Advanced Level in Law (A-Level prospectus) pre-legal studies in UK: Part 2 — Criminal Law

Abstract: Criminal Law is one of the essential core subject areas required for a qualifying law degree. Crime is a common part of everyday life. Crime is around us in many forms and it is a feature of everyday news. Thus, most students will be familiar with what each offence is. However, it is important to understand that focus must be placed on legal principles derived form legislation and case law, as common conceptions of crime can be very different to its actual elements. Criminal liability can be imposed in many instances. There is no universal definition of crime in modern criminal law. This can change over time as a result of social and political influences. It is also important to differentiate between a criminal and a civil wrong. This module covers the most popular criminal law offences and will aim to explain and take you through how and why criminal liability can be imposed on a defendant, giving you an in-depth understanding of the nature of criminal liability. There are many offences that will be discussed in this module. They include, for example, murder, assault, fraud, sexual and property offenses and others. Thus, it is not possible to provide one definition that encompasses all these criminal offences, considering how each offence has its own specific elements.

Introduction

Criminal law can be distinguished from other areas of law such as the law of tort and contract law. However, there are areas in which these subjects overlap. Criminal law is a branch of public law in that it affects society at large. By contrast, the law of tort and contract law are branches of private law in that they affect individuals. Different terminology is used in criminal proceedings to that which is used in civil proceedings. For example, in criminal proceedings, a prosecution is brought by the State (the Crown), whereas in tort and contract an individual sues another individual or a body. In criminal law, the State prosecutes a defendant, whereas in tort and contract an individual sues another person. Criminal law is concerned with the prosecution p. 5
of individuals whose behaviour or conduct has not met the standards of acceptable behaviour expected of citizens. These individuals have committed a public wrong. The law of tort and contract law govern the law relating to private wrongs.

In criminal proceedings, a verdict is delivered at the end of the trial, according to which the defendant will usually either be found guilty or not guilty. Criminal law is concerned with the punishment of offenders and a defendant who has been found guilty (convicted) of a criminal offence will be sentenced. Sentences range from terms of imprisonment to community sentences, such as community punishment orders and community rehabilitation orders, and fines. A defendant who is found not guilty is acquitted. By contrast, at the conclusion of a civil trial, there will be a finding that the defendant was either liable or not liable. Civil law is concerned with compensating the wronged individual through the payment of damages.

The criminal law has a number of functions:

The law sets standards of behaviour which citizens must meet and these standards reflect the values of society (such as morality or religion).

Criminal law prohibits conduct which threatens or causes harm to individuals or to the wider public.

The criminal justice system is punitive, punishing defendants for criminal conduct.

Another argument often put forward in favour of criminalising certain conduct is that of deterrence. It is argued that if certain behaviour is deemed to be criminal, then members of society will refrain from such conduct. By punishing offenders, the criminal justice system seeks to encourage other members of society to comply with the law.

Criminal Law

2.1 The Rules of Criminal Laws

‘Crime’ is a difficult concept to define. Some actions would be viewed as ‘criminal’ by everyone. Other activities may be considered to be ‘criminal’ by the majority of people, but not everyone. A lot of the crimes that you will have heard of are crimes against people and property. There is, however, a vast array of crimes relating to public safety, driving, and being an ‘accessory’ to a crime, i.e. helping someone to commit a crime. There is also a category of offences known as “white collar’ crime, where, for example, a businessman employed by a company abuses his position to make money.

This is law governed by the State which regulates or prohibits the way we can behave. If our behaviour is against what the law says, we will be punished by the state. Some behaviour is obviously bad; for example, murder, manslaughter, rape, theft, robbery, criminal damage, etc. Other behaviour is not necessarily bad, however exists to ensure that society can operate smoothly and efficiently; for example, public health, health and safety at work, pollution, consumer affairs, etc.

Actus non facit reum nisi mens sit rea

This translates to: “an act does not make a person guilty unless the mind is legally blameworthy”.

Depending on the definition of the crime in question, the actus reus may be:

• a particular act
• a failure to act
• an act producing a particular result, or a particular state of affairs
• or some combination of these.

The mens rea of an offence is the state of mind required to accompany the actus reus. Depending on the offence, this may be:

• intention (to do or not to do an act or achieve a result)
• knowledge (of relevant circumstances),
• recklessness (as to a result or circumstances),
• mere carelessness
• or some combination of these.
• in strict liability offences, it may not be necessary to prove any mens rea at all.

2.2 Theory in Criminal Law

In module 1 we explored various theorists and their reasoning behind why we have laws. One in particular was John Stuart Mill, a British philosopher, who stated that the only actions that can be prevented are ones that create harm. This suggests that harm to others is the only justifiable basis for imposing criminal liability.

However, Joel Feinberg in The Moral Limits of the Criminal Law (1984–88) disagrees with this and stated that the view that behaviour, which is not harmful, but which is offensive (to a sufficiently high standard) could justifiably be criminalised. An experiment he considered included how far an offensive behaviour should go for passengers travelling on a bus by a fellow passenger before the criminal law should be invoked.

Patrick Delvin endorsed legal moralism in his book, The Enforcement of Morals (1965) and considered that morally wrong conduct should also be criminalised.

It could be argued that generally the criminal law system is based on proving fault, and this largely coincides with the mens rea of a crime which is set out later in this module. However, there are some crimes which do not require intent, and these are known as strict liability crimes. This is where the action alone (actus reus) is sufficient to prove guilt. This may seem harsh; however, these laws are generally there to protect us, e.g., speeding.

Although the majority of the criminal law system is based on fault-based liability, an accused is ‘innocent until proven guilty’. The level of fault in each crime is defined by its mens rea, For example, in murder the mens rea is malice aforethought (intent to kill or cause GBH) which is a direct intention, whereas for assault, recklessness, defined in Cunningham as a ‘reasonably foreseeable consequence of the defendant’s actions’ would suffice. In both crimes, there is a level of fault and intention, however one is higher than the other.

When someone is convicted of an offence it is important that the description of the crime resembles their wrongdoing. For example, for someone to be convicted with rape (and labelled with the term ‘rapist’) sexual intercourse would need to have taken place. If the accused had conducted other inappropriate behaviour such as a slap on the bum to a work colleague, this would not be considered ‘rape’.

Labelling is important for various reasons:

• The sentence/punishment should fit the crime
• Offenders should be punished in proportion to their wrongdoings i.e., what crime has been committed and to ensure fairness to the wrongdoer.
• Communication to the public, the offender and other agencies within the criminal justice system
• Fairness to the victim

If the offence is defined in terms of certain consequences and certain circumstances, the mental element ought to correspond with that by referring to the consequences or circumstances. If a mental element as to a lesser consequence were acceptable, this would amount to ‘constructive liability’ (Ashworth and Campbell, 1991).

The principle holds that where the actus reus and mens rea do not correspond the liability of the accused should not exceed the harm actually encompassed by his own mens rea. The major problem is the risk of unfair labelling, e.g., manslaughter. Using the correspondence principle, the accused would be guilty of homicide, In constructive act manslaughter the mens rea is not to cause death but instead is the intention for the unlawful act, yet the accused is still found guilty of homicide.

In order to be found guilty, the judge (and/or jury) must have no reasonable doubt that the accused did not commit the crime. In civil law, the standard of liability is much less being a balance of probabilities (i.e., more certain than not).

A person can also only be guilty of an offence where the crime existed at the time the action/behaviour occurred. For example, it was legal to smoke inside public areas until the 1 July 2007. A person could be convicted for smoking inside a public area after this date but could not be accused or found guilty of this crime had they been caught on CCTV smoking inside a public building on the 1 June 2007 as this was before it was illegal to do so.

2.3 General Elements of Liability

Actus Reus

This is the Latin phrase for the “”guilty act” which must be proved in a criminal case.

Each crime must be looked at individually to see what must be proved to establish its actus reus.

Examples:

• Burglary: the actus reus is an act of entering a guilty plea (or part of it) as a trespasser
• Criminal damage: the actus reus is any act which has the consequence of destroying or damaging property belonging to another

Result Crimes

This is where the actus reus requires a certain consequence. For example, the actus reus of murder (e.g., stabbing) must result in the death of the victim.

By Omission

The general rule is that there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action.

Examples of crimes resulting from an omission are failure to disclose documents to the police or failure to provide a breath specimen.

Stone v Dobinson [1977]: http://osclinks.com/4320

By an “event” or “’state of affairs’”

This is where, for example, the offence requires “’possession’” of some prohibited article e.g., weapons, drugs or control of something, e.g., sleeping in car whilst under influence of alcohol.

Winzar v Chief Constable of Kent [1983]

The police removed the defendant from a hospital and put him on the highway. They then immediately arrested him for being drunk on the highway!

Theory of Causation

Where the definition of an actus reus requires the occurrence of certain consequences, the prosecution must prove that it was the defendant’s conduct which caused those consequences to occur.

For example, in murder the prosecution must prove that the victim died.

Various legal rules are considered:

1. The accused’s action must at least be a factual cause of death
   Example case: Rv White [1910]: http://losclinks.com/4321
2. The accused’s conduct need not be the sole cause of death:
   Example case R v Pagett [1983]: http://osclinks.com/4322
3. The contributory negligence of the victim is no defence:
   Example case R v Holland [1841]: http://osclinks.com/4323
4. The accused will be held to blame if the victim dies while attempting to escape from his attack.
5. “You must take your victim as you find him” or the “”thin skull “ rule: In R v Hayward [1908], the defendant’s wife had pre-existing heart condition and when he threatened her this caused her to suffer a heart attack. In R v Blaue [1975]: http://osclinks.com/4324 a Jehovah’s Witness was stabbed and refused a blood transfusion which would have saved her life due to her religious beliefs. The defendant was still guilty.
6. If the victim is killed by the intervention of the medical profession, the accused may still be liable in causation: In R v Jordan [1956], the defendant was admitted to hospital with stab wounds. The wounds had largely healed when the victim died 8 days later. The wounds were not the substantial cause of the death and therefore the medical acts had broken the chain of causation. However, in R v Smith [1959] the facts were similar to Jordan, but as the wounds had not substantially healed the poor medical treatment did not constitute a break in the chain and the defendant was still liable for the victim’s death.

Mens Rea

The mens rea of an offence is the state of mind required to accompany the actus reus. The definition of the crime usually contains express words as to what the mens rea entails, e.g., intention, recklessness, malice, negligence, etc.

Intention

In law there are two types of intention.

1. Direct intent (also known as purpose intent) is the typical situation where the consequences of a person’s actions are desired.
2. Oblique intent (also known as foresight intent) covers the situation where the consequence is foreseen by the defendant as virtually certain, although it is not desired for its own sake, and the defendant goes ahead with his actions anyway.

There are also two further ways of categorising intent:

1. Specific intent-the mens rea goes beyond the actus reus; i.e. the defendant had some ulterior purpose in mind. Examples of these are where there are two types of offence, a basic one and an aggravated version. E.g., Criminal Damage is ‘aggravated’ where there is also a ‘specific intent’ to endanger life.
2. Basic intent — the mens rea does not exceed the actus reus. Looking back to our example of Criminal Damage, there would be no intention to danger life.

In Hyam v DPP [1975] the defendant put a burning newspaper through a letterbox to frighten a woman who lived in the house following an affair she was having. The lady’s two children subsequently died, and it was held that the Defendant foresaw his actions were likely or highly likely to cause death or GBH.

In RV Moloney [1985] the defendant was having a shooting contest with the victim and accidently shot him. The jury were asked whether death or GBH was the natural consequence of the defendant’s acts and did he foresee this. If yes, intention could be inferred.

In R V Hancock and Shankland [1986] the defendant wanted to block the road used by non-striking miners and threw a concrete block onto the motorway. This killed a taxi driver. The court looked at the probability of the consequence and the greater the probability, the more likely it would be foreseen and therefore intended.

In R v Nedrick [1986] the defendant wanted to frighten the owner of a house and put a petrol bomb through the letterbox. A child died, and the jury were directed that if they were satisfied that defendant recognised that death or serious injury would be a virtually certain result of his act, then they may infer that D intended to cause that result, but they were not obliged to do so. This test was then applied in two further cases:

Firstly, in R v Scalley [1995] a defendant set fire to a house in order to destroy the flat and a child died. Although the judge explained that if jury were satisfied that the defendant did see death or serious injury as virtually certain, he did not state that they could infer intention but did not have to.

Secondly, in R v Woollin [1998] the defendant lost his temper as he was frustrated with a baby crying and threw the baby onto a hard surface causing death. The jury were directed to use the Nedrick ‘virtual certainty’ test.

Recklessness

Recklessness is the taking of an unjustified risk. There were previously two different tests developed by the courts, however the latter of these was abolished following R v G and R (20031. In this case the two appellants were aged 11 and 12 and had gone camping without seeking their parent’s permission. They set fire to some newspapers and threw them under a wheelie bin. They assumed the fire would naturally disperse and left, however it spread and caused over one million pounds worth of damage to a Co-op shop.

The defendants were initially convicted, however upon appeal these were quashed. The House of Lords overruled MPC v Caldwell [1982] and state that the appropriate test of recklessness for criminal damage is:

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk.”

The test which was abolished was known as the Caldwell or Objective test.

The test for recklessness whether the defendant knows the risk, is willing to take it and takes it deliberately. This test was first established in: R v Cunningham [1957] and the question that must be asked is a subjective one.

I.e., “was the risk in the defendant’s mind at the time the crime was committed?”

Negligence

Negligence is usually associated with the private law sector of tort; however, it can also arise in Criminal Law.

Examples of offences include careless driving, dangerous driving. gross negligence manslaughter.

Strict Liability

Not all offences require mens rea in order to be a crime. These are known as strict liability and in order to be guilty they only need to have committed at least one or more elements of the actus reus, even if the there was no intention.

Offences tend to be regulatory in nature. Examples: road traffic offences, environmental health, pollution, etc.

There are various justifications for strict liability offences:

• Force people to think about compliance.
• Minor offences with small punishments
• Save court time
• Proof of fault not required due to the above

Prosecution do not have to prove intention, recklessness or negligence in respect of one or more elements of the actus reus:

E.g., Pharmaceutical Society of Great Britain v Storkwain [1986]. A pharmacist was convicted of an offence under s.58(2) of the Medicines Act 1968 of supplying prescription drugs without a prescription given by an appropriate medical practitioner and was appealing the conviction. He used the facts that the prescriptions were fake, and the signature of the doctor was forged, and he believed these to be genuine. As the offence was one of strict liability the conviction was upheld.

The wording of the Act of Parliament needs to be interpreted to see if the offence is one of strict liability:

Sweet v Parsley (1970] A schoolteacher let her house out to students who unbeknown to her smoked cannabis in the house. She was charged with an offence of being concerned with the management of premises contrary to s.5(6) of the Dangerous Drugs Act 1965, The statute did not state any requirement of mens rea of the offence and the House of Lords therefore looked at the common law before the statute was made, The common law required knowledge of the activities in order to impose liability which and when interpreting the Act, they therefore used the presumption that statutes do not change the common law (see statutory interpretation in module 1).

In Gammon v Attorney-General for Hong Kong [1985 it was also noted that there is a presumption of mens rea unless it can be rebutted.

B (a Minor) v DPP (2000] and K (2001] both had points on presumption of mens rea:

• Presumption is that mens rea is needed.
• More so for serious offences.
• Statutory offences would need to look at words used and relationship with other sections in the statute.
• If statute deals with social concern, presumption can be displaced.
• Presumption rebutted if strict liability would reduce that particular crime: Harrow London Borough Council v Shah [1999]

2.4 Fatal Offences Against the Person

Murder

Murder can be defined as the unlawful killing of a human being under the Queen’s peace with malice aforethought. Sir Edward Coke (1797) defined murder as follows:

“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”

The actus reus is the unlawful killing unless the defendant is successful in raising a defence which makes the killing lawful; for example, self-defence. The act (or omission) of the defendant must have been the legal cause of the death of the victim.

The killing must be of a living human being. Certain legislation is in place in terms of abortion to allow for a termination or child destruction.

Under the Queen’s peace means that in the course of war, the killing of an enemy will not be murder.

The year and a day rule was abolished by the Law Reform (Year and a Day Rule) Act 1996.

The prosecution must prove that the victim’s death was caused by the defendant even if it was not the only or main cause of death (see the section above regarding novus actus interveniens). There are two elements to causation:

1. Causation in fact — i.e., were the circumstances that the defendant’s act or conduct cause the victim’s death?
2. Causation in law — See section 2.3 above.

You will recall that we looked at the 6 legal rules for causation in section 2.3 for the actus reus. Here we should consider causation in fact and causation in law.

To establish causation in fact, the “But for’” Test established in Rv White [1910] must be applied.

For causation in law, the defendant’s act would be regarded as the cause in law if it could be shown that it was the operating and substantial cause of the victim’s death: see R v Smith [1959] above.

I refer you to the section 2.3 regarding actus reus and the rules of causation.

The mens rea for murder is malice aforethought, In R y Moloney [1985] the House of Lords held that nothing less than intention to kill or cause grievous bodily harm (GBH) would suffice and merely foreseeing the victim’s death as probable was insufficient.

Murder isa crime of specific intent. Intention in this context includes direct or oblique intent. You will recall from the section 2.3 above that direct intent covers the situation where the defendant desired the death and oblique intent covers the situation where the death is foreseen by the defendant as virtually certain, although not desired for its own sake.

Upon conviction of murder a mandatory sentence of life imprisonment applies as fixed by the Murder (Abolition of Death Penalty) Act 1965. The judge can also make recommendations to the Home Secretary as to the minimum period which should elapse before the prisoner is released on licence.

Involuntary Manslaughter

When the mens rea for murder (malice aforethought) is not present, however the victim dies, the defendant may be found guilty of Involuntary manslaughter.

Unlawful Act Manslaughter (Constructive Act Manslaughter)

This is where the death of the victim arises following an unlawful and dangerous act. The Court of Appeal in R v Mitchell [1983] said that to establish this type of manslaughter it had to be shown:

1. that the accused had committed an unlawful act.
2. that the act was dangerous in the sense that a sober and reasonable person would inevitably recognise that it carried some risk of harm.
3. that the act was a substantial cause of death; and
4. that the accused intended to commit the act as distinct from intending its consequence.

The actus reus is the unlawful act which must be dangerous and a substantial cause of death. The unlawful act must be a criminal one and the consent of the victim will not prevent this. An act is considered dangerous if an average person would recognise this to be the case.

The mens rea consists of the mens rea as to the unlawful act itself (i.e., intention or recklessness depending on what the necessary mens rea is for the act). For example, if the act was Criminal Damage it would be the mens rea for criminal damage that would need to be proven.

The defendant need not realise the risk of causing some harm. As long as the reasonable man in his position would have so realised, this is sufficient mens rea.

If there is no mens rea for the unlawful act the defendant will not be liable.

As with voluntary manslaughter, if a defendant is convicted of involuntary manslaughter the sentence is at the discretion of the trial judge and can range between life imprisonment and an unconditional discharge.

Recommended cases for reading include the following which can be viewed here: http://osclinks.com/4328

R v Mitchell [1983]

R v Franklin [1883]

R v Lamb [1967]

R v Arobieke [1988]

R v Cato [1976]

R v Larkin [1943]

R v Church [1966]

R v Dawson [1985)

R v Watson [1989]

R v Ball [1989]

R v Dalby [1982

R v Mitchell [1983]

R v Goodfellow ([986]

R v Watson [1989]

DPP V Newbury and Jones [1976]

Voluntary Manslaughter

In addition to the general defences available for all crimes, there are also special defences which can be used for murder. If successful, these can reduce the charge from one of murder to that of voluntary manslaughter.

Diminished Responsibility

By far the most common of these special defences is this one Diminished responsibility was originally defined in s2(1) Homicide Act 1957. However, this was updated with a more modern definition by way of Section 52 of the Coroners Justice Act 2009. If successful, this acts as a partial defence to murder and reduces the verdict to manslaughter.

The definition provides that a person who kills or is a party to the killing of another is not to be convicted of murder if the defendant was suffering from “an abnormality of mental functioning”” arising from “”a recognised medical condition which substantially impairs the defendant’s ability to do one or more of three things set out in s2(1) (a) as follows:

1. the ability to understand the nature of his or her conduct.
2. the ability to form a rational judgement.
3. the ability to exercise self-control.

Under s2(1)(b) provides that the abnormality of mental functioning must be a significant contributory factor in causing the defendant to act as he did. This is to ensure that there is some causal connection between the abnormality of mental functioning and the killing otherwise the partial defence could succeed in cases when the defendant’s mental condition made no difference to their behaviour, and they would have killed regardless of the medical condition. It need not have been the only cause, the main cause or the most important factor, but it must be more than merely trivial.

In R v Akmol Miah and Shihabuddin Choudhury [2011] the Prosecution called two experts in response to the defendants’ defence of diminished responsibility. Both experts stated that Choudhury was a man of reasonable intellect, having an IQ of 80 being within the normal range, albeit not very bright, and did not have a learning disability. There was no evidence that he suffered from mental illness, however, birth trauma was a permanent condition throughout his life, and he was probably functioning in the low/average borderline range of cognitive function. He was not an unusually compliant individual, but his memory recollection was highly selective. Whilst he had some odd personality traits, he did not have a personality disorder. There was no basis for diminished responsibility.

Loss of Control

This was previously known as ‘provocation which was a common law offence, however, this was repealed by section 56 Coroners Justice Act 2009 and replaced with the new defence of loss of control.

The former defence of provocation could be raised by someone who was provoked by things said or done to lose his or her self-control. If successful, it would act as a partial defence and reduce the charge of murder to manslaughter.

Sections 54 and 55 of the Coroners and Justice 2009 Act between them provide for a new partial defence to murder of “”loss of control””. Section 54(1) sets out the circumstances in which the new partial defence to murder of loss of control applies. S54(1)(a) states that these are that the defendant must at the time of the offence have lost self-control resulting in them killing a person in one of three types of situations (described in the Act as ‘qualifying triggers’). These qualifying triggers are:

• where the defendant fears serious violence.
• when certain things have been said or done which amount to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged; or,
• when a combination of the first two situations applies.

The qualifying triggers are defined fully in section 55. In order to succeed an objective test is applied whereby the court will consider whether a person with certain characteristics might have acted in the same or similar way to the defendant. These characteristics are that:

(i) they were of the same sex and age as the defendant.

(ii) they had an ordinary level of tolerance and self-restraint; and

(iii) they were in the same circumstances of the defendant (section 54(1)(c )).

S94(3) provides that the circumstances of the defendant in this context include any circumstances, except those whose only relevance to the defendant’s conduct is that they impact on the defendant’s general capacity for tolerance and self-restraint. This means that if the defendant is known to have a short temper, this may not be taken into account by the jury for these purposes. On the other hand, a person’s history of abuse at the hands of the victim could be taken into account. So, if, for example, the defendant is, say, a 23-year-old woman whose partner whom she has killed has beaten her frequently, the jury must consider whether a woman of that age with that history and with an ordinary level of tolerance and self-restraint might have done the same ora similar thing to their partner.

Under s54(2) the defendant’s loss of control need not be sudden — in other words, there may be a delay between the incident which was relevant to the loss of control and the killing. However, the judge may — when deciding whether to leave the defence to the jury — and the jury may — when deciding whether the killing resulted from the loss of control — take into account any delay.

Fear of Serious Violence Only

Two factors are taken into account:

• This is a subjective test where the defendant need not prove his or her fear was reasonable, only that the fear was genuine.
• The fear of serious violence needs to be in respect of violence against the defendant or another identified person.

Defendant’s Loss of Control Attributable to Things Said or Done Only

Under s55(4) this can only find the defence where the thing or things done or amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged.

Two factors must be considered:

1. An objective test is applied: was the defendant’s sense of being seriously wronged justifiable?
2. Sexual infidelity is to be disregarded under section 55(6)© unless the thing done or said can still potentially amount to a ‘qualifying trigger’ if (ignoring the sexual infidelity). For example, finding out a family member has been raped.

Defendant Seeks to Rely on Both a Fear of Serious Violence and a Thing Done or Said

The burden of proof is on the prosecution who must disprove any evidence raised by the defendant in terms of this defence. This applies where the objective test in the first trigger fails, however when put with the second trigger they may have reacted in a similar way.

More Than One Defendant

S54(8) provides that where more than one person is charged with murder and one of the defendants successfully pleads this defence and secures a conviction of manslaughter, all other defendants must be convicted of manslaughter (rather than murder) as well.

2.5 Non-Fatal Offences against the Person

In law, assault and battery theoretically mean different things.

In Fagan v MPC [1969], the court said that an assault is ‘any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence’ Le., no actual physical contact need be made.

Battery is the intentional or reckless application of unlawful force to the body of another person. Unlike assault, physical contact is required.

Both of these offences were originally common law offences, triable only on indictment but are now classified as summary offences as per s9 of the Criminal Justice Act 1988.

Assault

The actus reus of assault is any act which causes the victim to apprehend an immediate infliction of violence, e.g. raising a fist or pointing a gun.

The mens rea is causing the victim to apprehend the infliction of immediate force either intentionally or recklessly. You will recall from earlier on in this module that recklessness now has a subjective test and according to R v Spratt [1990], this is what applies in this instance.

The following cases can be reviewed here: http://osclinks.com/4329

Fagan v MPC [1969]

Logdon v DPP [1976]

Smith v Superintendent of Woking Police Station [1983]

R V Arobieke [1988]

R v Meade and Belt (1823)

R v Ireland [1997]

R v Constanza [1997]

Tuberville v Savage (1669)

R v Venna [1976]

R v Spratt [1990]

Battery

Battery is the infliction of unlawful force by one person upon another.

For the octus reus, the east touching of another will suffice.

For the mens rea, in R v Venng [19761, James J stated, “the element of mens reg in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another”. The subjective, Cunningham meaning. is applied to recklessness in this context.

Cases which apply can be found here: http://osclinks.com/4329

Fogan v MPC (1969)

Cole v Turner (1705)

Wilson v Pringle [1986]

R v Brown [1993]

Cole v Turner; Tuberville v Savoge; Collins v Wilcock [1984)

R v Venna [1976]

Malicious Wounding or GBH

Section 20 of the Offences Against the Person Act 1861 states that:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without any weapon or instrument, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for five years.”

This offence is triable either way and punishable on conviction on indictment with a maximum of five years’ imprisonment.

The actus reus is either maliciously wounding or causing grievous bodily harm.

The mens rea required is denoted by the word ‘maliciously. It is sufficient to prove that he intended his act to result in some unlawful bodily harm to some other person, albeit of a minor nature, or was subjectively reckless as to the risk that his act might result in such harm. The defendant must foresee the possibility of some physical harm occurring.

Cases which apply can be found here: http://osclinks.com/4329

Moriarty v Brooks (1834)

MLoughtin (1838)

JCC (A Minor) v Eisenhower (1984)

R v Sanders [1985]

DPP v Smith [1961]

R v Martin (1881)

R v Wilson [1984]

R v Burstow [1997]

R v Mowatt [1968]

R v Savage;

DPP V Parmenter [1991]

R v Sullivan [1981]

Malicious Wounding or GBH with Intent

Section 18 of the Offences Against the Person Act 1861 provides:

“Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for life.”

This offence is triable only on indictment.

The actus reus of the offence is the same as s20, In R v Mandair [1994] it was held that ‘causing” was wider or at least not narrower than the word ‘inflict.

For the mens rea, the defendant must be malicious’ (see above under s20) but in addition he must be proved to have had a further specific intent:

(1) to do some grievous bodily harm to the victim, or
(2) to resist or prevent a lawful arrest or detention.

Cases which apply can be found here: http://osclinks.com/4329

R v Mandair [1994]

R v Belfon [1976]

Actual Bodily Harm (ABH)

Section 47 of the Offences Against the Person Act 1861 provides that:

“Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable . to be imprisoned for any term not exceeding five years.”

Such a charge is triable either way and punishable with a maximum of five years imprisonment on conviction on indictment.

The actus reus of the offence is:

(a) an assault, i.e. any act which causes the victim to apprehend an immediate infliction of violence or the actual infliction of violence

(b) occasioning

(c ) bodily harm.

Liability is established if the defendant has the mens rea of common assault (intention or recklessness). No mens rea at all is required as to causing actual bodily harm. All that need be proved is the causal link between the assault and the harm.

Cases which apply can be found here: http://osclinks.com/4329

R v Roberts (1971)

R v Savage

DPP V Parmenter [1991]

R v Chan-Fook [1994]

R v Ireland [1997]

R V Constanza [1997]

2.6 Property Offences

Theft

Theft is defined under section 1(1) of the Theft Act 1968 (TA 1968) as “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”

This definition can be split down into 5 elements, all of which have to be proven beyond reasonable doubt in order to find the accused guilty. The actus reus of theft consists of the appropriation, property and belonging to another whereas the mens rea focuses on the intention; namely, the dishonesty and the intention of permanently depriving the other of it.

Appropriation

s3(1) provides the definition which states that appropriation is any assumption by a person of the rights of an owner.

S3(2) provides some protection to the bona fide (in good faith) purchaser e.g. when buying property and being unaware that it is stolen.

The House of Lords held that a person can appropriate property even where the Owner consents to the taking of property. Lawrence v MPC [1972] an Italian man didn’t speak English and when he had to pay a taxi driver, he held out his hand with money for the taxi driver to take what was owed. The taxi driver took more than the fare and although the passenger consented it was still theft.

The House of Lords have also made it plain that an assumption of any right of an owner will be an appropriation:

In both R v Morris [1983] and Anderton v Burnside [1984] labels were switched in a supermarket to pay a lower price.

Property

s4(1) provides a general definition of property for the purposes of theft, Where it states: “Property includes money and all other property, real or personal, including things in action and other intangible property.

s4(2) provides that land cannot be stolen unless the person is dealing with land in a special capacity, for example as a trustee (and makes a dishonest appropriation); or a person not in possession of the land severs something from it, for example crops or turf; or a person in possession of the land as tenant appropriates a fixture or structure let with the land, for example by selling an outbuilding-

s4(3) states that you can pick mushrooms, flowers, fruit or foliage growing wild provided you do not sell it or use it for commercial purposes.

s4(4) provides that animals in zoos, safari parks and domestic pets can all be stolen, even if they are appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen unless it has already been taken into possession by somebody else.

Belonging to Another

Section 5(1) provides “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest Therefore, mere possession or control is enough.

Provided he has the necessary mens rea, a person can steal his own property from someone with a lesser interest: Rv Turner (No 2) [1971]. In this case a garage had repaired a car. The owner of the car took the car without paying for the repairs.

The ‘possession or control’ of the car was that of the garage at the time and not the owner of the car.

If the property is not owned by anyone at the time it is appropriated, then this would not amount to theft. A question arises as to whether the property has been abandoned or not. i.e., if you have lost something, at what time are you considered to have given up the search? Imagine you lose your wedding ring, you may not continue to search for it, but you would not have abandoned it. It is therefore important to be cautious when deciding whether a person has relinquished his rights of ownership:

Wiltiams v Phillips (1957) — When you put your refuse out for collection it remains in your ownership. It only becomes the ownership of the local authority once it has been collected and therefore if someone other than the local authority takes it, it would be considered theft.

Rv Woodman [1974]. Scrap metal was sold on a business site; however, the buyer couldn’t remove it all. It was subsequently taken, however as the owner of the site was still in control of it and has put up fencing and notices he had excluded others and theft occurred.

Rv (Adrian) Small [1987]. A car was left with its keys in for over a week. The defendant took the car stating that they honestly believed it had been abandoned.

s5(1) states that property subject to a trust is regarded as belonging to the beneficiaries as well as to the trustees.

S5(2) deals with trusts for charitable purposes. If the trustees dishonestly appropriate the Trust this can be enforced by the Attorney-General rather than the beneficiary.

s5(3) provides that it is theft if a person receives property under an obligation to deal with it in a certain way but instead uses it for his own purposes.

R v Hall [1973]. A travel agent took money for tickets but failed to purchase them. When the agency went bust, he was convicted of theft.

Davidge v Bunnett [1984). The defendant shared a flat with others and took cheques from them as payment towards the gas bill. He didn’t pay the bill and instead spent the money. He was guilty of theft.

s5(4) states if a person is given property by mistake it will still be treated as belonging to the person who gave it (subject to some complex civil law rules as to whether there is a civil obligation to return the property or not).

AttorneyGeneral’s Reference (No 1 of 1983) [1985). A policewoman was overpaid with her wages and was guilty of theft when she noticed but didn’t pay it back.

Rv Shadrokh-Cigari [1988] A child was paid £286,000 instead of £286. The guardian of the child withdrew the money and was guilty of theft.

In addition to the actus reus elements, in order to be guilty of the theft the mens rea elements must also be present:

Dishonesty

Section 2(1) sets out the situations whereas a matter of law a person is not dishonest:

“A person’s appropriation of property belonging to another is not to be regarded as 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 ) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.”

The judge will direct the jury that as a matter of law they must acquit the accused unless the prosecution is able to disprove s2(1) beyond reasonable doubt. To assist in determining whether the prosecution has done this, a test was established following the case of R v Ghosh [1982] as follows:

(1) Would a reasonable and honest person have done the same and considered this dishonest? If not, the accused would not be dishonest, and the case goes no further. (objective test)

(2) If the objective test fails, it follows that the jury (or magistrates) must consider whether the defendant himself must have realised that what he was doing would be considered dishonest by a reasonable honest person. (subjective test)

Intention to Permanently Deprive

Only the intention to permanently deprive need be present and if the accused was never successful in actually permanently depriving the owner of his property this would be no defence.

The jury determines whether the evidence is sufficient to show intention and the judge will direct the jury as to whether they can infer this from the evidence.

Theft is triable either way. If convicted on indictment the maximum is seven years by s26 of the Criminal Justice Act 1991.

Robbery

Section 8 of the Theft Act 1968 provides:

“(1) A person is guilty of robbery if he steals, and immediately before or ot the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.”

Robbery is triable only on indictment.

Steals

Robbery is theft aggravated by the threat or use of force and it therefore has the same elements of theft which must all be established. If the accused threatens someone to hand over money, honestly believing they have a legal right to the same, they will not be guilty of theft (or robbery).

In Rv Robinson [19771, the defendant was owed E7 by the victim’s wife. He got into a fight with the victim and brandished a knife. The victim paid £5 but [2 was still outstanding. The defendant was not guilty of theft and had a right in law to deprive the victim of the money.

In Rv Forrester [1992] the defendant did not receive his £200 following termination of a tenancy agreement. He therefore went into the house (a friend restrained the victim) and took items to sell which did not belong to him in lieu of the deposit. He was convicted of robbery.

If the accused is not successful in appropriating the item but has it temporarily, it will still amount to theft. E.g., grabbing a handbag but dropping it as part of the wrestle with the owner: Corcoran v Anderton (1980).

If the appropriation isn’t present, however the force (or fear or force) is, there is an offence can be convicted of which is assault with intent to rob, which is also triable only on indictment.

Use of Force

The jury will determine whether force has been used or not.

In R v Dawson [1976] a ‘nudge’ to cause the victim to lose his balance was not robbery.

In R v Clouden [1987] if the victim gives no resistance, then there is no robbery, e.g., pickpocketing.

In order to steal

The force, or threat of force, must be used in order to steal according to s8(1). If a wallet falls out of a pocket, there cannot be robbery if someone runs off with it.

Immediately before or at the Time of Stealing

Under Section 8(1) force must be used immediately before, or at the time of, stealing.

In R v Hale (1978) the defendant went upstairs to steal jewellery whist the victim was tied up by another. There was a question as to which occurred first the stealing or the tying up. The court stated this was irrelevant as the appropriation should be regarded as a continuing act.

Mens Rea

The mens rea is that of theft. S8 does not provide any further definition, however, it is clear that the force or threatened force must be used in order to steal.

2.7 Preliminary Offence

Attempt

Section 1(1) of the Criminal Attempts Act 1981 provides that: “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.

Under s1(4) only indictable offences are affected unless it is specifically provided for in another statute. Under the Criminal Law Act 1967 it was possible to be liable for attempting to aid, abet, counsel or procure, however s1(4) CAA 1981 abolished this.

Actus Reus

The defendant must have committed an act which was “more than merely preparatory”. This must be proven by the prosecution and is a question of fact for the jury to decide.

In R v Gullefer (1990), Lord Lane CJ in state that the offence is committed when the merely preparatory acts come to an end and the defendant embarks upon the crime proper.

Mens Rea

Section 1(1) refers to the defendant acting “”with intent to commit an offence”. The mens rea is therefore the same as the offence he is attempting. E.g., attempted theft would have the means rea elements of dishonesty and the intention to permanently deprive.

Impossibility

Under the decision of Haughton v Smith [1975] the defence of impossibility was available. This was reversed by 1(2) of the Criminal Attempts Act 1981, which provides 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.”

Although the House of Lords were initially reluctant to apply this, in R v Shivpuri [1986]. The defendant was found to have a suitcase of white powder. He confessed stating they were drugs and was prosecuted. It later transpired that the white powder was not drugs and he stated he could not be guilty as drugs were not present, however this was immaterial — he believed them to be drugs and this is what counted.

The only exception is R v Taaffe (1984). The facts are similar to that of Shivpuri in that the defendant was smuggling drugs. However, the difference here is that he believed he was carrying currency and not drugs. His lack of knowledge therefore saw his Conviction quashed.

Withdrawal

Once steps taken towards committing an offence are sufficiently far advanced to amount to an attempt, failure to complete the crime has no consequence even if it is due to a voluntary withdrawal by the defendant and crime of attempt still exists.

2.8 Defences

2.8.1 Capacity Defences

Insanity

An accused may have committed a crime when actually insane.

M’Naghten Rules

When we look at the term ‘insanity’ it has two meanings. Firstly, the medical/psychological meaning and secondly the legal meaning. It is the latter which applies here.

The Rules derive from MNaghten’s Case (1843):

“… the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.”

A special verdict of “not guilty by reason of insanity’” can been given and the benefit of this is that although acquitted, it puts the defendant under the control of the court.

Disease of the Mind

As stated above, the medical meaning is ignored and whether a particular condition amounts to a disease of the mind within the rules is therefore a legal question. A disease of the mind does not have to be a disease of the brain or a physical defect, provided it produces a malfunctioning of the mind. It therefore includes any internal disorder, which results in violence and is Likely to recur.

Rv Kemp [1957] 1 QB 399: the defendant had no history of violence. He had arteriosclerosis and stated this was the reason for hitting his wife with a hammer initially pleading automatism (see below). The jury were directed that this was insanity, not automatism and the defence succeeded.

Bratty [1963] the defendant suffered with psychomotor epilepsy and during an episode killed a young woman he had given a lift to. He initially raised the defence of automatism, which was rejected, and the jury were directed to insanity.

This was reaffirmed in R v Sullivan [1984] which is another case relating to epilepsy. The defendant kicked and injured a man during a minor epileptic fit.

Rv Hennessy [1989] the defendant was diabetic. He had forgotten to inject his insulin and stole a car. The lack of insulin was a natural factor caused by the diabetes and automatism therefore didn’t apply but insanity did.

Sleepwalking is also considered insanity rather than automatism where this is caused by internal factors and not an external causal factor.

R v Burgess (1991). The defendant fell asleep whilst watching a video with a friend and smashed a bottle and the video recorder over her head. He initially pleaded guilty however the trial judge ruled that the only defence the evidence revealed was that of insanity., He was later found not guilty by reason of insanity by the jury.

If the cause is an external factor then insanity is not applicable, however the defence of automatism (see below) may be raised.

Defect of Reason

The disease of the mind must have given rise to a defect of reason which had one of two consequences: either

(a) the defendant did not know the nature and quality of his act. “Nature’ in this sense means the physical act and “quality’ is where the defendant does not know what they are doing. This was illustrated in Kemp [1957] where the defendant’s actions were carried out whilst he had a ‘blackout’ and was unaware of what he was doing.

(b) he did not know his act was wrong. This must not be confused with absentmindedness and the defendant’s powers of reasoning must be impaired.

R v Clarke [1972]

If the defendant knew what he was doing, then he will still be insane if he did not know that he was doing something legally wrong.

R v Windle [1952]. The defendant overdosed his wife. Although he was suffering from a mental illness, the evidenced showed that he knew that he was committing a crime. He even made a remark to the police, at the time of arrest, “I suppose they will hang me for this”. The trial judge refused to allow the defence of insanity to go to the jury.

Court Procedure

The burden of proof is on the defendant to convince the jury. The jury will consider this on a balance of probabilities and under s1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 they would return a special verdict that “the accused is not guilty by reason of insanity””. This can only be provided upon the written or oral evidence of two or more registered medical practitioners of whom at least one has special experience in the field of mental disorder.

Disposal of the Defendant

This was initially dealt with under s3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 however this was repealed by the Domestic Violence, Crime and Victims Act 2004.

Depending upon the type of offence the court can make in respect of the accused:

• a hospital order (with or without a restriction order); or
• an interim hospital order; or
• a supervision order; or
• an order for his absolute discharge.

The relevant section of the Act can be located here: http://osclinks.com/4330

Automatism

Automatism is an alternative to insanity where an external factor prohibits the accused form pleading insanity. The external factor must render the defendant unable to control what he is doing.

Bratty v Attorney-General for N. Ireland [1963]

As the act is involuntary, it can then be argued that there is a lack of actus reus. With regards to the mens rea, it can be argued that the lack of consciousness also means there is no intention.

Total Loss of Voluntary Control

Where the defendant’s mind is functioning, albeit imperfectly, the defence is not available.

Broome v Perkins [1987]. We previously looked at diabetics under insanity above. There are two types of diabetes- one where the body produces too much insulin and the other where it doesn’t produce enough. The distinction is important when raising the defence of automatism.

In this case the defendant had driven erratically while suffering from hypoglycaemia (low blood sugar level caused by an excess of insulin in the bloodstream). He was still in some control of the car and therefore could not plead insanity as he didn’t have a total loss of control.

In Attorney-General’s Reference (No 2 of 1992) (1993] the defendant pleaded automatism based on “’driving without awareness’” induced by “’repetitive visual stimulus experienced on long journeys on straight flat roads’” when he crashed his lorry into cars on the hard shoulder of a motorway. Driving without awareness was not sufficient for this defence to succeed.

External Factors

This inability to control one’s acts must result from the operation of some external factor upon the working of the brain, rather than an inherent mental defect.

Example case: R v Quick [1973]: http://osclinks.com/4331

The external factor could be a traumatic event including severe shock provided it is more than general stress or anxiety.

Example case: Rv T [1990]: http://osclinks.com/4332

Self-Induced Automatism

If the defendant can be shown to be in some way at fault for bringing on the state of automatism the defence may fail. The principal authority on this point is the Court of Appeal decision in: R v Balley (1983] where the defendant, who was diabetic, assaulted his ex-girlfriend’s new boyfriend after taking a mixture of sugar and water without eating anything.

The outcome will be different depending upon whether the crime is one of specific intent or basic intent. For the former, he will have a defence if mens rea was not formed. For the latter, the defendant will have no defence if he was reckless.

Evidential Burden

It is for the defendant to produce sufficient evidence of automatism for a jury to act upon in order to succeed with the defence.

Effect

If successfully established, automatism operates as a complete defence and the defendant, will be acquitted. Unlike insanity, the courts then have no control over the defendant courts are often reluctant to recognise the defence of automatism in certain situations.

Therefore, the courts will consider whether the defendant should in fact be classed as criminally insane if automatism is raised.

Intoxication

If a defendant voluntarily takes drink or drugs it can only potentially negate mens rea in crimes requiring specific intent if the defence is successful.

There is a difference between being drunk and being intoxicated and the distinction is important in whether or not the defence will succeed, A drunken man may commit acts whilst under the influence of drink or drugs that he would never commit whilst sober, but if he is stil able to form the mens rea for the crime, he will still be charged. It is only if the intoxication is such that the mens reo cannot be formed that it will be successful. Rv Sheehan and Moore [1975), that “a drunken intent is nevertheless an intent In Rv Stubbs (1989), it was stated that the intoxication needed to be “’very extreme’”.

Specific/Basic Intent

As stated above, self-induced intoxication is only a defence to specific intent crimes:

Example cases:

DPP v Majewski [1977]: http://osclinks.com/4334

DPP v Beard [1920]: http://osclinks.com/4335

Intoxication by Drugs

Self-induced intoxication to ‘go on a trip” or to become hallucinated, is not a defence to a basic intent crime. In R v Lipman [1970] the defendant voluntarily consumed LSD and struck the victim with two blows on the head and stuffed 8 inches of a bedsheet into her mouth thinking he was fighting off snakes. His defence of intoxication was rejected at his trial and he was convicted of unlawful act manslaughter.

Burden of Proof

The defendant must provide some evidence of intoxication and the prosecution then need to establish beyond all reasonable doubt, that despite such evidence, the defendant still had the necessary mens rea to form the specific intent.

Effect

If the prosecution is unable to prove beyond reasonable doubt that the specific intention was not formed, self-induced intoxication will operate as a partial or complete defence. If there is a lesser offence which requires only basic intent, the liability may be reduced to the “lesser included’” basic intent crime, e.g., murder can be reduced to manslaughter. However, if no such lesser offence exists the defendant will be acquitted e.g. theft.

Soporific Effect

Not all drugs have a hallucinatory or ‘trip’ effect. Some drugs, when normally taken have a soporific (sleepy) effect. In these circumstances, the jury will be directed to consider whether the defendant was reckless in consuming the drugs.

Example case:

R v Hardie [1985]: http:/losclinks.com/4336

Dutch Courage Intoxication

Intoxication is not a defence where a person deliberately gets himself intoxicated to give himself ‘Dutch Courage” to commit a crime. In Attorney-General for N. Ireland v Gallagher [1963] the defendant decided to kill his wife. He bought a knife and a bottle of whisky which he drank to give himself “‘Dutch Courage”, Then he killed her with the knife. The intent was made before the killing took place. Lord Denning stated:

“If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on his self-induced drunkenness as a defence to a charge of murder, not even as reducing it to manslaughter. He cannot say that he got himself into such a stupid state that he was incapable of an intent to kill. So also, when he is a psychopath, he cannot by drinking rely on his self-induced defect of reason as a defence of insanity. The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do, “

Involuntary Intoxication

Involuntary intoxication is narrowly defined. A person who knew he was drinking alcohol could not claim that the resulting intoxication was involuntary because he underestimated the amount of alcohol he was consuming or the effect it would have on him.

R v Allen [1988] the defendant drank extremely strong home-made wine and committed sexual offences. Despite being unaware of the strength of the wine the Court of Appeal held that this did not amount to involuntary intoxication.

Involuntary intoxication is confined to cases where the defendant did not know he was taking alcohol or an intoxicating drug at all, e.g., where his food or drink is laced without his knowledge. In such cases, the House of Lords has held that involuntary intoxication is not in itself sufficient to negate the necessary mental element of an offence unless the intoxication is such that the defendant could not form any intent at all.

Example case: R v Kíngston [1994]: http://osclinks.com/4337

2.8.2 Necessity Defences

Self Defence

At common law the defence of self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack.

(b) Prevent an attack on another person

(c ) Defend his property.

In addition, s3(1) of the Criminal Law Act 1967 provides that:

“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.”

It is possible for both versions to be used by a defendant.

Reasonable Force

In order to assess what is reasonable, the circumstances as to what the defendant believed them to be will be taken into account.

In Palmer v R [1971] Lord Morris felt that a jury should be directed to look at the particular facts and circumstances of the case. He stated a person who is being attacked should not be expected to “weigh to a nicety the exact measure of his necessary defensive action” and the jury should consider what the ant thought in the heat of the moment and whether they honestly and instinctively thought it was necessary at that time to commit the action they did. A told that the defence of self-defence will only fail if the prosecution shows reasonable doubt that what the accused did was not by way of self-defence.

What is the defendant was mistake as to the amount of force necessary?

R v Scarlett [1994] the defendant evicted the victim from his premises. He thought the victim was going to strike him so pinned his arm to his sides and placed him against a wall outside. The victim fell down 5 steps and struck his head. He later died, The defendant was initially convicted, however appealed whereupon the jury were directed not to convict him unless they were satisfied that the degree of fore was more than call for and his belief unreasonable.

A Duty to Retreat?

There is no rule of law that a person attacked is bound to run away if he can.

R v Bird [1985] — The defendant hit a man with a glass in her hand after she had been slapped and pushed by him. She forgot she was holding the glass. The Court of Appeal quashed the defendant’s conviction saying that it was unnecessary to show an unwillingness to fight and there were circumstances where a defendant might reasonably react immediately and without first retreating and the jury must decide whether a reasonable man would have run away.

Imminence of Threatened Attack

Lord Griffith said in Beckford v R [1988)1:

“A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”

Defence of Property

It can rarely, if ever, be reasonable to use deadly force for the protection of property.

In R v Hussey (1924), the defendant fired a gun through the door of his home which he had barricaded himself to avoid being evicted by his landlady and some accomplices. He was acquitted of the wounding charge on the grounds of self-defence. It was stated that it would be lawful for a man to kill one who would unlawfully dispose him of his home. Note the fear of this case and the fact that this would likely be deemed unreasonable under s3 Criminal Law Act 1967.

There have been many stories in the news recently where people have defended their home and pleaded self-defence.

Mistake as to Self Defence

A defendant might believe that he is being threatened or that an offence is being committed but actually be mistaken. As to whether this will impact on the validity of the defence and whether it will be successful depend upon the circumstances.

The defendant is entitled to be judged on the facts as he honestly believed them to be:

In R v Williams (Gladstone) (1984), the defendant saw a man chasing a victim stating he had committed robbery and that he was a policeman arresting him which was untrue. The defendant hadn’t witnessed this so asked to see his warrant card, Following a struggle, the defendant was charged with ABH and at his trial raised the defence that he had mistakenly believed that M was unlawfully assaulting the youth and had intervened to prevent any further harm. The trial judge directed the jury that his mistake would only be a defence if it was both honest and reasonable. The Court of Appeal quashed the conviction and held that the defendant’s mistaken but honest belief that he was using reasonable force to prevent the commission of an offence, was sufficient to afford him a defence.

Duress by Threats

Duress occurs where the defendant is forced to break the law due to an under an immediate threat of serious harm befalling himself or someone else, The defendant bears the burden of introducing evidence of duress and it is then up to the prosecution to prove beyond all reasonable doubt that the defendant was not acting under duress.

The Threat

The defence must be based on threats to kill or do serious bodily harm. Anything less will not suffice but may assist in mitigation. In R v Singh [1973], the Court of Appeal held that a threat to expose the defendant’s adultery would not be sufficient grounds to plead duress.

It is generally accepted that threats of violence to the defendant’s family would suffice.

The threats must be directed at the commission of a particular offence:

In R v Coles [1994] the defendant was charged with committing a number of robberies at building societies. His family had been threatened if he didn’t pay back money that he owed: however, he was not told to commit the robberies in order to do so. Therefore, the threat was not for the crime to be committed itself and therefore the defence was unsuccessful.

The Test for Duress

The two-stage test for duress is contained in R v Graham (1982) 1 WLR 294. In this case the defendant had a homosexual partner and a wife whom all lived together. The defendant was on drugs for anxiety and the partner, who was jealous of the wife, put a flex around her neck and told the defendant to pull the other end. Both were charged with murder. The defence of duress was not successful, despite the judge directing the jury favourably on this, and he was convicted. The Court of Appeal, in confirming the conviction, laid down the model direction to be given to a jury where the defence of duress was raised. The jury should consider:

(1) Whether the circumstances, as the defendant honestly believed them to be, compelled the defendant to act as he did because he thought his life was in immediate danger. (Subjective test)

(2) Whether a sober person sharing the defendant’s characteristics and of reasonable firmness would have responded in the same way to the threats? (Objective test). Example case: R v Bowen [1996]: http://osclinks.com/4428

(3) The jury should be directed to disregard any evidence of the defendant’s intoxication as a part of the duress (although intoxication can still be raised as a separate defence in its own right.

Immediacy

A person who is under duress must seek the protection of the law as soon as he can do so, Failure to do this could render the defence unsuccessful. Furthermore, if the threat reduces or ceases then the person must abstain from committing the crime as soon as he reasonably can.

In R v Hudson and Taylor [1971] two teenage girls were witnesses in a trial. During the trial gang members of the accused threatened them and a member of the gang was sitting in the public gallery during the trial to check what they said. Because of the threats the two girls committed perjury. In appeal Lord Widgery CJ stated:

“The threat was no less compelling because it could not be carried out there if it could be carried out in the streets of the town the same night and the rule does not distinguish cases in which the police would be able to provide effective protection, from those when they would not. The matter should have been left to the jury with a direction that, whilst it was always open to the crown to shown that the defendants hod not availed themselves of some opportunity to neutralise the threats, and that this might negate the immediacy of the threat, regard had to be had to the age and circumstances of the accused”.

Violent Gangs Voluntarily Joined

If the defendant has voluntarily jointed a violent gang, they cannot raise the defence of duress if that gang later threatens them. Gnango (2011) http://osclinks.com/5405

Limitations

Duress is considered to be a general defence in criminal law, but there are a number of offences in relation to which duress cannot be raised as a defence including murder and attempted murder.

Duress of Circumstances

Recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury:

Example case: R v willer (1986): http://osclinks.com/4338

Example case: R v Conway [1988]: http://osclinks.com/4339

Principles of the Defence

In Rv Martin [1989), the defendant who was disqualified from driving drove his stepson to work claiming that he had done this because his wife had threatened to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out her threat. The Court of Appeal allowed the defendant’s appeal against his conviction, as the defence should have been left to the jury.

Time Limit on the Defence

If the threat has ceased, then Duress of circumstances will be no excuse.

In R v Pommell [1995] the defendant was found guilty of being in possession of a firearm without a firearms certificate after he had confiscated it from a friend in the early hours. He had intended to take it to the police station the next day. The court of appeal quashed the convicting stating that the trial judge had erred in ruling that the defendant’s failure to hand over the gun to the police at the earliest opportunity effectively denied him the right to have the matter left to the jury.

Application of the Defence

In R v Pommell [1995], the Court of Appeal held that the limited defence of duress of circumstances, developed in English law in relation to road traffic offences, was closely related to the defence of duress by threats and applied to all crimes except murder, attempted murder and some forms of treason.

In Conclusion

The treatment of intimate partner violence by criminal justice actors has been a controversial social issue, particularly since the early 1970s when feminist and grassroot organizations drew attention to the prevalence of intimate violence and, in particular, violence against women by male intimate partners. Since that time, the criminal justice system and its representatives have been criticized for their treatment of this type of violence and, as a result, numerous changes have taken place both within the community and in the criminal justice system with respect to how social and legal institutions respond to intimate violence. Despite the increased attention, little empirical research in Canada or any other country has sought to examine how the criminal justice processing of violent crime and, in particular, responses to violence between intimates has changed over time as a result. As a first step toward this goal, this study focused on two research questions: (1) Do those accused of killing intimate partners receive different treatment in the criminal justice system compared to those accused of killing victims with whom they shared more distant relationships? (2) Has the role of intimacy in criminal law changed over time?

The findings in this study demonstrate that changes in the way intimate violence is treated have occurred in the criminal justice system during the past three decades, paralleling increasing public concern about intimate violence as a serious social issue. More specifically, the results presented here showed that those accused of killing intimate partners were treated differently at some stages of the criminal process compared to those who killed other types of victims. However, this differential treatment appears to have abated somewhat over time (see also Dawson, 2004). That is, what many have interpreted as more lenient treatment of intimate lethal violence by the courts was evident in the earlier period of the study, but not in the more recent period. One might tentatively conclude, then, that the role of intimacy in criminal law has changed over time, at least within this large urban jurisdiction. More definitive conclusions, however, await future research because of several limitations that have been outlined above. Moreover, the results presented here raise at least as many questions as they answer and future research that addresses these research and data limitations is required before we can achieve an adequate understanding of the role played by intimacy in criminal law. Several important questions for future research are discussed briefly below.

First, how do we explain the association between intimacy and the plea resolution process? What is it about cases of intimate partner homicide and/or the accused persons involved that seem to make them or their cases more amenable to plea resolutions than other types of cases? While the subject of plea resolutions or the plea-bargaining process is not new, little research exists on the subject in Canada (DOJ, 2003). Some U.S.-based research, however, describes a number of possible explanations as to why pleas may be negotiated in particular cases. For instance, guilty pleas may occur because of the high risks often associated with trials for both the defence and the prosecution (Mather, 1979). Defence lawyers may try to reduce such risks by negotiating a plea to a reduced charge. Alternatively, the prosecution may perceive a guilty plea to be a viable option if there are mitigating circumstances surrounding the killing or if it is difficult to prove the element of intent required for a murder conviction (Mather, 1979). Moreover, it may be that when the initial charge was laid, the investigation was not complete and, thus, as more information became available, the prosecution realized that a murder charge was not appropriate nor would it be successful and, consequently, entered into a plea resolution at that point thereby securing a conviction (DOJ, 2003).

Because of the private nature of plea negotiations, however, the public has no way of knowing what has taken place or why it was deemed appropriate to accept a guilty plea in a particular case or for a particular accused (DOJ, 2003). It may be, then, that the public would be more accepting of plea resolutions if they understood more about the reasons behind them. As a result, one of the recommendations outlined in the report by the Department of Justice (2003) was that research be undertaken on the subject of plea-resolutions in homicide cases. While it was hoped that information documenting reasons for guilty pleas would be possible in this study, such information is not systematically documented in case files and, to date, case files have been the primary source of information for criminal justice researchers examining court outcomes (see Box 7 and 8). It is important to note here, though, that the compilation of documents related to the criminal processing of homicide cases (and all criminal cases) does not occur for the purposes of criminal justice research and, thus, this is not meant as a criticism of the criminal justice system or its actors. It is meant, however, to highlight that researchers need to incorporate more innovative data collection techniques that can capture the detail required for understanding the plea resolution process. As part of this, increased collaboration between criminal justice agencies and researchers is required. Until then, however, the reasons behind such decisions will remain speculative. New techniques or mechanisms for collecting criminal justice data would also help address another obstacle that is common in criminal justice research discussed next.

The male victim in this case had been drinking at a neighbourhood bar earlier in the evening and, as he was walking home, he met two women in an alley. One of the women — the accused — claimed that the victim approached her and asked her for sexual favours, mistaking her for a prostitute. The female accused pushed the victim away and he fell and hit his head. He was not killed instantly and managed to flag a taxi to take him home. His family noticed his injuries and took him to the hospital where he died a few days later. Both the accused and the victim had been drinking at the time of the incident and had histories of substance abuse. The accused was charged with manslaughter. She pleaded guilty to that charge and was sentenced to two years less one day.

The male accused in this case, a paranoid schizophrenic, pushed the female victim into the path of an oncoming subway train. On the day of the killing, the accused, who was a psychiatric patient living at a group facility, had moved out of the facility on the morning of the homicide. Apparently, he had tried to get social assistance, but was told he would have to wait and was apparently frustrated by the delay. He proceeded to the subway where he later told police he had decided to push any woman who fit a certain description and happened to be on the platform into an oncoming train. He waited for two trains before he pushed the victim. The defendant was charged with second-degree murder and pleaded guilty. He was sentenced to life in prison with no parole for 15 years.

The female victim and the male accused had worked together for about six months serving refreshments to patrons at an establishment. On the day of the killing, the accused stabbed the victim in the neck during an argument over coffee. Prior to the incident, there was such hostility between the victim and the accused that management became concerned and decided that other arrangements would have to be made so they came into contact less often. On the day of the attack, when the accused arrived at work, the victim made a gesture that signified she had won their dispute. After about five minutes, the accused picked up a knife and stabbed the victim in front of witnesses. He made no attempt to escape, waiting for the police. It was alleged that both the accused and the victim had received outpatient treatment for psychiatric problems. The accused was charged with second-degree murder, but found guilty at trial of manslaughter and sentenced to five-years.

The male victim and the female accused decided to kill themselves and had left notes for their family, documenting their intentions. The female accused was to inject the male victim with an overdose of drugs and then inject herself. Adhering to their plans, she injected the victim and then herself, but she awoke later that same day to find the victim dead. The accused did not mention the victim’s death when she later went to work, but a friend discovered the body the next day and notified the police. The accused was charged with manslaughter. She pleaded guilty to that charge and was sentenced to two years less one day.

The female victim in this case had suffered long-term mental problems and had frequently been an inpatient at a local psychiatric hospital where she was staying at the time of her death. On the morning of the killing, the victim came upon the male accused on the street where it was alleged by the accused that they discussed a sexual act. They proceeded into a nearby alley to have sex. Police indicated, however, that the accused had accosted the victim on the street, hauled her into the alleyway where he sexually assaulted and strangled her. The victim’s face was so badly damaged that she was unrecognizable. The accused was arrested later that day as he was attempting to assault a second woman. The accused was charged with first-degree murder, but he pleaded guilty to the lesser charge of second-degree murder and was sentenced to 12 years.

The female accused and her friends arrived at a bar, but there was no seating available. The accused approached the bar, removed the male victim’s belongings from one of the barstools, and threw them on the floor. An argument developed between the two and it turned into a minor shoving match before others separated them. When the victim later left the restaurant, the accused and her friends followed him outside and another confrontation developed that turned into a physical fight. During the fight, the accused produced a knife and stabbed the victim, who immediately collapsed to the ground. The accused and her friends fled the scene. A bystander called the police and witnesses later identified the accused. It was alleged that the victim was mentally handicapped and often pestered people in bars after he had been drinking. The accused was charged with second-degree murder, but pleaded guilty to manslaughter and was sentenced to five years.

On the night of the killing, the male accused had been drinking with a friend at a bar. He was depressed because a woman that he was interested in had recently rejected him. On his way home from the bar, the accused broke into the male victim’s home. The victim awoke to find the accused standing at the foot of his bed. At that point, the accused crawled onto the bed and started slashing at the male victim, killing him. A female occupant tried to escape down the stairs, but the accused grabbed her, stabbing her repeatedly, but she was not fatally injured. Another male occupant called 911, but the accused heard him and fled. The accused lived in an apartment building just behind the victims’ home, but they did not know each other. The accused later indicated that he had been on a three-day drinking binge, prompted by the loss of his girlfriend and indicated that he was inclined to lose his temper when he had been drinking. The defendant was charged with first-degree murder (and attempted murder for the female victim), but pleaded guilty to second-degree murder and was sentenced to life in prison with no parole for 17 years.

The male victim and the male accused were drinking at the home of the accused with some others, including the victim’s brother. An argument broke out because the victim allegedly made an inappropriate gesture to the girlfriend of the accused. The argument escalated into a fight at which point the accused got a knife and stabbed the victim in the chest. When the police arrived, they found the accused with blood on his clothing standing outside the elevator in the apartment building. He told them that he had been involved in a fight and confessed to stabbing the victim. The accused was charged with second-degree murder, but pleaded guilty to the lesser charge of manslaughter and was sentenced to seven years imprisonment beyond the one year he had already spent in pre-trial custody.

The male accused and an associate went to see the male victim who was an acquaintance. The accused allegedly planned to get some money from the victim by saying he had access to a quantity of drugs for him to purchase. While there, the victim became upset with the accused and started to shove him. At the time, both were standing at the top of a set of stairs that lead to the basement. As the victim started to descend the stairs, the accused pushed him in the back, sending him down the stairs. Both the accused and his associate fled the scene. The victim’s mother was home at the time and heard noises that led her to check the basement area. She found her son, bleeding and unconscious at the bottom of the stairs, and called police. The accused in this case was charged with manslaughter. He pleaded not guilty to manslaughter, but guilty to the lesser charge of criminal negligence causing death. He received a conditional sentence of 18 months, 150 hours community service and 18 months probation.

On the evening of the killing, both the male accused and the female victim were at a local tavern together. When the victim left, the accused followed her out to the rear of a nearby building where he beat her with a brick and then returned to the tavern. He later met a family member of the victim and took him to where the victim lay dead. Her clothes were disheveled and her breasts and genital area were exposed. The police were called. The accused alleged that the victim insulted him and spit on him in the bar. They were had both been drinking excessively. The accused was charged with second-degree murder, but pleaded guilty to manslaughter. He was sentenced to five years imprisonment.

Both the male victim and the female accused were allegedly drug dealers who, about one month prior to the killing, had a dispute over the price of crack. During the dispute, the victim slashed the unarmed accused. On the day of the killing, the accused lured the victim to a rooming house where the accused attacked the victim, plunging a knife into his heart. He died en route to the hospital. Witnesses indicated that Nadia had frequently threatened to kill the victim to get even with him for disfiguring her. Police recovered the weapon used by the accused in a garbage container behind the rooming house. Both the accused and the victim had been drinking the night of the killing and both had a history of substance abuse, primarily crack cocaine. The accused was charged with first-degree murder, but pleaded guilty to manslaughter and was sentenced to 2.5 years.

The male victim and the female accused had been involved romantically for about eight months. On the day of the killing, both were intoxicated when an argument broke out that lead to the accused dangling the victim over their balcony. A family member of the accused tried to intervene, but was pushed away by the accused, who then shoved the victim over the edge of the balcony to his death. When the police arrived, the accused alleged that the victim had committed suicide. Other family members eventually revealed that the accused had been responsible for the victim’s death. The accused was charged with second-degree murder, but pleaded guilty to manslaughter and was sentenced to five years.

The female victim and the male accused in this case were married. The husband stabbed his wife to death while their two daughters watched. When the police arrived, they found that the accused had attempted suicide by stabbing himself in the chest, but his injuries were not fatal. In the six months prior to the killing, the victim had called the police twice to report that the accused had assaulted her. At the time of the killing, he was under a probation order to avoid contact with the victim. Earlier, assault charges had been dismissed against him when the victim failed to appear to testify. The accused was charged with first-degree murder, but pleaded guilty to second-degree murder and was sentenced to life in prison with no parole for 13 years.

On the evening of the killing, the female victim and the male accused were preparing to go to bed for the night when they began to argue. The argument went on for some time, but stopped suddenly, according to neighbors who lived nearby. Some time later, the elderly accused called a male family member. When the family member arrived at the scene, the victim was found dead as a result of a knife wound and the accused had superficial wounds to his neck. Later, at the hospital where he was treated, the accused admitted to stabbing his wife because of family problems, including the fact that she talked too much and scolded him too much. The victim allegedly suffered from dementia. The accused was charged with second-degree murder, but pleaded guilty to manslaughter and was sentenced to 5.5 years in addition to 7.5 months of pre-trial custody.

The female victim had arrived from out of the country a little over a week before the killing for an arranged marriage with the male accused. She had experienced a difficult time trying to adjust during her stay and decided to return to her home country and not follow through on the arranged marriage. The accused argued with the victim over her decision and the argument escalated to the point that the accused hit the victim and then strangled her on the day they were to be married. The accused fled, but was apprehended the same day. The accused was charged with second-degree murder, but he pleaded guilty to manslaughter. He was sentenced to five years imprisonment.

The male accused in this case was allegedly jealous and possessive with the female victim. He called her constantly at work, according to her co-workers. On the day of the killing, they argued because the victim wanted to end the relationship and she had asked the accused to move out. He got angry and stabbed her 36 times. The children were at home and witnessed the attack. After the killing, the accused telephoned a family member who notified the police. By the time the police arrived, the accused had attempted suicide. He was still conscious, however, and confessed to killing the victim after which he was taken to the hospital for treatment. Three days before the fatal incident, the police were called to the couple’s address because the accused had assaulted the victim. Neighbors indicated that there were ongoing problems in the relationship and that was why the victim was trying to end it. The accused was charged with second-degree murder, but pleaded guilty to manslaughter and was sentenced to 12.5 years.

The female accused in this case had apparently become increasingly angry over a number of demands her husband was making on her, including demands for sex. On the day of the killing, the accused claims she lost control of herself, exploding in anger, striking the victim 14 times in the head with a meat cleaver. She then hid the body outside and it was not discovered until more than a week later. Before marrying, the couple had worked together at a factory in their native country. They continued to keep in touch through correspondence after the victim and his family moved to Canada. The accused came to Canada after they married. The marriage was never consummated, a fact that upset the husband and his parents. The accused had allegedly been making inquiries about how to get a divorce, but found out that if she left her husband, her immigration status might be affected. The accused had previously been hospitalized for psychiatric problems. The accused was charged with first-degree murder, but pleaded guilty to manslaughter. She was sentenced to 10 years in prison.