Criminal Law Flashcards
Assault
An act which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused.
Ø ACTUS REUS - Must be an act. Can be words or gestures, or even silence! Constanza, Ireland
- The fear of force must be immediate/ ‘imminent’. Smith v C WPS-
- Words MAY negate violence Tuberville v Savage, Light
- The force threatened must be unlawful force. (No implied consent)
Ø MENS REA - Intention OR recklessness to cause fear of immediate, unlawful personal violence.
- It is a basic intent crime. If D is intoxicated when he does the AR he is considered as being ‘reckless’.
Battery
The application of unlawful force to another person intending either to apply unlawful physical force to another or recklessness as to whether unlawful force is applied
Ø ACTUS REUS - Force through a touch that is beyond the ‘everyday’ norm. Collins v Wilcock,
- Touching clothing can be sufficient, Thomas
- Force can be indirect, such as a booby trap, Martin, DPP v K
- Force can be committed through an omission but only if the D is under a duty to act, DPP v Santa-Bermudez
- Force applied must be unlawful. If the V gives genuine consent to the contact, then the force may be lawful. Force used in self-defence may also be lawful if reasonable.
Ø MENS REA - Intention OR recklessness for the unlawful force on another person.
- It is a basic intent crime. If D is intoxicated when he does the AR, he is considered as being reckless.
Actual bodily harm
An assault or battery which causes actual bodily harm, with the intention to cause the victim to fear unlawful force, or to subject unlawful force, or to be subjectively reckless as to whether the victim fears or is subjected to unlawful force.
Ø ACTUS REUS - There must be an assault/ battery
- The assault/ battery links by factual and legal causation to an injury (actual bodily harm).
- The physical injury must interfere with the health and comfort of the victim, Miller, T vDPP, DPP v Smith
- Psychiatric injury is classed as ABH but it must be more than ‘mere emotions such as fear, distress or panic’. Chan Fook
Ø MENS REA - Intention OR recklessness for the assault or battery only.
- D does not need to intend the actual bodily harm. Roberts, Savage
Grevious bodily harm s20
“Whoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence and shall be liable….to imprisonment for not more than five years”
Wounding OR GBH = charged under s20 OAPA 1861
Ø ACTUS REUS - Wounding means a cut or break in the continuity of the whole skin (deep cut). JCC v Eisenhower, Wood
- Must be beyond a few stitches. It must require extensive medical treatment or leave permanent disability.
- Grievous Bodily Harm means ‘Really serious harm’ (DPP v Smith). ‘Serious harm’ varies according to age and health of V. Bollom
- Psychiatric injury can be classed as grievous bodily harm. Burstow
- Transmitting a disease can also be classed as grievous bodily harm, Dica
Ø MENS REA - Intention or recklessness to cause ‘SOME harm’ to the victim.
- No ill will towards the V is required despite the word ‘malicious’! Cunningham
- There is no need for the D to foresee risk of serious harm, only need to foresee SOME harm. Parmenter
Grevious bodily harm s18
“Whoever 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”
GBH = charged under s18 OAPA 1861
Ø ACTUS REUS - Wounding means a cut or break in the continuity of the whole skin (deep cut). JCC v Eisenhower, Wood
- Must be beyond a few stitches. It must require extensive medical treatment or leave permanent disability.
- Grievous Bodily Harm means ‘Really serious harm’ (DPP v Smith). ‘Serious harm’ varies according to age and health of V. Bollom
- Psychiatric injury can be classed as grievous bodily harm. Burstow
- Transmitting a disease can also be classed as grievous bodily harm, Dica
Ø MENS REA - This is a specific intent crime, recklessness is NOT enough.
- The intention must be for GBH (wounding not enough on its own) Taylor
- Where the D is trying to resist arrest or detention then the level of intention required is lower. Must have specific intent to resist arrest/detention but can be reckless as to wound/injury caused, Morrison
murder
Murder is the most serious criminal offence
and it is still a common law offence. This
means that it has not been defined by an Act of
Parliament. It has been defined by judges in
different cases and the accepted definition is
from Lord Coke, a 17th century judge:
“Murder is the unlawful killing of a human being under the King’s
peace with malice aforethought, express or implied.”
The actus reus of murder:
This is the unlawful killing of a reasonable creature in being and under the King’s Peace.
* D killed V
The actus reus of murder is generally a positive act but it can be an omission where a duty of care is owed: Gibbons & Proctor.
The English courts can try a British citizen for an alleged murder that was committed either in England or Wales, or in any other country.
* D’s act/ omission was the CAUSE of V’s death
Factual causation – ‘but for’ D’s act/ omission, V would not have died, Pagett. Legal causation – D was more than the minimal cause, KImsey.
(Is there a break in the chain? Jordan Does the thin skull rule apply? Blaue)
If death is caused more than three years after the attack, the Attorney-General must give consent for the prosecution to go ahead.
* V was a ‘human being’
Foetus - A foetus has to have ‘an existence independent of the mother’ for it to be considered a ‘creature in being’ A-G Ref No. 3 of 1994 (1997).
Brain-dead - Declaration of brain-death by a medical professional means that doctors are allowed to switch off life-support machines without being
liable for murder Malcherek.
* Under the King’s Peace
Killing of an enemy in the course of war is NOT murder. However, the killing of a prisoner of war would be enough for the actus reus of murder!
* The killing was unlawful.
If the killing is in self-defence or the defence of another, D must use reasonable force for the killing to be lawful. Re A (Conjoined Twins).
S76 Criminal Justice and Immigration Act 2008 allows Ds to use a ‘reasonable’ amount of force necessary for that situation.
If excessive force is used, the defence of self-defence will always fail MartinThe mens rea of murder:
This is ‘malice aforethought, express or implied.”
There are TWO types of intention which may be proven to prosecute somebody for murder:
➢ Express malice aforethought -> This is intention to kill.
➢ Implied malice aforethought -> This is intention to cause serious harm (GBH) that leads to death. Vickers, Cunningham
➢ D’s intention can be either direct intent = 100% intention to kill or seriously injure someone. Mohan
OR, it may be oblique intent = D foresaw his actions were ‘virtually certain’ to cause death. Woolin
Transferred malice can apply for the offence of murder. Gnango
It is not possible to have the mens rea to kill a foetus.
General malice – D may have intention to hurt anyone, no specific person is in mind. For example, a terrorist.
➢ Coincidence of AR and MR - In order for an offence to take place, both the actus reus and mens rea must be present at the same time.
However, it has sometimes been held that the actus reus is a part of a series of acts or events. If the D forms the necessary mens rea at some point
during the course of the series of acts/events, he will be liable for the outcome of his actions Le Brun, Theo Mali
theft
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”
Reus Section 3 - Appropriation of property means to assume the rights of the owner, (To hire, destroy, consume etc). Morris It’s possible to appropriate WITH the own
er’s consent. Lawrence Section 4 - Property includes money, property or personal items, things in action (bank accounts) and other intangible things (copyright). Cannot steal wild flowers, unless use to sell. Cannot ‘steal’ information, Oxford v Moss A corpse is not property, but body parts/ fluids can be if used in training/ exhibition. Kelly v Lindsay Section 5 - (1) BTA if a person has possession (owns/ leases) or control over the property. Turner (3) If the recipient is legally obliged to deal with it in a particular way, property will BTA until the obligation is carried out. Davidge &Bunnett (4) If a person receives property by mistake, the property belongs to the person who made the mistake until restoration is made. AG Ref 85 Mens Rea Section 2 - Three situations that are NOT ‘dishonest’ = Belief of S2 1a a legal right to property, S2 1b -consent from owner, S2 1c it’s abandoned If none of above, the obj test of Ghosh is used - Were D’s actions dishonest according to the ordinary standards of reasonable and honest people? The Supreme Court held in 2017 subjective test doesn’t accurately represent the law, Ivey v Genting Casino , In 2020 it was removed from criminal law Barton Section 6 - Even intent to deprive, but later replace with different property, (e.g. bank notes) can amount to theft. Velumyl Borrowing can amount to theft if the item loses all, or a significant amount of its value as a result of Ds borrowing of it. (season ticket) Conditional intent is NOT sufficient for theft, it must be actual intent to steal a specific item. Easom
robbery
“A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seek to put any person in fear of being then and there subjected to force.”Actus Reus Steals – There must be an appropriation (s3) of property (s4) belonging to another (s5). Uses force/ threat of force - The prosecution need to prove that there was the use of force or the threat of force that accompanied the theft. The amount of force used can be small. Dawson and James Using force on a bag (snatching from hand) is arguably the same as using force on the victim themselves. Clouden Robbery can be committed even if the victim is not frightened by the defendant’s threats via words or gestures. B and R v DPP On any person - the person threatened does not have to be the person from whom the theft occurs. E.g. threaten a child to steal from mother. Immediately before or at the time of the theft - the force must be used immediately before or at the time of stealing. Appropriation may be a continuing act. Hale, Lockley It can be difficult to decide when the theft has been completed; force after the theft is not robbery. In order to steal - The force must be necessary in order to steal. Mens rea – There must be mens rea for the theft. If theft is not satisfied, there is no robbery. Robinson
- There must be intention to use / threaten force in order to steal.
burgularly
Section 9 1 (a): “A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm, or commit unlawful damage to the building or anything in it.” Section 9 1 (b):“A person is guilty of burglary if, having entered a building or part of a building as a trespasser, he steals or attempts to steal or inflicts or attempts to inflict grievous bodily harm on any person in the building.”Actus Reus
Ø Entry – no LEGAL definition. Built up through case law. D’s entry must be ‘effective’. Part of a body will do! Ryan
Ø Building – S9(4) has extended the meaning of ‘building’ to include ‘inhabited vehicles or vessels’. Part of a building - D may have permission to be in one part of the building, but does not have permission to be in another part. Walkington
Ø Trespasser – D must have NO permission to enter. If a person has permission to enter, they are not a trespasser. Where the D goes beyond their permission, he may be considered as a trespasser. Smith & Jones Mens rea - The prosecution must prove that D knew he was trespassing or that D was subjectively reckless as to whether he was trespassing. 91a - D must have the intention BEFORE/ at time of entry… - to commit one of three ulterior offences (Steal, GBH, criminal damage). - Conditional intent is sufficient for the D to be guilty, even if there is nothing worth taking and he does not actually steal. 91b - D must develop intention AFTER entry… - to commit one of two ulterior offences (Steal, GBH). - D must attempt or commit the offence to be guilty of 91b.
automatism
“An act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking.”This is a defence because the actus reus done by D is NOT voluntary, and they do not have the mens rea for the offence they committed. If the defence is successfully pleaded, the D is acquitted. The defence must raise the defence of automatism and then it is for the prosecution to disprove the defence (burden of proof). Elements to prove:
- External cause - E. g. A blow to the head, an attack by a swarm of bees, sneezing, hypnotism and the effect of a drug (injecting insulin). Kay v Butterworth, Hill v Baxter.
- D must lose control - The Court of Appeal has held that there must be ‘total destruction of voluntary control’. A-G Ref no.2 (1992)
- Self-induced automatism This is where the D knows that his conduct is likely to bring on an automatic state. An example of this could include a diabetic who fails to eat after taking insulin… Bailey Specific Intent Offences - If the offence charged is one of specific intent (e.g. s18 GBH), then self-induced automatism CAN be a defence. Why? D has no MR for the crime. However, the offence may be lowered to a basic intent crime and recklessness applied. Basic Intent Offences - If D has been reckless in getting into a state of automatism, self-induced automatism CANNOT be a defence. Why? D has been ‘reckless’ in getting intoxicated, so the MR of recklessness is applied. DPP v Majewski Where D does not know that his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and CAN use the defence of automatism Hardie
diminished responsibility
A person who kills or is party to the killing of another is not to be convicted of murder if he was suffering from an: abnormality of mental functioning which arose from a recognised medical condition, substantially impaired D’s ability to understand the nature of his conduct; or form a rational judgment; or exercise self-control and provides an explanation for D’s acts and omissions in doing or being a party to the killing.Diminished responsibility is defined in S2 (1) of the Homicide Act 1957 as amended by s52 the Coroners and Justice Act 2009. S52 (1) Abnormality of mental functioning - This was defined as being “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.” Byrne S52 (1) (a) Recognised medical condition – this requires supporting medical evidence. It covers physical conditions such epilepsy, diabetes and sleep disorders. It also covers psychological conditions including depression, paranoia Martin and battered woman syndrome. Ahluwalia S52 (1) (b) Substantially impaired - The abnormality of mental functioning must substantially impair the D’s mental responsibility for his act or omissions in doing or being a party to the killing. Lloyd held that ‘substantial’ needs to be more than trivial, but not total, impairment. The D’s ability to do one of the three things must be substantially impaired:
· Understand the nature of his conduct - this covers situations where the D is in an automatic state and does not know what he is doing. It also covers D’s who suffer from delusions. It could also cover D’s who suffer from severe learning difficulties.
· Form rational judgement - Those suffering from paranoia or schizophrenia may not be able to form a rational judgment. Battered Women’s Syndrome and coercive control (Challen) are also a recognised medical conditions which may affect a D’s ability to form a rational judgement.
· Exercise self-control - Medical evidence may prove that the condition that the D is suffering from results in them being unable to control their behaviour. S 52 (1) (c) Provides an explanation for D’s acts or omissions in doing/ being party to the killing - There must be a causal connection between D’s abnormality of mental functioning and the killing. The abnormality of mental functioning may not be the only cause but must be a significant factor. Intoxication alone CANNOT be used for the defence of diminished responsibility. However, the law has struggled where a D is suffering from abnormality of mental functioning but is also intoxicated at the time that he commits the murder Diechmann. There is a recognised medical condition called Alcohol Dependency Syndrome (ADS), the leading case is now Wood. The burden of proof is on the defendant, to prove a recognised medical condition on the balance of probabilities. The defendant must call upon evidence from medical experts to prove he was suffering from diminished responsibility.
attempts
An attempt is where a person tries to commit an offence but, for whatever reason, fails to complete it.S1(1) of the Criminal Attempts Act 1981: “If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”
Ø Actus reus of attempt – this must be a positive act on the way to the commission of the full offence. A-G’s Ref 93 - It must be an act that is ‘more than merely preparatory’ to the commission of the main offence. This is a matter of fact for the jury to decide. R v Campbell (NOT attempted robbery) Boyle v Boyle (attempted burglary)
Ø Mens Rea of attempt – There must be direct intent for the completed offence. - For murder, D must have direct intent to kill (Intent for GBH not enough) R v Whybrow (attempted murder) R v Jones - D must have ‘actual’ intent for crimes like theft, R v Easom - No MR of recklessness for an attempt, R v Millard and Vernon S1(2) of the Criminal Attempts Act 1981:
Ø Attempting the impossible - Where the attempted offence is impossible to carry out, the accused will still be liable for an attempt if he has carried out the actus reus, i.e. he has gone beyond mere preparation, whilst having the mens rea for the completed offence. R v Shivpuri (attempted drug smuggling), R v Jones (attempted inciting of child for sex)
gross negligence manslaughter
GNM is committed where D owes V a duty of care but breaches that duty in a very negligent way, causing the death of the V. It can be committed by an act or an omission, yet neither has to be unlawful. The leading case on GNM is Adomako. As a result of Adomako, the elements of GNM are:
1) There must be a duty of care to the victim. The civil principles of negligence come from Caparo v Dickman. There are certain situations in which a person owes a duty of care to another – parental, contractual duties etc. In Wacker, the Court of Appeal held that for criminal law it was irrelevant that the victims were party to an illegal act. A duty of care can exist when the defendant has created a state of affairs which he/ she knows has become life-threatening, Evans
2) There must be a breach of that duty. Once a duty of care has been established, it must be proved that the D was in breach of that duty of care. This is an objective test – what would a reasonable man do? Professionals are judged against the standards of other professionals, children against those of same age but in Nettleship v Western, learner drivers were judged by the standard of competent drivers.
3) The breach of duty must cause death. Factual causation – ‘but for’ the act/ omission would V have died? Stone & Dobinson. Is there a break in the chain? Legal causation – was D more than the minimal cause?
4) The defendant’s failure must be so ‘gross’ as to be criminal. It was decided in Bateman that D must show a disregard for the health and safety of V and that it is a matter for the jury to decide whether the conduct of the D was so bad as to amount to a criminal act or omission. Edwards
insanity
The defendant must be “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”.The H of L created the M’Naghten rules which are used to decide whether a person should escape criminal liability on the grounds of being insane. Defect of reason - D’s powers of reasoning (making a judgement) must be impaired. It must be more than absent-mindedness or confusion, Clarke. Disease of the mind - The defect of reason must be caused by a ‘disease of the mind’. This a legal term not a medical one. This can be an INTERNAL mental or physical disease which affects the mind, kemp, Sullivan, Hennessey, Burgess. (An external factor affecting the mind is NOT insanity, Quick.) Not know the nature and quality of the act - D does not know what they are doing because – 1. They’re unconscious, OR, 2. Conscious, but disassociated from their behaviour, OR, 3. Conscious, but do not understand that their actions are legally wrong. Windle An insanity verdict When a D successfully proves insanity, then the jury MUST return a verdict of ‘not guilty by reason of insanity’. If the D is charged with murder then the judge MUST impose an indefinite hospital order under s24 (1)(3) Domestic Violence, Crime and Victims Act 2004. For other offences, s5 Criminal Procedure Act (updated in 2004) sets out 3 options: A hospital order (with or without restrictions as to when the D may be released) A supervision order An absolute discharge
loss of control
Where a person kills or is party to the killing of another, D is not to be convicted of murder if:
a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control
b) The loss of self-control had a qualifying trigger; and
c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D”Loss of Control = S54 of the Coroners and Justice Act 2009. S54 (1) It must be proven that D had lost self-control when doing the acts which caused V’s death. S54 (2) The loss of control does not have to be sudden. It can build up over time. Whether D has lost control or not is a matter for the jury to decide. It has to be a total loss of control – partial loss is not sufficient. In addition, temper or anger that is ‘out of character’ is not sufficient, D must have ‘snapped’. Jewell S55 - There has to be a qualifying trigger for the loss of control to come within the defence. The loss of control was attributable to:
v s55(3) D’s fear of serious violence from V or another identified person. General fear is insufficient Ward.
v s55(4) A thing or things done or said which –
o a) constituted circumstances of an extremely grave character, and
o b) caused D to have a justifiable sense of being seriously wronged. These should be judged objectively. R v Hatter observed that circumstances must be extremely grave and D’s sense of being seriously wronged, justifiable. S55 (5) - A qualifying trigger can be a combination of both. s55(6) Where D has incited the violence, D cannot rely on the qualifying trigger of fear of violence. Dawes The 2009 Act expressly states that sexual infidelity can never be a qualifying trigger. However, Clinton…may be raised if other triggers present. S54 (4) The defence is not available for revenge attacks. Ibrams & Gregory S54 (3) It is necessary for D to show that ‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way’. This is an OBJECTIVE TEST. Other circumstances of D (such as a history of abuse) can be taken into consideration in deciding whether a ‘normal’ person might have reacted in the same or in a similar way to the D in those circumstances. Hill. Voluntary intoxication is not a matter to be considered as part of D’s circumstances. The burden of proof is on the prosecution who must prove beyond reasonable doubt that the D did not suffer from a loss of control.
unlawful act manslaughter
1) Unlawful act – there must be a criminal, positive act – a civil wrong is not enough, Lamb, and an omission cannot create liability.
2) Unlawful act must be dangerous – this is measured by an objective test. Church said the risk need only be of ‘some harm’. The reasonable person would realise that the unlawful act might cause some injury. It does not matter that the defendant did not realise there was some risk of harm to another person. It can be against a person, but it does not have to be aimed at them, Mitchell. It can be against property, if there is a risk of injury Goodfellow. There must be a risk of physical harm – apprehension is not sufficient even if it causes a heart attack, Dawson.
3) Unlawful act must cause death – apply Factual causation – ‘but for’ the act would V have died? Pagett. Legal causation – was D more than the minimal cause? KImsey. Is there a break in the chain? Jordan Does the thin skull rule apply? Blaue In drugs cases - if D injects V, then there is no break in the chain of causation and D is liable for UAM, Cato. Where D has prepared the injection, handed the syringe to V and V has then injected himself, this was a voluntary act by V and therefore breaks the chain of causation. The debate was finally settled in Kennedy.
4) D had the mens rea for the unlawful act – intent/ recklessness is required for the initial crime. D does not need to realise that the act is dangerous or unlawful, or to foresee a risk of harm – Newbury and Jones
intoxication
Voluntary intoxication - This is where D chooses to take an intoxicating substance. It can be through drinking alcohol, taking drugs, etc. Involuntary intoxication – This covers situations where D did not know he was taking an intoxicating substance, e.g. his drink has been spiked or a prescribed drug has had an unexpected effect on the D.Voluntary intoxication Specific intent crimes: If the D is so intoxicated that he has not formed the MR for the offence he may be able to rely on the defence. DPP v Beard Where the D still has the necessary MR for the offence despite his intoxication then he will still be guilty of the offence. A-G for NI v Gallagher Basic intent crimes: Intoxication is NOT a defence for a basic intent crime (e.g. ABH). Voluntarily becoming intoxicated is considered a reckless course of conduct, and recklessness is enough for the MR of basic intent offences. DPP v Majweski However, the courts have recently taken a softer approach and have suggested that the test for recklessness should be a subjective one when considering voluntary intoxication and basic intent offences. R v Richardson & Irwin S76(5) Criminal Justice and Immigration Act 2008 -> a mistaken belief caused through voluntary intoxication CANNOT give rise to self-defence, defence of another or prevention of crime. O’Grady Involuntary intoxication More relaxed rules than for voluntary intoxication situations as the D is less at fault! Can be used a defence for both specific and basic intent crimes! However, if D still develops the mens rea for the offence whilst involuntarily intoxicated, he is still guilty of the crime. Kingston Situations where D’s intoxication will be treated as involuntary include when the intoxicating substance was:
Ø Taken under medical prescription (providing there was no recklessness!): Bailey
Ø Commonly known to have a sedative effect, (providing that there is no recklessness!) – Hardie
Ø Taken by the D without his/her knowledge. This includes ‘spiked’ drinks situations. HOWEVER, a D cannot argue that their intoxication was involuntary because the alcohol that they were voluntarily drinking was stronger than anticipated: Allen
duress
Duress by threats = D is forced to act through a direct threat by another. Duress of circumstances = D is forced to act through external circumstances. Necessity = D is forced to act to prevent a worse evil from occurring.Duress by threats 1. Duress can be used as a defence to all crimes except MURDER or ATTEMPTED MURDER! 2. The threats must be of serious injury or death (or rape). The courts will consider the cumulative effect of these type of threats – Valderrama-Vega 3. Threats can be to D or their family, friends or anyone for whom D is responsible, Conway. 4. The jury must consider a two-part test: Graham
a) Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (Subjective test) Hasan
b) Would a sober, reasonable person sharing the same characteristics of the D have responded in the same way? (Objective test) Bowen 5. There must be no avenue of escape, Gill. 6. If police protection is available, the defence will fail – exception = Hudson v Taylor 7. The threat must be effective and operating on D when he commits the offence – Abdul - Hassain 8. Threats must be to commit a specific offence – Cole 9. Self-induced duress will fail –Sharp, HasanDuress of circumstances The first case to recognise duress of circumstances came in 1986, Willer, followed by Conway, Martin Graham The jury must consider a two-part test:
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (Subjective test) Hasan
- Would a sober, reasonable person sharing the same characteristics of the D have responded in the same way? (Objective test) Bowan Duress of circumstances can be a defence to ALL crimes EXCEPT murder and attempted murder, and some forms of treason: Pommell It is sufficient for the D to show he acted as he did because he reasonably perceived a threat of serious physical injury or death. He does not have to prove that the threat was an actual or real threat: Cairns Duress of necessity The leading case is Dudley v Stephens. Necessity MAY potentially be a defence to murder. In Re A, the C of A held that the tests for duress of circumstances and/or necessity were:
o The act must be done only to prevent an act of greater evil
o The evil must be directed towards the D or a person for whom he was responsible
o The act must be reasonable and proportionate to the evil avoided
consent
Consent = the express or implied permission from the ‘victim’ for D to carry out the injury.1. The consent given must be real. It cannot be gained through fraudulent misrepresentation, Tabassum , or through fear. Olugboja 2. The V must understand what they are consenting to… Burrell v Harmer 3. Consent is always available as a defence to common assault, except for any touching outside of what would normally be expected in everyday life – this would be unlawful force. Collins v Wilcock 4. The defence of consent is not available for any NFO’s from ABH to GBH with intent as criminal law aims to discourage this kind of violent behaviour in order to protect society. A-G Ref no 6 (1980). However, there are a number of exceptions:
· in sports games (unless outside rules – Barnes),
· tattooing/medical/ surgical procedures (Wilson),
· lawful chastisement of children,
· and horseplay (Jones). 4a. The defence of consent is influenced by public interest, Brown 5. An honest, but mistaken belief in consent is effective as a defence, Gladstone Williams 6. A person cannot consent to being killed, hence the difficulties with euthanasia and the switching off of a life support machine, Bland
self defence
S3 Criminal Law Act 1967 Self-defence = Where D argues that it was necessary to use reasonable and proportionate force to defend himself, his family or his property or to prevent a crime.1. The force must be necessary The use of force is not justified if it is not necessary. It is a subjective test based upon D’s genuine belief. The use of force may be considered necessary even if the attack is believed to be imminent but has not yet taken place, A-G Ref (no 2 1983), It may also be considered necessary if there was a mistaken belief about what was happening, as long as the defence is based upon what D genuinely believed what was happening. Gladstone Williams 2. The degree of force must be reasonable s76 (6) Criminal Justice and Immigration Act 2008 makes it clear that the degree of force used by a person is not ‘reasonable’ in the circumstances if it was disproportionate in those circumstances. Martin, Hussain S76 (5) Criminal Justice and Immigration Act 2008 makes it clear that ‘D cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced’. Grady Householders The Crime and Courts Act 2013 has amended s76 of the Criminal Justice Act to include subsection 5a which allows householders to use reasonable force in the circumstances of defending their home from an intruder – which may be viewed from an objective point of view as disproportionate However, the use of force by a householder must not be ‘grossly disproportionate’, for example, using a gun on an unarmed intruder.
evaluation of intoxication
Recklessness
û The recklessness in becoming intoxicated means that D takes a general risk of committing a crime when drunk. At the time of getting intoxicated, D has no idea that he will actually commit an offence. Normally, for offences where recklessness is sufficient for an offence, it has to be proved that D knew there was a risk of the specific offence being committed. This is not very fair on the defendant and is exemplified in the case of Majewski.
ü However, it is important that people cannot get away with crimes simply because they were too intoxicated to remember them. Many criminal damage and assault crimes are committed when intoxicated, we need to keep the public safe and provide justice for victims by convicting D’s for these crimes of basic intent.
This point was considered by the Law Commission in a consultation paper in 1993. They said in that paper that the Majewski rule was unfair. However, the Law Commission’s proposals for changing the law were severely criticised and in 1995 they had changed their opinion. By this time, they thought the present law operated ‘fairly on the whole, and without undue difficulty’.
Specific intent/basic intent
ü Where D is charged with murder or s.18 GBH he can use intoxication as a defence. However, they are not acquitted! As intoxication is not a defence to a basic intent offence, D can be found guilty of a lower-level offence. These are manslaughter where murder is charged (Sheehan/ Lipman) or an offence under s.20 OAPA where a s.18 offence has been charged. As many violent crimes are committed when D is intoxicated, this helps to protect the public.
û However, for other crimes there is often no ‘fall back’ offence. If D is charged with theft and successfully claims that he did not form the mens rea for theft because he was too intoxicated, he will be not guilty of any offence. Does this sufficiently protect the public?
Involuntary intoxication
û What if D’s inhibitions are broken down by being made intoxicated involuntarily. The decision in Kingston makes such a D guilty if he formed the necessary mens rea. This ignores the fact that D was not to blame for the intoxication. Such a D would be not guilty of a basic intent offence where the prosecution relied on recklessness (as in Hardie). This appears to be unfair to defendants in Kingston’s situation.
ü However, it is fair to allow D’s like Kingston to be liable for their crimes if there was sufficient evidence to prove that they had still developed the MR for their crime despite the intoxication. This keeps victims safe from dangerous offenders.
ü In addition, it is fair that a person who has been spiked etc is not liable for their crimes as they were not reckless in becoming intoxicated. This is important in modern day society where we are seeing increased cases of spiking drinks or injecting drugs into victims.
Public policy issues
ü The law in this area is largely policy based. This is because of two main reasons:
- Intoxication is a major factor in the commission of many crimes; many offences are committed when D is in an intoxicated state.
- There is a need to balance the rights of the defendant and the victim; if intoxication were always to be a defence, then victims’ rights would not be protected. E.g. increase in domestic violence and society can’t condone that.
ü Public policy can be clearly seen in the law on self-defence, defence of another and prevention of crime. Parliament has enacted (in s. 76(5) Criminal Justice and Immigration Act 2008) that D cannot rely on ‘any mistaken belief attributable to intoxication that was voluntarily induced’ when claiming any of these defences. This helps to protect against D’s using intoxication as an excuse for being excessively violent when defending themselves and possibly getting away with murder. O’ Grady
Proposals for reform
Law Commission 2009 report ‘Intoxication and Criminal Liability’
Voluntary intoxication
Recommended:
Ø A general rule where D is charged with an offence for which mens rea is not an integral fault element, then D should be treated as being aware of anything that he would have been if sober.
Ø This rule would not apply to offences where the required mens rea involved intention as to a consequence, knowledge, fraud or dishonesty.
Involuntary intoxication
Recommended:
Ø A list of situations that are covered by intoxication. This includes spiked drinks, D being force to take an intoxicating substance, D reasonably believing a substance was not an intoxicant, situations where the substance was taken for a ‘proper medical purpose’.
Ø Where D was involuntarily intoxicated, then this should be taken into account in deciding whether D acted with the required mens rea. This confirms the law set out in Kingston.
evaluation of non fatal
Out of date
1861 - There was no understanding of mental health issues at this time so the Act only refers to bodily.
harm’. The courts had to fill the gap regarding mental harm:
For ABH, they defined mental harm in the case of Chan Fook. C of A decided that psychiatric injury is
also classed as ABH. However, it does not include ‘mere emotions such as fear, distress or panic’ nor
does it include ‘states of mind that are not themselves evidence of some identifiable clinical condition.’
For GBH, they held in Burstow that ‘serious’ psychiatric harm can be classed as GBH.
> There is also no reference in the Act to transmitting disease due to limited understanding in the 1800s.
The courts filled the gap in Dica.
Therefore, this law is not effective/ modern, and is in need of reform. It relies on judges to interpret it
in the light of modern day society, but it should be written by parliament.
However, the law is effective/ modern and not in need of reform as the judges have fixed the issues by
creating precedents in cases such as Chan Fook, Burstow and Dica for other judges to be bound by. This
solves the problem of the Act being out of date as judges just apply the precedent decision. Therefore,
there is no need to reform the law.
The Law Commission report in 2015 proposed reforms in answer to this problem. They define harm
with the word injury that includes bodily, mental and disease. This is therefore easy to understand and
up to date enough to be effective for modern times.
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Out of date
1861 - There was no understanding of mental health issues at this time so the Act only refers to bodily.
harm’. The courts had to fill the gap regarding mental harm:
For ABH, they defined mental harm in the case of Chan Fook. C of A decided that psychiatric injury is
also classed as ABH. However, it does not include ‘mere emotions such as fear, distress or panic’ nor
does it include ‘states of mind that are not themselves evidence of some identifiable clinical condition.’
For GBH, they held in Burstow that ‘serious’ psychiatric harm can be classed as GBH.
> There is also no reference in the Act to transmitting disease due to limited understanding in the 1800s.
The courts filled the gap in Dica.
Therefore, this law is not effective/ modern, and is in need of reform. It relies on judges to interpret it
in the light of modern day society, but it should be written by parliament.
However, the law is effective/ modern and not in need of reform as the judges have fixed the issues by
creating precedents in cases such as Chan Fook, Burstow and Dica for other judges to be bound by. This
solves the problem of the Act being out of date as judges just apply the precedent decision. Therefore,
there is no need to reform the law.
The Law Commission report in 2015 proposed reforms in answer to this problem. They define harm
with the word injury that includes bodily, mental and disease. This is therefore easy to understand and
up to date enough to be effective for modern times.
Archaic language
× S20 uses the word ‘maliciously’ which is a very old term that many people
misinterpret. In modern language this means acting deliberately with ‘ill-will’ to the V,
but this is not how the law interprets it! The case of Cunningham held it to be that D
‘intended or was reckless’ as to whether harm occurred to the V. There is no need for
‘ill-will’ towards the victim! Therefore, the wording of the law is ineffective for modern
times and in need of reform.
× S20 and s18 use the word ‘grievous’. This is a word that is rarely used and understood
in modern times. Therefore, the wording of the law is ineffective for modern times
and in need of reform.
* The Law Commission report in 2015 proposed removing the word ‘malicious’ and
replacing it with ‘intention’ or ‘recklessness’. These are easier and more universal
terms to understand. This would make the law more effective and up to date.
* The word ‘grievous’ is replaced by ‘serious’ which is easier to understand and a
commonly understood word. This would make the law more effective and up to date.
Assault and battery are outside the Act
× The offences of assault and battery are common law and therefore not in OAPA
1861. This is not effective for lawyers who need to find these laws and therefore
need to look in different places.
* The Law Commission report in 2015 proposed the inclusion of assault and battery
within the same act as ABH and GBH. This is more effective as they are easier to find.
/ The Law Commission change the names of assault and battery to make them more
understandable in modern society. Assault is changed to ‘threatened assault’ to
emphasise that it is a threat only. Battery is changed to ‘physical assault’ to show that it
involves physical touching. This is more effective in modern society and their
understanding of NFO s.
evaluation of consent
Euthanasia
Some may argue that the law Is falr/ moral/ effective/ modern/ balancing public & principle in not allowing consent to being
killed. Assisted sulcide is currently against the law under the Sulcide Act 1961. It respects a human’s right to life under Article 2
of the Human Rights Act 1998.
There are many people with moral and religlous bellefs that no one has the right to take another person’s life away. The 10
Commandments says, ‘Do not kill. Religion is still a large influence on soclety, even in these modern times. If not religlous,
many people belleve it Immoral to take the life of another.
* The law must continue to protect the vulnerable from being ‘encouraged’ to end their life earlier than they may wish to. This
may be due to being seen as a ‘burden’ on their family (if in need of 24/7 care). There may be a financial incentive placed
above the value of a human life if the family cannot afford proper care, or are waiting to gain inheritance, and use this to
abuse the system and encourage assisted sulcide.
The law Is not fair/ effective/ moral/ modern/ balancing policy and principle as it does not take Into account the quality of a
person’s life. is there a point in protecting physical life if it only causes dally suffering and an undignified need for 24/7 care?
Should we have the right to make decisions about our own body? Is religion out of date to apply to a modern secular and
pluralistic society?
x
The law is outdated as evident by more and more calls for Parlament to change the law on assisted suicide. Many private
members bills have been brought forward and the vote at second reading is getting closer to a majority. Pretty and Nicklinson
are two examples of people calling on Parliament to allow their partners to assist their suicide.
A recent poll conducted in March 2022 indicated that 54% of people believe that the vote on assisted suicide should be taken
again in parliament, before 2024.
Inconsistencies
/ The law was fair/ effective/ moral/ balancing policy and principle when it decided that the facts of the case in
Wilson and Brown are sufficiently different to be decided differently, and therefore do not constitute an
inconsistency. The judgements were fair and effective.
It may be argued that it is fair to apply moral opinions to the judgement in Brown as the law seeks to protect
people. There may be people who consent to sadomasochistic acts without fully comprehending the impact of the
injuries that they will endure. The law is right to protect against deliberate cruelty between people who may not
know each other very well, or as well as a married couple.
x The law is applied inconsistently between Wilson and Brown and therefore not fair/ effective/ moral/ balancing
policy and principle. In Wilson, on appeal, a wife’s consent to allow her husband to brand her skin ($47 ABH) was
legally allowed despite it leading to hospitalisation. This was because it was done in private between consenting
adults. Yet in Brown, the consent of five men to acts of s47ABH and s20 GBH was not legally allowed due to it being
‘cruel’ (Lord Templeton). These acts were also conducted in private and did not lead to hospitalisation. Inconsistency
makes the law uncertain and less effective.
Some may argue that inconsistencies in the application of the law on consent are due to the moral values of the
judiciary. The judiciary tend to be middle aged men who have traditional and old fashioned views about
relationships. Did they apply a different judgement in Wilson because the couple were heterosexual and married as
opposed to homosexual? Is this morally fair in a modern society? Is the law effective if discriminating?
Freedom to consent to ABH/GBH
* The law is fair/ effective/ moral/ balancing principle and policy in preventing people from consenting to ABH and GBH as it protects
people from being hurt by those who may be hostile towards them (AG Ref 80). In cases of consent for sadomasochistic activities,
Lord Templeton argued that there is no place for ‘cruelty in a civilised society. These actions are viewed as immoral by the
majority, therefore the law is right to not allow consent to them.
/ In the case of sexual activities or extreme cosmetic procedures such as tongue splitting, people may not fully understand what they
have consented to, or understand the impact that such injury may cause for their future life, thus the law needs to protect them
from it. An example is Dr Evil who was committing GBH with no anaesthetic.
× The law is not fair/ effective/ moral/ balancing policy & principle in its interfering with a person’s freedom to consent to ABH/ GBH
on their own body. This is especially true if these acts are being conducted in private, such as sexual activities. In Brown, Lord
Mustill (dissenting) said that it was not necessary for the law to interfere in peoples private lives.
* The law is acting like a ‘nanny state’ by not allowing people to consent to a fist fight to settle a dispute. it seems unfair when you
compare it to the fact that you can consent to ABH/ GBH injuries in the name of ‘sport, but not outside of it. (Barnes)
x The law seems unfair etc in allowing consent to ABH in cases like Wilson where branding is involved, but not in cases like AG Ref 50
where a fist fight is involved.
Horseplay
It ig fair/ effective/ moral/ modern/ balances policy & principle that the law recognises express or implied consent
when it comes to horseplay. Where is no intention to harm, and no hostility aimed at the victim, criminal charges
should not be brought against pranks and horseplay, as held in Wilson v Pringle and in Jones.
The law would take away the ‘fun’ of friendships if every example of horseplay could lead to a criminal charge. If
hostility is present, the law will not accept consent as a defence, which strikes the right balance between policy &
principle.
* It is not seem fair/ effective/ modern/ moral/ balancing policy & principle that when horseplay leads to serious
harm, the defence of consent can still be applied. Do people really consent to such injuries as GBH in the name of
horseplay?
x
Aitkin and Richardson v Irwin are examples of horseplay leading to GBH injuries. Although there is consent for the
horseplay, if it does lead to serious injury, shouldn’t the law recognise that consent did not stretch that far?
evaluation of self defence
