of all of the evidence.” • Woolin: ‘The jury should be directed that they are not entitled to FIND the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that the D appreciated that such was the case. • Re A: The court thought that Woollin made foresight of consequence part of the substantial law rather than evidential law by substituting the word INFER with FIND i.e. that foresight of consequence IS intention not evidence of intention.
• Mathews and Alleyne: Confirmed that foresight of a consequence, even of a virtually certain one, is NOT intent, but simply evidence from which intention may be found. Although the CA said there was little to choose between a rule of evidence and a rule of substantive law leaving the meaning of intention ever more unclear. • REFORM: Under our recommendations, first degree murder would encompass: (1) intentional killing; or (2) killing through an intention to do serious injury with an awareness of a serious risk of causing death. • The Law Commission in common with a House of Lords Select Committee recommends that foresight of a virtual certainty should amount to intention. This would mean that foresight would again be part of the substantive law, not merely part of the evidence. At present, a person who kills foreseeing death or grievous bodily harm as virtually certain may be convicted of murder; under the reformed scheme such a person would be convicted of murder.RECKLESSNESS:Covers the situation where a defendant takes an unjustifiable risk. As with intention, it is asubjective test, and the defendant must recognise the risk that he or she is taking. Recklessness was defined in the case of R v Cunningham. Maliciously means that the D must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk. Previously two different types of recklessness existed - subjective and objective (Caldwell Recklessness), but the objective form is now extinct following the case of R v G and Another (2003).GROSS NEGLIGENCE: Where D owes a duty of care, breaches that duty (by an act or omission) andcreates a risk of death. (Misra & Another 2004 – bodily injury or injury to health not enough)Thebreach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)).TRANSFERRED MALICE : D can be guilty if he intended to commit a similar crime but against adifferent victim. (Latimer). But where the mens rea is completely different type of offence then Dmay not be guilty (Pembilton)GENERAL MALICE: D may not have a specific victim in mind e.g. terrorism. In this case the D’smens rea is held to apply to the actual victim.COINCIDENCE OF ACTUS REUS AND MENS REA: Both actus reus and mens rea must be presentfor an offence to take place. This can happen where the actus reus and mens rea combine in a seriesof acts (Thabo Meli v R; Church). As long as they coincide at some point (say where the actus reusis a continuing act) then D will be guilty (Fagan).
ACTUS REUS AND MENS REA OF OFFENCES RELEVANT TO THE EXAM MURDER:AR: D kills a reasonable creature in being, under the Queens peace, and the killing is unlawfulMR: Express malice aforethought – which is the INTENTION to kill or implied malice aforethought –which is the INTENTION to cause grievous bodily harm.BURDEN/STANDARD OF PROOF: The prosecution must prove beyond reasonable doubt. VOLUNTARY MANSLAUGHTER:Same AR & MR as Murder, but the killing occurs when the D is under diminished responsibility,provocation or suicide pact. In other words the D kills a reasonable creature in being, under theQueens peace, and the killing is unlawful. They intend to kill or cause GBH, but at their state of mindat the time of the killing means that a partial defence exists.BURDEN/STANDARD OF PROOF: Defendant has to prove on a balance of probabilities.INVOLUNTARY MANSLAUGHTER: UNLAWFUL ACT MANSLAUGHTER:AR: D does an unlawful act (Lamb; Lowe) which is dangerous on an objective test (Church;Larkin; Mitchell)and the act causes death (Dalby, Kennedy, Dias, Rogers)MR: the required mens rea for the unlawful act, e.g. the mens rea for ABH, for Burglary, Robbery(Newbury & Jones) etc.BURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt. GROSS NEGLIGANCE MANSLAUGHTERAR: Act or omission in breach of an existing duty of care which creates a risk of death and results indeath.MR: Conduct so bad in all the circumstances as to amount to a criminal act or omission. Conductbeyond a matter of mere compensation, showing such disregard for life and safety of others as toamount to a crime.BURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt.
RECKLESS MANSLAUGHTERAR: An act or omission which results in death.MR: Recklessness – D realises that there was a risk of the consequence happening and decide totake that risk.BURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt. ASSAULT & BATTERY:AR: causing V to fear immediate unlawful force (assault) or application of unlawful violence eventhe slightest touching (battery)MR: Intention of, or subjective recklessnessBURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt. ABH:AR: Assault i.e. an assault or battery with the consequence of ABHMR: Intention or subjective recklessnessBURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt. S.20 GBH:AR: D wounds or INFLICTS grievous bodily harm with or without a weapon or instrumentMR: Intention or subjective recklessnessBURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt. S.18 GBH:AR: D wounds or CAUSES grievous bodily harmMR: Intent to do some grievous bodily harm or to resist or prevent the lawful apprehension ordetainer of any person
BURDEN/STANDARD OF PROOF:Prosecution must prove beyond reasonable doubt.ACTIVITIESVisit each of the problem questions and assess whether or not D has demonstrated the mens reafor the relevant offence(s).John, who has learning difficulties, is a member of his schools under-16 mixed hockey team. Theteams captain, Ken, constantly criticises John in front of the other members of the team for beingoverweight and slow. During a particularly rough game against a rival school, John lost the ball toKatie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously,"you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katienext moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick.After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher,Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see herdoctor in the morning. Katie ignored this advice and went out to party where she danced until tenoclock. However, that night Katie collapsed and was taken to hospital, where she died. It was laterdiscovered that her death was due to a blood clot caused by the blow to her leg, and that her lifecould have been saved if she had received prompt medical treatment.Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm:Moloney; knowledge that ones action is virtually certain to cause death or grievous bodyharm: Woollin.June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavyand un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost hertemper and for a moment she did not care whether she hurt Mary or not. Although it was strictlyagainst the nursing homes rules, she grasped Mary under the armpits and physically hauled herinto the wheelchair. The wheelchair toppled under Marys weight, crushing Kitty against the wall.Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tellanyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticedthat Marys arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned outthat Marys arm was broken and the hospital decided to keep her in for a few days. Meanwhile,Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had comeby her injury. That night, Kitty collapsed and died from internal bleeding. Marys broken arm healedwell but while she was in hospital she contracted MRSA and subsequently died from that infection.state of mind – mens rea of murder = malice aforethought – an intention to killor cause grievous bodily harm: Maloney. This requires knowledge that ones actionis virtually certain to cause death or grievous bodily harm: Woolin. Recklessness willnot suffice. Junes state of mind looks like recklessness rather than intention tocause GBH, so would not amount to mens rea of murder.
Charlie became very depressed after his girlfriend Ruby, ended their relationship and marriedDavid. He wrote dozens of letters to Ruby, begging her to leave David and come back to him.Eventually, David went to see Charlie at his flat, and told him that this behaviour would have tostop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. Theblow fractured Davids skull, which was abnormally thin. Charlie immediately summoned anambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital,Davids heart had stopped beating and he was no longer breathing. David was rushed to theintensive care unit and placed on a life-support system. The doctors told Ruby that even if Davidsurvived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, sowhile the doctors were out of the room, she disconnected the machines that were keeping himalive.Charlie – if Charlies actions were held to be the legal cause of death, he may be guilty ofmurder or manslaughter depending on his state of mind when he struck David.Murder – intention to kill or cause grievous bodily harm. Possible defences –diminishedresponsibility on the basis that Charlie suffers from depression. Provocation – gravity of theprovocation – any characteristic which affects the gravity of the provocation to D can betaken into account – Morhall. The degree of self control to be expected from an ordinaryperson – Morgan Smith, A – G for Jersey v Holley – PC restored view of majority in Luc ThietThuan – the CA in James; Karimi held that the PC in Holley had overruled the HL in MorganSmith and it was bound tofollow Holley.Involuntary manslaughter – if Charlie lacked intention to kill or cause gbh, he may beconvicted of manslaughter on the basis of an unlawful and dangerousact – Franklin. Newbury– mens rea is simply the intention to do the unlawful act –Scarlett, Owino.
Direct: The defendant desires a consequence and it is his purpose to achieve it. Indirect/oblique: A result is indirectly intended even Intention though not desired, when: (1) That result is a virtually certain consequence, and (2) The actor knows that it is a virtually certain consequence (R v Hancock & Shankland (1986); R v Nedrick (1986); R v Woollin (1998) Varies according to the particular circumstances. The Law Commission suggested a general definition as follows: Recklessness A person is reckless if: (a) Knowing that there is a risk that an event may arise from his conduct or that a circumstanceMens may exist, he takes that risk, andRea (b) It is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present. Defendant: • Owes a duty of care Gross Negligence • Breaches that duty and creates a risk of death. • The breach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)).
STRICT LIABILITY REVISION NOTES Definition & contrast with absolute liability• Strict liability offences do not need mens rea to be established for D to be guilty.• Actus Reus (voluntary) must be proved which is how SL offences differ from absolute liability ones where the actus reus may be committed involuntarily (Larsonneur/Winzar).• It is a departure from the fundamental principle that a voluntary act, a guilty mind and absence of a valid defence must coincide for D to be guilty of an offence.• This departure may be seen as unjust – i.e. that D may be morally innocent and have taken every possible step to ensure that they did not break the law but will still be liable (Callow v Tillstone).• Mens rea may be required for part of the actus reus of an offence but not for others. (Prince (1875) and Hibbert (1869) & B v DPP as case examples)• D may be convicted even if his act inadvertently caused a prohibited consequence and D is totally blameless.• Most SL offences are statutory and regulatory in nature e.g health and safety laws and are put in place to protect the public.• Some statutes explicitly state that the offence is one of strict liability (e.g. s.5,6&7 Sexual Offences Act 2003 – Rape, assault by penetration, sexual assault of a child under 13). But others are silent on the matter and this is where statutory interpretation comes in.• Statutory language, such as “mens rea words” like ‘maliciously’ ‘knowingly’ demonstrate that the offence is NOT one of SL, as mens rea is required. Sometimes mens rea words are used in some sections but not others and so it may be construed as meaning that mens rea is not required to make D guilty of an offence under those sections. It may be the case that if these words are not included then Parliament intended it to be a strict liability offence.• Case law shows inconsistency of statutory interpretation though.
CRITICISMS JUSTIFICATION• Is it EVER morally just to convict a person who • The following cases show that the purpose of SL has no mens rea? Callow v Tillstone (1900) & offences is to make a ‘safer, cleaner, and more Harrow LBC v Shah and Shah (1999) are efficient society.’ Callow v Tillstone, examples of the fact that there is no due Pharmaceutical SGB v Storkwain (1986) diligence defence. In other words where D does Alphacell v Woodward (1972); James & son v all they can to avoid breaking the law they are Smee (1954) Harrow LBC v Shah and Shah still guilty because their act inadvertently causes (1999) ). Without SL offences companies may be harm despite their efforts. permitted to pollute rivers by disposing of• controlled substances irresponsibly, they could• Although Parliament sometimes includes a shirk responsibility for providing a safe place of defence for such people within a piece of work for employees and people could defend a legislation, there is a lack of consistency. case of drink driving if it were not a SL offence. There is no evidence to suggest that companies• SL offences regulate behaviour and help in the will raise standards. If they will be convicted smooth running of society making it clear what should a mistake be made despite having taken is acceptable and what is unacceptable all reasonable steps, will they bother taking behaviour. those steps?
• Sometimes a defence of mistake exists, but this Principles in Gammon (1984) - This sets out the defence is applied inconsistently - Cundy v Le procedure for deciding whether an offence is cocq (1884) & Sherras v De Rutzen (1895). one of strict liability. It can be argued that• because of this procedure, SL offences can be Impact on public respect for the criminal law. If the morally innocent are convicted, the public justified. may lose respect for the criminal justice system. 1. There is a presumption of mens rea.• Sweet v Parsley; B v DPP (2000) ; R v K.• Although many SL offences are summary in Kumar (2004), S(2005) nature (i.e. punishable by a fine) some are not 2. This presumption is particularly strong (Gammon) and may result in imprisonment for a where the offence is ‘truly criminal’ person who is morally innocent. In Gammon the rather than a quasi crime because it may penalty was up to 3 years imprisonment. involve stigma attached to D or a term of• imprisonment. Quasi – (regulatory• offences) – Callow v Tillstone (1900); Cundy v Le Coq (1884); Gammon (1984), Harrow LBC v Shah and Shah (1999), Alphacell v Woodward (1972). Truly Criminal - Sweet v Parsley (1970); B v DPP (2000); R v K (2001); R v BLAKE (1997) 3. The presumption can be displaced only if this is clearly or by necessary implication the effect of the statute 4. The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is an issue). – discussion of the degree of social danger and rebutting the presumption. Sweet v Parsley (1970)Empress Car Company v National Rivers Authority (1998) Blake (1997)Bromley LC v C (2006) 5. Even where the statute is concerned with such an issue, the presumption stands unless it can be shown that making it a strict liability offence will lead to the promotion of standards and law enforcement)Reynolds v GH Austin and Sons Ltd ; Lim Chin Aik (1963); City of Saulte Ste Marie (1978); Smedleys Ltd v Breed (1974) • • SUGGESTIONS FOR REFORM
Parliamentary guidance on statutory interpretation or make it explicitly clear where an offence isone of SL.Consistent application of the due diligence defence – i.e. if D has taken all possible steps to avoid theoffence they will be innocent.ACTIVITIESTHERE ARE MANY CASES TO DISCUSS IN AN ESSAY ON STRICT LIABILITY!!!Create a case law glossary list of SL cases. Include the following. • Case name • Summary of facts • What argument (justification or criticism) does the case support?Use the revision notes and your case law glossary to answer the two essay questions below. 1. Examine critically the criteria which the courts have developed for determining whether an offence is one of strict liability. 2. Strict Liability offences contribute to a safer, cleaner and more efficient society and can be justified on these grounds. Critically discuss.
If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law onattempts is available to ensure that he or she can still be prosecuted. (e.g. White 1910). The law on attempts is contained in s.1(1) of the Criminal Attempts Act 1981 “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’The defendant must perform an act that is ‘more than merely preparatory’ to the commission of the offence.Criminal Attempts Act DOES NOT define the phrase and it is a matter for the jury to decide in each caseIt is up to the jury to decide whether the defendant has progressed to something beyond the preparation stage.This is not an easy decision to make. Campbell 1990 – all the acts were merelyAttempted robbery? When? preparatory until he walked into the bank. 1. D decides to rob a bank. In this case D who had an imitation gun, 2. He buys a shotgun sunglasses and a threatening note in his 3. He converts it to a sawn off shotgun pocket was still in the street outside the 4. He drives around the area looking for escape routes post office when arrested. His acts were 5. He steals a car and drives to the bank merely preparatory. 6. He stands on the pavement outside the bank 7. he bank carrying the shotgun in his bag 8. He walks into the bankPreviously, (Pre the 1981 Act) the law on attempts was covered by the common law, and a series of tests wasdeveloped by the courts to decide whether the defendant was guilty or not. As the 1981 Act was a codifying Act,past cases can be considered where any provision of the Act is doubtful.The tests:The proximity test: ‘acts remotely leading towards the commission of the offence are not to be considered asattempts to commit it, but acts immediately connected with it are’.See Robinson (1915)The Law commission supported this test. • The rubicon test (Stonehouse (1978): Adopted in Widdowson (1986) soon after the enactment of the new legislation. • Has D ‘crossed the Rubicon and burnt his boats: that is, gone beyond the ‘point of no return’.The series of Acts test: (Sir James Stephen C19th Judge)Has the D already completed a series of acts that would have been successful if not interrupted?
Referred to in Boyle and Boyle (1986) Where D’s were found standing by a door to which the lock and one hingewere broken.Progress!! After much confusion....Since the case of R v Gullefer (1987), the courts have stressed that the words of the Criminal Attempts Act 1981are to be followed, rather than the tests laid down in pre-statute cases.Gullefer: D jumped onto a race track in order to have the race declared void and so enable him to reclaim moneyhe had bet on the race. His conviction for attempting to steal was quashed because he had several other acts to dobefore the theft.The C of A held that ‘more than merely preparatory’ means the D must have gone beyond purely preparatory actsand be ‘embarked on the crime proper’. In this case he had not.In Jones (1990) is was decided that the ‘natural meaning’ of the words should be used and old case law shouldnot be turned to. • D discovers that his girlfriend is seeing another man (F). D decides to do something about it. He decides to kill this love rival.But at which point does he become liable for attempted murder? • He buys a shotgun • He shortens the barrel • He loads it • He leaves his house, wearing overalls and a crash helmet with the visor down, carrying a bag containing the loaded gun. • He approaches F’s car as F drops his daughter off at school Taylor LJ said that all acts until he ot into the car • He opens the car door and gets in and pointed the loaded gun were merely • He says he wants to sort things out preparatory, once he had done that, there was • He takes the shotgun from the bag sufficient evidence of an attempt to leave to the • He points it at F, and says, ‘you’re not going to like this’. jury. • F grabs the gun, throws it out of the window and escapes.Geddes: D was found in the boy’s lavatory block of a school, in possession of a large kitchen knife, some rope andmasking tape. He had no rights to be in the school. He had not contacted any of the pupils. His conviction forattempted imprisonment was quashed. (He had not actually tried to commit the full offence in question.)The CA put forward a two stage test: 1. Had the accused moved from planning or preparation to execution or implementation? 2. Had the accused done an act showing that he was actually trying to commit the full offence or had he got only as far as getting ready, or putting himself in a position, or equipping himself, to do so?
R v Tosti (1997)D and an accomplice had oxyacetylene equipment, (fuel to aid cutting) which they hid in a hedge neat to a barnthat they planned to break into. They walked up to the barn door and examined the lock on it. When they realisedthey were being watched, they ran away. On appeal their convictions for attempted burglary were upheld, as the Cof A said that there was evidence that showed that they had gone beyond the preparatory stages and had actuallytried to commit the offence.Bowles v Bowles (2004)CA quashed D’s conviction of attempting to ‘make a false instrument’. He has been convicted of attempting toforge a will in the name of his neighbour who was an elderly widow with dementia. After his arrest an unsignedwill was found which detailed her house being left to D. She has already created a will leaving her house to charity.The conviction was quashed because there was no evidence of D having taken any steps to have it executed. Theact of writing the will was merely preparatory.Mens ReaD must normally have the same intention as would be required for the full offence. If the prosecution cannotprove that D has that intention then D is not guilty of the attempt.In Mohan (1975) intent was defined as the decision to being about the commission of an offence no matterwhether D desired the consequence of his act or not.Easom (1971)D picked up a woman’s handbag in a cinema, rummaged through it, then put it back on the floor without removinganything from it. His conviction for theft of the bag and its contents was quashed. The C of A also refused tosubstitute a conviction for attempted theft of the bag and specific contents (including a purse and a pen), as therewas no evidence than D intended to steal them.There was no evidence of an intention to permanently deprive (the mens rea of theft).Similarly in Husseyn (1977) D and another man had been observed loitering near the back of a van.As police approached they ran off. D was convicted of attempting to steal a quantity of sub-aqa equipment thatwas in the van. The CA quashed the convictionAG’s Ref (Nos 1 & 2 of 1979)C of A decided that if D had a conditional intent (i.e. D intented stealing if there was anything worth stealing, Dcould be charged with an attempt to steal some or all of the contents.Recklessness is not normally sufficient mens rea for an attempt. This is so even where recklessness would sufficefor the completed offence.
Millard and Vernon (1987)Ds repeatedly pushed against a wooden fence on a stand at a football ground. The prosecution alleged that theywere trying to break it and they were convicted of attempted criminal damage. The C of A quashed theirconvictions.However recklessness is relevant in some circumstancesA-G’s Ref (No 3 of 1992) 1994D threw a petrol bomb towards a car containing four men. The bomb missed the car and smashed harmlesslyagainst a wall. D was charged with attempting to commit arson with intent to endanger life.C of A held that it was necessary to prove that D intended to damage property, but it was only necessary to provethat he was reckless as to whether life would be endangered.In relation to attempted rape although the law commission took the view that D would need intention to havenon-consensual intercourse and that D would need to know that the intercourse was non-consensual, the courtshave allowed recklessness to stand.Khan 1990 D along with 3 others, was convicted of the attempted rape of a 16 year old girl. All 4 men tried to havesex with her unsuccessfully,Their convictions were upheld despite the trial judges direction that, on a charge of attempted rape, it was onlynecessary to prove that they intended to have sex, knowing that the girl was not consenting, or not caring whethershe consented or not.Section 1(2) of the Criminal Attempts Act 1981 states: • ‘A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible • Physically Impossible: E.g. D attempts to pick V’s pocket, which, unknown to D, is in fact empty; or D attempts to murder V, who, unknown to him, died that morning. • Legally Impossible: e.g. D attempts to handle goods, believing them to be stolen, when in fact they are not stolen.Anderton v Ryan (1985)D bought a video recorder that she believed to be stolen. After confessing this to the police, they found noevidence to show that the equipment had been stolen but the D was nonetheless charged with attempting tohandle stolen goods. She was convicted, but on appeal, the H of L quashed her conviction, despite the wording ofs. 1(2) of the CAA 1981 which clearly made her guilty.Less than a year later, the H of L overruled the decision in Anderton (using the Practice Statement) in R v Shivpuri(1986).
Do you think it is fair that someone can be convicted based solely on intention rather than actually doing anythingwrong?Public protection v only punishing those who deserve to be punished?If conviction of a crime is impossible because there is no such offence, the D cannot be guilty of attempting it.R v Taafe (1984) :D’s luggage was searched by customs on arrival into he UK and a number of packages were found. He was askedwhat they contained and he said money. He thought that he was committing a crime by importing currency butthere is no such crime so D could not be guilty of attempting it. It is irrelevant that he thought he was committing acrime.EvaluationSentence s. 4 CAA 1981 – same max sentence as completed crime.Some people argue that the person convicted of an attempted offence should not face the same maximum penaltyas someone who has actually committed the full offence, since he or she is not as blameworthy.Others ( who support the current system) argue that often a person will only fail because he or she is caughtbefore committing the full offence or because something beyond his or her control occurs to prevent him or her.They claim that if the defendant intended to commit the crime, he or she is as blameworthy as the D who actuallycommitted it and should therefore face the same sentence. Protection of society.No opportunity to withdrawOnce the defendant has performed an act that is more than merely preparatory, there is no opportunity orincentive for him or her to withdraw, since he or she will be liable for the attempted offence. As this carries thesame maximum penalty as the full offence, he or she might as well continue, since there is nothing to be gained bywithdrawal.Determining when an act is ‘more than merely preparatory’As statute gives no definition of what is meant by the phrase ‘more than merely preparatory’, it is left to juries andappeal courts to decide. This creates uncertainty and can allow D who are clearly a danger to avoid liability.Geddes/Campbell!However it could be argued that the ‘more than merely preparatory test’ has helped clarify and simplify the law asit is an improvement on prior tests. It makes it easier for juries because they can apply common sense.Protection of the publicWhy should attempting something make someone liable? The main justification is protection of the public.
Can prevent the full offence from being committed. It would be ridiculous if the police had to wait until D fired theshot and killed V, instead of being able to arrest him for attempted murder.But can we reconcile Geddes and Campbell with this?Law Commission ProposalsOur provisional proposal: the offence of ‘attempt’We are provisionally proposing that there should be an offence of ‘attempt’confined to those who, with intent tocommit a substantive offence, were engaged in the last acts needed to commit it. In other words, their attemptwas complete or all-but complete.Our provisional proposal: the offence of ‘criminal preparation’ We are provisionally proposing that there should be a new offence of ‘criminal preparation’ applying to thosewho, with intent to commit the offence, were still only preparing to commit it but had proceeded beyond the stageof mere preparation. In other words, their preparation was immediatelyShould intention alone make a defendant guilty?Should a D be liable for his intention or mere contemplations?Or must he do something toward the commission of the full offence?This question is particularly relevant to attempting the impossible. IS it fair that Shivpuri was guilty despite notactually dealing in drugs or doing anything wrong? Is it enough that he intended to in order to protect the public? • Murder = intention to kill or to cause really serious harm (GBH) • Attempted murder = intention to kill onlyThis means that it is easier to be convicted of murder than it is for attempted. Is this fair?But D could be charged with attempted s.18 GBH instead so is not completely let off.
ATTEMPTS EVALUATION ESSAYIf a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, thelaw on attempts is available to ensure that they can be prosecuted. The rationale behind the law is thatthose who plan to commit an offence but fail deserve to be punished and its existence means that if thepolice are aware that an offence is going to be committed, they do not have to wait until it is completebefore arresting the suspects. If the defendant is found guilty, they will usually face the same maximumpenalty that applies to the full offence.The problem with prosecuting those who attempt crimes is where to draw the line. Should they be liableas soon as they think of committing a crime? Obviously the law does not seek to punish those whomerely think about committing an offence as most people have probably thought about committing acrime but few ever would and also it would be virtually impossible to secure a conviction in thosecircumstances. The difficulty is at what stage the defendant becomes criminally liable for an attemptedcrime.The law on attempts is contained in the Criminal Attempts Act 1981: Section 1(1) “If with intent tocommit an offence to which this section applies, a person does an act which is more than merelypreparatory to the commission of the offence, he is guilty of attempting to commit the offence.”Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judgewill firstly consider whether there is enough evidence to go before the jury but if so, it is entirely amatter of fact for them. It is up to them to decide whether the defendant has passed the preparationstage and progressed to something beyond that. Obviously, this is not an easy decision to make.In R v Gullefer (1987), the defendant had placed a bet on a greyhound at the racetrack but it soonbecame obvious that his choice was not going to win. The defendant ran onto the track in order todisrupt the race so that it would be declared void and he could then retrieve his stake money from thebookmakers. The question was whether his actions could be said to be more then merely preparatory tothe commission of theft. The Court of Appeal overturned his conviction for attempted theft. They saidthat he had not gone beyond the preparatory stages, as he still had to go and ask for his money backfrom the bookmakers.Previously, the law on attempts was covered by the common law and a series of tests were developedby the courts to decide whether the defendant was guilty or not. Since Gullefer, the courts have stressedthat the words of the Criminal Attempts Act 1981 are to be followed rather than the tests laid down inpre-statute cases. In R v Geddes (1996), the defendant was found in the boys’ toilets of a school. He ranoff, leaving a rucksack containing string, tape and a knife. He was convicted of attempted falseimprisonment but on appeal this was quashed, as despite the fact that he clearly had the requisiteintention, his actions were preparatory – he had not progressed beyond the preparatory stage since hehad not made contact with any of the boys. He had simply put himself in the position of being able tocommit the offence and he had not moved into the implementation stage.The defendant in R v Tosti (1997), along with another had oxyacetylene equipment which they hid in ahedge near to a barn that they planned to break into. They walked up to the barn door and examinedthe lock on it when they realised that they were being watched and ran away. On appeal, theirconvictions for attempted burglary were upheld as the Court of Appeal said that there was evidence
that showed that they had gone being the preparatory stages and had actually tried to commit theoffence.In order to be liable, the statute states that the defendant must act with intent to commit an offence –thus the mens rea for an attempted offence is intention. Thus, for example, the mens rea for attemptedmurder is an intention to kill, an intention to cause GBH which would be sufficient for a murderconviction, will not be enough to make the defendant liable for attempted murder.In R v Mohan (1976), The defendant refused to stop when a police officer signalled for him to do so andinstead, drove towards the officer who managed to move out of the way in time. The defendant’sconviction for attempted GBH was quashed due to an error by the trial judge. The Court of Appealstated that the mens rea for an attempted offence was satisfied by a decision to bring about thecommission of the offence – in other words only intention would suffice. A conditional intent may arise, if for example, instead of having a specific object in mind, the defendantintends to take anything worth stealing. This may be enough to make him liable for an attemptedoffence. In R v Husseyn (1977), the defendant and another man were seen standing by the back of a vanwhich contained diving equipment. They had intended to take anything worth stealing but ran off whenthe police approached them. The defendant was convicted of attempting to steal the diving equipmentbut this was quashed on appeal as he had been charged specifically with attempting to steal the divingequipment when in fact his true intention was to steal anything.This case appeared to leave a gap in the law which posed a problem for the courts since a defendantcould simply claim that they were not intending to steal whatever specific thing was detailed in thecharge and following Husseyn, they would be acquitted. The problem was resolved in AttorneyGeneral’s References (Nos. 1 and 2 of 1979) where the Court of Appeal held that a conditional intentwas enough to impose liability for an attempted offence if the charge does not refer to specific items. InHusseyn, the defendant could have been found guilty if he had been charged with attempted theft ofanything from the van instead of being charged specifically with attempted theft of the divingequipment, as there was no evidence that this was his intention.With regard to attempting the impossible, section 1(2) of the Criminal Attempts Act 1981 states that:“A person may be guilty of attempting to commit an offence to which this section applies even thoughthe facts are such that the commission of the offence is impossible.”Thus, the person who puts their hand into an empty pocket can be guilty of attempted theft eventhough it would be impossible for them to be convicted of the full offence as there was nothing to steal.Here, the crime is physically impossible but in other circumstances, the crime may be legally impossible,for example if the defendant attempts to handle what they think are stolen goods but the goods are notin fact stolen e.g. Anderton v Ryan (1985), the defendant bought a video recorder that she believed tobe stolen. After confessing this to the police, they found no evidence to show that the video had actuallybeen stolen and the defendant was therefore charged with attempting to handle stolen goods. She wasconvicted but on appeal, the House of Lords quashed her conviction despite the fact that the wording ofsection 1(2) of the Act clearly made her guilty.
This was an unexpected result and one which was to be changed only a year later in R v Shivpuri (1986)where the defendant was arrested after being found carrying a suitcase which he believed containedeither heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant wasconvicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction wasupheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correctthe mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to departfrom their previous decision. The defendant was held to be guilty since he had clearly intended tocommit the offence and had done an act which was more than merely preparatory to the commission ofthe offence.If conviction of a crime is impossible because there is no such offence, the defendant cannot be guilty ofattempting it. As in R v Taaffe (1984) where the defendant’s luggage was searched by customs on arrivalinto the UK and a number of packages were found in his luggage. He was asked what they contained andreplied that it was money. He thought that he was committing a crime by importing currency into theUK. In fact, there is no such crime so the defendant could not be guilty of attempting it. It was irrelevantthat he thought that he was actually committing a crime.Some have agued that the person convicted of an attempted offence should not face the samemaximum penalty as someone who has actually committed the full offence since they are not asblameworthy. Those in favour of the current system argue that often a person will only fail to committhe full offence because they are caught beforehand or because something beyond their control occursto prevent them. They claim that if the defendant intended to commit the crime then they are asblameworthy as the defendant who actually committed it and should therefore face the same sentence.As the statute gives no definition of what is meant by the phrase “more than merely preparatory,” it isleft to juries and appeal courts to decide. This creates uncertainty and can allow defendants who areclearly a danger to avoid liability as in Geddes.Once the defendant has performed an act which is more than merely preparatory, there is noopportunity or incentive for them to withdraw since they will be liable for the attempted offence. As thiscarries the same maximum penalty as the full offence, they might as well continue since there is nothingto be gained by withdrawal.
1. Why is it necessary for the criminal law to cover attempts? If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on attempts is available to ensure that they can be prosecuted. The rationale behind the law is that those who plan to commit an offence but fail deserve to be punished and its existence means that if the police are aware that an offence is going to be committed, they do not have to wait until it is complete before arresting the suspects.2. How is an attempt defined? The law on attempts is contained in the Criminal Attempts Act 1981: Section 1(1) “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.”3. Who decides whether an act is “more than merely preparatory?” Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judge will firstly consider whether there is enough evidence to go before the jury but if so, it is entirely a matter of fact for them. It is up to them to decide whether the defendant has passed the preparation stage and progressed to something beyond that. Obviously, this is not an easy decision to make.4. What happened in R v Tosti (1997)? The defendant along with another had oxyacetylene equipment which they hid in a hedge near to a barn that they planned to break into. They walked up to the barn door and examined the lock on it when they realised that they were being watched and ran away. On appeal, their convictions for attempted burglary were upheld as the Court of Appeal said that there was evidence that showed that they had gone being the preparatory stages and had actually tried to commit the offence.5. What is the mens rea of attempt? In order to be liable, the statute states that the defendant must act with intent to commit an offence – thus the mens rea for an attempted offence is intention. For example, the mens rea for attempted murder is an intention to kill, an intention to cause GBH which would be sufficient for a murder conviction, will not be enough to make the defendant liable for attempted murder.6. Can a person attempt the impossible? Yes, section 1(2) of the Criminal Attempts Act 1981 states that: “A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.”7. What happened in Anderton v Ryan (1985)? The defendant bought a video recorder that she believed to be stolen. After confessing this to the police, they found no evidence to show that the video had actually been stolen and the defendant was therefore charged with attempting to handle stolen goods. She was convicted
but on appeal, the House of Lords quashed her conviction despite the fact that the wording of section 1(2) of the Act clearly made her guilty.8. How was this rectified a year later? In the case of R v Shivpuri (1986) - The defendant was arrested after being found carrying a suitcase which he believed contained either heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant was convicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction was upheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correct the mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart from their previous decision. The defendant was held to be guilty since he had clearly intended to commit the offence and had done an act which was more than merely preparatory to the commission of the offence.9. What is the maximum sentence that a person convicted of an attempted crime can receive? If the defendant is found guilty, they will usually face the same maximum penalty that applies to the full offence.10. Do you think that it is fair that the defendant can receive this penalty? Some have agued that the person convicted of an attempted offence should not face the same maximum penalty as someone who has actually committed the full offence since they are not as blameworthy. Those in favour of the current system argue that often a person will only fail to commit the full offence because they are caught beforehand or because something beyond their control occurs to prevent them. They claim that if the defendant intended to commit the crime then they are as blameworthy as the defendant who actually committed it and should therefore face the same sentence.
MURDER & MANSLAUGHTER REVISION Homicide – the unlawful killing of a human being. There are different types depending on the mens rea of the D and whether there is a special defence.Murder = most serious where D kills V having INTENDED (directly or indirectly) to do so.“The unlawful killing of a reasonable person in b-eing and under the Queens peace with maliceaforethought, express or implied”Voluntary Manslaughter = Where the killing occurs when the D is under • Diminished Responsibility • Provocation • Suicide PactThe 3 defences are PARTIAL – charge of murder is reduced to manslaughter and the judge has discretionin what sentence is imposed rather than being limited to a life sentence.DIMINISHED RESPONSIBILITYs.2(1) HA 1957 DEFINITION: “Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induces by disease of injury) as substantially impaired his mental responsibility for his acts and omission in doing or being a party to the killing”.BURDEN OF PROOF: on the D proved on the balance of probabilities.ABNORMALITY OF MIND: A state of mind so different from that of ordinary human beings that thereasonable man would term it abnormal (Byrne). Comparisons with insanity are not helpful (Seers).Can include: • Depression, (Seers) Paranoia (Simcox) , Epilepsy(Price) , PMT, BWS (Hobson)& is wide enough to cover • The inability to form a rational judgement as to whether an act is right or wrong • The inability to exercise will power to control physical acts with that rational judgement (irresistible impulses).Byrne.
CAUSES OF ABNORMALITY OF MIND:Abnormality of mind must be attributable to at least one of the causes listed in s.2(1)Any Inherent Cause: (an internal cause from within D) Wide scope & doesn’t need to be inherited orpresent from birth (Gomez). Includes the examples above i.e. psychopathy (Byrne); mental deficiency(Speake); paranoia, epilepsy. Depression, PMT, BWS & Asperger’s syndrome (Jama)Disease: Wide enough to cover mental as well as physical disease (Sanderson).Injury: usually as a result of physical violence but can also be inflicted by violent or dramaticpsychological stress as well as by slow merciless factors, little by little and with hopelessness.(Whitworth).SUBSTANTIALLY IMPAIRS:Byrne: The question of whether D’s impairment could be described as substantial was a question of adegree and so was one for the jury (although medical opinion was not irrelevant).Lloyd: It doesn’t mean ‘total’ nor does it mean ‘trivial’ or ‘minimal’. It is something in between.GIVES JURY WIDE DISCRETION – have found manslaughter where very little evidence of DR but D hasreacted to severe grief or stress.DR & INTOXICATION • Transient effect of drink or drugs on brain is not an injury for the purposes of DR (Di Duca; O’Connell) • Alcoholism is only a defence if drinking is involuntary or brain has been damaged (Tandy) • Where the D has a pre-existing mental disorder, intoxication does not prevent him using the defence. The abnormality of mind does not have to be the sole cause of the defendant doing the killing. (Gittens; Egan; Dietschmann; Hendy)2008 UPDATE:Wood (2008)Alcohol dependency syndrome could be considered as a possible source of abnormality of mind and wasfor the jury to decide. If the jury found that it was an abnormality of mind they had to then consider theeffect of any alcohol consumed by the D as a result of his dependency. The jury have to decide whichdrinks were involuntary and consider the effect of those, while ignoring any consumption of alcohol theydecide was voluntary.
PROVOCATIONS.3 HA 1957 DEFINITION: “where on a charge of murder there is evidence on which the jury can find the person charged was provoked (whether by things done or by things said or by both together) to lose his self- control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury; and in determining that question the jury shall take into account everything both done and said according to the effect it would have on a reasonable man”BURDEN OF PROOF: D must provide evidence of provocation. The onus is then on P to prove that D wasNOT provoked. If there is evidence of provocation, the judge must direct the jury to consider it.TWO STAGE TEST: 1. A SUBJECTIVE test – did D lose his self control? 2. An OBJECTIVE test – Was the provocation enough to make a reasonable man do as D did? When conducting the objective test, D’s characteristics are relevant, but only when assessing the gravity of provocation (James, Karimi (2006) following Holley (2005) and overruling Smith (Morgan) 2000 going back to Camplin) a. Power of self control – D is assumed to have the standard of self control expected of a reasonable person of the age and sex of the D. (objective test) b. Gravity of the provocation – D’s characteristics can be taken into account e.g. glue sniffer (Morhall), impotence (Bedder); pregnancy, menstruation, physical deforminty, infirmity (Camplin). The characteristics may be self induced and may be psychological as well as physical.WHAT CAN BE PROVOCATION?Physical assaults, both on D or on his relatives (Pearson); homosexual advances; the continual crying of a19 day old baby(Doughty); a denial of stealing the D’s tools (Smith (Morgan)); the actions of a wife’slover in going to meet her, where the husband was provoked into killing his wife (Davis – provocationcan come from a 3rd party); supplying drugs to D’s son (Baillie).LOSS OF SELF CONTROL DUFFY: ‘Sudden & temporary loss of self control rendering the accused so subject to passion as to make him or her for the moment not master of his mind’CUMULATIVE PROVOCATION:Humphrey’s: provocation is not confined to the last act or word before the killing.
TIME LAPSEThe longer the time lapse between the provocation and the killing, the less likely that the defence willsucceed. (Ibrams & Gregory; Baillie). Loss of self control must be sudden not immediate (Thornton,Ahluwalia).SLOW-BURNArgued unfair to women who have a slower reaction (slow-burn) to provocation (Thornton, Ahluwalia).This reaction does not fit the Duffy test. The D’s reaction to the provocation has to be sudden ratherthan immediate and the longer the delay, the more likely the act is deliberate.DR REFORM11 Persons suffering from diminished responsibility “(1) A person (“P”) who kills or is a party to the killing of another is not to be convicted of murder if P was suffering from a relevant mental impairment which provides an explanation for P’s acts and omissions in doing or being a party to the killing. (1A) “Relevant mental impairment” means an abnormality of mental functioning which - (a) arises from a recognised medical condition, and (b) substantially impairs P’s ability to do one or more of the following - (i) to understand the nature of P’s conduct; (ii) to form a rational judgment; (iii) to exercise self-control. (1B) For the purposes of subsection (1), a relevant mental impairment provides an explanation for P’s conduct if it causes, or is a significant contributory factor in causing, the person to carry out that conduct.”12This brings the existing terminology up-to-date in a way which would accommodate futuredevelopments in diagnostic practice and encourage defences to be grounded in a valid medical diagnosislinked to the accepted classificatory systems which together encompass the recognised physical,psychiatric and psychological conditions.3It also spells out what aspects of D’s functioning must be impaired.
PROVOCATION REFORMThe Government proposes to abolish the existing law on provocation and to replace it with new partialdefences tailored to those who kill as a response to:•a fear of serious violence; and/or•circumstances of an extremely grave character, giving rise to a justifiable sense of being seriouslywronged. The first will cover situations where: • a victim of sustained abuse kills his or her abuser in order to thwart an attack which is anticipated but not immediately imminent; and • someone overreacts to what they perceive as an imminent threat. In the second it has been made clear that V’s infidelity WILL NOT be reason enough to kill. The threshold has been raised where only words or actions of exceptionally grave character are acceptable. Sudden and temporary loss test will be abolished – control must be lost but will allow for situations where the D’s reaction has been delayed or builds gradually.1The partial defences should apply only if a person of the defendant’s sex and age, with a normaldegree of tolerance and self-restraint and in the circumstances of the defendant, might have reactedin the same or a similar way.ACTIVITIES: Zandra, who is aged 16, has had an unhappy childhood. She has left home and has turned to drugs and prostitution. She is living with Shaun, aged 33, who is a weightlifter. Shaun regularly forces Zandra to give him her earnings. He is jealous and possessive and has beaten her on a number of occasions. She is immature and has often harmed herself to seek attention. One night, fearing that Shaun will beat her up and force her to have sex with him, Zandra cuts her wrists. When Shaun comes into the lounge and sees what she has done, he taunts her saying she has made a pathetic job of slashing her wrists. Zandra goes to her bedroom to get her knife, returns to the lounge and stabs Shaun in the chest killing him instantly. Discuss Zandra’s potential liability for the murder of Shaun.
Define murder: Discuss direct intent to do serious harm at least therefore murder charge issustainableDiscuss provocation/diminished responsibility as potential special and partial defences which, ifsuccessful, would reduce the conviction to voluntary manslaughter allowing discretion insentencingDefine Provocation – S.3 Homicide Act 1957Evidence of provocation: Shaun’s conduct and words and past behaviour may be taken togetherto provide evidence of provocation even though the last is trivial – HumphreysSudden and temporary loss of self-control; – Duffy; Ibrams & Gregory; Thornton; Humphrey’s o there appears to be no sudden and temporary loss of self-control – Zandra goes to her bedroom to get her knife – Duffy; Ibrams & Gregory o There appears to be a ‘cooling off’ period –Thornton; Ahluwalia1Objective ‘reasonable man test’: as developed by the courts including the characteristic whichaffect the gravity of the provocation to the accused and those which affect the power of selfcontrol to be expected; – Camplin; Smith (Morgan James); Weller; Rowland; Holley; Mohammed;Karimi & James etc • it would appear that Zandra’s immaturity may still be taken into account – Camplin; Humphreys • the evidence of her suffering from ‘battered woman syndrome’ is more likely to be seen as a psychiatric condition post Ahluwalia; Hobson; Holley and this and her attention seeking is unlikely to be taken into account as a relevant characteristic unless it affects the gravity of the provocation to the reasonable 16 year old woman, not the level of self-control to be expected – Holley; Mohammed; Karimi & JamesDefine Diminished responsibility – S.2 Homicide Act 19571• abnormality of mind – Byrne2• substantial impairment – Sanderson3• internal cause4• specified cause – Seers; Ahluwalia; Hobson5• medical evidenceArgue that the relevant evidence appears to exist for a successful use of the defence – Ahluwalia;Hobson; HumphreysIt should, however be supported by expert psychiatric evidence – Dix; HobsonArgue to any logical conclusion
John, who has learning difficulties, is a member of his schools under-16 mixed hockey team. Theteams captain, Ken, constantly criticises John in front of the other members of the team for beingoverweight and slow. During a particularly rough game against a rival school, John lost the ball toKatie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously,"you fat slug, even a girl can play better than you!". John felt angry and humiliated and when Katienext moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick.After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher,Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see herdoctor in the morning. Katie ignored this advice and went out to party where she danced until tenoclock. However, that night Katie collapsed and was taken to hospital, where she died. It was laterdiscovered that her death was due to a blood clot caused by the blow to her leg, and that her lifecould have been saved if she had received prompt medical treatment.Consider whether John may be criminally liable for Katies death. ANSWERJohn may be guilty of murder or manslaughter, depending on(a) his action being the cause in law of Katies death, and(b) his state of mind when he struck Katie.Causation - Johns blow was clearly the factual cause of Katies death, on the "but-for" test in White,so the issue is whether the conduct of either Lisa or Katie amounts to a novus actus interveniens.Katies conduct in ignoring Lisas advice would seem to fall within the principle of taking ones victimas you find her: Blaue. If V failed to seek medical treatment (Holland) or acts in a way whichexacerbates the risk of death (Wall) this will not normally break the chain of causation (Dear) -although it may be relevant to sentence if D is convicted of manslaughter. Lisa is slightly moreproblematic: she clearly has a duty of care towards Katie and it could be argued that she failed todischarge this by merely giving and would not warrant taking Katie to hospital.Candidates may argue that Lisa should have administered first aid, and draw analogies with casesinvolving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may beaware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughterfor failure to diagnose and treat MRSA). However, it seems very unlikely that Lisas conduct wouldbe held to have broken the chain of causation.Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm:Moloney; knowledge that ones action is virtually certain to cause death or grievous body harm:Woollin.Defences - John may have the defence of diminished responsibility reducing murder tomanslaughter: Homicide Act 1957, s.2 - abnormality of mind arising from arrested or retardeddevelopment: Byrne.Provocation: Homicide Act 1957, s. 3 - John may rely on provocation even if he was provoked byKen rather than Katie (Davies, Pearson). According to the HL in smith (Morgan), evidence of mental
impairment is relevant to both the gravity of the provocation to D and his capacity for self-control:however, this had been disapproved by the full Privy Council in A-G for Jersey v Holley (2005). Theposition would now seem to be as it was under Campling and Morhall i.e., mental impairmentrelevant to whether D lost his control and the gravity of the provocation to D, but Ds action to bejudged against the standard of a reasonable person of Ds sex and age.Involuntary manslaughter - unlawful act manslaughter - act must be unlawful and dangerous:Franklin, Lamb, Church, Newbury. Tackles that go beyond the rules of a game and deliberateassaults in the course of organised sports have been held unlawful: Bradshaw, confirmed in Brown.Gross negligence manslaughter requires a duty of care by D towards V - D must either be recklesslyindifferent to an obvious risk to Vs health, or foresee the risk and decide to run it: Stone andDobinson, approved by HL in Adamako. Unlikely to be relevant to John, but some candidates mayargue a case for its application to Lisa.
INVOLUNTARY MANSLAUGHTERDefinition: An unlawful killing where the defendant does not have the intention, either direct oroblique, to kill or to cause GBH.Ways of Committing Involuntary Manslaughter • Unlawful act manslaughter • Gross negligence manslaughter • Reckless manslaughterUNLAWFUL ACT MANSLAUGHTERThe elements: • D must do an unlawful act • The act must be dangerous on an objective test • The act must cause death • The S must have the required mens rea for the unlawful act.Unlawful Act: • Must be unlawful (Lamb) • A civil wrong is not enough (Franklin) • It must be an act; and omission is not sufficient (Lowe)In many cases the unlawful act will be some king of assault but any criminal offence can form theunlawful (arson, criminal damage, burglary).Dangerous Act: • An objective test – would a sober and reasonable person realise the risk of some harm? (Church) • The risk need only be of some harm – not serious harm (Larkin) • The act need not be aimed at the final victim (Mitchell) • An act aimed at property can still be such that a sober and reasonable person would realise the risk of some harm (Goodfellow) • There must be a risk of physical harm; mere fear is not enough (Dawson).
• Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to him, then D will be liable (Watson).Causes Death • Normal rules of causation applu; the act must be the factual and legal cause of death (Dalby) • An intervening act such as the victim self-injecting a drug breaks the chain of causation (Kennedy) • merely preparing the injection is not a cause of death. V’s self-injection breaks the chain of causation. The D can only be guilty if he was involved in administering the injection. • D may be liable for gross negligence manslaughter instead (Dias) where it can be shown that D owed V a duty of care.Mens Rea • D must have mens rea for the unlawful act but it is not necessary to prove that D foresaw any harm from his act (Newbury and Jones)GROSS NEGLIGENCE MANSLAUGHTERElements: • The existence of a duty of care towards the victim • A breach of that duty of care which causes death • Gross negligence over the risk of death which the jury considers to be criminal.Duty of Care: • D must owe V a duty of care (Adomako) • The civil concept of negligence applies (Adomako) • Covers wide range of situations, e.g. maintaining a gas fire (Singh) • May even cover a duty not to supply drugs (Rogers) • The fact that V was party to an illegal act is not relevant (Wacker)Breach of duty:This can be by an act or omission
Gross Negligence • Beyond a matter of mere compensation and showed such disregard for the life and safety of others as to amount to a crime (Bateman) • Conduct so bad in all the circumstances as to amount to a criminal act or omission (Adomako)Risk of DeathThere must be a risk of death from D’s conduct, it is not enough to show a risk of bodily injury or injuryto health (Adomako; Misra and another).RECKLESS MANSLAUGHTERLidar (2000) – CA held that there was a third limb of involuntary manslaughter. The court said that therewas nothing in Adomako to suggest that subjective recklessness manslaughter had been abolished.D causes V’s death (there is no requirement that D owed V a duty of care.D must have foreseen a risk of serious injury or death occurring. (Cunningham recklessness)D must have assessed that risk as at least highly probable to occur. REFORMUNLAWFUL ACTProblems: • Covers a very wide range of conduct • Death may be an unexpected result; if the same act resulted in minor injury, the D would only be liable for the offence. • A D who did not realise there was risk of any injury is still guilty because of the objective nature of the test.Reform:Under the LC recommendations in their 2006 report (the three tier homicide) manslaughter wouldcover: 1. Killing another person through gross negligence; or 2. (Criminal Act Manslaughter) Killing another person: a. Through the commission of a criminal act intended by the D to cause injury; or
b. Through the commission of a criminal act that the D was aware involved a serious risk of causing some injury.More serious situations (where D intended to cause injury or a fear or risk of injury and was aware thathis or her conduct involved a serious risk of causing death) would be classed as second degree murder.GROSS NEGLIGENCE MANSLAUGHTERProblems: • The test is circular, as the jury is directed to convict of a crime if they think that the conduct was criminal. • The test may lead to inconsistent verdicts, as it depends on what different juries think • The civil test for negligence should not be used in criminal cases: the purpose of the two branches of law is quite different.Reform:In their 2006 report, the LC recommended that there should be gross negligence manslaughter whichwould be committed where: • A person by his or her conduct causes the death of another; • A risk that his or her conduct will cause death.. would be obvious to a reasonable person in his or her position; • He or she is capable of appreciating that risk at the material time; and • …his or her conduct falls far below what can reasonably be expected of him or her in the circumstances.BUT: they recommend keeping the rule that GNM can be committed even when D was unaware that hisor her conduct might cause death but P must prove that the D is capable of appreciating that risk at thematerial time (preventing those with mental disabilities or younger children being convicted.RECKLESS MANSLAUGHERIn their 2006 report the LC rexcommended that the offence be abolished as a separate category. Inmore serious cases of recklessness (where there was an intention to cause a fear or risk of injury) wouldamount to second degree murder and in less serious cases, most cases would be covered by GNM as Dwould be hard pressed to deny that he or she was well aware of the risk of his or her conduct killingsomeone.
ACTIVITIES:Raul and Christiano are standing in a queue at a bus stop when they begin arguing with oneanother. Raul pushes Christiano who staggers backwards and collides with Margaret, an 83 yearold lady. Margaret falls backwards onto the pavement. She is injured and in pain. Margaret istaken to hospital where x-rays reveal that she has broken her hip. Doctors agree that the injuryis made worse partly because she suffers from osteoporosis (a disease which makes her bonesunusually brittle). Although Margaret is elderly, Doctor Smith decides to operate in order toallow Margaret any chance of being able to walk in future. A few days later, Margaret isrecovering slowly from the operation when she develops a secondary infection. Doctor Smithprescribes Margaret penicillin but she is allergic to the drug and dies.Discuss the potential criminal liability of both Raul and Doctor Smith for the death of Margaret.Define involuntary manslaughterFor RaulDiscuss the potential offence of murder and dismiss it for lack of the relevant mens reaDefine Unlawful and dangerous act/constructive manslaughter – Church; Newbury & Jones; Mitchell;Goodfellow; Dalby; Carey etcDiscuss the potential offence of unlawful act/constructive manslaughter, discuss and apply to the facts: • The act must be criminal/a push, though trivial, is a battery – Mitchell; Carey • Is it ‘dangerous’? – the facts suggest it may be as even the primary victim Christiano may fall and suffer ‘some harm’ in the view of a jury • Discuss whether this could therefore amount to foresight of inflicting grievous bodily harm recklessly and a potential s.20 AOPA offence • Apply the principle of transferred malice - Latimer – and apply to Margaret’s injury • Has it made a factual and more than minimal contribution to Margaret’s death? – Yes?CAUSATION Explain the principles of causation: • Factual causation – White • Legal causation – Pagett; • ‘de minimis’ principle – Kimsey • ‘Take your victim as you find them’ – Hayward; Blaue • ‘novus actus interveniens’ and medical treatment – Jordan; Smith; Cheshire etcHas the medical negligence broken the chain of causation? Arguable – discuss and apply Jordan; Smith;Cheshire to a reasoned conclusionDiscuss whether the medical negligence has broken the chain of causation in all/any of the abovealternatives? Arguable – discuss and apply – Jordan; Smith; Cheshire to a reasoned conclusion noting
that, as a matter of policy, the courts are reluctant to allow even negligent medical treatment to ‘breakthe chain of causation’Gross negligent manslaughter – Adamako; Litchfield; Wacker; Misra & SrivastavaDiscuss the potential offence of gross negligence manslaughter, discuss and apply to the facts: • Is a duty of care owed to Christiano (and Margaret)? Adamako; Donoghue v Stevenson • Has the duty of care been broken? Yes, Christiano is the victim of a battery • Is Raul’s conduct so far below that to be expected of a reasonable person in those circumstances as to amount to a crime? Technically yes in one way as he has committed a crime • Is there a risk of death? (This is debateable) There was clearly a very small risk of death and Margaret has eventually died but would a jury think it existed when Raul pushed Christiano? • As above, argue to a reasoned conclusionReckless manslaughter – Pike; Lidar etcDiscuss the potential offence of reckless manslaughter, discuss and apply to the facts: • Did Raul foresee a risk of death or serious harm to Christiano? (unlikely, just a push) • Probably dismiss a reckless manslaughter chargeExplain the principle of ‘transferred malice’ – LatimerDiscuss and apply the principle of transferred malice which is relevant in each case and conclude thatRaul is potentially liable for the harm caused to his unintended victim Margaret – Latimer(Most credible would probably be unlawful act manslaughter)For Doctor SmithDiscuss the potential offence of gross negligence manslaughter, discuss and apply to the facts: • Is a duty of care owed to Margaret? Yes – Adamako; Donoghue v Stevenson • Has the duty of care been broken? Perhaps, depending on Dr. Smith’s knowledge & conduct • Is Dr. Smith’s conduct so far below that to be expected of a reasonable doctor in those circumstances as to amount to a crime? Arguably yes. Up to the jury • Is there a risk of death? Doctors must be aware of this potentially fatal allergic reaction. Up to the jury? • As above, argue to a reasoned conclusion
MURDER REFORMLaw Commission’s ProposalsMurder should be divided into 2 separate offences: • First degree murder (D intends to kill or intends to cause serious harm and was aware that his or her conduct posed a serious risk of death) • Second degree murder (where D intended to do serious injury, but was not aware that there was a serious risk of death).Mandatory life sentences would only apply to first degree murder.Government’s response:July 2008Rejected the LC proposal of completely reforming murder and so do not address the problems of nointent to kill, the difficulty of the meaning of intention, the lack of a defence of duress and the use of themandatory life sentence.The only area where the Government accepted that reform is needed is the lack of a defence for thosewho use excessive force in self defence. For this the Government are proposing a partial defence of‘killing in response to a fear of serious violence’ which replaces provocation.EuthanasiaAlso known as mercy killing. Where D kills V because V is suddering through an incurable illness. Quiteoften, D is the spouse or partner.Under the present law, if D kills V then D is guilty of murder, even if V has begged D to do the killing.(Pretty). This means that D will be sentenced to life imprisonment with a minimum term of 15 yearsbefore D can be considered for release on licence.As such a defendant is unlikely to be a dangerous person; surely there should be more discretion in thesentence that the courts impose.
Practice Essay Discuss whether the common law governing the offence of murder is satisfactory or is in need of reform by Parliament.Define the offence of murder and explain the elements of the actus reus (unlawful killing/reasonablecreature in being) and mens rea (Define ‘express malice’ and ‘implied malice’).Actus Reus • Discuss whether a killing may be lawful eg self defence • Discuss whether a foetus is not a ‘reasonable creature in being’ and comment on the morality of that stanceMens Rea • Explain that it is a crime of specific intent. • Discuss the difficulty in practice for the prosecution in proving what was the defendant’s state of mind • Refer to different aspects of intention – direct/oblique, but being clear it remains a subjective concept. • Discuss the distinction between intention and foresight of consequences – Moloney • Explain the developments that have occurred explaining the concept of oblique intent and cite relevant cases eg Moloney; Hancock & Shankland; Nedrick;; Woollin; Re A; Mathews & Allyeyne • Discuss the omission of probability from the Moloney Guidelines and the significance of the refinements produced in Nedrick and Woollin • Discuss the difficulties for jurors inherent in distinguishing between degrees of probability • Appreciate the fact that foresight of intention is not the same as intention but may be used in conjunction with S.8 Criminal Justice Act 1967 – evidence from which intention may be inferred by the jury – Moloney; Nedrick; WoollinOTHER AO2 COMMENTS • Discuss the need to distinguish between murder and manslaughter by reference to the gravity of the offence in terms of blameworthy states of mind and the sentence that attaches ie the mandatory life sentence for murder is often unfair when D only intended to cause injury, not death. • Discuss the proposition that judges are often happy to allow juries to decide whether a consequence was intended by relying upon their ‘common sense’ judgement on the evidence • Discuss whether juries should be asked to make such judgements on morally reprehensible facts in murder trials as in Moloney, Hancock, Woollin etc • Discuss the euthanasia debate and the decision in Pretty
REFORM • Refer to the Law Reform (Year and a Day Rule) Act 1996 • Refer to the Law Commission’s 2006 Consultation Paper and the Governments Responses in 2008 • Discuss the Law Commission’s Consultation Paper No 177 proposing a system of degrees of homicide similar to the system in the USA • Discuss, for example, the proposed three tier structure for homicide and proposed changes to a classification of first and second degree murder • Discuss the proposed codification of intention which suggests putting the ‘virtual certainty’ test in Woollin into statutory form • Discuss the restrictive effect of the mandatory death sentence and the way that the new proposals would offer judges flexibility in respect of sentencing were they to be implemented
NON FATAL OFFENCES REVISION NOTES GBH s.20 ABH s.47 GBH s.18 NFO’s Battery AssaultASSAULT: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988BATTERY: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988ASSAULT OCCASIONING ACTUAL BODILY HARM: S.47 OAPA 1861MALICIOUS WOUNDING OR INFLICTING GRIEVOUS BODILY HARM: S.20 OAPA 1861WOUNDING OR CAUSING GRIEVOUS BODILY HARM WITH INTENT: S.18 OAPA 1861