CRIMINAL

Question 1

Can a court look at case law prior to a particular statute

with respect to The Attempts and Criminal Attempts Act 1981?

⇒ other statutes?

Answer 1

No

Campbell [1991] Crim L R 268 and Gullefer [1990] 3 All ER 882 (see later)

The court held that the judge should not refer to the previous law, they should use the terms contained in the Act.

Question 2

Greyhound track. Dog going to lose. Jumped on track with intention of stopping race =› voiding race =› reclaim bet. Race not stopped.

Attempt to steal money?

Answer 2

GULLEFER 1990 3 ALL ER 882

Gullefer (not Gullver) was convicted but appeal + ie =› Attmept (-)

on grounds of acts did not go beyond mere preparation. He would still have had to go to bookmakers, demand his money, etc..

Question 3

D found examining the lock of a barn. D’s car also found nearby, containing metal-cutting equipment. D charged with attempted burglary, and convicted at Crown Court. CA said what and case?

Answer 3

R v Tosti & White (check)

Ds attempted to burgle a barn. At around midnight, they were disturbed while examining the padlock on the barn doors when they realised that they were being watched. They ran off to their cars which were parked in a nearby lay-by;

HELD

acts were more than merely preparatory (guilty of attempted burglary).

Question 4

D found in boys toilet of school with various kidnapping paraphernalia. D charged and convicted of attempted false imprisonment. Appeal?

Answer 4

Geddes (1996) Crim LR 894

D was caught in a lavatory block of a school with a large knife, lengths of rope and masking tape. It was clear that D was laying in wait to falsely imprison (kidnap) any schoolboy who happened along. However, he had not confronted a pupil.

Held:

Attempt (-)

Had not moved from planning to execution of the plan. He had not confronted a pupil

D must have “actually tried to commit the offence”

D’s actions at these stages may not yet be sufficiently proximate to completion of principal offence

May incentivise police malpractice (HORDER Principles of CrimLaw 8th)

Note: the accused would now be guilty of a substantive offence under the

Sexual Offences Act 2003 (trespass with intent to commit sexual offences)

Question 5

Assault and Sexual Offences Act 2003.

D approaching 6yo asking if he wanted to watch pornography on his laptop in office.

D charged with attempt?

Answer 5

Attempt (-)

K 2009 EWCA Crim 1931

Ds acts were not beyond mere preparation

D ha not yet led child to laptop

BUT charged with substantial offence of

SOA 2013, s12

CF

Geddes

school caretaker with kidnapping equipment again attempt (-) but covered by a sexual offences act

Question 6

Example of attempt beyond very close to point of no return ie crossing the Rubicon from 1990

Answer 6

Jones [1990] 3 All ER 886 attempt +

D, with intent to murder his rival in love, bought a shotgun and sawed off the barrel. He disguised himself and lay in wait for P outside P’s daughter’s school. After P’s daughter had walked off, D jumped into the car rear seat, pointed the shotgun at P and said “you’re not going to like this”.

⇒did NOT have his finger over the trigger or shoot at P.

⇒P managed to grab the gun and escape.

Held:

This was an attempt since more than mere preparation
Once he had embarked on the commission, he had gone beyond merely preparatory

Pneumonic

Minder series ended in 1990. Taffy Jones in case wanting shoot Terry McCann finger of trigger attempt obvious

Question 7

Acting suspiciously outside post office with imitation firearm and threatening note. Attempt?

Answer 7

NO.

On appeal attempted robbery (-)

R v Campbell [1991] Crim LR 268 (CA).

Had been convicted for attempted robbery

Robbery complete when theft complete ONLY once got money from till == proximity in time not given here! Hence quashed

Facts

C was acting suspiciously near a post office. He wore a crash helmet, gloves, and had sun-glasses on, when arrested in front of the post office, was found to have an imitation firearm, and a threatening note in his pocket. He admitted that he had intended to use the note to frighten the person behind the post office counter, but maintained that he had changed his mind and was arrested before he could return to his motor cycle to leave.

Pneumonic

Surprise to see the wierd Sol Campbell hanging outside PO.

Question 8

Define inchoate offence

Answer 8

Just begun, undeveloped.

D has made some progress towards a harmful end foreseeing or intending harm to come about.

Question 9

Can a crime though impossible still be an attempt?

Answer 9

Yes

Shrivpuri 1987 AC 1

Guilty of ATTEMPTED import of controlled substances

Here drugs were not drugs ie crime was impossible

D was detained whilst in the possession of a case that he believed contained either heroin or cannabis, but in fact contained nothing of the sort. He was charged with attempting to commit the statutory offence of knowingly being concerned in dealing with a drug whose importation was prohibited (smuggling drugs). He could not be guilty of the full offence as there was no actus reus for the prohibited offence of dealing with drugs – he was dealing with a legal substance! He was found guilty of attempt and appealed

Held:

The House of Lords dismissed the appeal.

D couldn’t actually commit the full offence as the case did not contain drugs 1(2). However under 1(3) if the facts were as he believed them to be he would have intended to commit the offence. He had also done acts which were more than merely preparatory and so had completed the AR. His conviction for the attempt offence was safe.

Question 10

What is the balance that needs to be drawn with respect to inchoate offences?

Answer 10

Fairness to D versus Protection of Public

Question 11

If D succeeds in committing principle offence, still liable for an earlier attempt?

Answer 11

Technically (+)

==> an attempt has an essential element of failure

BUT“inappropriate to charge both” ie attemtp subsumed within the completed offence at common law

Webley v Buxton 1977 QB

The greater includes the less

Question 12

What is S. 1(1) Criminal Attempts Act 1981 == CAA 1981

Answer 12

1(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

Question 13

What about Attempt by Omission?

Answer 13

Generally not as s.1.(1) speaks about “a person doing an act”

BUT Court may decide for example Mother starving child with intent to kill child under attempted murder

Question 14

What offences are NOT covered by attempts?

Answer 14

Summary offences

AND some expcetions, eg

involuntary manslaughter (would be attempted murder)

Question 15

What is the Last Act Test in terms of pre-1981 attempts?

Answer 15

Beyond point of no return, the crossing of the Rubicon (Roman soldiers)

Question 16

Sawn off shot gun case attempt?

Answer 16

Jones 1990 91 Cr App

D got into back seat of car with V pointed sawn off shotgun, D, with intent to murder his rival in love, bought a shotgun and sawed off the barrel. He disguised himself and lay in wait for P outside P’s daughter’s school. After P’s daughter had walked off, D jumped into the car rear seat, pointed the shotgun at P and said “you’re not going to like this”. He did not have his finger over the trigger or shoot at P. P managed to grab the gun and escape.

Held: Attempt(+)

Beyond mere preparation

Once he had embarked on the commission, he had gone beyond merely preparatory

Question 17

Rape and Attempt.

Where the appellant had convinced the complainant that she was going to be raped and had overcome her resistance, there was ample evidence to justify the conclusion that he had taken steps beyond the merely preparatory stage and was guilty of attempted rape.Appeal against conviction, with leave of the single judge, on 2 October 2002 at the Central Criminal Court of attempted rape for which the appellant (‘D’) was sentenced to an extended sentence of eight years’ imprisonment. The complainant (‘C’) gave evidence as follows: (i) she had a conversation with D while waiting at a bus stop; (ii) when C moved away from D, he went towards her and put his arms around her; (iii) when C walked away, D followed her and told her he wanted to have sexual intercourse with her; (iv) D told C that it was dark and that no one would hear if he took her into a dark road; (v) D said that he would rape C; (vi) C ran away screaming, but D ran after her and pulled her backwards by her hair, held her in an arm lock and covered her mouth; (vii) D then dragged C to another bus stop; (viii) C thought that rape was inevitable and said that D could do what he liked as long as he did not hurt her; and (ix) a police car arrived, and D stepped out into the road.

D charged with attempted rape?

Answer 17

Dagnall 2003 EWCA Crim

attempted rape (+) and conviction upheld on appeal

Attempted rape at stage of physical confrontation with woman. NB far removed from penile penetration of Vs vagina, anus or mouth.

HELD: (1) The most important aspect was that by the end of the incident C was convinced that she was going to be raped. (2) The evidence was amply sufficient to justify the conclusion that D had gone beyond the merely preparatory stage. In what he did, D had virtually succeeded, and had overcome C’s resistance. The arrival of the police car prevented the ultimate offence from taking place. (3) The jury’s verdict was safe.Appeal dismissed.

Question 18

What does the CAA Criminal Attempts Act say about factually impossible acts?

Answer 18

S.1(2)

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.

S.1(3)

In any case where:

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would

be so regarded, then for the purposes of subsection (l) above, he shall be regarded as having had intent to commit that offence.

Question 19

What about legally impossible acts like adultery?

Answer 19

No liability,

as confirmed in Taaffe 1983

Here D attempted to import foreign currency believing it was a crime (incorrectly) no liability for attempt.

Question 20

• Pre 1981!*
• D wired up a soap dish in bathroom to give wife an elector shock. D charged with attempted murder. Appeal?*

Answer 20

Whybrow 1951

C-Ct Guilty of attempted murder and upheld by CA.

BUT

judges direction of jury that MR for attempted murder is same as murder was wrong. DIrection should not have included intention to cause GBH.

MR for attempted murder is =› kill V as GBH not sufficient intention because would not complete EVERY ELEMENT OF AR

Why Brow? Technicality?

Question 21

Required MR of Attempted Criminal Damage?

Answer 21

Principal offence requires at least recklessnss as to damage BUT attempts requires D to intend to complete every element of AR of Principal Offence =› intention to cause damage.

Analogy

ABH No MR!

MR for Attempted ABH:

Intention to cause ABH

Attempts always needs intention to complete the principal offence

Question 22

Name a case for demonstrating

Conditional Intention leads to Attempt (+)

Answer 22

AGs References No’s 1 and 2 of 1979

A conditional intention to steal === an attempt to steal.

HERE D was only going to steal if he found any items of value.

⇒ still intends to steal even if items are unspecified (conditional upon finding them)

⇒ Applies for theft at least

Question 23

D rummaged through a women’s handbag in a theatre and finding nothing worth taking, out it back. Attempted Theft?

Answer 23

Easom 1971 2 QB 315

D not attempting to steal == permanently deprive D of bad or contents on indictment. D was attempting to steal unspecific items of value he did not find.

Attempt (-)

BUT

Had indictment put “steal contents of handbag” ==› even tho factually impossible ==› attempt still permissible here attempt (+)

Plainly Easom looking for money => handbag was in effect empty

Easy Andy epsom sex cinema

Question 24

Khan and attempted rape?

Answer 24

Khan 1990

CCt said MR for attempted rape same as rape. Guilty even tho no penetration

BUT assuming attempted rape requires D TO INTEND EVERY ELEMENT OF THE AR OF THE PRINCIPLE OFFENCE =:› MR Attemted Rape != MR Rape since would have required D to have intention or knowledge as to V’s non-consent (Circumstance).

BUT here D did not intend non-consent (he did not want V to not consent, he was merely indifferent ie reckless to it reckless != intent)

HELD (Principle)

Attempt need not include an intention as to attendant circumstances of the offence BUT merely MR required for principal offence

Question 25

What is the principle of Khan 1990 CA?

Answer 25

Attempt need not include an intention as to attendant circumstances of the offence BUT merely MR required for principal offence

Question 26

How can Khan be applied to Attempted Criminal Damage?

Answer 26

It would be sufficient that D was reckless as to the circumstance event (here that the property belongs to another)

Criminal Damage: CDA 1971

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged…….

Question 27

4 problems with Khan

Clean this up!

Answer 27

1. Hard to divide up principal offences until conduct, circumstances and result elemnts
2. lack of clarity mr MR circumstance element.
   
   1. What if MR of circumstance satisfied by lesser negligence? Seems from Law Commission Conspiracy and Attempts No 318, 2009 8.133 that minimum MR would be recklessness
3. && Ulterior MR element ==› should be intended for attempts liability BUT streitig
4. PACE Impossible attempt && Potential Recklessness

Question 28

Undercover police officers sold scrap metal to D intimating that stolen. BUT metal not infact stolen

⇒ Handling Stolen Goods (-)

⇒ Attempt to convert criminal property

Case and outcome?

Answer 28

Pace 2014 EWCA Crim 186

Crown Court guilty(+)

Factual impossibility does not bar liability (seen before) && followED Khan

⇒ sufficient if D had MR of suspicion as to circumstance element of principal offence

⇒ Contrast with where Intention which MUST BE SHOWN in Attempts in relation to MR for a result based offence AR)

HERE Cout of Appeal Attempt (-)

Ratio: The defendants, scrap metal merchants, appealed against convictions for attemption to deal in stolen metals. The court was asked as to the mental element required for criminal attempt under section 1 of the 1981. The context here was an accusation of concealing, disguising or converting criminal property contrary to s.327(l) of the 2002 Act, under which it was necessary to establish that certain elements were suspicious.
Held: Appeals against conviction were allowed.

Section 327(1) required the defendant to have known that the property was criminal property. Mere suspicion of that fact was insufficient.

⇒ D is required to intend EVERY element of Principal Offence, including any circumstantial elements.

Question 29

Current Law follows Khan and Pace.

ROugh rule if Possible apply Khan ==› intention as to conduct and results BUT allowing MR to mirror required for principal offence (may be less than intention)

If Impossible apply Pace ==› intention for every element of principal offence

SO what about Criminal Damage?

Answer 29

Question 30

Name some Non-Fatal Offences against the Person

Answer 30

Assault

Battery

Assault occasioning actual bodily harm

wounding or inflicting GBH

wounding or causing GBH with intent

Plus Conduct based

Harassment and stalking

Torture

slavery

Administering poison

Domestic abuse

Question 31

What is bodily autonomy?

Answer 31

Right not to physically interfered with against your will.

as enshrined in Art 8 ECHR (respect for private life see CONSTI)

==> personal violence in Assault and Battery

since line cannot be distinguished between different degrees of violence ==> must prohibit lowest form of it==> noone has the right to meddle with another in the slighest manner.

Variation

school bullying

Question 32

Name the conduct-focussed offences

Answer 32

Stalking, harassment, poisoning, also sexual offences

Question 33

Links for Non Fatal Offences V The Person

Answer 33

Smith + Hogan Criminal Law 15th EDItion 2018 , Ch 16

Question 34

What is the AR + MR of Assault?

Answer 34

Under Common Law

Any conduct by D that , intentionally or recklessly, causes V to *apprehend* immediate AND unlawful personal violence.

CF Battery

Battery inflicts unlawful NOT necessarily immediate BUT lacks injury)

Question 35

Result element of Assault AR, MR

Answer 35

AR V apprehends an imminent threat of unlawful force

(in fact on V- ie IF V asleep assault (-) )

MR Intention or recklessness

Question 36

What is the common Law Definition of Victim wrt NonFatalOAtheP?

Answer 36

The Common Law Definition of Victim wrt Non Fatal Offences Against the Person is (Draft Criminal COde)

Question 37

Statutory confirmation of CommonL offences of Assault and Battery?

Answer 37

s.39 Criminal Justice Act 1988 p 75

“Common assault and battery shall be summary offences and a person guilty of eithre…shall be liable to a fine not exceeding Level 5, …..not exceeding six months imprisonment, or both”

Simplies OAPA 1861

Question 38

in order of seriousness the 5 result-based OAtP?

Answer 38

LEAST

5 Psychic (or technical) Assault (no Injury)

4 Battery (no Injury)

3 S.47 Assault occasioning actual bodily harm

2 S.20 Inflict grievous bodily harm or wound

1 S.18 Cause grievous bodily harm or wound with intent

MOST

start from greatest possible harm and work back

Question 39

Is Hostility a necessary ingredient of Assault?

Answer 39

(-)

For example

Brown 1994 AC 212

sadomasochistic acts performed by men on each other => all done for mutual enjoyment of participants

Question 40

Exuberant hug of a stranger at NYE -assault?

Answer 40

given no hostility needed ==> (+) BUT

D will have genuine belief in consent on that occasion so (-)

ALSO

Hughes LJ in B 2013 EWCA <<we all impliedly consent to some non-hostile contact as an ordinary incident of life>></we>

Question 41

Position of CPS Charging Standards on Assault and Battery, ie. when to charge and when not to

Answer 41

CPS Charging Standards NOW

no injury or non serious injuries

PREVIOUSLY

slightly more bruises, a black eye, superficial cuts,….

Question 42

Key Authority for defining [Technical] Assault

Answer 42

Fagan v MPC 1969

driving on foot on police officer but omission!

Any act by D that, intentionally or recklessly, causes another person to apprehend immediate and unlawful personal violence.

==> so as to appear to V to be on the point of ex striking, shooting, or stabbing him.

Also defines Battery CF There

Question 43

D showing V a pistol in a drawer and declaring he would hold her hostage. Assault?

Answer 43

Logdon v DPP

YES

Question 44

D shakes fist at V who s safely locked inside his car

Answer 44

if obvious to V that D is unabel to carry out his threat => Assault(-)

[Immediate action iN Assault]

Question 45

Question to ask for Assault +

Answer 45

Does D intend to cause V to believe that he can and will carry out the act immeduately and whether V does so believe

Question 46

D points an immitation gun at V. Assault?

Answer 46

If V believes it to may be a real and loaded gun (+)

EX

Logdon v DPP [1976] Crim LR 121 (D.C.)

V was a tax inspector. Whilst attending D’s premises, D showed V a gun in a drawer and told V that she would not be allowed to leave until she had sorted out his tax problems. The gun was in fact a replica. D claimed that it was a joke and that he had no intention of carrying out his threat, but V believed unlawful force was about to be inflicted. D’s conviction for assault was confirmed by the Divisional Court.

ELSE NO

Question 47

series of silent telephone calls to women. Assault in 1998?

Answer 47

Assault occassioning ABH (+)

Since AOABH <== [Tech Assault/Batt] => Technical Assault +

The D, Ireland, made a series of ‘silent’ telephone calls to three different women. The victims suffered psychiatric injury. D was found guilty of assault occasioning actual bodily harm (which includes assault) and his conviction was upheld by the House of Lords.

BUT apprehension of “immediate unlawful violence” lacking?
It was an act of some kind ==> wide definition of act to include ostensiblt silence.

Steyn “A thing said is also a thing done” (but sticks and stones?)

Question 48

Can a condition threat constitute an assault?

Answer 48

Read v Coker (1853) 13 CB 850

D and his servants surrounded V, rolling up their sleeves and threatening to break his neck if he did not leave the premises. Assault (+) The threat of violence was immediate and accompanied by an intention to assault.

BUT opinion divided.

EX

Blake v Barnard 1840 9 C&P 626

D presented a pistol at P’s head and said that, if P was not quiet, he would blow his brains out.

HELD: it was incumbent on plaintiff to substantiate the allegation in the declaration, that the pistol was loaded with gunpowder, ball, and shot, and unless the jury were satisfied that the pistol was loaded they ought to find for defendant.

Assault (-)

Question 49

Case where actions would constitute an assault but words negate it

Answer 49

Tuberville v Savage [1669] 1 Mod Rep. 3

T put his hand menacingly on his sword and said, “If it were not Assize time, I would not take such language.” T prima facie committed an assault when he put his hand on his sword. However, as it was Assize time (the judges were in town!) his words ruled out the possibility he was going to carry out his threat. The court held that an assault had not been committed.

These days

if V was aware that not possible?

=> What about even if act not possible=> assault +

And conditional?

Question 50

D, over a period of 20 months, hounded a female ex-colleague by following her, making numerous phone calls, going to her home, writing offensive messages on her door and writing 800 letters to her (the more recent of which she interpreted as threats). The final letter was hand-delivered, giving rise to a charge of assault occasioning actual bodily harm. Case?

Answer 50

R v Constanza [1997] 2 Cr App R 492 . Assault (+).

apprehension of physical violence <> to satisfy immediate

BUT

Protection from Harassment Act 1997

Question 51

When is violence under Assault lawful - defences?

Answer 51

V consents OR

D using reasonable force in self-defence

Question 52

MR of Assault: Authority?

Answer 52

R v Venna [1975] 3 All ER 788 (CA)

INTENT AS TO TECH ASSAULT

OR

SUBJECTIVE RECKLNESSNESS

D must intend to cause another person to apprehend the immediate application of unlawful personal violence [force] to his body, or is reckless as to whether such apprehension be caused

(technically also that V’s apprehension would be of Immediate violence but unlikely to be enforced)

Question 53

MR of Battery

Answer 53

Intention to apply force to the body of another or recklessness as to whether force be so applied

Question 54

Recklessness and criminal damage cases, what kind of test is used? What was applied?

Answer 54

R v G

subjective test for recklessness

Cunningham style

D must actually forsee the risk of causing V to apprehend immediate and unlawful personal violence and go on unjustifiably to take that risk.

Question 55

D creeps up behind V intending to hit him over the head without attracting his attention (=> apprehension (-) => battery) but V unexpectedly turns round to avoid the blow (=> no battery).

Answer 55

Assault (-) but attempted battery(+) but sumary offence => no offence of attempted battery

=> no offence?

Question 56

digging a pit for V to fall into or placing an obstacle in the path of V so that he falls over it Examples of what kind of force?

Sufficient for battery?

Answer 56

They are examples of Indirect Force.

Battery. Authority

DPP v K [1990] Crim LR 321

D placed acid into a hand-drying machine which, when the machine was next switched on, ejected acid onto the person trying to dry himself. D was found guilty of assault occasioning actual bodily harm (s.47), although the battery was indirect.

Question 57

D punched woman who was holding baby=> baby injured. Indirect force => battery?

Answer 57

YES

Haystead v Chief Constable of Derbyshire [2000] Cr App R 339

At the magistrates’ court, D pleaded guilty to assault on the woman and the neighbour, but not guilty to assaulting the child. His defence was that he had not applied force directly to the child. D was convicted and appealed.

Held: appeal dismissed. The Divisional Court found that on the facts there was a direct application of force.

=> clear causal link between D’s action in punching the woman and the consequence that force was applied to the child when it hit the floor. => No difference between what had happened and the use of a weapon to cause the child to fall to the floor (extension of oneself => direct assault)

BUT

Court recognised (obiter) that there can be a battery by the indirect application of force.

Question 58

Omission can lead to a battery if what element is present

Answer 58

creation of danger and exposure of someone to it

DPP v Santana – Bermudez [2003] EWHC 2908 (Admin)

Facts

D, an intravenous drug user, assured a WPC who was about to search him that he was carrying no ‘sharps’. The WPC carried out a search and in doing so stabbed her finger on a syringe D was carrying in his pocket. Although immaterial to the actual decision in the case, D’s blood tested positive for HIV and hepatitis C.

Question 59

D opened door of van in which there was a holdall containing valuable sub-aqua equipment

Answer 59

Husseyn 1978

Jury directed that if D were about to look into holdall && if in jurys opinion they were valuable => attempt (+)

BUT CA misdirection (+)

Grounds

<<cannot be said that one who has it in his mind to steal only if what hge finds is worth stealing a present intention>

<p>Held Huyssen only applied if speciifc item on indictment. </p>

<p>See also cinema case Easom</p>

<p>BEST To Put on Indictment:</p>

<p>"attempted to steal from a holdall" =&gt; would be + whwther anythign there to steal or not (or thing looking for was not in holdall)</p>

</cannot>

Question 60

Result Crime

Answer 60

a crime not complete unless and until the conduct of the accused had caused property belonging to another to be damaged or destroyed; some crimes also require that the accused casuses a particular prohibited consequence or result R v Miller [1983] 2 AC 161, [1983] 1 All ER 978

Question 61

Conduct Crime

Answer 61

crimes that prohibit conduct regardless of consequences

Question 62

Offences Against the Person Act 1861, 14

Answer 62

Whosoever shall attempt to administer to or shall attempt to cause to be administered to or to be taken by any Person any Poison or other Destructive Thing, or shall shoot at any Person, or shall, by drawing a Trigger or in any other Manner, attempt to discharge any kind of loaded Arms at any Person, or shall attempt to drown, suffocate, or strangle any Person, with Intent, in any of the Oases aforesaid, to commit Murder, shall, whether any bodily Injury be effected or not, be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years,—or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement.

Question 63

Criminal Procedure Act 1851, s9

Answer 63

If on the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried.

Question 64

fact pattern

Answer 64

Tatbestandmerkmale

Question 65

Kimsey [1996] Crim LR 35

Answer 65

Now, you do not have to be sure that the dangerous driving…was the principal, or a substantial cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a tri-fling link between the dangerous driving and the crash which resulted in Helen Osbourne’s death.”

Question 66

de minimis

Answer 66

slight or trifling link R v KImsey 1996

Question 67

dangerous driving did not have to be a substantial cause of the death.

Answer 67

Hennigan [1976] 3 All ER 133

Question 68

enough that the act contributed significantly to that result.

Answer 68

Pagett (1983) 76 Cr App R 279

Question 69

novus actus interveniens

Answer 69

intervention of a third person may be regarded as the sole cause of the victim’s death

Question 70

Kingston [1994] 3 WLR 519 R. v Kingston (Barry)

Answer 70

liability was found despite D only commiting the offence due to the wrongful acts of others. ORIG: jury were directed that a drugged intent was still an intent but quashed on appeal.

Question 71

offences with actus reus with no corresponding mens rea elements

Answer 71

A Strict offences. usually regulatory, EX: selling defective products B strict liability elements. if a partic. AR element does not require an MR => ‘strict’.. Contention: violates Autonomy principle

Question 72

R v K [2002] 1 AC 462

Answer 72

even tho statute had no mens rea element (indecent assualt from Sexual Offences Act 1956, s. 14)=> hoL ruled on appeal that there is a presumption that mens rea will be required even if statute silent.

Here: prosecution had to show that D knew V was under 16. And that the min. req. is recklessness G[2008] UKHL 37

Question 73

Mens Rea witjout a corrs. AR

Answer 73

ulterior mens rea.

Question 74

offence of theft

Answer 74

D must appropriate the property of another dishonestly and wit the intention to permanently deprive V of that property. The intention is an Ulterior MR element as it is not necessary that the permanent deprivation happens==> permanent deprivation not part of AR of offence

Question 75

Ulterior mens rea

Answer 75

What is it and find 2 offences where it is in evidence. MR w/o corresonding AR element

Question 76

Criminal Damange Act 1971, s. 1(2)

Answer 76

Offence to destroy or damage property intending or being reckless as to whether any property would be destroyed or damaged AND intending or being reckless as to whether the life of anothr would be thereby endangered. Min Req reckless as to endangerment of anothers life. Again does not matter if a persons life is endangered.

Question 77

Actus Reus elements

Answer 77

1 Conduct 2 Circumstance 3 Result (if [result crime])

Question 78

for certain crimes MR is adapted <= finding subjective MR is difficult

Answer 78

A Objectification, ex What would a reasonable person have done in Ds position? ex harassment - what D ought to have known. B Lack of positive belief, D must have positive and reasonable belief. Ex Rape MR D ‘does not reasonably believe that V consents’. So D will have MR if did not care V consented=> D did not believe V consented. OR if D did believe V consented => stil MR if a reasonable person would not have so believed when put in D’s position

Question 79

Cases relating to Dishonesty

Answer 79

Ivey v Genting Casisnos [2017] UKSC 67 before Ghosh 1982

Question 80

Ivey test

Answer 80

1. Wghat was actual state [whether certain knowledge is held or lacked by D] of D’sknmowledge or belief as to the facts. 2. [Objectieve] as to 1, was Ds conduct dishonest by standards of ordinary decent people?

Question 81

battery

Answer 81

offence of making contact with V with a corresponding intention or recklnessness as to that contact.

Question 82

Test for voluntariness

Answer 82

whetehr D had control over her conduct [act or omission] at the relevant time

Question 83

When is movement voluntary?

Answer 83

Obvious: when time to consider actions, instinctive action in a fight. Presumption of Voluntariness (to be rebutted)–Defences: unconscious, semi-conscious. under physical restraint from X ==> D omission to move. Reflex or Spasm. Except if reason [self-induced] ==??=> self-intoxication, or driving while tired. See [Defences]

Question 84

Malevolant passenger and involuntary movement

Answer 84

Bell [1984] 3 All ER 842

Question 85

Name some defences

Answer 85

automatism, intoxication, insantiy

Question 86

Why voluntary conduct is fundamental

Answer 86

Hart TB p98: “unless man has a fair opportunity to adjust his behaviour to the law, its penalties ought not to be applied to him”

Question 87

Exceptional cases where voluntariness not required

Answer 87

Larsonneur [1933] 24 Cr App R 74, Winzar v Chief Constable of Kent (1983) The Times, 18 March

Question 88

Winzar v Chief Constable of Kent (1983) The Times, 18 March

Answer 88

charged for being drunk on a public highway even though police put him there

Question 89

AR Circumstance element

Answer 89

any factual circumstances requyred to exist for the offence.

Question 90

AR Result element

Answer 90

any consequenecs of Ds action/omission required for the offence

Question 91

Mens Rea hierarchy

Answer 91

worst is Intention

Question 92

conduct v result crime

Answer 92

which prohibit conduct regardless of consequences are called X crimes

Question 93

No factual causation

Answer 93

R v White [1910] 2 KB 124

Question 94

More than minimal cause

Answer 94

LEGAL CAUSATION. Kimsey [1996] Crim LR 35 OR Pagett (1983) 76 Cr App R 279 contribute significantly

Question 95

Benge (1865) 4 F & F 504

Answer 95

actions of third parties in establishing/breaking chain of legal causation. foreman of a train crew. lots of people involved in accident

Question 96

Explaining Oblique Intention

Answer 96

If D plces bomb n hold for intention of blowing up some insured items with the intention of gaining from insurance => DIrect Intention (-) but Oblique Intention (+) because it was virtually certain consequence that there were deaths on plane as the result of her act AND D realised as such. See Woollin [1998] 4 All ER 103

Question 97

actus non facit reum nisi mens sit rea

Answer 97

the act and the act must both concur to constitute the crime

Question 98

If D approaches V from behind or V is asleep or V very young….

Answer 98

V cannot apprehend that he is about to be struck => no assault. Yet Battery if actually hit ==>assault != always != attempted battery ALSO may be D’s intent to ‘scare’ V only.

Question 99

Definition of Battery in Fagan v MPC

Answer 99

A battery is any act by which D, intentionally or recklessly, applies or inflicts unlawful personal violence upon another person.

Question 100

Definition of Assault in Fagan v MPC

Answer 100

An act (causing) / apprehension by another person / immediate / unlawful personal violence (force)

Question 101

dictionary meaning of apprehend

Answer 101

anxiety or fear that something bad or unpleasant will happen OR understanding; grasp. Legal under Assault means expect

Question 102

D looking thru the window of a bed seting room at V in her nightclothes with intent to frighten her

Answer 102

Smith v Chief Supt. Woking Police Station (1983) 76 Cr. App. Rep 234 Asssault(+) shows that immediate wide interpretation. CF COnstanza

Question 103

Assault Occasioning Actual Bodily Harm

section of OAPA 1861?

AR

MR = as per assault OR battery

Answer 103

s.47

AR of (psychic) assault or (usually) battery that occasions ABH

Case where assault if V injures himself in making reasonable espcae attempts after being subjected to psychic assault.

Question 104

**Occassioning** ABH

case and test?

Answer 104

R v Roberts 1971

Here D tried to take off Vs coat in a moving car whereupon V jumped out.

V’s act is reasonably foreseeable

QN for occassioning is causation objective test

would apply if no reasonable person could be expected to forsee the chain of causation would be broken

Savage and PArmenter confirming Roberts

Question 105

What is ABH? Which cases

Answer 105

Miller 1954

<<any hurt or injury calculated to interfere with the health of comfort victim>></any>

Need not be really serious. Otherwise that would be GBH (DPP v Smith 1961)

Must be <<more than transient and trifling>> (T v DPP)</more>

Question 106

Is loss of consciousness ABH?

Answer 106

Yes

T v DPP 2003

since conscious => ABH(+) => no physical PAIN necessary ==> ABH (+)

Question 107

Is cutting off hair ABH?

What about neurotic disorders?

Answer 107

HAIR?

yes no need to be permanent. Fact hair will regrow is irrelevnat.

NEUROTIC?

Yes because bodily means “concenred with the body” => encompasses all parts of bodt inclding nervous system and brain BUT NOT brain functions (fear and anxiety)

Question 108

CPS Charging Standard Link

Answer 108

https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard

BUT

These charging standards are a matter of practice and do not have the force of law.

The Charging Standards state s.47 should be charged where there is loss or breaking of teeth, temporary loss of sensory functions, extensive or multiple bruising, displaced broken nose, minor fractures, minor (but not merely superficial) cuts of a sort probably requiring medical treatment (e.g. stitches) or psychiatric injury more than mere emotions such as fear, distress or panic.

Question 109

LGS 11 KEY POINTS:

Answer 109

Psychic assault (Fagan v MPC)

AR - An act (causing) / apprehension by another person / immediate / unlawful personal violence (force)

MR - Intention or recklessness as to causing apprehension by another person of immediate unlawful personal violence (force) (Venna)

Battery (Fagan v MPC)

AR - An act by which D applies unlawful personal violence (force) on another

MR – Intention or recklessness as to applying unlawful personal violence (force) on another (Venna)

S.47 Assault occasioning actual bodily harm

AR - AR of psychic assault or battery / Occasioning (causing) / ABH (Miller; T v DPP)

MR - MR of psychic assault or battery (coinciding with AR) (Roberts; Savage and Parmenter)

Question 110

Wounding and Inflicting GBH s.20 OAPA 1861

Answer 110

whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence, and being convicted thereof shall be liable… to imprisonment… not exceeding [five] years.

There are two alternative ways of committing the actus reus of this offence:

1. Malicious wounding

OR

1. Maliciously inflicting GBH

Question 111

Authorities on GBH?

Answer 111

effectively ordinary natural meaning

<> DPP v Smith 1961 and ordnary meaning of word

Or at least “serious”

Janjua and Choudhury [1999]1 Cr App R 91

deep stab wounds caused by a knife with a 5½ inch blade

BUT R v Bollom 2004

extensive bruising and abrasions on baby not GBH

=> assess injuries taking victim into account

Question 112

depression and GBH?

Answer 112

Ireland and Burstow [1998] AC 147

Assuming Depression a Serious psychiatric injury and expert evidence => severe deprssion was GBH +

Question 113

CPS Charging standards on GBH

Answer 113

injuries resulting in permanent disability

or loss of sensory function,

non-minor permanent visible disfigurement, broken or displaced limbs or bones, injuries

which cause substantial loss of blood

and injuries resulting in lengthy treatment or incapacity.

Question 114

Inflict GBh (v cause GBH s.18)

Answer 114

Based on Salisbury 1976 VR 452

inflict has a narrower meaning that cause and requires <<force being violently implied on body of the v>> </force>

BUT where infliction of psychatric injury cannot be this narrow

so GBH + in Burstow and Ireland 1998also Steyn here: <<no radical divergence in meaning>> </no>

==> ‘Inflict’ should be interpreted in the same way as ‘cause’

Question 115

Perching precariously on a low railing over a crowded dancefloor => s.20?

Answer 115

Brady

rendered V paralysed.

AR is Ds whole conduct in perching and resultant harm to V on dance floor. Falling and losing balance does not break causation.D had been reckless/malicious about this very falling.

Question 116

S.20 AR of Wounding

Answer 116

Charging Standards: Minor wounds ==> wound-

Eisenhower 1984

DC held that for a ‘wound’ both the inner and outer skin must be broken’ or

<<continuity of whole skin must be broken>> S+H </continuity>

Question 117

Air pellet caused internal rupruting of blood vessels and not beak of skin- wounding as s.20 OAPA 1861?

Answer 117

NO

C(A Minor) v Eisenhower 1984

Question 118

Ds stafforshire terrior attached V and D failed to call the dog off. Wounding with intent to do GBH, ie s.20?

Answer 118

Marsh 2012

YES

==> offence can be committed indirectly (think police man car run over case) == by omission?

Question 119

What does malice mean in s.20 OAPA 1861?

Answer 119

Malice or maliciously has nothign to do with ill-will or spite.

Mowatt [1967] 3 WLR 1192.

maliciously == intentionally or recklessly

Question 120

Definition of Cunningham (1957) recklessness

Answer 120

<<the accused has foreseen that the particualr kind of harm might be done and yet gone on to take risk it>></the>

and this also applies whenever malice appears

subjective test

BUT
no longer since R v G?

==> need to include G definition of recklessness

BUT

also includes whether unjustifiable for D to take that risk

Question 121

R v G G definition of recklessness

Answer 121

If he intends ot foresees a risk and takes that risk unjustifiably

Question 122

What did Diplock say in Mowatt 1968

Answer 122

Sufficient to prove that D foresaw some harm might result and took the risk unjustifably

==foresaw some bodily harm to some person, albeit of a minor nature, might result from his actions.

Confirmed in R v Brady [2007]

where it was enough to see ‘a’ risk of bodily harm rather than a <‘obvious and serious risk> of harm

Question 123

What was Savage and Parmenter 1991 HL about?>

Answer 123

RATIO

It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result.

FACTS

CASE 1 Ms. Savage threw beer over her husband’s ex-girlfriend in a bar. Yet, while doing so, the glass slipped out of her hand resulting in the victim’s wrist being cut. She claimed that she had no intention to harm her with the glass, yet was convicted for inflicting grievous bodily harm.

CASE 2 Mr. Parmenter had injured his new-born son, yet claimed that he had done so accidently as he had no experience with small babies. Mr. Parameter was also convicted of inflicting grievous bodily harm.

Question 124

s. 18?

Answer 124

S.18 OAPA 1861: Whoever shall unlawfully and maliciously wound or cause grievous bodily harm to any person by any means whatsoever…with intent to do some…grievous bodily harm or with intent to resist or prevent lawful apprehension or detainer…. may be sentenced to life imprisonment.

The AR of s.18 is identical to that of s.20, except for the use of the word ‘cause’ rather than ‘inflict’.

Question 125

s.18 MR?

Answer 125

With intent to do GBH OR with intent to resist arrest or prevent the lawful apprehension or detainer of any person

Intent = as in Murder

which is

D acted in ordr to cause GBH OR if not his purpose (=intent) +>

he knew that GBH was a virtually certain consequence of his act.

Question 126

Does an intention to kill necessarily include an intention to cause GBH?

Answer 126

YES Grant 2014 EWCA

Question 127

MR of s.18

Answer 127

The MR of s.18 is the same regardless of whether D has wounded V or caused him GBH. In every s.18 case, the prosecution must prove an ulterior intent: either intent to do GBH or intent to resist arrest. Recklessness is not enough.

Question 128

When is maliciously considered for a s.18 offence?

Answer 128

alleges intent to resist or prevent the lawful apprehension or detainer, == D intended to resist arrest AND wounded or caused GBH ‘maliciously’,

i.e.

that not only did D intend to resist arrest etc., but that D also intended or was reckless as to the risk of some harm

NOT for causing GBH or wounding with intent to do GBH

because intent to do grievous bodily harm must include include foresight of the possibility of some bodily harm

Question 129

A uniformed police officer is about to lawfully arrest D’s mate. D gently takes hold of the policeman’s jacket to stop him arresting his mate. The policeman trips, falls and cracks his head open on the pavement, resulting in a fractured skull.

D intends (it his aim or purpose) to prevent that lawful apprehension of his friend. He therefore has the required intent.

In addition, he must act maliciously – he must intend or be reckless as to some bodily harm. He ‘gently takes hold of the policeman’s jacket’. There is no evidence that he intended any harm (direct or indirect intention) or that he realised a risk that the policeman would be harmed.

Therefore, although he intends to prevent the lawful apprehension of his friend, he

Is D guilty of causing GBH with intent to prevent the lawful apprehension of any person, contrary to s.18 OAPA?

Answer 129

D intends (it his aim or purpose) to prevent that lawful apprehension of his friend. He therefore has the required intent.

WATCH LGS 12

Question 130

How to address Problem Question?

Answer 130

1. since OAPA covers result crime

=>consider result ie seriousness of injjuries if any

=> start at most serious offence given injury and work down to least serious

Question 131

What are charged under s. 39 Criminal Justice Act 1988?

mechanism for charging only

Answer 131

[Technical Assault and Battery] Σ Assault

Question 132

for result based crimes need to establish…

Answer 132

causation

Question 133

When an assault act can be an ommission?

Answer 133

when D creates a situation he does not remedy

Question 134

Does a conditonal threat === assault?

Answer 134

Read v Coker 1853

D surrounded V threatened him to break his neck if did not leave premises.

==> Assault +

Supported by Ansell v Thomas 1974

Threat to throw someone out unless they left premises => assault +

Blake v Barnard 1840??

presenting a pistol at s.os head would blow his brains out if not quiet.

D knew that C did not know that gun was unloaded

D wished to cause fear => assault +

Question 135

interp. of immediacy by courts

Answer 135

tends to be wide, subjective and objective

Constanza 1997

assault actual ABH(+) => Tech Assault/Batt(+)

first harassing phone calls, letters | final letter hand-delivered

<<at some point not excluding immediate future>></at>

Confimed by

Smith v Chief Super of Woking 1983

looking thru bed sit window at 11pm => tech assault +

Variant

D: Next month I wil.. => immediate -

Question 136

R v G recklessness Test

Answer 136

Was D aware of the risk that their conduct may cause V to apprehend immediate and unlawful personal violence and was it unreasonable in circumstances for D to take that risk?

Question 137

Difference Tech Assault v Battery

Answer 137

Tech Assault no contact

Question 138

Personal Violence in Assault

Answer 138

personal violence in Assault and Battery

since line cannot be distinguished between different degrees of violence ==> must prohibit lowest form of it==> noone has the right to meddle with another in the slighest manner.

==> force needed but no harm needed.

==> hostility -

==> Ommission OK if continuing act Fagan v MPC

“If the act is a continuing act there is a continung threat to inflict unlawful force. If assault is battery && that battery continues => continuing act of assaut ==> assault +

(also consider whether this means Ommissions => assault(+)? AND Miller squatter set fire and moved to other room.=> Duty to remedy a danger. Ommission here => Assault

=> Indirect force? (+)

DPP v K

acid in hairdryer => assault occ. ABH(+)

if use extension of me => direct(+)

dug a pit for so to fall into/obstacle => ex Martin in theatre => assault

Answer 139

R v Miller

squatter set fire and moved to other room.=> Duty to remedy a danger. Ommission here => Assault

Fagan v MPC

Where D creates a danger => duty to remedy danger. Omission to remedy danger => Assault(+)

Also DPP v Santana Burmudez 2003

sharps

Question 140

Case where Assault occasioning ABH s.47 OAPA based on assault (not usual battery)?

Answer 140

Roberts 1971

women passenger pushed out of car moving => injury

Question 141

What does occasion mean in a s.47 offence?

Answer 141

== cause => *factual and legal causation* (EOC LGS 2) needed (objective test)

But for Test factual

Break of CoC? legal

Question 142

Definition ABH . Authority

Answer 142

Miller 1954

Any hurt or injury calculated to interfere with the health or comfort of victim

AND

R(T) v DPP 2003

More than transient and trifling

Question 143

Authority for psychiatric injury for ABH

Answer 143

Ireland and Burstow 1998

MUST result in some identifiable clinical conditon, ex clinical depression (here)

expert psychiatric evidence needed.

Question 144

MR of s.47 OAPA

No requirement that D..

Answer 144

No requirement that D..has to intend or forsee the additjonal harm for which he is punished over and above an assault or battery

Question 145

GR on Consent and OAP

Answer 145

==> negates liability for assault/battery

With serious offences like ABH

AGS Ref No 6 1980

“starting point contrary to will and without consent of V”

“persons consent is irrelevant”

Brown 1994

Sadomasochistic homo acts | mutual sexual pleasure ==> guity s.47 s.20

Question 146

battery everyday acts deemed consent

Answer 146

Collins v Wilcock 1984

as per GOFF LJ

Question 147

Sadomasochistic homo acts | mutual sexual pleasure ==> guity s.47 s.20?

Answer 147

(+)

R v Brown 1994 HoL

grounds:

Not in public interest to have people cause each other injury for no good reason.

BUT exceptions on PUBLIC POLICY GROUNDS

Surgery ==> consent avoids Drs liability (+) ALL treatments, also non essential

Body modification (piercing, tattooing)

Religious flagellation!

Sports

Horseplay

(unclear) sexual pleasure

Question 148

Body modification (piercing, tattooing)

Answer 148

R v Wilson 1996

Branding initials on wifes buttocks. Wife consented => analogy with tatooing => lawful +

tongue splitting

by ‘Dr Evil’: Wolverhampton tattooist consent + licenced -=> guilty GBH+ CA

Question 149

Horseplay and consent

Answer 149

unlawful sport. Usually > 10 yo also adults

GR consent recognised

R v Jones 1987

giving bumps.

CA: consent IS a defence to “rough and undisclipned play” where no intention to cause injury

R v AItken 1992

RAF officers

Hazing Setting fire to each other. previous acivities OK. V seriously burned. Recognised Consent as defence

Students

Richardson and Irwin 1999

Students drunk dropped P over a balcony => horseplay consent +

Question 150

When is Consent invalid?

Answer 150

V lacks capacity to consent AGE Mental incapacity

Durress or fraud

taking on identity of another

Question 151

when can fraud invalidated given consent? Doctors cases

Answer 151

Dentist lying about qualifications Richardson 1998 => Invalid consent (-)=> Consent (+)

BUT

Tobassum 2000

Fraud as to nature and quality of D’s conduct as is D purporting to be carrying ut a breast cancer study and D not medically qualified but V thoght he was => Invalid consent (+)=> Consent (-)

Question 152

D had unprotected sex with V and infected V with HIV. D did not inform V had diseases.

Answer 152

R v Dica 2004

V had consented to intercourse but not risk of infection => consent gained thru fraud => invalid consent + => consent -

Confirmed by Konzani 2005

HIV | D aware of it did not inform V

=> s.20 CPA +

=> consent defence -

“because of lack of information, V had not consented to risk of contacting HIV”

“criical distinction between taking a risk of the various potentially adverse and possibly problematic consequenecs of sexual intercourse and giving inforemd consent to risk of infection of a fatal disease”

(would anyone ever do that?)

(Charlie Sheen?)

Variant

If V was informed that D had STD==> valid consent +

Question 153

Self-defence General Principle

Answer 153

D may only use such force as is reasonable in all the circumstances as D believed them to be.

=> up to protsecution to disprove self-defence if D adduces evience of it (WIlliams 1983)

Question 154

5 Situations where self-defence may apply

Answer 154

1. Defend himself v attack=physical harm*

2 defend others v attack=physical harm*

3 defend property*

4 prevent a crime

5 effect lawful arrest

*common law

+ s.3 Criminal Law Act 1967

BUT Irrelevant a per McInnes 1971

Question 155

D actng in self-deence against attack by person under age of criminal responsibility => self defence +?

Answer 155

Technically -

because kid + ==> crime - => prevention of crime -

s.3 Crminal Law Act 1967

3 Use of force in making arrest, etc

(1) 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.
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

Question 156

Issues when deciding whether reasonable force used as part of self-defence

Answer 156

1 was there a need to use force?

based on facts as D believed them to be

Gladstone Williams 1984 in conjunction with CJIA s.76(4)

D did believe honestly (even if mistaken) that force was necessary

=> self defence +

2 was it reasnable?

Question 157

When reasonable for D to make a pre-emptive strike?

Answer 157

AGS reference no 2 of 1983

Beckford v R 1987

==> must be apprehension == expection of an imminent attack

==> if D then mistaken => look at facts as D believed them to be => and that this belief was HONEST

Question 158

Can a D who was initial aggressor ever plead self-defence?

Answer 158

R v Rashford 2006

Question was whether realiation was such that was entitled to defend himself?

Question 159

w self-defence which Act?

Answer 159

CJIA s.76

Question 160

Definition Self Control

Answer 160

loss of control means a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning

Smith & Hogan

as put forward in R v Jewell [2014] EWCA Crim 178 the Court of Appeal

==> seem clear that the loss of self-control does not have to be ‘complete’

=> defendant does not know what he is doing

=> D would lack the mens rea for murder

=> absurd result

=> Therefore: sufficient that he could not restrain himself from doing what he did.

==> D must have lost their self-control at moment the act leading to death carried out.

Question 161

losing temper == loss of self control?

Answer 161

R v Dawes [2010] EWCA Crim 322,

(-)

<unless></unless>

Question 162

What if loss of

self-control has been delayed or builds up gradually

Answer 162

. It may also follow not from just one event but from a ‘cumulative impact’ of earlier events (see R v Dawes [2013] EWCA Crim 322)

still a partial defence (+)

Question 163

Defendant said he thought that workmates (including the victim) might be plotting to do him harm culminating in the victim saying ‘one more evening and you’re dead’. After this the defendant went home, showered and changed, then visited his father and borrowed a gun. He then prepared a ‘survival pack’, left a note asking his neighbours to take care of his cat and then some 12 hours after the statement by the victim the defendant shot him twice

Answer 163

R v Jewell [2014] EWCA Crim 144

The court decided there was not sufficient evidence of loss of control because delay was too great

==> backed up by

Lord Judge CJ in Clinton R v Clinton; R v Parker; R v Evans [2012] EWCA Crim 2

<in></in>

=> likely to remain (with New Act) that longer the delay between the alleged trigger for the loss of self-control and the defendant’s alleged loss of self-control itself => more likely defence not be made out.

Question 164

D. mercifully suffocating his terminally ill wife (at her request) showed control by the fact that he stopped when he (wrongly as it turned out) thought she had changed her mind.

Answer 164

Cocker!!

Stop-start

Question 165

D.s plan to attack a man who had been subjecting them to violence, a week after the last incident. Victim died.

Answer 165

Planning and defence

Ibrams and Gregory

HELD: <in></in>

=> but old law likely to still apply?

Question 166

If pre meditated act +> defence of loss of sudden control?

Answer 166

s.54 (4) Coroners and Justice Act 2009

=> loss of control if it had been a pre meditated act => not sudden

=> not defence

=> like old law

=> but slow burn v revenge?

Question 167

What are the Qyualifying Triggers?

Answer 167

1. Fear of serious violence from the victim against the defendant or another identified person (s.55 (3)).

=> (explanatory notes to the Act) Fear is judged subjectively. a threat of serious violence to D or another identified person which D fears.

=> BUT 55(6) (a) does not apply if D caused V to act this way <to></to>

R v Dawes

<the></the>

2. extremely grave circs causing justifiable sense of feeling seriously wronged (s.55 (4)).
   * You should be able to identify the thing ‘done or said’ that potentially constitutes circumstances of an ‘extremely grave’ character etc.

=> no requirement that the thing done or said be aimed at the D

=> No guidance on ‘extremely grave character’ or objective or subjective test

=> BUT R v Dawes [2013] EWCA Crim 322 objectively.

=> R v Zebedee [2012] EWCA Crim 1428 give some examples as to what would not be considered sufficient.

• This must have caused the defendant a ‘justifiable sense of being seriously wronged’ In R v Clinton Lord Judge CJ was of the view that the defendant himself must have felt seriously wronged (subjective) but there must be an objective evaluation of this. It is unclear whether this will be a totally objective test or whether any of the accused’s characteristics can be taken into account.
• There are two circumstances where someone who loses their self-control due to something being done or said is specifically excluded from being able to rely on the defence. These circumstances are set out in s.55 (6) (b) and (c).
  i) Section 55(6) (b) applies to the situation where the defendant incites the thing done or said in order to give himself an excuse to use violence against the victim. Such a defendant cannot rely upon the defence. Section 55(6)(b): a sense of being seriously wronged by a thing done or said is not justifiable if the defendant incited the thing to be done or said for the purpose of providing an excuse to use violence. This mirrors a similar provision relating to the fear of violence trigger. (See comments earlier from R V Dawes.)
  ii) The second set of circumstances is where a defendant reacts to sexual infidelity by killing. Such a defendant cannot rely upon the defence to reduce a murder conviction to manslaughter: section 55(6) (c).

The explanatory notes state that it is the ‘fact’ of sexual infidelity that must be disregarded and that something connected to the infidelity may still be the basis of a qualifying trigger, such as the discovery of incest.

This provision was the main focus of the consolidated appeals in R v Clinton; R v Parker; R v Evans. Each defendant had been charged with the murder of his wife and subsequently convicted. Each had attempted to use the loss of control defence and it had either been rejected by the jury or, in the case of Clinton, the judge ruled there was insufficient evidence to support the defence. In the case of each of them the sexual infidelity of his wife had formed at least the basis of his defence.

One of the problems in this provision is the lack of definition of sexual infidelity. The essential question which the court looked at was whether the subsection only excluded sexual infidelity from consideration where it was the only trigger for loss of control or whether it was also excluded when it arose for consideration in the context of another or a number of other features which might have constituted a qualifying trigger. An example looked at in the case was that of a defendant who comes home to find his/her spouse having intercourse with someone and when the defendant remonstrates about this his/her spouse responds by shouting, screaming and deliberately taunting the defendant. The act of infidelity on its own would be excluded but can the defendant rely upon the verbal abuse and taunts and use the context in which they were said (the discovery of the sexual infidelity) to explain their effect?

In relation to the specific issues raised the Court decided that if sexual infidelity is the only potential trigger it will be excluded from consideration. However where the defendant raises other issues, for example things alleged to have been said or done which constitute circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged, the context in which these things are said or done will be important. Therefore:

“where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly fails within the ambit of subsections 55(3) and 55(4), the prohibition in section 55(6)(c) does not operate to exclude it” – Lord Judge CJ in R v Clinton

Put simply, if sexual infidelity is the sole cause of the LOSC, it will not be a qualifying trigger, but if something else is the cause and infidelity is the context, it can be taken into account. This will very often be the case. As Ormerod notes: “D will claim the thing that caused him to lose self-control in extremely grave circumstances having a justifiable sense of being seriously wronged was not the sex but, for example, ‘the fact that V threatened to take the kids’ or ‘the fact that she taunted me about my erectile dysfunction’ or ‘the fact that she smashed up my prized possession as she was leaving’ etc.”

(David Ormerod, Smith and Hogan’s Criminal Law)

3 Combination of 1,2,

Question 168

1. Approach to loss of control questions.

Answer 168

• What has D been charged with?

Loss of control is only relevant if the charge is murder.

• Does D have the mens rea for murder?

If not, there may either be a complete defence or a conviction for involuntary manslaughter to which the defence of loss of control does not apply.

• Has D lost their self-control?

Apply the subjective test; identify the facts which support a loss of self control.

• Did Ds loss of self control have a qualifying trigger?

If so, identify what.

Did D fear serious violence from the victim against either himself or another identified person?

Was something done or said which constituted circumstance of an extremely grave character and caused D to have a justifiable sense of being seriously wronged?

Acts or words will suffice and they do not necessarily need to have been directed at the defendant.

• What about the ‘objective’ requirement?

Is there anything about D which should be taken into account?

For what purpose may you do so?

How did D react?

Question 169

The defendant strangled a young girl in the YWCA hostel in Birmingham. The medical evidence was to the effect that the defendant was a sexual psychopath who from an early age had been subject to perverted violent desires which he found difficult to control.

Dimished Responsibility?

Answer 169

Byrne 1960 (old law but likely applicable in determining abnormality of mental functioning)

YES

The Court of Appeal quashed his conviction for murder and substituted one of manslaughter.

Lord Parker, C J in the Court of Appeal

‹Abnormality [of the mind] … means [a state of mind] so different from that of ordinary human beings that the reasonable man would term it abnormal.›

==› probable that the term ‘abnormal’ will be understood in the same way in respect of the new requirement of abnormality of mental functioning.

Question 170

What is a recognised medical conditionwith respect to S.2 Homicide Act 1967?

Answer 170

Recognised medical conditions include paranoia, schizophrenia, irresistible impulse, delusions and autism, but not immaturity.

Is this less exhaustive?

Could be narrower than old law.

==› Under the ‘old law’ there were instances of doctors giving ‘unusual’ diagnosis (i.e. not universally recognised) as the basis of DR.

==› Consider Dowds noted (paras 29-32), the “recognised” international textbooks on medical conditions (ICD and DSM) include an awful lot of things which it would be very strange to allow people to use as an excuse for murder. For example, pyromania, anger and paedophilia are all listed in these books.

==› The Dowds case did not itself involve those kinds of conditions, but the court provided a note of caution:QUOTE They may well be a medically useful description of something which underlies the vast majority of violent offending, but any suggestion that it could give rise to a defence, whether because it amounted to an impairment of mental functioning or otherwise, would, to say the least, demand extremely careful attention. ===› the medical classification begs the question whether the condition is simply a description of (often criminal) behaviour, or is capable of forming a defence to an allegation of such.QUOTE

Question 171

What is substantial impairment in s.2(1)(b) iof Homicide Act 1957?

Answer 171

the impairment need not be total but it must be more than trivial or minimal

In Lloyd [1973] 1 All ER 107

BUT may be too easy to show

So

Golds [2016] UKSC 61, by setting out two potential meanings of “substantial”:

#As a matter simply of dictionary definition, “substantial” is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance# (-)

or (2) important or weighty, as in a substantial meal or a substantial salary (+) #

Preferred 2nd

#It is just that where a substantial impairment is demonstrated, the defendant is convicted of the lesser offence and not of murder. But it is appropriate, as it always has been, for the reduction to the lesser offence to be occasioned where there is a weighty reason for it and not merely a reason which just passes the trivial.#

Question 172

What if the abnormality arises solely from intoxication through drink or drugs?

Answer 172

R v Dowds [2012] EWCA Crim 281

Appellant was a 49 year old college lecturer. Over the weekend of 19/21 November 2010 he killed his partner of about 18 months at the house which they shared. He inflicted approximately 60 knife wounds to her, chiefly stabs and chiefly about the neck, where he severed the carotid artery causing injury from which she would have died within seconds.

Appellant did not contend that he was an alcoholic or clinically dependent on drink. He said he was a heavy but elective drinker and was intoxicated at the time of the offence.

At the outset of the trial the judge was invited to rule whether or not simple voluntary and temporary drunkenness was capable of founding the partial defence of diminished responsibility. He ruled that as a matter of law it could not and in consequence, diminished responsibility was not raised before the jury.

The defences put before the jury at trial were that he lacked the mens rea for murder and loss of control. Both were rejected by the jury ⇒ Murder +

Appeal

Ground that diminished responsibility was relevant and should have been left to the jury. Appellant contended that the amendments to s.2 mean that voluntary and temporary drunkenness may now give rise to diminished responsibility because acute intoxication is a “recognised medical condition.

There is a lengthy discussion in the judgment as to the meaning of a recognised medical condition and in particular the breadth of conditions covered by the two accepted international classifications of medical conditions.

Held

⇒ fell back onwell established rule (on policy grounds) that voluntary acute intoxication is not capable of being relied upon

⇒ Here intoxication voluntary and uncomplicated by any alcoholism or dependence

⇒ Same conclusions in relation to the effects of the voluntary ingestion of other drugs or substances.

⇒ Did not matter that voluntary intoxication might have been listed as a medical condition in the International Statistical Classification of Diseases (ICD).

⇒ THEREFORE presence of a ‘recognised medical condition’ is a necessary but not sufficient condition

Question 173

What if the abnormality arises from two or more conditions, one of which is a recognised medical condition and the other of which is intoxication through drink or drugs?

Answer 173

The defendant can still rely on the defence of diminished responsibility if the jury take the view that, despite the drink or drugs, the defendant’s ability to understand the nature of his conduct / to form a rational judgement / to exercise self-control was substantially impaired by the abnormality of mental functioning arising from a recognised medical condition and that this provided an explanation for his being party to the killing.

⇒ because s.2 (1B) does not require the abnormality of mental functioning arising from a recognised medical condition to be the sole cause of the killing.

⇒ This is the case even if the defendant would not have killed but for being intoxicated.

⇒ Dietschmann

R v Dietschmann [2003] UK HL 10; [2003] CLR 550. HoL, OLD

⇒Stewart [2009]

⇒ Kay [2017]

⇒ Joyce [2017].

In these cases the jury have to decide whether any abnormality of mental functioning remaining - after the jury have discounted the intoxicant - substantially impaired his ability in the specified respect and provided an explanation for his acts.

Lord Hutton suggested the following direction to the jury in cases such as these:

<assuming that the defence have established defendant was suffering from mental abnormality as described in s.2 important question is: did substantially impair his responsibility for acts doing killing you know before he carried out had a lot to drink. drink cannot be taken into account something which contributed and any impairment of arising abnormality. but may take view both played part impairing might not killed if then decide is this: has satisfied despite impaired fatal or failed satisfy will find him guilty murder manslaughter.>NOT satisfied you of that ⇒ NO defence of diminished responsibility> (page 913)</assuming>

⇒This approach is not easy for the jury to apply, but it does recognise the moral difference between a killer who is simply intoxicated and a person with an abnormality of mental functioning arising from a recognised medical condition that kills whilst intoxicated.

Question 174

What if the defendant bases a plea of diminished responsibility on their condition of alcoholism?

Answer 174

R v Stewart [2009] EWCA Crim 593

If the defendant was not suffering from an abnormality of mental functioning then the defence will fail.

If he was, then the jury must consider whether the defendant’s ability to do one or more of the things specified in s.2(1A) at the material time was substantially impaired as a result and whether this provides an explanation for his act in killing.

Until this matter comes before the courts it is unclear which factors will be relevant when applying this latter test, but the extent to which the defendant was able to choose when and what to drink is likely to be highly relevant. This would be consistent with caselaw in respect of the old section 2.

Question 175

Alcoholism and partial defence of involuntary manslaughter

the Court of Appeal clarified an aspect of the approach in R v Woods, stating that it did not require the jury to ‘separate out each and every drink consumed by the defendant and decide whether it was taken voluntarily or involuntarily’.

When considering whether the defendant was suffering from an abnormality of mind at the time of the killing, the jury will need to consider ‘the nature and extent of the syndrome and whether, looked at broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink’.

If the defendant was not suffering from an abnormality of mental functioning then the defence will fail.

Answer 175

R v Stewart [2009] EWCA Crim 593

pre 2009 CJA

f the defendant was NOT suffering from an abnormality of mental functioning then the defence will fail.

If abnormality of mental functioning+ → the jury must consider whether the defendant’s ability to do one or more of the things specified in s.2(1A) at the material time was substantially impaired as a result and whether this provides an explanation for his act in killing.

⇒ extent to which the defendant was able to choose when and what to drink is likely to be highly relevant as consistent with caselaw in respect of the old section 2.

Question 176

Who has the burden of proving defence of deminished responsiblity?

Answer 176

the burden of proving the elements of the defence of diminished responsibility on the balance of probabilities.

Question 177

More information about expert opinion and DR

Answer 177

Nicholas Hallett, ‘Psychiatric evidence in Diminished Responsibility’ Journal of Criminal Law (2018), pg. 1.