Topic 1 - Basic Principles of Criminal Law Cases

Question 1

Actus Reus - Voluntariness: Larsonneur

Answer 1

> R v Larsonneur (1933) 24 Cr App Rep 74.
This case shows the harshness of a ‘state of affairs’ offence, where there is no requirement of voluntary action by the defendant.
Larsonneur was deported from the UK and went to Ireland.
She was deported from Ireland and forced to return to UK.
She was then arrested and charged with breaching the Aliens Order 1920 for “being an alien to whom leave to land in the United Kingdom has been refused was found in the United Kingdom”.
CA held that guilty despite being brought into UK by force.
Lord Hewart CJ: How Larsonneur got into the UK “makes no difference at all”.
Here “found” has been interpreted to cover a situation which has been brought about without any voluntary conduct on the part of the defendant.
Voluntariness refers to the presence of free will in the act.
Shows courts define ‘involuntary’ as defence to AR narrowly.

Question 2

Actus Reus - Voluntariness: Attorney-General’s Reference (no. 2 of 1992) [1994] QB 91, [1993] 3 W.L.R. 982

Answer 2

> The defence of automatism requires a total loss of voluntary control.
D, a truck driver, steered into hard shoulder and drove down it until he hit a stationary car, killing two people.
Expert witness claimed that he had been “driving without awareness” due to long exposure to monotonous motorways.
D was acquitted on the defence of automatism.
CA held that “driving without awareness” did not amount to automatism.
Lord Taylor CJ:
-‘the defence of automatism requires that there was a total destruction of voluntary control on the defendant’s part. Impaired, reduced or partial control is not enough’.
-In this case D retained partial control, he would have been able to react if exposed to significant stimuli.

Question 3

Actus Reus - Omissions: Airedale NHS Trust

Answer 3

> Airedale NHS Trust v Bland [1993] AC 789.
While euthanasia is unlawful as it is a positive act that amounts to murder, removal of life support is lawful as it is an omission.
Tony Bland was a persistent vegetative state and had no hope of recovery.
Hospital with parents applied for a declaration that it might lawfully discontinue life sustaining treatment and life support.
Official solicitor appealed against Court of Appeal order permitting it.
HoL held that:
-Removal of life support is permitted as it did not amount to murder.
-The actus reus of actively causing death would not be present.
Lord Goff:
-‘The law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end’.
-‘So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia—actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law.’
-There was no duty to act either as treatment was not in the best interest of patient, there being no prospect of recovery.
Lord Mustill:
-‘I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations of the law are already open to question’.
Lord Browne-Wilkinson:
-‘How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder.’
One problem with the analysis is that withdrawal of support would require active steps to removal the life support systems from the patient, thus it is an omission only in a legal and not physical sense.
The analysis in the judgment is based on a very fine and shaky distinction between acts and omissions, and Lord Mustill and Lord Browne-Wilkinson expressed concerns about settling the difficult ethical questions raised on this basis.

Question 4

Actus Reus - Omissions: Miller

Answer 4

> R v Miller [1983] 2 AC 161, [1983] Crim LR 466.
A failure to remove a danger created can amount to actus reus.
Miller, a vagrant, accidentally set fire to a mattress in a house in which he was sleeping.
Rather than taking action to put out the fire, he moved to a different room.
The fire went on to cause extensive damage to the cost of £800.
HoL held that Miller was guilty of arson under Criminal Damage Act 1971.
Lord Diplock:
-The failure to act constituted actus reus.
-Miller had created a duty to act by creating a dangerous situation.
-His act began from the lighting of the cigarette to place burning down as result.
-‘I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.’
Miller’s recklessness constituted mens rea.
A reasonable person would be able to anticipate danger from the lighted cigarette.

Question 5

Actus Reus - Omissions: Stone and Dobinson

Answer 5

> R v Stone and Dobinson [1977] QB 354.
A failure to act after an assumption of responsibility can amount to actus reus.
Stone and Dobinson (Ds) were taking care of Stone’s sister, Fanny, who was mentally unstable.
She became helplessly infirm.
Ds neglected to care for her and she died.
CA held that Ds were guilty of gross negligence manslaughter.
Geoffrey Lane LJ:
-A duty of care had been assumed by Ds.
-Ds were obliged to summon help or care for Fanny themselves.
-Failure to do so amounted to actus reus for manslaughter.

Question 6

Actus Reus - Omissions: Roberts

Answer 6

> R v Roberts [1972] 56 Cr. App. R. 95, [1972] Crim LR 27.
A young woman accepted a lift from D to a party.
D drove to a deserted location and made sexual advances but was rejected.
Later, when D was driving he continue to make sexual advances.
Woman jumped out of car and sustained injury.
CA held that D was guilty of assault occasioning actual bodily harm for causing the woman’s injury.
Stephenson LJ:
-‘The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?’
-There is a break of chain of causation only if victim’s actions were so daft and unexpected that no reasonable man could have expected.
-In this case D is guilty as the woman jumped out as a direct consequence of D’s actions.
The issue had been whether the test of causation should be based on subjective foreseeability, as proposed by counsel for D, or objective foreseeability as had been held by the trial judge.
The Court of Appeal clarified that the test is objective.

Question 7

Actus Reus - Omissions: Smith

Answer 7

> R v Smith [1959] 2 QB 35, (1959) 43 Cr. App. R. 121.
The actus reus does not have to be the sole cause of the harm inflicted, only an ‘operating and substantial cause’.
An intervening cause must be ‘overwhelming’ to break the chain of causation.
D, a soldier, got into a fight at an army barracks and stabbed another soldier, V.
V was dropped twice en route, and the treatment he received was negligent – medics failed to realise that his lung had been punctured.
V later died.
Had there been a break in the chain of causation?
Courts Martial Appeal Court held that D was properly convicted for murder – there was no break in the chain of causation.
Lord Parker CJ:
-If at the time of death the wound was still an ‘operating cause and a substantial cause’, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating (p. 42–43).
-The death cannot be said to originate from the wound only if the ‘second cause is so overwhelming as to make the original wound merely part of the history’. (p.43).

Question 8

Actus Reus - Omissions: Malcherek

Answer 8

> R v Malcherek [1981] 2 All ER 422, [1981] Crim. L.R. 401.
The fact that death is brought about by a doctor’s decision to end life support does not break the chain of causation for murder as long as the decision was made competently.
D stabbed his wife, V, who was later placed on a life support machine.
Doctors switched off the machine as V showed no signs of brain activity.
Was there a break in the chain of causation by the doctors’ decision?
D was convicted of murder.
CA held that D was properly convicted of murder.
Lord Lane CJ:
-The original injury was at the time of death a ‘continuing, operating and indeed substantial cause of the death’. (Pg. 696).
-‘Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead, and that such vital functions as exist — for example, circulation — are being maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the person who inflicted the initial injury from being responsible for the victim’s death’. (P. 697).

Question 9

Actus Reus - Omissions: Cheshire

Answer 9

> Cheshire [1991] 3 All ER 670, [1991] Crim. L.R. 709.
For an act by a third party to break the chain of causation, it must be sufficiently independent and potent that it renders the original cause insignificant, the level of fault of the third party is irrelevant.
D shot V in leg and stomach.
V died nearly two months later, following negligent medical treatment.
The judge gave direction to the jury that the chain of causation was broken only if they find the doctor to have been grossly negligent i.e., reckless.
Was the direction correct and was there a break in the chain of causation?
CA held:
-Appeal dismissed; there was no break in the chain of causation.
-The judge erred in his direction by referencing fault, but the outcome was correct.
-D was convicted for murder.
Beldam LJ:
-On causation in general:
-For the defendant to be responsible, his acts ‘need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result.’ (P. 851).
-The defendant’s responsibility is excluded only when ‘the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.’ (P. 852).
-Falling below the standard of a competent doctor is not enough, the acts of a doctor must be ‘extraordinary’ to be considered independent of the conduct of the defendant and this is highly unlikely.
-On the current case:
-The judge erred in his direction by including fault in causation: ‘Epithets suggestive of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty.’. (P. 849).
-However, there was no miscarriage of justice – even if more experienced doctors would have not committed the mistake, D’s acts remained a significant cause of death and a jury would not have found otherwise.
This case shows the difference between causation in criminal law and civil law – in tort the level of fault involved in the third party’s intervening act affects whether there is a break in the chain of causation, the greater the fault the more likely there is a break.

Question 10

Actus Reus - Omissions: Blaue

Answer 10

> R v Blaue [1975] 3 All ER 446, [1975] Crim LR 648.
The thin skull rule extends to religious beliefs.
D stabbed V, V declined a blood transfusion as she was a Jehovah’s Witness.
D was convicted of manslaughter.
D appealed on the ground that the judge erred in telling the jury that the stabbing was an operative cause of death.
Appeal dismissed; the cause of death of the stab wound and there was no break in causation.
Lawton LJ:
-‘It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man.’
-‘It does not lie in the mouth of an assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable’.
-The victim in criminal law is not required to mitigate his injury unlike in tort as ‘criminal law is concerned with the maintenance of law and order and the protection of the public generally.’
Jeremy Horder: another example of the courts bending the rules of causation to ensure the conviction of a wrongdoer.

Question 11

Actus Reus - Omissions: Pagett

Answer 11

> R v Pagett (1983) 76 Cr App R 279, [1983] Crim. L.R. 393.
Reasonable acts of self-defence do not break the chain of causation.
D kidnapped his girlfriend, she was killed when police sniper fired upon D.
D was convicted for manslaughter.
Did the police sniper’s shot constitute a novus actus interviens?
CA held - appeal dismissed; D was rightly convicted for murder.
Robert Goff LJ:
-‘There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens’.
-Self-preservation includes acts of self-defence.
-In this case the police officer fired reasonably in self-defence as he was being fired upon by D.

Question 12

Actus Reus - Omissions: Kennedy

Answer 12

> R v Kennedy [2007] UKHL 38, (2008) Crim LR 222.
A voluntary and informed choice by the victim breaks the chain of causation.
Kennedy prepared a syringe of heroin for Marco Bosque, Bosque injected himself and died.
Kennedy was convicted for manslaughter.
HoL held:
-Appeal allowed; conviction overturned.
-Bosque had made a voluntary and informed choice to inject himself which amounted to a novus actus interviens.
Lord Bingham:
-‘The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions on how they will act, and none of the exceptions relied on are possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.’[14].
Had Kennedy injected Bosque himself he would have been responsible.

Question 13

Actus Reus - Omissions: Hughes

Answer 13

> R v Hughes [2013] UKSC 56, [2014] Crim LR 234.
This case highlights the distinction between legal causation and factual i.e., ‘but for’ causation.
D, a driver with a provisional license and no insurance policy, was involved in a vehicle collision with V, who later died.
D’s driving was faultless and V was entirely responsible for the accident.
D was charged with causing death by driving whilst unlicensed and uninsured under s3ZB Road Traffic Act 1988.
SC held that D was to be acquitted of the charge as he had not legally caused V’s death.
Lord Hughes and Lord Toulson:
-The wording of the statute (‘causing…death…by driving’) imported the concept of causation.
-‘The law has frequently to confront the distinction between “cause” in the sense of a sine qua non without which the consequence would not have occurred, and “cause” in the sense of something which was a legally effective cause of that consequence. The former, which is often conveniently referred to as a “but for” event, is not necessarily enough to be a legally effective cause.’ [25]/
-Given the severity of the penalty for homicide, to establish guilt under s3ZB, ‘but for causation’ is not enough, the mere presence of D’s vehicle on the road is not sufficient to establish. [26-38].
-There must be some act or omission in the control of the car, which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributed in some more than minimal way to the death. [36].
-D’s driving was not, in law, a cause of V’s death as his manner of driving could not be faulted. [36].

Question 14

Mens Rea - Intent: Steane

Answer 14

> R v Steane [1947] KB 997, (1948) 32 Cr. App. R. 61.
One does not necessarily intend the natural consequences of his deliberate act, in other words, oblique/indirect intention does not necessarily equate intention in law.
Steane was an actor living in Germany leading up to WW2.
He was arrested and forced to make broadcasts on Germany’s behalf by Joseph Goebbels.
He was convicted of ‘doing acts likely to assist the enemy with intent to assist the enemy’ by a lower court.
Court of criminal appeal held:
-The conviction was overturned.
-There was no intent to assist the enemy.
Goddard CJ:
-Mens rea can be found on the basis that the defendant intends the natural consequence of his actions.
-However, if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the prosecution has to take the burden of proof for intention.
As stated in Clarkson & Keating on Criminal Law, there are two forms of intention: direct intention and oblique intention.
Direct intention is where the consequence is the aim or objective of the actor.
Oblique intention is where the consequence is foreseen as a certainty by the actor, but not necessarily his aim or objective.
This case highlights that presence of oblique intention does not necessarily equate intention in law.

Question 15

Mens Rea - Intent: Gillick

Answer 15

> Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1986] Crim. L.R. 113.
Oblique intention (foresight of a consequence of one’s actions) does not necessarily render a defendant liable for a crime.
Doctors gave out contraceptives and advice to girls below 16
They were alleged to contravene s28 Sexual Offences Act 1956: “(1) It is an offence for a person to cause or encourage the prostitution of, or the commission of unlawful sexual intercourse with, or of an indecent assault on, a girl under the age of sixteen for whom he is responsible.”
HoL: Doctors were not guilty.
Lord Fraser of Tullyburton:
-Whether doctors are guilty depends on whether their intent is to encourage unlawful sexual activity or for the health of the patient.
-Here the intent was to benefit the health of the patient.
The dicta is now codified in s73 Sexual Offences Act 2006, which creates an exception to the offences in such cases where the direction intention/purpose is to protect the sexual health of the child.

Question 16

Mens Rea - Intent: Moloney

Answer 16

> R v Moloney [1985] AC 905, [1985] 1 All ER 1025.
Clarified that inferring intention from foresight of probable consequence is a rule of evidence.
Moloney and his stepfather, who he was close to, engaged in a shooting contest while drunk to see who could draw their gun quicker.
Moloney shot and killed his stepfather and was convicted of murder.
HoL held that:
-Appeal allowed; the conviction of murder is quashed and replaced with manslaughter.
-Moloney did not have the intent to kill or seriously injury his stepfather.
Lord Bridge:
-Meaning of intention:
-When a crime of specific intent was under consideration ‘the probability of the consequences taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent’.
-Intention is ‘quite distinct from motive or desire’: a man who has a layover in Manchester when he is flying to London clearly intends to travel to Manchester although it is the last place he wants to be.
-Foresight of a certain degree of probability of the consequence equates to intention is not a rule of substantive law but a law of evidence.
-Proper direction to jury:
-The ‘golden rule’ is that ‘when directing the jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent’ unless ‘strictly necessary to avoid some misunderstanding’.
-‘Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence‘.

Question 17

Mens Rea - Intent: Woollin

Answer 17

> R v Woollin [1999] 1 AC 82.
The intention for murder requires foresight of virtual certainty, not merely substantial risk, of death or serious harm.
Woollin killed his 3 month old son after throwing him onto a hard surface in rage.
The judge directed the jury that if they were satisfied that the appellant had realised there was a substantial risk that the child would suffer serious harm, they could convict him of murder.
HoL held:
-Appeal allowed; the conviction for murder was quashed and replaced with manslaughter.
-There had been a misdirection by the judge.
Lord Steyn:
-‘By using the phrase “substantial risk” the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder.’
-Instead, pursuant to R v Nedrick [1986] Crim. L.R. 742, the jury should be directed to consider whether the defendant had foresight that death or serious injury would be ‘virtual certain’ to result from his voluntary act.
The direction in this case was approved in Matthews and Alleyne.

Question 18

Mens Rea - Intent: Re A (conjoined twins: surgical separation)

Answer 18

> Re A (conjoined twins: surgical separation) [2000] 4 All ER 961, [2001] Crim. L.R. 400.
Robert LJ’s reasoning supports the definition of intention as purpose i.e., direction intention, rather than foresight of an inevitable consequence i.e., oblique intention.
Brooke LJ held that necessity can be a defence to murder in limited circumstances to avoid an inevitable and irreparable evil.
Mary and Jodie were conjoined twins and both would die if not separated.
If they were separated, Mary would die but Jodie would have a strong chance of survival.
The doctors applied to the court for a declaration that it would be lawful i.e., that it does not amount to murder.
CA held that:
-Appeal dismissed – the proposed operation would be lawful.
-The three judges agreed on the outcome but differed in their analysis.
Robert Walker LJ:
-There was a positive act:
-The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment in Airedale.
-The act and omission distinction drawn in Airedale was ethically questionable, to apply it in this case would render it even more so.
-But no intention to kill:
-‘In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life.’
-‘Separation would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie’s life’.
-‘But Mary’s death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable’.
Brooke LJ:
-There was intention to kill:
-‘an English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end, because her death would be the virtually certain consequence of their acts’.
-There are 3 requirements for defence of necessity:
1. The act is needed to avoid inevitable and irreparable evil.
2. No more should be done than is reasonably necessary for the purpose to be achieved.
3. The evil inflicted must not be disproportionate to the evil avoided.
-Necessity applied:
-The requirements above are met.
-Moral objections to applying the defence of necessity to murder as stated in Dudley v Stevens: ‘ The first objection was evident in the court’s questions: who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality’.
The moral objections do not apply in the present case as Mary’s lifespan is already limited and there is no sharp divorce of law from morality in the present case.
Jodie survived the operation and leads a normal life.

Question 19

Mens Rea - Intent: Matthews

Answer 19

> R v Matthews and Alleyne [2003] EWCA Crim 192.
The test in Woollin is a rule of evidence – this means that appreciation of virtual certainty of death or serious harm does not necessary amount to intention for murder in law.
Ds threw the victim into a river, who drowned and died.
Ds argued although they knew the victim could not swim, they did not intend for the victim to die.
The judge gave the direction to the jury that it must find Ds guilty of murder if they found that they had foresight that the victim was ‘virtually certain’ to die or suffer serious harm.
CA held:
-Appeal dismissed; although there was a misdirection by the judge, the conviction was safe.
The judge had mistakenly mistreated the test from Nedrick and Woollin as a substantive rule of law when it is only a rule of evidence.
The ‘approved direction’ in Nedrick and Woollin was that the jury was entitled to find intention for murder based on their appreciation that death was ‘virtually certain’, not that they must find intention.

Question 20

Mens Rea - Recklessness: G and R

Answer 20

> R v G and R [2003] UKHL 50.
The objective test for recklessness (known as Caldwell recklessness) was rejected in favour of a subjective test.
Two boys (Ds) set fire to newspapers in the back of a shophouse, and burnt down supermarket and adjoining buildings.
They were charged under s1 Criminal Damage act 1971 for reckless arson.
HoL held that:
-Ds were not guilty of arson as they had not been reckless; they had been unable to appreciate the risk due to their immaturity.
Lord Bingham:
-Overruling R v Caldwell:
-‘The present case shows, more clearly than any other reported case since R v Caldwell, that the model direction formulated by Lord Diplock is capable of leading to obvious unfairness’.
-‘It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension.’ [33].
-R v Caldwell was a misinterpretation of s1 Criminal Damage Act 1971 that offended principle. [36].
-Applied a subjective test for recklessness:
-“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to; (i) a circumstance when he is aware of a risk that exists or will exist; (ii) a result when he is aware that a risk will occur; and it is, in the circumstances known to him, unreasonable to take the risk.” [41].

Question 21

Mens Rea - Recklessness: Parker

Answer 21

> R v Parker [1977] 1 WLR 600.
Deliberate closing of one’s mind to an obvious risk amounts to recklessness.
D smashed down a telephone handset onto the dialing box of a public telephone, damaging it.
D was charged under s1(1) Criminal Damage Act.
D said that he did not occur to him that he might damage the phone as he smashed it in a fit of anger.
CA held that:
-D was guilty as he had the requisite mens rea of recklessness.
Geoffrey Lane LJ:
-D was, ‘in effect, deliberately closing his mind to the obvious – the obvious being that damage in these circumstances was inevitable’.
-‘In the view of this court, that type of action, that type of deliberate closing of the mind, is the equivalent of knowledge and a man certainly cannot escape the consequences of his action in this particular set of circumstances by saying, “I never directed my mind to the obvious consequences because I was in a self-induced state of temper.”’ (P. 604B).

Question 22

The Problem of Correspondence - Strict Liability: Sweet v Parsley

Answer 22

> Sweet v Parsley [1970] AC 132.
The appellant, Stephanie Sweet (S), was a sub-tenant of a farmhouse, where cannabis resin was found.
S no longer lived in the house and had let out several rooms to tenants.
She did retain a room but only returned occasionally to collect letters and rent.
The appellant was charged and convicted under Section 5(b) of the Dangerous Drugs Act 1965 (1965 Act) with “being concerned in the management of premises used for the purpose of smoking cannabis resin.”
Section 5(b) of the 1965 Act makes no reference to the mens rea required for the offence.
The issues in question for the appeal court were:
1. Whether Section 5(b) created an absolute offence and
2. If not, what was the requisite mens rea for the offence?
The appellant, S, appealed against her conviction, claiming that Section 5(b) required the mens rea of knowledge of the prohibited purposes which the farmhouse was being used for.
While S accepted that the premises had been used for smoking cannabis resin, she had no knowledge of this use.
Decision:
-Section 5(b) of the 1965 Act did not create an absolute offence.
-Unless it is the clear intention of Parliament that an offence is an absolute or regulatory offence (imposing strict liability), the presumption of mens rea prevails for ‘true’ crime offences.
-The words ‘being concerned in the management’ under Section 5(b) had to be read as importing a mens rea of knowledge as to the use of the premises for the prohibited purpose, therefore the offence was a ‘true crime,’ not a regulatory crime.
-The conviction was therefore quashed, as S, did not have the requisite mens rea for the offence under Section 5(b) of the 1965 Act.

Question 23

The Problem of Correspondence - Strict Liability: G

Answer 23

> R v G [2008] UKHL 37.
The appellant was convicted of rape of a child under 13 pursuant to Sexual Offences Act 2003 s.5.
The appellant was 15 at the time of the offence. He pleaded guilty on the basis that he had the consent of the victim but that he believed the victim was 15 because she told him so.
He first appealed to the Court of Appeal which upheld his conviction. However, certified several issues of public importance.
Key issues in R v G were:
1. Since Sexual Offences Act 2003 s.5 was a strict liability offence, was it compatible with Art. 6(2) according to which everyone involved in criminal proceedings is presumed innocent unless proven otherwise?
2. Has the appellants Art. 8 right been violated as the prosecution did not substitute his charge under s. 5 to one under s.13?
Held:
-The House of Lords dismissed the appeal.
-Firstly, the House confirmed that section 5 was compatible with Article 6 and Art. 6(2). Art.6 was concerned with the procedural fairness in the administration of justice, not the content of the domestic law.
-Their Lordships found that the appellant’s argument was reading too much into the wording of Art.6(2).
-Secondly, the House found no breach of Art.8.
-In relation to this, Lord Hope and Lord Carswell dissented.
-The majority, however, found that the appellant was still guilty of ‘Rape of a child under 13’. The parliament had created that offence in the first place because children under 13 could not give proper consent to a sexual act.

Question 24

The Problem of Correspondence - Coincidence of Actus Reus and Mens Rea/Transferred Malice: Latimer

Answer 24

> R v Latimer [1886] 17 Q.B.D 359.
Laid down the principle of transferred malice: intent need not be against the victim.
D struck a blow with his belt at a man, but hit a woman V and severely injured V.
D was convicted of maliciously wounding V.
Conviction upheld.
Lord Coleridge CJ:
-‘It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough’.

Question 25

The Problem of Correspondence - Coincidence of Actus Reus and Mens Rea: Fagan

Answer 25

> Fagan v MPG [1969] 1 QB 439, [1968] 3 W.L.R. 1120.
D can be guilty of a crime even though mens rea was not present at the inception of his guilty act but later arose as the act continued.
D was told by a police constable to back up his car.
D unintentionally drove onto the constable’s foot.
When the constable told him to drive off his foot, D turned off the ignition of his car instead.
D was convicted of assault on a constable.
The intention of assaulting the constable was not present when D initially drove onto the constable’s foot.
CA held that:
-D’s conviction was upheld, there was a continuing act of assault when the intention later arose.
James J:
-Although the actus reus and mens rea must be present at same time in an assault, it is not necessary for the mens rea to be present at the inception of the actus reus: it could be superimposed on an existing act.
-However, the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault.
-In this case there was a ‘continuing act’: after D drove onto the constable’s foot, he remained in the car and turned off the ignition, these cannot be regarded as omissions.
Bridge J:
-Mens rea of assault is to cause the victim to apprehend immediate unlawful personal violence or recklessness as to whether such apprehension is caused.
Contrast this case with Miller: here the failure to remove the car from the constable’s foot was deemed part of a continuing act, while in Miller the failure to prevent the fire from spreading was deemed an omission but Miller was nonetheless guilty as he had a duty to act – they are different ways of reaching the same goal of finding the defendant guilty.

Question 26

The Problem of Correspondence - Coincidence of Actus Reus and Mens Rea: Thabo Meli

Answer 26

> R v Thabo Meli [1954] 1 WLR 228, [1954] 1 All E.R. 373.
Acts part of a pre-conceived plan are considered a connected sequence, thus the act inflicting the final blow to the victim need not coincide in time with the mens rea.
Ds took V to a hut, deliberately got him intoxicated by beers and then hit him.
Believing that V was dead, they rolled him down a hill to make it look like an accident.
Medical evidence should that it was actually the exposure that killed V.
Ds appealed on the ground that while they had guilty intent when they hit V, they did not have guilty intent when they rolled V down the hill.
Privy Council:
-The convictions for murder were upheld.
Lord Reid:
-It was ‘impossible to divide up what was really one transaction’, all the acts were part of a preconceived plan.

Question 27

The Problem of Correspondence - Coincidence of Actus Reus and Mens Rea: Church

Answer 27

> R v Church [1966] 1 QB 59, [1965] 2 W.L.R. 1220.
The principle in Meli applies to manslaughter – the mens rea need not exactly coincide with the act causing death if the act is part of a connected series of acts which at some point of time coincided with the mens rea.
To establish a constructive/unlawful act of manslaughter, the risk of harm must have been capable of being foreseen by sober and reasonable people.
D knocked the victim unconscious during a fight.
D dumped her body in the river, thinking that she was already dead.
Medical examination showed that D died from drowning.
The judge directed the jury to consider the ‘whole course of conduct of the accused as one’.
CA held:
-D’s conviction for manslaughter was upheld.
Edmund Davies J:
-In light of Meli the direction was correct.
-Citing Glanville Williams: ‘If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter.’
-An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable, some additional element of mens rea is required.
-To establish manslaughter, ‘the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm’. (P. 70).

Question 28

The Problem of Correspondence - Coincidence of Actus Reus and Mens Rea: Le Brun

Answer 28

> R v Le Brun [1992] QB 61, [1991] 3 W.L.R. 653.
An act to conceal a previous unlawful act is part of the same sequence of events as the previous act.
Thus, where it was actually the second act that killed the victim, the fact that mens rea does not coincide in time is no defence.
D punched his wife V on the chin, knocking her unconscious.
D then attempted to move her body but accidentally dropped her.
V sustained head injuries and died.
D was convicted of manslaughter.
Was D guilty although his intention to harm V did not coincide with the act that killed V?
CA held:
-Appeal dismissed; manslaughter conviction upheld.
Lord Lane CJ:
-Where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability.
-That is certainly so where D’s later act was designed to conceal the unlawful assault.
-Expressed in causation terms, the unlawful assault was a ‘but for’ cause and the later act did not amount to a novus actus interviens.
Outcome would have been different if dropped her whilst trying to take her to medical help.