Criminal Law

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Introduction a definition?

A crime is conduct defined as such by statute or by

common law.
Every textbook writer tries to define 'crime'. It is difficult
to attach an exact definition to something which is so
diverse.
There are motoring offences ranging from simple parking
errors, to death by dangerous driving. Offences against
the person range from a slap to murder.
Criminal law is usually found under the heading of public
law, because it is against the State and is punished by the
State.
First, it is an offence against the public, although it might
affect only one person.
Secondly, that the person who committed an offence will
be punished in some manner prescribed by the State.

Board of Trade v
Owen (1957)

In Owen the court considered that the correct definition of

a crime in the criminal law was the following passage from
Halsbury's Laws of England.
"A crime is an unlawful act or default which is an offence
against the public and renders the person guilty of the act
or default liable to legal punishment."

We have some
reservations about Lord
Tucker's definition.

Whilst this is the standard definition, we feel it does not

encompass modern attitudes to crime, for example, what
about compensation? What about methods of diversion of
young persons from punishment? What about restorative
justice?

The Model Penal Code of

the American Law
Institute

We prefer the following definition to the one in Board of

Trade v Owen, perhaps you can see why.

states as its "general

purposes" (inter alia):

"(a) to forbid and prevent conduct that unjustifiably and

inexcusably inflicts or threatens substantial harm to
individual or public interests;
(b) to subject to public control persons whose conduct
indicates that they are disposed to commit crimes;"

Why do we need a
definition?

First, it is necessary for a broad definition to establish

mode of trial.
Secondly, it is administratively important. For example,
the enforcement of Magistrates' fines is the recovery of a
civil debt, and the police cannot arrest a fine defaulter
unless the officer is in possession of a warrant.

Classification of Offences

1. Method of trial
(a) Indictable offences

Crimes may be classified either by their mode of trial or by

the arrest procedure.

These are the serious offences, triable by judge and jury,

for which an Indictment sets out the charges against the
person(s) sent to the Crown Court for the trial.

(b) Summary offences

These are offences only triable in the magistrates' courts.

(c) "Hybrid" offences

These are offences created by statute and may be tried

either summarily or on indictment. Sometimes called
'either-way offences'.

2. Power to arrest

Previous classifications (e.g. arrestable offences) under

the Criminal Law Act 1967 no longer have any relevance.

Police can arrest for all

offences if it is necessary

Formerly more serious offences were specified by PACE as

arrestable offences but the classification has no
significance since the Serious Organised Crime Act
2005

Citizens' arrest

Any person can arrest in many circumstances if the

offence is indictable

Elements of a crime
Actus reus and mens rea

In most crimes there must be the proscribed physical

element; a wrongful act (the actus reus) and the mental
element; a guilty mind (mens rea), and if both elements
are not present there is no crime.

Strict liability

This does not embrace offences of strict liability and

absolute liability where the above rule does not apply.

1. Mens Rea

Mens Rea means the guilty mind or wrongful intention and,

is discovered in the definition of the offence; it is words like
'intention', 'recklessly', 'with malice aforethought' and so
forth.
When interpreting statutes, it is a Common Law
presumption that mens rea is necessary in all crimes. This
rule can only be replaced if an Act of Parliament expressly
or impliedly excludes the necessity ofmens rea Sweet v

Parsley (1970).
2. Actus Reus

By removing the mens rea words from an offence (and any

defence) leaves the actus reus of a crime.
This will include all circumstances, the conduct of the
offender, and the consequences.

Always consequences?

Consequences do not always flow from a crime, with

conspiracy there is simply an agreement and no steps
necessarily taken towards the commission of a full offence.
Some crimes are described as 'result' crimes and the
conduct of the accused is linked to the result by the legal
and factual causation. Without a result the concept of
causation withers.
So a state of affairs crime, for example, being found drunk
in a public place, requires no causation, in fact it requires
no actus reus at all, let alone mens rea. The crime is
simply "being found".
The actus reus of burglary is the entering (conduct) a
building as a trespasser (circumstances) theft, rape,
unlawful damage or assault (the consequences). The mens
rea is the intention of committing theft, rape, unlawful
damage or assault when in the building. To enter a
building without this intention is only a tort of trespass.

Crime =

Actus reus + Mens rea + Absence of a defence.

Woolmington v DPP (1935)

The prosecution must prove the existence of the actus reus

and mens rea beyond reasonable doubt.

Strict Liability

In offences of strict or absolute liability mens rea is not

essential.
For example, the Health and Safety at Work Act says
that machines must have safety covers, the employers are
strictly liable. Even if the employer asks an outside
contractor to supervise the safety regulations the
employers are still liable if the contractors do not comply
with the statutory requirements.
Strict liability arises when the crime consists of performing
a forbidden act or not performing a statutory duty.

Meah v Roberts (1977)

D sold two children glasses of caustic soda instead of

lemonade. D, Meah, was found guilty of selling food unfit
for human consumption, contrary to the Food and Drug
Act 1955, despite another person being responsible for

the cleaning fluid being in the lemonade bottle.

It is customary to
separate crime
into actus
reus and mens rea.

Actus reus is the prohibited conduct, omission, consequence or

state-of-affairs;

Actus reus is the

external
manifestation of
the offence.

Actus reus is the guilty conduct. The actus reus includes all the
elements in the definition of the crime except the accused's
mental element.

Cardinal principle.

Actus reus is a part of the cardinal principle of criminal law that

conduct does not make a person legally guilty unless it is
accompanied by a blameworthy state of mind.

Any fault element, such as intent or recklessness, in respect of it

is the mens rea (state of mind).

The mental element is the mens rea, the guilty mind.

"actus non facit reum, nisi mens sit rea"

Actus non facit
reum nisi mens sit
rea.

This expression is derived from Coke's brocard in his Institutes,

Part III (1797 ed.), c.1 fo.10: "et actus non facit reum, nisi mens
sit rea"
"No act is punishable unless it is performed with a criminal
mind."
The requirement of fault is called mens rea, it is required in all
crimes except in strict liability offences.

Actus reus is found

in the definition of
the offence.

Always refer to the definition of the particular offence in order to

ascertain its actus reus.

Definition of "actus reus".

Actus reus is the conduct of the accused. It can be an act of commission or act
of omission, and it must be a voluntary act that causes the damage or harm. It
can also be a "state of affairs".
It can be an
act of
commission or
act of
omission

A person may incur criminal liability for failing to do that which the law
requires him to do as much as by doing that which the law prohibits.
The actus reus includes the state of affairs or circumstances
surrounding the commission of the offence, together with the results or
consequences (if any) that flow from that act or omission. It is essential
that the defendant acted voluntarily and that he caused the injury,
damage or harm.
In other words, actus reus includes all the elements of the offence
indicated in the definition except the mens rea(the state of mind), if
any.

Must be a
voluntary act,
not
automatism

Generally the accused's conduct must be a voluntary act or omission,

and he will not be held liable for acts done in a state of automatism.
Automatism resulting from self-induced intoxication is no excuse.

The accused
must cause
the prohibited
consequences

The crime must be caused by some conduct by the accused.

That conduct need not be a direct cause of the crime, but can be
through the agency of others.
The conduct need not be the sole or the effective cause of the crime,
provided it cannot be dismissed as trivial, or as merely events leading
up to the commission of the crime.

An omission is
only culpable
if there is a
common law
or statutory
duty to act.

Generally there is no obligation on anyone to prevent harm or

wrongdoing.

Introduction

In murder, the defendant causes the death of the victim.

Omissions are only criminal where a duty to act arises at common law
or is imposed by statute.

The result or consequence is the death. Therefore, some crimes are

referred to as 'result' crimes.
In these crimes, the offence specifies to the consequence.
Another example is assault occasioning actual bodily harm. The causing
of the harm is the consequence.
In order to secure a conviction the prosecutor must prove that the
defendant caused the result (caused the consequence).

Causation in fact
To establish causation it is necessary to firstly ask if the defendant in
fact caused of the specified consequence of the offence. One way is to
ask
"But for what the defendant did would the consequences have
occurred?"

But For (or sine

qua non) Test

"Sine qua non" is Latin for "without which, not" meaning an essential
condition, something that is indispensable.
In full it is "causa sine qua non" literally translated means cause
without which - the event - could not have occurred.

This is a basic and vital test for factual causation.

If the result would not have occurred 'but for' what the defendant did,
then the prosecution has established causation in fact. Unsurprisingly,
this is referred to as the 'but for' test.

The prosecution
failed to
establish
causation in
fact
in White (1910)

The defendant put cyanide into his mother's drink, but she died of
heart failure before the poison could kill her.
The answer to the question 'But for what the defendant did would she
have died?' is 'No'. She would have died anyway. Not guilty of murder.

Other cases
that illustrate
the 'but for
test' - and are
also relevant to
legal causation

R v Blaue (1975) Jehovah's Witness stabbed, refused blood

transfusion.
R v Jordan (1956) Stabbed, then given "palpably" wrong medical
treatment.
R v Cheshire (1991) Shot in chip shop, bad medical treatment.
R v Dalloway (1847) driver of cart not holding reins, would have made
no difference if he had.

Causation in law (sometimes called imputable causation)

Legal causation
required in
addition to
factual

Having established causation in fact it is also necessary to establish

causation in law.

Operative or
substantial
cause, or
intervening
event
reasonably
foreseeable.

Causation in law can be established by showing that the defendant's

act was an 'operative and substantial'cause of the consequence
and that there was no intervening event.

Causation in fact does not always mean there will be causation in law.

In R v Malcherek & Steel (two separate cases involving victims who

where kept alive on life support machines that were switched off. The
original injuries were held to be an operating and substantial cause.
R v Smith (1959) (soldier stabbed in barracks)

'Substantial'

Means more than something very trivial, more than something that
the law considers de minimis.
Contrast a deep cut and a pin prick (both constitute wounds).

Operative

An 'operative' cause does not have to be the sole or main cause of

the specified consequence Benge (1865).
R v Dalloway (1847) (Carter not holding reins killed child)

Intervening events; novus actus interveniens

If merely a
setting, chain
would be
broken.

If the defendant's act merely provided the setting in which some other
cause operated the chain of causation would be broken Smith (1959).

Legal causation
exists if result
reasonably
foreseeable.

Another way to show that defendant's act was the 'operative and
substantial' cause in law is to ask if the result was a reasonably
foreseeable consequence the defendant's actus.

Pagett (1983)

The defendant found guilty of causing the death of a girl. He held the
girl hostage in front of him when he fired at armed police officers.

The 'thin skull'

rule

The 'thin skull' rule says that the defendant must take his victim as he
finds him. Therefore, even if injury or death is not reasonably
foreseeable the law still considers the defendant liable if the victim
suffered from some physical or mental condition that made him or her
vulnerable.

..or egg shell

skull rule.

It is called the 'thin skull rule' in appreciation that if you knock a

person to the ground who has such a skull, the defendant should be
liable. It is not the victim's fault that he was not blessed with a more
substantial cranium.

Blaue (1975)

The defendant caused the death of a Jehovah's Witness whom he had

stabbed.

Self-neglect

Victims sometimes neglect their wounds, or others neglect them. This

may not be reasonably foreseeable even so such neglect will not
break the chain of causation
In a case quoted in the Scottish Law Commission report is California v
Lewis where the victim having been shot cut his own throat rather
than die slowly from the gunshot wounds.

Smith (1959)

Three soldiers engaged in a fight in their barracks, one was stabbed

with a bayonet. He was carried by another soldier who dropped him
twice on the way to the medical station.

Death caused by medical treatment

As a matter of
policy seldom
successful plea.

An original assailant can not escape liability by showing that his victim
received inadequate, or negligent medical treatment, unless medical
treatment is grossly negligent, Smith (1959)

When the
medical
treatment is
grossly
negligent, the
chain of
causation may
be broken.

Jordan (1956) D stabbed V, who died eight days later in hospital. The
medical treatment was 'palpably wrong'.

Double Effect

The administration of pain easing drugs that incidentally shorten life

by a very short period (hours or days, but not weeks or months)
Would not amount to a cause in law of death Adams (1957).

R v Cheshire (1991) Shot in chip shop, bad medical treatment, but

not 'papably wrong'.

No doctor has ever been convicted of murder in the UK in these

circumstances. In any event, juries have been shown unwilling to
convict, as Dr Moor was relieved to find out when he was acquitted
on 11 May 1999.
Automatism can be
caused by physical
compulsion (being
thrown or pushed),
or illness, or
uncontrollable
reflex action, or
blackout.

In Hill v Baxter [1958] QBD, D, for some reason, perhaps falling

asleep whilst driving his van crossed a stop sign and hit another
vehicle. He would not have been guilty if he had lost control
when attacked by a swarm of bees; Devlin J

...like an uninvited swarm of bees...

Lord Goddard in Hill v
Baxter [1958]

"I do not mean to say that a person should be made liable at

criminal law who, through no fault of his own, becomes
unconscious while driving, as, for example, a person who has
been struck by a stone or overcome by a sudden illness ,
or when the car has been put temporarily out of his
control owing to his being attacked by a swarm of
bees..." I agree that there may be cases where the
circumstances are such that the accused could not really be said
to be driving at all. Suppose he had a stroke or an epileptic fit,
both instances of what may properly be called Acts of God; he
might well be in the driver's seat even with his hands on the
wheel but in such a state of unconsciousness that he could not
be said to be driving. A blow from a stone or a swarm of
bees I think introduces some conception akin to "novus

actus interveniens".
So Automatism is something external that the defendant does not bring upon
himself.
Not one bee, but a swarm, because it has to be total loss of control
If the defendant loses control because of an illness, that is, some internal factor,
he can only plead insanity.
Acts or omissions
must be voluntary,
if they are not it is
called 'Automatism'

D must be in control of his movements not thrown, or slip, or

be dazed for his actions to constitute actus reus; even in a
case of strict liability.
Automatism is ' not merely a denial of fault. It is more a denial
of authorship . . . in these circumstances, it is fair to say that
this was not D's act, but something which happened to D'

Voluntary conduct
not always required
in Strict Liability
offences.
There are many
offences of strict
liability, in which no
fault element need
be proved.
In such cases, one
can therefore have
an actus
reus without any
corresponding mens
rea.

In Larsonneur (1933) L, a French woman was prevented from

entering into a marriage of convenience. She went to Ireland,
but was brought back to England by Irish police she was guilty of
'being found in the United Kingdom' in breach of an order
excluding her.
The circumstances under which she was returned were 'perfectly
immaterial'.
Winzar v Chief Constable of Kent (1983). D was 'found
drunk on a highway', having been removed from a hospital by
the police officers who then arrested him in their police car

Automatism does not include self induced intoxication, even though the accused
may not be in control of his muscles.
Stephen's Digest of
the Criminal Law
(3rd ed., 1887)

"A sees B drowning and is able to save him by holding out

his hand. A abstains from doing so in order that B may be
drowned, and B is drowned. A has committed no offence."
this is the basis in law for saying that the actus reus of a crime
must be a positive act, and not an omission to act.

Although "A" may

have failed to save
"B", he did
no positive act to

In some countries, "A" would always be under a duty to act in

such a situation. Under English law no such a duty arises unless
there are certain specific situations.

cause "B's" death.

The conventional view is that there are several offences (such as

assaults or battery) which cannot be committed by omission,
although this is doubted by DPP v Santana-Bermudez (2003) DC.

Exceptions
Normally, the
criminal law does
not require a
person to act to
prevent harm or
wrongdoing, or
prevent a crime
being committed

Exceptions include a constable who has a duty to prevent

crime Crouthers Case (1599)
And, it is an offence for a person to refuse without reasonable
excuse to assist in quelling a breach of the peace when called
upon by a constable R v Brown (1841).

A person does not

commit a crime or
become a party to
it solely because
he might
reasonably have
prevented it.

So, in Rice v Connolly [1966] D refused to answer questions from

the police and it was held he had not wilfully obstructed a police
officer even though this may have hampered his inquiries.

All exceptions
require a duty.

The exceptions all require that the defendant be under a duty to

act. This duty can be one imposed either by common law or by
statute.

Parents, nurses,
etc., have a duty.

Such duty often exists when the defendant is a parent, nurse,

doctor, police officer, lifeguard or other employed persons.

Duty arising from statute

'Direct' liability;
examples of
offences created
by statute that
make an omission
culpable.

The Children and Young Persons Act 1933 s 1 (as

amended) makes omissions culpable by a person over 16 failing
to look after a child under 16, so an omission is part of the actus
reus of that crime.
It only covers children under 16 and specifically refers to
the failure to provide or obtain adequate food, clothing or medical
care.
It is argued that it could also include other forms of neglect, such
as failure to rescue from drowning in circumstances of the kind
described by Stephen.
Under s 170 Road Traffic Act 1988 failing to stop at a road
accident is a criminal offence. The omission to stop is part of
the actus reus.

Under breathalyser law failing to provide a breath sample or a

specimen for analysis s6 Road Traffic Act 1988, is also an crime of
omission, and under other sections so is failing to give a name
and address.
Where an order made under an Act of Parliament required a
corporation to do certain works, if D fails to comply, he could
commit an offence, R v Birmingham and Gloucester Rly
Co (1842).
Failure to keep proper accounts or business records, where these
are required by law, is a criminal offence under the Companies
Act 1985, the Insolvency Act 1986 or the Value Added Tax Act
1994.
These examples have an omission in their statutory definition.
This type of liability for omissions is called direct liability.

Duty arising from special relationships

When not specified
by statute, failing
to act in a
particular way (an
omission) will give
rise to criminal
liability only where
a duty to act
arises.

This sort of duty is exceptional and the criminal law does

not ordinarily require a person to be "his brothers keeper".
In addition to the statutory requirement, common law creates a
duty on a parent to act for the welfare of his child and, if harm is
caused to the child by his failure to act, he may be criminally
liable for the resulting harm, there are many examples e.g. R v
Bubb & Hook (1850) and R v Gibbins and Proctor (1918) CCA.

This is known as a
'derivative liability'
Neglect leading to
death may lead to
liability for
manslaughter by
gross negligence.

This possibility was confirmed in R v Downes (1875) and R v

Lowe [1973], although wilful neglect of a child does not
automatically give rise to liability for manslaughter merely
because death results (Lowe).
A parent who deliberately starves a child to death may be guilty of
murder R v Gibbins & Proctor (1918).
(Manslaughter and murder are common law offences).

Assumption of care for another

There is
no statutory duty

In R v Shepherd (1862) it was held that the parents of an 18year-old 'entirely emancipated' daughter were under no special

to care or assist a
person over the
age of 16, but
there can be a
common law duty.

duty to care for her, similarly in R v Smith (1826).

However, the common law recognises that a duty may arise in a
family relationship, for example where a couple live together as
husband and wife R v Smith (1979), or where a child continues to
live, and is dependent upon, his parents even after becoming an
adult R v Chattaway (1922).
Also, if a person voluntarily undertakes to care for another who is
unable to care for himself as a result of age, illness or other
infirmity, that person may thereby incur a duty to discharge that
undertaking, at least until such time as he hands it over to
someone else.
The duty not to omit to save the life of someone for whom D had
a duty of care was established in R v Instan [1893]
Thus a woman who assumes responsibility for the care of
anothers child may be liable in respect of a failure to provide
food R v Gibbins and Proctor (1918) CCA, or to provide medical
aid R v Lee & Parkes(1917) CCA.
The principle laid down in R v Instan was applied and extended
in R v Stone & Dobinson [1977] where the occupier of a house
and the woman with whom he was living were both convicted of
manslaughter for failing to provide nursing care for the occupiers
sister who lodged with them.
In such circumstances there is no need to prove that the accused
had been obliged by law to undertake the particular duty, or that
he was bound by contract to care for the other; it is sufficient that
he voluntarily undertook the care of another in circumstances in
which that other was unable to fend for himself.

Official, contractual or public duties

A person may in
some cases incur
criminal liability
through failure to
discharge his
official duties or
contractual
obligations.

The requisite mens

rea, is also
required.

In R v Pittwood (1902) a railway level-crossing keeper forgot to

close the gates and a carter was killed by a train, D was convicted
of manslaughter.
D's liability can be based on the breach of a duty of care to users
of the crossing, which his employers paid him to discharge, and on
which the users of the crossing relied. cf. Smith (1869).
Neglect of duty - an omission - by a police officer was examined
in Dytham [1979]. D stood aside and watched as a man was
beaten to death outside a nightclub.
Although D was not charged with manslaughter, it is submitted

that a conviction for manslaughter might be possible on such

facts.
The principle in Pittwood would extend to liability for a lifeguard at
a swimming pool.

Duty to avert a danger of one's own making

If a person creates
a dangerous
situation through
his own fault, he
may be under a
duty to take
reasonable steps
to avert that
danger, and may
therefore incur
criminal liability
for failing to do so.

In R v Miller [1983] HL D who accidentally set fire to a mattress

and did nothing to put it out was guilty of arson (criminal damage
by fire).
In Khan [1998] D supplied a girl with heroin on which she
accidentally overdosed, and then left her to die. The actus reus of
the offence was the omission to summon medical assistance and
not the supply of heroin.
In DPP vSantana-Bermudez (2003) DC D allowed a police officer
to search him knowing there was a sharp needle in his pocket and
which stabbed the police officer. D had created a danger by an
act that act was a continuing act.

Failure to provide medical treatment

Refusal of consent
to medical
treatment absolves
medical
practitioners of
their duty to act.

Doctors and hospital authorities have a duty to provide medical

care for their patients, and an omission to discharge that duty
may sometimes involve criminal liability.
This duty may be terminated if the patient refuses to accept
medical treatment, even a life-saving amputation or transfusion.
In Re B (adult: refusal of medical treatment) [2002] Ms B's wish
not be kept alive by artificial ventilation was complied with causing
her death.
In fact the medical staff, far from being under a duty to provide
that treatment, would ordinarily be acting unlawfully if they
ignored his wishes Re C (Adult: Refusal of Treatment) [1994].
Where minors are concerned, the High Court may exercise its
wardship jurisdiction so as to override parental refusal of
consent Re B (A Minor) (Wardship: Medical Treatment) [1981] or
refusal of consent by the minor himself Re W (A Minor) (Medical
Treatment: Court's Jurisdiction) [1993].
Even in respect of adults, the court may sometimes hold that a
refusal of consent to treatment is vitiated by lack of capacity or by
undue influence Re T (Adult: Refusal of Treatment) [1993] and
doctors must then provide treatment, in accordance with that

patient's best interests.

In acute emergencies, they may sometimes need to act without
consent and doctors may need to act against parental wishes, or
risk prosecution (together with the parents) for
manslaughter cf. Senior [1899].

Withholding
treatment in the
"best interests of
the patient"

In certain circumstances a doctor may be absolved of his duty to

keep his patient alive, this was famously recognised in Airedale
NHS Trust v Bland [1993] HL; the medical team were allowed to
discontinue feeding Bland, an omission.
Bland was followed in Frenchay Healthcare NHS Trust v S [1994]
CA.
Similar issues can arise in respect of the very elderly or in respect
of babies born with very severe handicaps, this arose in Re
J [1991], and the nursing staff were not required to resuscitate
him (an omission).
In Re A (Children) (2000) CA similar principles applied, although
this case did not create precedent and was decided on the
particular facts.

Practical and
financial
considerations

Even apart from the question of whether treatment would be in

"the patient's best interests", it is recognised that financial or
manpower constraints on the health service must come into
consideration.
It is clearly not practicable for the NHS to provide intensive forms
of medical care (such as major surgery) to every patient, of
whatever age, whose life might possibly be prolonged by it. See
the case of Sage

The Mental
Capacity Act 2005
Advance decision advance directive - a
living will.

Under Section 24 of The Mental Capacity Act 2005 (into force on 1

October) the law allows the ending of life of a patient by medical
intervention. Bluntly, whilst euthanasia remains illegal it is
possible to kill patients by starving them to death or ceasing
medical treatment.
Living wills, in which patients can set down what medical
treatment they wish to be given, or not given, is enforceable in
law. They are also known as "advance decisions" or "advance
directives".
The new Office of the Public Guardian investigates complaints
about the law. The Court of Protection (as part of the High Court)
settles disputes between parties.

If a doctor were to treat a patient against their wishes it will be an

unlawful act and he/she could be prosecuted or face a claim for
compensation.
The Islamic Medical Association has followed the Catholic Churchs
earlier response in saying that its doctors should break the law,
rather than comply with so-called living wills.

Offences for which omissions cannot be the basis of liability

The conventional
view is that some
offences appear to
be capable of
commission only
by positive acts.
However, the view
that no mere
omission, however,
can constitute a
battery is doubted,
following DPP v
Santana-Bermudez (
2003) DC

The offence of acting with intent to prevent the apprehension of

an offender, contrary to the Criminal Law Act 1967, s. 4 is an
example.
Crimes of assault or battery arguably come into this category. This
was the view of the Divisional Court inFagan v Metropolitan Police
Commissioner [1969].
D's conviction was upheld on the basis that his conduct amounted
to a continuing act, rather than an innocent act followed by a
deliberate omission to rectify it.
Continuing Act principle:
So, it doesn't matter if you refer the act immediately causing
harm as one of commission or omission if that act forms part of a
course of conduct, and it follows that the accused will be criminally
liable in respect of his acts, whether they are of commission or
omission.
The Continuing Act Principle was the basis for the conviction for
rape in Kaitamaki [1984]
Omissions cannot be the basis of liability for 'doing acts' for
example failing to supply a key to a tenant, required by
statute Ahmad (1986).
However, the courts have not been consistent in interpreting
references to 'acts' as necessarily excluding omissions.
In Yuthiwattana (1984) it was held that a landlord's omission to
replace a lost key could be an 'act' of harassment against a
tenant.
In Speck [1977] for example, it was held that an omission (to
remove the hand of an 8 year-old from D's private parts) could
amount to an 'act' of gross indecency with a child.
Offences under the Forgery and Counterfeiting Act 1981, are
also only culpable if there is an act and not an omission.

It would seem
that, in
conjunction with
the
appropriate mens
rea, most offences
against property,
including theft and
dishonest
handling, may be
committed by
omission.

So, an "appropriation", which includes keeping property as owner

is an omission and therefore theft, Theft Act 1968 s 3 (1).
R v Pitchley (1973) CA

In R v Miller [1983]
HL the House of
Lords made it clear
that in statutory
crimesactus
reus includes
omissions.

Per curiam.
(i) It would be conducive to clarity of analysis of the ingredients of
a crime that is created by statute to consider and refer to the
conduct of the defendant and his state of mind at the time of that
conduct, instead of making use of the expressions actus
reus and mens rea.

In Firth a doctor was convicted of deceiving a hospital contrary

to s2 Theft Act 1978 when he failed to inform the hospital
authority that some of his patients were being treated privately
and were not NHS patents.

The habit of lawyers of referring to the "actus reus"

suggestive as it is of action rather than inaction, is no
doubt responsible for any erroneous notion that failure to
act cannot give rise to criminal liability in English law.
Actus reus can be a
continuing act.

Actus reus may consist of an ongoing course of conduct, and not

just one that occurs at one instant in time.
The actus reus of assault can continue during a long fight.
The actus reus of rape, for example, extends from the moment of
initial non-consensual penetration to the moment of withdrawal.
If D becomes aware of the absence of consent, he may commit
rape by not withdrawing immediately Kaitamaki v The Queen
[1985]).

Contemporaneity
of actus
Reus andmens Rea

The general rule is that, to be guilty of a criminal offence

requiring mens rea, an accused must possess that mens rea when
performing the act or omission in question, and it must relate to
that particular act or omission.

Coincide, loosely
interpreted

However, the courts are sometimes prepared to hold that the

must coincide at some point in time, Jakeman (1982)

Worked example:

D is planning to poison her husband tomorrow, but kills him in an

accident today. This does not make her guilty of murder. She
may even have been thinking about the planned murder at the

time of the accident. Her delight at her husband's death is also

irrelevant.

"Continuous Act principle"

It is not
necessary
that mens rea
should be
present at the
inception of
the actus reus; it
can be
superimposed on
an existing act.

On the other hand, the subsequent inception of mens rea cannot

convert an act that has been completed without mens rea into an
assault.

Fagan v
Metropolitan Police
Commissioner
[1969] an
example of the
continuous act
principle.

F was directed by a PC to park his vehicle by the kerb, but parked it

on the PC's foot.

Miller [1983] concerned the statutory offence of Criminal Damage,

where a tramp allowed a house to burn after his cigarette had set
fire to a mattress.
The House of Lords extended the principle in Fagan, the difference
being the use of the word "responsibility" to act. The whole course of
conduct of the accused was a continuous act and if at any stage he
had the state of mind required by the statute he was guilty.

He did not do so deliberately, but he deliberately left it there after

the officer told him told him to remove it from his foot.
There was on ongoing act, which became an assault once F became
aware of it.
James J said:
It is not necessary that mens rea should be
present at the inception of the actus reus; it can
be superimposed on an existing act. On the
other hand, the subsequent inception of mens
rea cannot convert an act which has been
completed without mens rea into an assault.

"Transaction principle"
Different actions
can be treated
as a single,
extend or
continuous
'course of
conduct'.

It appears to be necessary that the "continuing act" occurs when D

is engaged in some kind of wrongdoing e.g. moving the victim of
assault, hiding the body or covering up the crime in some way; not if
he is trying to assist the victim.
It will then be sufficient if the accused possessed the requisite mens
rea at any point during that course of conduct.
If D attempts to murder V by beating him to death, and believes
that he has done so, but actually kills V by throwing what he
assumes to be his corpse over a cliff, D will still be guilty of murder.
Lord Reid in Thabo Meli v The Queen [1954] said;

it is much too refined a ground of judgment to say that, because

they were under a misapprehension at one stage and thought that
their guilty purpose had been achieved before, in fact, it was
achieved, therefore they are to escape the penalties of the law.
Same principle
applies even if
the actions are
not pre-planned.

There was no plan in R v Church [1966] D thought he had killed V,

so he threw her into the river Ouse, where she drowned. Edmund
Davies J said:
'. . . if a killing by the first act would have been manslaughter, a
later destruction of the supposed corpse should also be
manslaughter'.
Church was followed and extended in Le Brun [1992], D knocked his
wife unconscious and tried to drag her into their house. Her head
struck the pavement killing her.
In Church the fatal impact was accidental, but the disposal of the
'body' was deliberate.
Le Bruns killing was an accident Nevertheless he was guilty of
manslaughter there was a continuous course of unlawful conduct.
Le Brun was either trying to cover up the assault or force his wife
into the house (which was why they were arguing), but not to help
her.
If Le Brun had been trying to aid or assist his wife when he
attempted to move her, this would have broken the essential nexus
between the two halves of the incident.
The two halves of the incident were connected.
A similar example cited by Smith & Hogan is a South African
case, Masilela, S v (1968), where V burnt to death after being
knocked unconscious by D.

Continuing for
how long?

It seems that the continuing act will continue for as long as the
defendant is about the business of committing or covering up the
crime.

The mens
rea and actus
reus can be quite
separate in time
and geography

In Jakeman (1982) an importation of cannabis offence the mens

rea occurred in Ghana, the actus reus was by the innocent agency of
Paris air officials who forwarded suitcases.
He will not be excused merely because he abandons it before that
actus reus is complete.
After inflicting a fatal injury on V with murderous intent, D may
repent of his actions and may even do his utmost to save V's life;
but if V dies he will be guilty of murder.

Mens rea must

be for
appropriate
offence.

In Taaffe, R v (1984) HL D had the mens rea for importing currency,

and not for the importing cannabis, which was in his possession.

A further
difficulty arose
in Attorney
General's Ref (No.
4 of 1980) [1981]

In the course of a struggle, D pushed his girlfriend V over a landing

rail onto the floor below and then, believing her dead, cut her throat
and dismembered her in the bath so as to dispose of her body.
It was impossible to establish whether V died in the original fall or
whether he killed her (as in Church) by his subsequent actions.
Despite uncertainty as to the actual cause of death, he was guilty of
manslaughter, only because it could be proved that each of D's acts
was performed with the requisite mens rea for that offence.
Since the initial fall may well have killed V, it would not suffice to
establish mens rea (such as gross negligence) only in the
subsequent act of disposal: the prosecution also had to disprove D's
claim that he had merely pushed her away in a 'reflex action' when
she dug her nails into him in the struggle on the upstairs landing.

Lord Diplock
in Miller urged
us to use
'conduct of the
accused' rather
than "actus
reus"

The expression 'actus reus' is derived from Coke's Institutes "et

actus non facit reum, nisi mens sit rea,"

Bad Latin.

Lord Diplock said that it would be better that we avoid bad Latin and
instead to think and speak about the conduct of the accused and his
state of mind at the time of that conduct, instead of speaking
of actus reus and mens rea.

Haughton v
Smith [1975] HL

Lord Hailsham:

By incorrectly using "reus" as an adjective instead of a noun, the

phrase is likely to mislead, because it suggests that some positive
act is required. Whereas a failure or omission to act can give rise to
criminal liability.

"Strictly speaking, though in almost universal use, it derives, I

believe, from a mistranslation of the Latin aphorism: "Actus non facit
reum nisi mens sit rea."

Properly translated, this means "An act does not make a man guilty
of a crime, unless his mind be also guilty."
It is thus not the actus which is "reus," but the man and his mind
respectively. Before the understanding of the Latin tongue has
wholly died out of these islands, it is as well to record this as it has
frequently led to confusion."
A useful
translation is

"an act does not make a person legally guilty unless the mind is
legally blameworthy"

Contrasting judicial positions on the usefulness of using the terms actus

reus and mens rea.

Court of Appeal in
Singh (Gurdev) v The
Queen [1973] CA

Lord Lane:

Lynch v DPP for

Northern Ireland
[1975]

Simon of Glaisdale

"...the division of crimes into actus reus and mens rea is

sometimes extremely helpful. In these particular
circumstances it does nothing except cloud the issue."

"[The terms actus reus and mens rea] have, however,

justified themselves by their usefulness; and I shall myself
employ them in their traditional sensesnamely actus
reus to mean such conduct as constitutes a crime if the
mental element involved in the definition of the crime is also
present (or, more shortly, conduct prohibited by law);
and mens rea to mean such mental element, over and
above volition, as is involved in the definition of the crime."

The mental element in actus reus

Actus reus, sometimes

contains a mental

In some assaults, foreseeing the risk of harm is a

mental element.

element

"Actus non facit reum

nisi mens sit rea"

Foreseeability is part of causation

Causation is part of the actus reus.

Therefore, the actus reus of some assaults requires a

mental element to be proved by the prosecution.

actus = act
reum (reus) = liable
A man is not liable for his acts alone, but only if he acts with
a guilty mind.

Examples of mental elements in actus reus

Actus reus of Theft Act

offences includes
"appropriation" and
"possession", these
require a mental
element.

"Appropriation" and "possession" are recognised to be terms

used in the actus reus of offences and yet necessarily
involving some mental element in the accused.

Professor Glanville Williams has stated that some crimes,

including attempts, were examples of crimes in which:
"The act constituting a crime may...take its criminal
colouring entirely from the intent with which it is done."
The act "to take" or "to give" cannot be done by accident, yet
are part of the actus reus.

There is a mental
element implicit in the
actus reus of any
offence of unlawful
possession.

Therefore the usual distinction between the mental element

and the external manifestation of a crime can be difficult to
apply in cases where the crime is one of 'possessing',
'permitting', 'keeping', 'appropriating', etc, because these
terms simultaneously import both mental and physical
elements.

D does not possess something, which, unknown to him, has

become stuck to the sole of his shoe or the blade of his
penknife Warner v Metropolitan Police Commissioner
[1969] & Marriott [1971]. But, he may possess a
controlled drug without realising what it is that he
possesses.

The correct legal concept of possession involves both the

actus reus of possession and a state of mind, the animus
possidendi, which can only be a part of the mens rea.

In practice, the animus possidendi is treated as if it were an

element of the actus reus. Animus possidendi must always
be proved by the prosecution, whereas the burden of proof in
respect of other mens rea elements is placed on the defence.

Causing an affray, that

is causing terror to
others by fighting,
requires that the
fighting be deliberate,
and is part of the actus
reus, Taylor v DPP [1973]

Thus, the Court of Appeal in R v Jones was content to define

the actus reus of affray as "fighting or the show of force."

"Going equipped" (To

have with one any
instrument for use in a
burglary, theft or cheat
outside of one's place
of abode). Section 25 of
the Theft Act 1968.

The external conduct may be carrying a screwdriver.

If we ignore the question "What did D intend to use it for?"
(that is his purpose) we are left with entirely innocent
behaviour; carrying a screwdriver in the street.

The actus reus exists only if the purpose of an otherwise

neutral object - the screwdriver - that the accused possesses
is that he intends it to be used in for one of the criminal
purposes mentioned.

"Carrying an offensive
weapon in a public
place" expresses the
actus reus of section 1
(4), Prevention of Crimes
Act 1953.

An offensive weapon turns on the accused's intention to

injure another with it. It is this intention that translates an
umbrella or hammer into an offensive weapon and hence
allows us to describe the conduct as prohibited.

However, the actus reus is not holding an umbrella or

hammer; it is carrying an offensive weapon R v Petrie
[1961].

"Attempt" means D was

trying to create the
actus reus of the crime.

D is only is attempting to commit the crime (the actus

reus of attempts) if his purpose is the attainment of that
crime.

Sweet v Parsley [1970]

The ratio decidendi of Sweet v Parsley was not that an

essential of liability, mens rea, was absent but that there was
no actus reus.

What was prohibited was "running a cannabis den" and Miss

Sweet was doing nothing of the sort.

One cannot "run" that of which one is ignorant.

The house was not "a cannabis den" that was not its
function.

"Running" involved knowledge of the function given to the

premises, this is part of the actus reus.
Lord Diplock said that the knowledge or purpose of the
accused was a requisite of both parts of the actus reus - the
"running" and what was "run".

Impersonation or
"Personation" occurs

This offence can be committed by pretending to be a

by presenting oneself
as another.

juryman, policeman, voter or many other persons.

The actus reus may be brought about accidentally or

otherwise innocently.

Impersonation is the endeavour to appear as another. The

crime of "impersonation" requires the deliberate pretence to
be another, not merely causing another to mistake one for
someone else It does not dependent on convincing
someone that one is the person one is pretending to be.
The actus reus of "impersonating a police officer," (section
52 (2), Police Act 1964), involves D having a particular
purpose.

Rape "by inducing a married woman to have sexual

intercourse by impersonating her husband" (section 1 (2)
Sexual Offences Act 1956) involves the prohibited conduct
of trying to appear as her husband.

Indecent assault only

occurs when V has
been sexually
assaulted.

The crime occurs when there is an assault in "circumstances

of indecency."

This indecency forms part of the actus reus of the offence in

the same way that causing actual bodily harm is part of the
actus reus of assault occasioning actual bodily harm.

"Circumstances of indecency" turn an assault into an

indecent assault when D's purpose in the assault is a sexual
purpose.

In R v Sutton, [1977] D photographed children in

pornographic positions. He touched the children in order to
arrange the poses. If his touching had been indecent (sexual)
there would have been a sexual assault. But his intent was
merely to arrange the subjects.

Only if the assault has sexual significance to the accused has

the victim been indecently assaulted.

If one of the boys had thought the touching was sexual, he

would have misunderstood the situation: he would not have
been touched sexually "by accident."

The sexuality is part of the actus reus, not merely ulterior

intent, as the crime refers to a distinct kind of assault.
This conduct is now covered by the Sexual Offences Act
2003.

"False imprisonment"
can depend upon D's
beliefs.

If a constable, genuinely and reasonably believed that V was

guilty of an offence, V will not have been falsely imprisoned
whether he has actually committed an offence or not.

Whether imprisonment is false or not will turn, usually, not

only on mere subjective belief in the legitimacy of the arrest,
but also on the reasonableness of that belief.

This is certainly so with section 2 (2)-(7) Criminal Law Act

1967. But there still must be genuine suspicion. If a PC

arrests someone without suspecting him to be guilty of an

arrestable offence, he would be guilty of false imprisonment.
Hence, the existence of the actus reus turns on the accused's
mind.

Harnett v Bond [1925]

Harnett was classified as insane and kept in a mental

institution managed by Dr Adam.

Dr Adam released Harnett on licence.

Harnett visited a Dr Bond, who decided that Harnett

was insane, detained Harnett in his office and
arranged for Harnett to return to Dr Adam's
institution.

Harnett remained there for several years until he

escaped and was judged by two psychiatrists to be
sane.

It was clear that Dr Adam had believed Harnett to be

mad throughout the time of Harnett's incarceration.

Harnett sued the doctors for false imprisonment.

Viscount Cave LC:

"The leave of absence order authorises the medical officer
[Dr Adam] to retake the patient if the patient's mental
condition requires it. If this power is exercised negligently, it
may be that there is a remedy; but the negligence does not
make the retaking unlawful, and the remedy (if any) is by
action for negligence and not by action for false
imprisonment."
Hence, Dr Adams attitude to Harnett meant there had been
no actus reus of false imprisonment, either as a crime or as a
tort.

The actus reus of theft

includes appropriation.

Theft involves "appropriation" and this concept revolves

around D's attitude to another's property that is, an
assumption of the rights of the owner.

Professor Smith in The Law of Theft:

"It is impossible to determine whether there has been an
appropriation without having regard to the intention with
which an act was done."

Ignorance as to the
lack of insurance is no
bar to conviction for
permitting the use of
an uninsured vehicle

There must be a conscious decision to allow another to use

the vehicle. So, if E believes that when D nods he is agreeing
to E driving D's car when, in fact, D was nodding in reply to
another question, D has not permitted E to drive his car.

In all cases involving "to permit," in the actus reus the mind
of the accused is involved.

In a certain type of
manslaughter the actus
reus is not merely that
V dies as a result of D's
neglect, but that V was
D's had assumed
responsibility for V.
This only arises where
D voluntarily assumes
the care of V.

In R v Stone [1977] the court inferred that the accused had

assumed responsibility towards his sister, it is apparent that
the basis of the court's decision was the existence of this
voluntary assumption.

But the existence of this duty is a necessary part of the actus

reus Without it the conduct is not prohibited, and yet its
existence depends on the mind of the accused.

Two actus rea together with one mens rea

In Fagan v Metropolitan
Police
Commissioner [1968], the

D realised what had occurred and decided to leave his car on

PC Morris' foot. Eventually he moved it. He was convicted of
assault. The activity of driving onto, and remaining on the

accused accidentally
parked his car on a
policeman's foot.

foot was the actus reus. D became liable for that actus
reus when he possessed mens rea.

The act of battery was the external basis of the charge and
spanned driving onto the foot to removing the car but that
liability proceeded from the joining of mens rea to this.

Fagan's crime was the single continuous assault. He could

only be liable for that crime for those periods during which he
had mens rea.

If Fagan had, after deciding to remain on the foot, wrongly

thought his car had rolled off the foot but on discovering the
truth, decided to stay put, this second occurrence of mens
rea would not render him liable for a distinct assault.

There has been a break in mens rea, but the actus reus has
continued uninterrupted. Hence, Fagan would have
committed the one assault at these two separate times
during which he had mens rea.

In Thabo Meli [1954] PC

(South Africa) a break
in mens rea is
irrelevant to the
termination of the
crime

Lord Reid's:
"[Their crime is not reduced] from murder to a lesser crime,
merely because the accused were under some
misapprehension for a time during the completion of their
criminal plot."
D's argument that there was no contemporaneity of actus
reus and mens rea was rejected: the events were one
transaction, during which malice aforethought had existed.

The actus reus stretched from the first blow to the eventual
death. That was "the killing."

As mens rea existed at some time during that killing, they

were liable for murder.

The emphasis is placed upon the identity of a crime with its

actus reus and the requirement for liability that at some time
during that actus reus there is mens rea.

If mens rea existed at two separate times during the one

killing, D would only have committed one crime, although his
liability for that single crime would exist at those two periods
of time.

Fagan and Thabo Meli affirm the view that it is the actus
reus that identifies the existence of and duration of a crime.

The removal of a mental element by voluntary consumption of alcohol (or drugs)

The criminal law

sometimes holds that
once the actus reus is
established liability is
complete. An example
is the defence of
voluntary intoxication.

If D is voluntary intoxication and so is incapable of forming

the necessary mens rea, he will still be liable for that actus
reus even though the crime usually requires proof of mens
rea. (This is not the case if the crime charged is one of
specific intent).

In R v Burns (1973) CA, D a homosexual, was charged

with indecent assault. He claimed that he suffered a form of
automatism resulting from the combination of psychiatric
disturbance and alcohol and awoke to discover his penis in

another man's mouth.

Held: Indecent assault is not a crime of specific intent.

If Burns had been unaware of his behaviour owing to

intoxication, he would still be guilty of indecent assault.

If the assault was not deliberate and deliberately indecent,

self-induced drunkenness is no defence to indecent assault
because no specific intent is required.

Indecent assault is not a crime in which the accused must

intentionally bring about the actus reus or in which some
ulterior intent must be proved for liability. Hence, it is not a
crime of specific intent. Whilst sexual purpose is a necessary
ingredient of this crime, it relates to the existence of the
actus reus, not the mens rea.

Burns was not relying on a defence of intoxication, rather, if

his actions were unconscious or accidental, and thus not
consciously sexual, there was no actus reus and so there was
no indecent assault.

There can be no liability if there is no actus reus. Hence, a

lack of sexual purpose for whatever reason negates liability.

The need for conscious sexuality means that the assault

must be deliberate and there must be sexually purposeful.

Thus, the requirement of deliberateness as to the assault is

not a requirement of mens rea but merely that the body

contact be deliberate.

Mens Rea, the guilty

mind

From the Latin, Actus non-facit reus nisi mens sit rea

Definition of mens rea

The term mens rea refers to the mental element in the

definition of a crime. This is not some abstract mental
process; it refers to specific words in the charge or
indictment.

These words
include 'intentionally',
'knowingly',
'recklessly',
'maliciously', or
'negligently',
'fraudulently',
'suffering',
dishonestly and so
forth.

Each word has a different meaning, it is not possible to

simply identify them as mens rea and leave it like that.

If Parliament intended mens rea in an offence it will often

include mens rea words
somewhere else in the statute.

The courts assume that if Parliament deliberately left the

word out, the offence is one of strict liability by necessary
implication.

Transferred malice

If the defendant, with the mens rea of a particular crime,

does an act, which causes the actus reus of the same crime,
he is guilty, although the result, in some respects, is an
unintended one.

Latimer (1886)

D, a soldier during an argument with another man C in a

pub, took off his belt swung it at C, missed and wounded the
landlady V.
Held: the intention to strike C was transferred to V under the
doctrine of transferred malice.

Guilty

When malice is not

transferred.

However, if the defendant, with the mens rea of a particular

crime, does an act that causes the actus reus of another
crime, he will not be liable under the doctrine of transferred
malice.

Pembliton (1874)

D was ejected from a pub and became involved in a fight. He

threw a stone at the group of men he had been fighting,
missed them but broke the pub window behind them.
Held: His "malice" in intending to strike another person could
not be transferred to an intention to break the window.
Not guilty

Coincidence of actus
reus and mens rea

See contemporaneity, here

Ignorance or mistake
of a civil law obligation
can negate mens rea of
a crime

Ignorance of the criminal law is no defence, but a mistake of

civil law may be a defence to a criminal charge, provided it
negates the mens rea for the offence in question

Mens Rea - what it is.

Mens Rea (the guilty mind or wrongful intention) differs from

crime to crime.
The intention of a criminal committing a theft is different
from that of a rapist.
To be criminally liable, a person must have intended to do
wrong or have acted in a reckless and negligent manner
knowing that his actions would cause the result complained
of.
A terrorist, who puts a bomb on a plane and kills all the
passengers, would have no defence by claiming that he did
not intend to kill anyone, and he only intended to damage
the plane. Such an act is so reckless, and the likelihood of
death so foreseeable, that it is inferred that the criminal

intention is present.

When considering
murder, the House of
Lords has ruled that
intent to kill or inflict
serious bodily harm is
necessary to establish
'malice aforethought'.

Malice aforethought means 'intention'. However, foresight of

the probable consequences of an act does not automatically
mean the consequences were intended.

R v Moloney (1985) HL

D received a friendly challenge by his stepfather to see who

was "quicker on the draw" with shotguns. Both men were
drunk, but good friends. Moloney shot and killed his
stepfather, although he claimed he had no intention to do so
and did not appreciate that the gun was aimed at the victim.

A line of cases demonstrates this:

Held: Moloney was not guilty of murder as a person only

intends the result of an act if his purpose is to bring about
that result. As Moloney did not intend to kill his stepfather,
he was not guilty of murder.
Guilty of manslaughter.

R v Hancock and
Shankland (1985) HL

The defendants (DD) were striking miners. They pushed

blocks of concrete from a bridge above a road, which landed
on a windscreen of a taxi carrying a miner to work. The
concrete killed the driver of the taxi and the defendants were
charged with murder. They claimed that they had not
intended to kill or injure anyone, but merely to block the
road.
Held: In such cases the probability of death or injury arising
from the act done is important, because "if the likelihood that
death or serious injury will result is high, the probability of
that result may be seen as overwhelming evidence of the
existence of the intent to kill or injure."
Guilty of manslaughter.

R v Nedrick (1986) HL

The court considered that in such cases a person would only

be guilty if his actions are virtually certain to result in
death or serious harm, regardless of intent.

R v Woollin [1998] HL

The House of Lords approved Nedrick, and made a few

refinements to the direction a judge should give the jury.
[ Back ] [ Next ]

Jury normally
decides what
intention is.

Common sense of the jury

Direct intention

If D points a gun and fires it is immaterial if poor shot or out

of range. He has intention, he has:
1. Purpose
2. foresight of certainty
Therefore D has intention if he realised the result was
certain to follow.

Problem area.....

Indirect (or sometimes called oblique) Intention .... I

didnt mean to kill him, harm her, cause as much damage,
start a fire.

Foresight of
certainty =
intention

Indirect intention requires foresight of the consequences.

Intention is not some form of recklessness, it is more than
that.
There is a line of cases where the meaning of intention has
been developed.
Note: each of these cases is relevant, they were not overruled
by the later cases, the ration decidendi wasrefined.

The line of cases,

and CJ Act.

DPP v Smith [1960] HL (PC thrown from car bonnet)

Section 8 Criminal Justice Act 1967 (subjective test required)
Hyam v DPP (1975) HL (Petrol through letter box)
R v Cunningham (1981) HL (Intention to GBH sufficient)
R v Moloney (1985) HL (Quick draw)
R v Nedrick (1986) CA (Paraffin through letter box)
R v Hancock and Shankland (1986) HL (Concrete on taxi)

DPP v Smith [1960]

HL

Held: Intention can be formed instantly,

The objective test of intention used was reversed by
the Criminal Justice Act 1967

Section 8 Criminal
Justice Act 1967

A court or jury, in determining whether a person has

committed an offence,
(a) shall not be bound in law to infer that he intended or
foresaw a result of his actions by reason only of its being a
natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by
reference to all the evidence, drawing such inferences from
the evidence as appear proper in the circumstances.

R v Cunningham
(1981) HL

Intention to cause serious injury (GBH) is sufficient to found a

charge of murder, it is not necessary to intend the death of V.

Hyam

intention = foreseen as highly probable (or merely probable)

Therefore wider than certainty.

Moloney

intention - leave it to the jury =

"foresaw, as natural consequence" (little short of
overwhelming, or virtually certain)

if yes jury
can infer intentio
n

viz. it is evidence of intention , not necessarily is intention .

Hancock &
Shankland

- ordinary usage - not foresight of consequences

- if evidence of foresight intention can be inferred...

"Greater
probability of
consequences

...more likely they were foreseen

...if consequences
foreseen

...the greater probability consequences intended"

but; natural
consequences
ambiguous.
Nedrick

- death or serious injury a virtual certainty (barring novus)

and D realised.

so .....

Intention can be inferred from

virtual certainty

Consequences which are his purpose, foresees and

desires irrespective of probability

Can be inferred, if virtually certain and he knows it,

though not desired.

Therefore

foresees virtual certainty = subjective

is virtually certain = objective

Both have to be
proved.

High standard on prosecution.

Upheld
in Woollin (1998)

with some refinements of the ratio decidendi of Nedrick.

Foreseeability
in mens rea

Draft Criminal
Code

The words malice

wilful and
reckless have
much the same
meaning

Consequence desired: intention

Consequence foreseen as virtually certain: intention

may be found

Consequence foreseen as probable: typically

recklessness (subjective)

Consequence foreseen as possible: typically

recklessness (subjective)

Consequence not foreseen but ought to have

been: negligence (objective recklessness) (now
rare sinceR v G [2003])

Consequence even reasonable man would not

foresee: strict liability

"A person acts intentionally with respect to...a result when he

acts either in order to bring it about or being aware that it will
occur in the ordinary course of events."

They are found in two groups of statutory and common law

offences.
Unfortunately what is reckless varies.
The test is, was the recklessness subjective or objective.

Cunningham - Subjective Recklessness

R v Cunningham [1957] CA

In R v Cunningham
[1957] the term
subjective
recklessness first
appeared

Sometimes called Cunningham Recklessness.

The Test:

Did D consciously take an unjustified risk?

Offences: offences that can be committed Cunningham

Recklessly, include non-fatal offences against the person;
rape; Theft Act offences, some Common Law offences.

Caldwell/Lawrence - Objective Recklessness

In MPC v Caldwell
(1982) and R v
Lawrence [1982]
(decided on the
very same day) the
term objective
recklessness first
appeared.
Sometimes called
Caldwell/Lawrence
Recklessness

Offences: offences that can be committed with

Caldwell/Lawrence Recklessness are now very limited
following R v G and another [2003] HL

The Test:

Was there an obvious risk which D consciously took

or unconsciously took?
This means:[Two limbs]
First limb: D does any act which creates a serious
[serious = not negligible] risk, that must be obvious
[to a reasonable prudent man] [objectively viewed]
and
Second limb:
a): has recognised some such risk and nevertheless taken
it
[advertant recklessness].
or
b) he must either not even address his mind to the
possibility of there being some such risk and the risk was
obvious
[inadvertent recklessness] .

Note:
Caldwell/Lawrence
broadened
Cunningham

So, all Cunningham Recklessness is also

Caldwell/Lawrence Reckless, but not the other way round.

Relevant cases
Rv
Cunningham [1957

Applicable to
Theft Act offences;

] CA

offences against the person;

common law offences;
rape

R v Cunningham [1957] [gas meter, neighbour became ill]

R v Savage and Parmenter [1992] [threw beer, and
inadvertently glass over rival for boyfriend. It is enough
that she should have foreseen that some physical harm,
albeit of a minor character, might result. Guilty]
R v Pigg (1982) [rape 15 and 17 yr. olds, indifferent, and
gave no thought, if he had there would have been obvious
risk (of wrong penetration) not aware of possibility but
persisted regardless. Not Guilty on other grounds - majority
verdicts]
R v Adomako (1994) anaesthetist, tube fell out during eye
operation, manslaughter = gross negligence, not
recklessness]
R v Spratt (1990) [pellets miss target hit 7 yr. old]
R v Satnam and Kewal (1984) [joint rape 13 yr. old girl
Betty, both indifferent to her feelings, couldnt care less
attitude. Not guilty]
Relevant cases
Caldwell /Lawrence

For all practical purposes limited to some regulatory

offences [e.g. Data Protection] following R v G and
another [2003] HL]
Previously relevant cases are here
May still have some relevance to gross negligence
manslaughter:
R v Adomako (1994) [can be used to explain gross
negligence in manslaughter which has replaced
Recklessness]
and some regulatory offences;
Data Protection Registrar v Amnesty International
[1995] [includes regulatory offences under Caldwell
Recklessness;]

Relevant cases

The Caldwell
Lacuna

Cases which failed to establish the lacuna*

R v Lamb [1967] [two bullets in chamber, thought no risk.=
not guilty]
R v Crossman [1986] [unsafe lorry load safe as houses
changed his plea, should have maintained lacuna plea =
guilty]
R v Reid (1992) [undertakes, hits protruding hut,
considers risk but mistake as to specific fact = careless
driving. Taking a risk to avoid an emergency is not reckless]

General Points Applicable to All Recklessness

Defendant may
not intend the
consequences, but
takes an
unjustified risk of
causing the
consequences.

Risk must be unreasonable, therefore not a

surgeon,

pilot,
tightrope act,
reasonable force to make an arrest (e.g. PC forcing
suspects car off the road),
reasonable self-defence.

Obvious test is the social value -v- gravity of harm caused

e.g. Russian Roulette -v- shooting sheep-worrying dog.
Before
Caldwell/Lawrenc
e and in R v
Cunningham
[1957] cases

Now gross
negligence will
normally amount
to
Caldwell/Lawrenc
e type
recklessness.

Cunningham Recklessness requires inadvertent risk taking,

mere negligence, or unreasonable failure to consider obvious
risk.
Therefore there is an overlap between recklessness and
gross negligence.
Recklessness = conscious taking of an unjustifiable
risk
Negligence = inadvertent taking of an unjustifiable
risk

Consequences desired = Intention.

Consequence foreseen as virtually certain = intention
may be inferred - Cunningham Recklessness.
Consequence foreseen as probable = typically
recklessness (subjective) - Cunningham
Recklessness.
Consequence foreseen as possible = typically
recklessness (subjective) - Cunningham
Recklessness.
Consequence not foreseen but ought to have been =

objective recklessness - Caldwell/Lawrence

Recklessness.
Consequences even a reasonable man would not
foresee = strict liability.

The "Caldwell Lacuna"

note this has very limited application following R v G and another) [2003] HL
What if D decides
there is NO risk?

Once the obvious and serious risk is proved the only way out
for the defendant is to prove he considered the matter and
decided there was no risk, or negligible risk. This is known as
the Caldwell Lacuna, first acknowledged in R v Reid (1989).

G and another, R
v (2003) HL

[Criminal damage - recklessness is objective]

DD aged 11 and 12 went camping without their parents
approval. They went to the back of the Co-op in Newport
Pagnell, lit some newspapers which set fire to a wheelie-bin
which set fire to the shop, cause 1m of damage. They were
convicted of arson by a jury. Both the judge and jury appear
to have been not content with applying the objective approach
that the law required in R v Caldwell (1982) HL.

Whole case, here

Held: Unanimously, Caldwell was wrongly decided, the test of

recklessness was found in the preparatory work of the Law
Commission prior to the Criminal Damage Act 1971.
The test now is:
"A person acts recklessly within the meaning of section 1 of
the Criminal Damage Act 1971 with respect to (i) a circumstance when he is aware of a risk that it exists or
will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to
take the risk."
(Based on clause 18(c) of the Criminal Code Bill annexed by
the Law Commission to its Report A Criminal Code for
England and Wales Volume 1: Report and Draft Criminal Code
Bill (Law Com No 177, April 1989))
Not guilty of arson (criminal damage by fire)
Reid, R
v (1992) HL

[Mens rea - objective recklessness - relevant to

motoring cases]
D was driving in the inside lane of a dual carriageway. D tried
to overtake another car on its nearside but there was a hut
protruding into the road in the nearside lane. D's car struck
the hut and his passenger was killed.
Held: Recklessness could not be restricted to a subjective test
and included failing to appreciate an obvious risk. However, it
was not always necessary to direct the jury precisely in the

terms of Lord Diplock's specimen direction in Lawrence they

must have regard to all the available evidence.
Lord Ackner:
Lord Diplock's dicta in Lawrence was
"no more than a cautionary instruction to the jury ... yet
before reaching any firm conclusion they must have regard to
any explanation which accounts for [D's] conduct. In short,
they must have regard to all the available evidence".
Held: Lord Goff:
"I accept that if D is addressing his mind to the possibility of
risk and suffers from a bona fide mistake as to a specific fact
which if true would have excluded the risk, he cannot be
described as reckless though he may be guilty of careless
driving."
Guilty

Conspiracy - introduction
History of
statutory
conspiracy

Following R v Churchill [1967] HL the Law Commission reported

on Conspiracy and Criminal Law Reform (Law Com no 76):
"What the prosecution ought to have to prove is that the
defendant agreed with another person that a course of
conduct should be pursued which would result, if
completed, in the commission of a criminal offence, and
further that they both knew any facts they would need to
know to make them aware that the agreed course of
conduct would result in the commission of the offence."
This report led to the enactment of the Criminal Law Act 1977.

Conspiracy is
about
blameworthy
intention

Conspiracy imposes criminal liability on the basis of a person's

intention.
This is a different harm from the commission of the substantive
offence.
The intention which is criminalised in the offence of conspiracy
should itself be blameworthy, irrespective of the provisions of the
substantive offence.
A conspiracy is looking to the future. It is an agreement about
future conduct.

Section 1(1)
Criminal Law Act
1977

"if a person agrees with any other person or persons that a

course of conduct shall be pursued which, if the agreement is
carried out in accordance with their intentions (a) will

necessarily amount to or involve the commission of any offence or

offences by one or more of the parties to the agreement he is
guilty of conspiracy to commit the offence or offences in question."
There are three elements in statutory conspiracy
Element 1:

The actus reus of conspiracy is complete in the making of an

agreement in which the parties intend to carry out their
agreement.
The offence is complete even if the parties do not carry out their
agreement.
The offence is complete even if the substantive offence is
not thereafter committed by any of the conspirators or by
anyone else.

Element 2:

The mens rea (apart from the mental element involved in making
an agreement), comprises the intention to pursue a course of
conduct which will necessarily involve commission of the crime in
question by one or more of the conspirators.
The conspirators must intend to do the act prohibited by the
substantive offence.
The conspirators' state of mind must also satisfy the mental
ingredients of the substantive offence.
If one of the ingredients of the substantive offence is that the act
is done with a specific intent, the conspirators must intend to do
the prohibited act and must intend to do the prohibited act with
the prescribed intent.

Example:
conspiracy to
wound/ GBH

A conspiracy to wound with intent to do grievous bodily harm

contrary to section 18 of the Offences of the Person Act
1861 requires proof of an intention to wound with the intent of
doing grievous bodily harm.

Conditional
agreements

On the one hand, if I conspire to rob a bank tomorrow if the coast

is clear when I reach the bank is not, by reason of this
qualification, any less a conspiracy to rob. On the other hand, if I
agree to commit an offence should I succeed in climbing Mount
Everest without the use of oxygen, plainly I have no intention to
commit the offence at all.
Fanciful cases apart, the conditional nature of the agreement is

insufficient to take the conspiracy outside section 1(1).

Element 3:

Under Section 1(2) conspiracy involves a third mental element:

intention or knowledge that a fact or circumstances necessary for
the commission of the substantive offence will exist.

Example:
handling stolen
goods

One of its ingredients in the offence of handling stolen goods is

that the goods must have been stolen. That is a fact necessary for
the commission of the offence.
Section 1(2) requires that the conspirator must intend or know
that this fact will exist when the conduct constituting the offence
takes place.

Strict liability and recklessness offences

Strict liability
and
recklessness
have no place in
the offence of
conspiracy

Section 1(2) removes strict liability and recklessness from the

statutory offence of conspiracy by requiring "intention" or
"knowledge":
"Where liability for any offence may be incurred without knowledge
on the part of the person committing it of any particular fact or
circumstance necessary for the commission of the offence, a
person shall nevertheless not be guilty of conspiracy to commit
that offence by virtue of subsection (1) above unless he and at
least one other party to the agreement intend or know that that
fact or circumstance shall or will exist at the time when the
conduct constituting the offence is to take place."

Section 1(2) is
not confined
strict liability
offences

A conspiracy is looking to the future. It is an agreement about

future conduct. When the agreement is made the "particular fact
or circumstance necessary for the commission" of the substantive
offence may not have happened.
Section 1(2) expressly caters for this situation.
Generally, references to "knowingly" or the like in substantive
offences are references to a past state of affairs.
On a charge of conspiracy to handle stolen property where the
property has not been identified when the agreement is made, the
prosecution must prove that the conspirator intended that the
property which was the subject of the conspiracy would be stolen
property.

R v Saik [2006]
HL

In R v Saik [2006] HL the defendant suspected but did not

actually "know" that the money he was laundering was the
proceeds of crime, he was therefore not guilty.

Whole case here

No mens
rea required

In this case Lord Nicholls explains and clarifies the law of

conspiracy and this now must be seen as the leading case on the
subject.

The distinguishing feature of crimes of strict liability (SL) is the

absence of mens rea, the prosecution is not required to prove
the defendant intended the consequences of his actions or even
foresaw them.
For some offences they may be required to show that the
defendant was "negligent".

Sherras v De
Rutzen [1895]
Wright J

The case of Sherras is usually cited for its reference to the

presumption that mens rea is an essential ingredient in every
other offence.

Sweet v
Parsley (1970) HL

Sweet v Parsley is usually cited at the defining case on strict

liability where the need for mens rea in most criminal cases was
spelt out and where it was acceptable for the presumption
for mens rea to be dispensed with.
" there has for centuries been a presumption that Parliament
did not intend to make criminals of persons who were in no way
blameworthy in what they did. That means that whenever a
section is silent as to mens rea there is a presumption that, in
order to give effect to the will of Parliament, we must read in
words appropriate to require mens rea ... "

Evidence of mens
rea inadmissible

Evidence which goes beyond establishing the specified elements

of the offence for example intention, knowledge and so on is not
relevant and therefore inadmissible especially where such
evidence serves no purpose other than to incline the court to
think badly of that defendant.

This type of
offence typically
found in legislation
relating to

SL offences are
common

Currency offences
Road traffic offences
Health and safety
Pollution control
Possession (e.g. drugs and weapons)

SL offences represent of all cases brought before the courts.

Sale of tobacco to
under aged
persons not now
SL

Selling tobacco to persons under 16 was a strict liability

offence from 1933 until 1991 when the Children and Young
Persons (Protection from Tobacco) Act 1991 added...
"It shall be a defence for a person charged with an offence
under subsection (1) above to prove that he took all reasonable
precautions and exercised all due diligence to avoid the
commission of the offence".

Many brought
'privately' i.e. by
Trading Standards
or for licensing
offences

The most frequently encountered are motoring offences.

The public, and courts generally consider offences of Strict
Liability not as 'criminal' as other crimes, and this is generally
reflected in the punishment.
However, the highest fine ever imposed by an English Court for
an offence of strict liability, a Health and Safety offence
occurred when Mr Justice Mackay imposed a fine of 10
million on the rail maintenance company Balfour Beatty that
was implicated in the Hatfield train crash.
Similarly, in Blake the penalty available to the court was
imprisonment and not the usual fine found in strict liability
offences.

Common law
offences are rarely
state of affairs or
strict liability
crimes

Possible exceptions:
Blasphemous libel (Lemon v Gay News LTD [1979] HL),

Criminal contempt,

Outraging public decency

There is a Common Law assumption that a criminal act has to
be willed (there is usually a voluntary act) and accompanied
by mens rea.
It was thought for a long time that Public Nuisance was a
crime of strict liability, however, in R v Rimmington and R v
Goldstein [2005] HL it was decided that mens rea was required
for the common law offence of creating a public nuisance.
Contempt of court is not an offence of strict liability, see R v
Yousaf (2006) CA.

R v Rimmington and
R v Goldstein[2005]
HL

In Goldstein the defendant put salt (as a joke to his friend)

into an envelope, salt leaked and the sorting office was
evacuated as it was feared it might be anthrax poison. Mr
Goldstein did not foresee the leakage (nor desire it; there would
have been no joke) and so had no mens rea and was not guilty.

No mens
rea needed for
negligence

Negligence can be proved if the conduct (actus reus) of the

defendant falls below the standards to be expected of a
reasonable person.
So gross negligence is actus reus and evidence of mens rea is
not required.
This was confirmed in Attorney-Generals Reference (No. 2
of 1999) [2000] CA. Great Western Trains were prosecuted
for gross negligence following the 1997 Southall rail crash.
The court was asked,
"Can a defendant be properly convicted of manslaughter by
gross negligence in the absence of evidence as to that
defendants state of mind?"
The answer was "Yes", and they decided that gross negligence
was not mens rea.
Therefore, a defendant can be convicted of manslaughter by
gross negligence without evidence of their state of mind.
If no mens rea is required for gross negligence manslaughter, it
is an offence of strict liability.
To impose strict liability for a homicide offence, with a maximum
sentence of life imprisonment, appears to breach the principles
of a just criminal system.

So why are they

there?

Defendants might raise mistake as a defence - "I didn't know..".

If there were any excuse, defence or exceptions to certain types
of offences successful prosecutions would be so difficult as to
render the relevant law unworkable.
An example is the offence of having a bald tyre on a motor
vehicle. Any requirement for knowingly, recklessly (etc) would
give every motorist a get out, he/she could simply say, and "if I
had known it was bald I would never have driven the car".
Some strict liability offences presuppose a business is carried on
and so continuous attention to standards is important.
An additional explanation is that if the courts allowed the
defence of "someone else did it", prosecutions would be
unsatisfactory. This is a Policy issue.
Even recklessness, subjective or objective would not produce a
satisfactory result in offences involving selling.

The five presumptions

The relevant
propositions of
strict liability were
identified by Lord
Scarman
in Gammon (Hong
Kong) LTD v A-G of
Hong Kong [1985]
PC

1. There is a presumption of law that mens rea is required

before a person can be held guilty of a criminal offence.

2. The presumption in particularly strong where the

3.
4.
5.

Cases

offences is truly criminal in character.

The presumption applies to statutory offences, and can
be displaced only if this is clearly or by necessary
implication the effect of the statute.
The only situation in which the presumption can be
displaced is where the statute is concerned with an issue
of social concern, and public safety is such as issue.
Even where a statute is concerned with such an issue,
the presumption of mens rea stands unless it can also be
shown that the creation of strict liability will be effective
to promote the objects of the statute by encouraging
greater vigilance to prevent the commission of the
prohibited act.

Winzar (1983) = drunkenness

Larsonneur (1933) = immigration
Woodrow = selling adulterated tobacco (tax and revenue case)
Prince(1875) = thought 13-yr-old girl was 18
Parker v Alder (1899) = food and drink, adulterated milk
James and Son v Smee [1954] QBD permitted vehicle use
with defective brakes, (not guilty not knowingly)
Sweet v Parsley (1970) = allowing premises to be used for
smoking cannabis (not guilty).
Gammon (Hong Kong) LTD v A-G of Hong Kong [1985]
PC = building regulations
Pharmaceutical Society v Storkwain (1986) = sold drugs
on forged prescription
Callow v Tilstone (1900) = selling unfit meat (examined by
negligent vet)
Cundy v Le Cocq (1884) = selling alcohol to drunken
customer (guilty cf Sherras)
Sherras v De Rutzen (1895) = selling alcohol to PC (not
guilty cf. Cundy)
Kirkland v Robinson [1987] QBD = possessed a bird
(Goshawk)
R v Howells (1977) = possessed gun without a licence
believing it to be an antique (which did not need a licence)
R v Blake (1997) = pirate radio station, no licence
Warner v MPC (1968) = possessed drugs thinking it was
perfume.
Alphacell v Woodward (1972) HL = allowing pollution to
enter river.
FJH Wrothwell v Yorkshire Water Co.(1984) = director
poured 12 gallons of herbicide into drains, unknown to him
routed to rivers
B (a minor) v DPP [2000] = boy 15 incited girl under 14 to

indecency
R v Brock and Wyner (2001) CA = permitted premises for
drug use
R v K [2001] HL = indecent assault didn't know age of girl
Barnfather v Islington [2003] QBD = failed to ensure school
attendance
Salabiaku v France (1988) ECHR = smuggling presumes guilt,
not contrary to Art 6 (fair trial)

B (a minor) v
DPP [2000] HL

[Strict Liability clear implication of Parliament needed]

D incited a child under 14 to commit an act of gross indecency.
Held: D entitled to be acquitted if he held an honest belief that
the child in question was 14 or over, and the prosecution had
the burden of proving the absence of honest belief on the
defendant's part.
Considerable doubt cast on the case of Prince.
In order to rebut the presumption that an offence
required mens rea, "compellingly clear implication" that
Parliament intended the offence to be one of strict liability is
required.
The mens rea of the offence of gross indecency in section 1 of
the Indecency with Children Act 1960 was found to be the
absence of a genuine belief by the accused that the victim was
fourteen years of age or above.
Not Guilty

Mistake need not

be reasonable

When an offence is of strict liability, a defendant may claim he

"didn't know" some fact that made his actions an offence, this is
irrelevant, even if that mistake is reasonable.
Following the House of Lords judgement of B (a minor) v
DPP [2000] the law will never require that the mistake have
been reasonable, provided it was honestly held and Tolson is
now bad law.

B (a minor) v
DPP [2000]

This case is now a leading case on the issue of mistake which is

central to strict liability offences; effectively it
overruled Tolson and Prince, which are now considered bad
law.

B v DPP will have

exceptions

In R v G [2006] CA the defendant had sex with a girl aged 12 in

his room he believed her to be 15. This is an offence of absolute
liability.
Sex with a child under 13 irrespective of consent amounts to

rape under the Sexual Offences Act 2003. It was held that the
offence of sexual intercourse with a person under 13, whether
the victim consented or not and whether or not the defendant
reasonably believed that the child was 13 or over, was a crime
of strict liability.
The Court of Appeal had no difficultly arguing that Parliament
could enact and enforce a crime of strict liability, and that the
Human Rights Act was not engaged.

Absolute liability
State of Affairs
crimes and
absolute liability

'State of affairs" offences are also offences of 'strict liability'.

Not all lawyers are happy with these distinctions.
Absolute liability appears to exist where the defendant
cannot escape liability because he did not know he was
committing an offence - a mistake - as distinct from
having no mens rea.
An example of absolute liability is R v G [2006] CA where D had
sexual intercourse with a girl of 12 whom he thought was 15
and who consented, neither of these facts enabled him to
escape liability, and such a crime was not in breach of the
Human Rights Act.
Judges frequently use the terms "strict liability" and "absolute
liability" as if they were the same thing. For example the Court
of Appeal in R v Mautdi v The Crown [2003] CA refers to an
earlier case which it says is an authority on "absolute liability"
however, nowhere in the earlier case does the court use the
phrase "'absolute liability", only "strict liability".
Lord Goddard thought that absolute liability meant that
"come what may ... an offence has been committed.
Lord Parker said that
"..before one comes to a consideration of a necessity for mens
rea or, as it is sometimes said, a consideration of whether the
regulation imposed an absolute liability..."
A defendant can be guilty of a crime he does not intend to
commit. This is known as a "state of affairs" crime.
There is no need to prove any actus reus by the defendant or
any mens rea.
Section 4 Road Traffic Act 1988 provides that a person who,
when in charge of a motor vehicle on a road or other public
place, is unfit to drive through drink or drugs, is guilty of an
offence.

It is not the taking charge of the vehicle or becoming unfit

which constitutes the offence, just the state of being unfit whilst
in charge of the motor vehicle.
A crime may not require any willed action at all, if the specified
'state of affairs' exist, the defendant is guilty.

The difference between strict liability and absolute liability

The issue of
causation

The distinction between strict and absolute liability can be seen

by examining the issue of causation.
For strict liability offences no evidence of intent or any
other mens rea is required. It is however normal for the
prosecution to be required to prove causation. For example, in
speeding it is necessary to prove the defendant was "driving",
but not that he intended to drive faster than permitted, or even
that he knew he was doing so.
Just like strict liability, absolute liability offences do not require
evidence of intent or mens rea. As for causation, the
prosecution only has to prove that the proscribed event
occurred or situation existed, then the defendant will be liable
because of his status.
So, in the Empress Car Case the company were liable for the
pollution of the river even though the diesel tap was turned on
by an unknown stranger.

Some causation
must exist

It is important to recognise that there must be some causal

connection between the crime and the defendant or logically an
unconnected passer-by could be convicted of an offence for
which he has no connection whatsoever. There must always be
some causal connection between the defendant and the act.
It may be better to view the distinction between strict and
absolute liability as a continuum and not an arbitrary division.

Other jurisdictions

In some jurisdictions, for example Australia strict liability and

absolute liability are distinguished only if the defence of mistake
of fact is available, if it is relevant. Mistake of fact can be
available in the UK as a defence to strict liability offences, but is
not the distinguishing feature.

Lord Hoffman's
distinction in

The distinction between absolute and strict liability is recognised

by Lord Hoffman in Empress Car Co (Abertillery) Ltd v National

Empress Car
Whole case here

Rivers Authority [1998] HL:

While liability [for water pollution] is strict and therefore
includes liability for certain deliberate acts of third parties it is
not an absolute liability in the sense that all that has to be
shown is that the polluting matter escaped from the defendants
land, irrespective of how this happened. It must still be possible
to say that the defendant caused the pollution.
In the Empress Car case the defendant caused the pollution of
the river even though a tap on a diesel tank was opened by
person or persons unknown and the entire contents of the tank
overflowed a spillage tank down the drain into the river. There
was no adequate security for example a lock.
So, even if the act is caused by a third party there can be
liability. The third party in Empress Car was the major cause,
but the company's insecure storage of diesel was also a cause.
Whilst vandalism does not break the chain of causation
a terrorist attack may.
There is no requirement to do a positive act, provided the
defendant had done something earlier that could be said to
have caused the pollution.
Liability (fault based, strict or absolute) is a matter or law and
as Lord Hoffman pointed out this is a policy matter that varies
from case to case.

Proof of causation

Fault

Absolute liability
Strict liability
Fault based
liability
Inconsistent
authority

Previous authority has not been easy to reconcile; Wychavon

District Council v National Rivers Authority [1993]
QBD where a blocked drain cause an overflow into the river (not
guilty), Price v Cromack [1975] QBD, where pollution by
effluent was caused by gravity (not guilty), and the well known
case of Alphacell Ltd v Woodward[1972] HL, pollution entered a
river because the filters blocked and pumps failed (guilty) all
similar on the facts but producing different outcomes.
The courts are consistent in requiring cause to be given its
ordinary meaning.

Winzar v Chief
Constable of
Kent(1983)

The defendant was removed from a hospital by police and was

then arrested and found guilty of being drunk on the highway,
even though the police officers had put him there.

Larsonneur (1933)

The defendant was convicted of being found in the UK, contrary

to the Aliens Order of 1920, even thought she had been brought
forcibly into the UK by the immigration authorities.

Lord Parker in R v
Winson [1968]
QBD

When an absolute offence has been created by Parliament,

then the person on whom a duty is thrown is responsible,
whether he has delegated or whether he has acted through a
servant; he is absolutely liable regardless of any intent or
knowledge or mens rea..."
"...The principle of delegation comes into play, and only comes
into play, in cases where, although the statute uses words
which import knowledge or intent such as in this case
"knowingly" or in some other cases "permitting" or "suffering"
and the like,..."
"... cases to which knowledge is inherent, nevertheless it has
been held that a man cannot get out of the responsibilities
which have been put on him by delegating those responsibilities
to another.

Strict liability is
not intended
where D could not
observe the law,
even for a grave
social evil

R v Lim Chin Aik [1963] PC is an example of an attempt to

impose absolute liability, where D did not know he was the
subject of a banning order preventing him entering Singapore.
The Privy Council said that even when mens rea words were
absent there need not be a presumption of absolute liability.
This case was applied in Gammon (Hong Kong) Ltd v Attorney
General of Hong Kong [1985] PC.

Defences available
for strict liability
offences

Defences for strict liability are those that are relevant to actus
reus. Defences that are probably relevant to actus reus include
automatism and duress. Foreseeability has relevance too.
Defences which are relevant to mens reahave no place in cases
of strict or absolute liability, since it does not have to be
proved.
The defence of honest mistake as to fact (in the sense of a
belief in circumstances which, if true, would make the
defendant's conduct innocent), will usually succeed in an
allegation of strict liability.

So, in R v Kumar [2004] a doctor had consensual sex with a boy

aged 14 believing him to be over 16, they had met in an over
18s club, he was acquitted because his belief, although
mistaken was honestly held. But, in R v G [2006] CA the
defendant had sex with a girl aged 12 in his room he believed
her to be 15, mistake is irrelevant because she was under 13,
because of the Sexual Offences Act 2003.

Due diligence in strict

liability

The defence of "due diligence" in strict liability consumer

protection law is available, provided the accused took "all
reasonable steps" and exercised "all due diligence" to avoid an
offence being committed. It is also available for Health and
Safety offences.

Due diligence and

mistake in
absolute liability

Defences for absolute liability are less likely to succeed, because

there is less need to prove causation or mens rea.
The defence of honest mistake is not available, nor is the
defence of due diligence.

Reverse burdens of proof

Reverse burdens
do not conflict
with Woolmington o
r Art 6 HRA

There are 219 statutory offences that require the defendant to

disprove or prove something, in order to prove his innocence;
this is called a reverse burden provision.
These include strict (or absolute) liability offences. This appears
to be contrary to the rule in criminal law that the prosecution
has the burden of proving the defendants guilt
(Woolmington and Article 6 of the HRA), but are not.
That Article 6 does not engage was confirmed in Attorney
General Reference No. 1 [2004] CA

Strict liability
compatible
withHuman Rights
Act

It was held in the R v Kearns [2002] CA that the strict liability

offence by a bankrupt of failing to account for the loss of a
substantial part of property when required to do so by the
Official Receiver did not contravene Article 6.

The Legal Burden

This is a higher standard than the evidential burden. The

defendant may, for example, wish to raise a defence that he did
not know some particular fact, or that he was not going to drive
whilst drunk, or that he was insane. D has the legal burden to
prove the issue he raises.

Failure to convince the jury or the magistrates of a defence will

mean the defendant will be found guilty. It is usually a do or
die situation, because D will have probably admitted all the
other ingredients of the offence, and be relying solely on the
defence he raises, this is why it is described as a high standard
The standard the defendant has to reach is on the balance of
probabilities.

The Evidential
Burden

An evidential burden is a lower standard, and refers to the

burden on a defendant to raise an issue, say provocation or self
defence, having simply raised the question the burden then
shifts back to the crown to disprove it.
The standard the defendant has to reach is on the balance of
probabilities.

R
(Sheldrake) [2004
] HL

Held: Reinstated the justices' decision and answered the

certified question by saying that the burden of proof provision in
section 5(2) of the Road Traffic Act 1988 imposes a legal
burden on an accused who is charged with an offence contrary
to section 5(1)(b) of that Act. (Drink driving)

AG Ref (No 4 of
2002) [2004] HL

Held: I would answer the first part of the Attorney General's

second question by ruling that section 11(2) of the Terrorism
Act should be read and given effect as imposing on the
defendant an evidential burden only.

Contrasting cases
Rv
Hussain [1972]
R v Steele [1993]

Hussain and Steele both concerned the possession of firearms

without a certificate. The court decided this is an absolute
offence. Hussain was guilty because he knew he had the article
even though he did not know it was a firearm.
Steele was guilty because he knew he had a holdall but he did
not know that it contained a firearm.

R v Buswell [1972]

Buswell concerned the possession of drugs. The drugs had been

medically prescribed by his doctor. He thought his mother had
destroyed them when washing his jeans. They were discovered
in his room by the police.
Finding him not guilty, the Court of Appeal held that they

continued to be in his lawful possession, even though he

thought they had been destroyed.

R v Deyemi (2007)
CA

The defendants were found in possession of an electrical stungun, which they believed to be a torch. It was held that the
prosecution merely had to prove possession of the object in
question, and the fact that the object was a firearm or other
weapon prohibited by the Act.
It did not have to prove that the defendant had known or could
have known that it was a prohibited weapon.

Checklist
General assumption that mens rea is required in all offences.
Displaced only if clearly or by necessary implication the effect of statute.
Then if statute only effective with Strict Liability.
Too strong for really criminal offences
Only when statute concerned with issue of social concern.

Murder
Murder
The classic
definition of murder
is

"Murder is when a man of sound memory and

of the age of discretion, unlawfully killeth
within any county of the realm any
reasonable creature in rerum natura under
the king's peace, with malice aforethought,
either expressed by the party or implied by
law.."
"(...so that the wounded party shall die of
the wound or hurt, (within a year and a day
of the same)." This last sentence removed
by The Law Reform (Year and a Day Rule) Act
1996
17th Century rule - Coke's Institutes.
Even today, murder is still a common law
offence, the offence not enacted by

parliament.

The Law Reform (Year

and a Day Rule) Act
1996
3 years after attack

If the 'cause' of death occurs more

than 3 years before the victim died or
D has already been convicted of some
other offence (e.g. grievous bodily
harm) in relation to the acts that
caused the death the consent of the
Attorney General must be secured
before prosecution can be brought.
Otherwise, the normal rules of
causation apply.

Committed
anywhere

British citizen can be tried in a British court

for murder or manslaughter committed
anywhere in the world: Offences Against
the Person Act 1861.

Only one
punishment for
murder

The Murder (Abolition of Death Penalty)

Act 1964, says that a person convicted of
murder must be sentenced to life
imprisonment.
"Sentenced" to life does not mean "serve" a
sentence of imprisonment for the rest of their
life.
In practice, most are released after 10 - 15
years "on licence" which means they can be
recalled to prison for a many reasons.
So, part of the life sentence is served in
prison, and the remainder served not in
prison.

Death during
sporting games.

Sportsmen indulging in their sporting past

times consent to those inevitable injuries that
occur as a result of contact sports.
R v Bruce (1847) established that a murder
charge would result if the death were caused
by above average violence in the 'game' or
non-adherence to the rules of the game.

Euthanasia is
murder.

The mercy killing of a terminally ill patient

does not provide any defence, no matter how
compassionate. Doctors who kill are
murderers. Cox, R v (1992) Winchester

Crown Court, Ognall J .

Double Effect

They may be immune from liability if the

treatment is to ease pain but incidentally
accelerates death, as shown by the Annie
Lindsell case 1997.

The Actus Reus of murder

Actus reus

Actus reus, same for

murder and
manslaughter

Who may be killed?

The defendant did the act or omitted

to do a legally recognised duty. (an
act or omission)
The act was deliberate.
The act was unlawful. (As opposed to

killing in self defence).

The act was a significant cause of

death.
The death was of a person in being.

The actus reus for both murder and

manslaughter is the same. The difference
between the two crimes is found in the mens
rea.

Any reasonable creature, this is taken

to mean the 'human' being there is no

such thing as a monstrous birth Re A
(Children)(2000)
It is not essential that a child draw

breath prior to an act which caused its

death.
If a child were caused to be born
prematurely and as a consequence the
child died then that would be murder.

A foetus

Is not a human being for the purposes of the

law of homicide. A child is not considered in
law to be in being until the whole body of the
child is extruded from the womb and has an
existence independent of the mother.

Whether the child has an independent

existence turns upon whether it has an
independent circulation, and has breathed or
had a capacity for independent breathing.
A child may have an independent existence,
however, even though it has not drawn
breath and even though the umbilical cord is
not severed.
A person continues in being until his being is
extinguished by death.
Queens Peace

"Kills", what is
death?

All persons are "under the Queen's peace"

except foreign enemies killed in war.

Disconnection of a life support

machine causes death unless death

has already occurred because the
brain is dead Malcherek and
Steel (1981)
However, Airedale NHS Trust v

Bland (1993) has allowed the previous

brain death decision to be questioned.
In many respects Bland was 'alive' in
that he was in a state of Persistent
Vegetative State (PVS). Any right to
die for someone in this live brainstem
state must be sanctioned by the
courts.
a person causes the death of another
where by any act or omission he
accelerates the death of that other

Prosecution must establish that D's act was both a factual and
a legal cause of the result.
Factual causation

Ds act must be more than a de

minimis cause (trifling, trivial connection with
the result).
Death is inevitable to all of us and murder is
an acceleration of V's death, it is immaterial if

the victim is already suffering from a fatal

disease.
The 'but for' test used in White [1910] is not
very sophisticated and may not predict the
result where more than one cause is involved
in the death.
Causation in law

Ds act does not have to be the sole or even

the main cause, provided it is a substantial
and operating cause of death or was a
significant contribution to the death
(Smith; Pagett). Substantial means that is
not trifling or trivial. It does not require
proof that Ds act was largely to blame.
The act or omission must be one of the
causes for example in R v
Dalloway (1847) the driver of a cart was not
guilty of manslaughter where his negligent
driving did not contribute to death of child
who ran into the path of vehicle. and one that
is more than minimal.
It is therefore possible to have two or more
independent operative causes of death, and
any person whose conduct constitutes a
cause may be convicted of an offence in
respect of the death.
The defendant's act must be more than a
minimal cause of the death. It was said by
Robert Goff LJ in Pagett [1983] that "the
accused's act need not be the sole
cause, or even the main cause, of the
victim's death, it being enough that his
act contributed significantly to that
result."
Other causes which contribute to the death
may be the actions of others, (eg the acts of
the police in Pagett), or of the victim
himself Williams [1992] (but

see Roberts (1971)). These other causes do

not of themselves relieve D of liability where
D's act was a substantial and operating
cause.
The civil law notion of novus actus also arises
here; the chain of causation may be broken
where the intervention was free, deliberate
and informed.
In English civil law that you must take your
victim as you find him, this principle applies
in criminal law: for example. This principle,
known as the egg-shell skull rule, is not
confined to the victim's physical
condition Blaue [1975]. It is not of universal
application, however, as seen
in Roberts (1971).
An act which constitute a novus actus
interveniens breaking the chain of causation
between D's act and the resulting death
relieves D of liability).
Rarely will the courts admit the new act to be
improper or negligent medical treatment.
The Mens Rea of murder
Malice aforethought

Malice aforethought is the same as

Intent. Vickers (1957)
Therefore intention is a key to proving
murder.

Not ill-will,
wickedness or
premeditation.

"Malice aforethought" (intention) does not

require ill will towards the victim nor
premeditation nor has it anything to do with
wickedness. It can be either:
(a) an intention to kill; or
(b) an intention to cause grievous bodily
harm.

Motive is not
intention

If I kill you for your money, my intention is to

kill you but my motive is to obtain your
money.
If I kill you from the motive of compassion mercy killing - I still intend to kill you and the
crime is one of murder.
However, motive is relevant in cases and
these appear to be an exception to the rule,
see Airedale NHS Trust v Bland[1993] HL
Also, three specific and partial defences to
murder; suicide pact, provocation and
diminished responsibility are in effect relevant
to motivation, because the defendant is
agreeing he intended to kill, but he had a
reason.

Lord Mustills
concept of
"indiscriminate
malice"

"I pause to distinguish the case of

indiscriminate malice from ... [grievous
bodily harm and transferred malice rules] ...
although even now it is sometimes confused
with them. The terrorist who hides a bomb in
an aircraft provides an example. This is not a
case of "general malice" where under the old
law any wrongful act sufficed to prove the
evil disposition which was taken to supply the
necessary intent for homicide. Nor is it
transferred malice, for there is no need of a
transfer. The intention is already aimed
directly at the class of potential victims of
which the actual victim forms part. The intent
and the actus reus completed by the
explosion are joined from the start, even
though the identity of the ultimate victim
is not yet fixed. So also with the shots fired
indiscriminately into a crowd. No ancient
fictions are needed to make these cases of
murder."

Intention may not be a desired outcome

The outcome may not be D's
Wish

Nedrick, R v (1986) CA
"Where a man realises that it is for all
practical purposes inevitable that his actions
will result in death or serious harm, the
inference may be irresistible that he intended
that result, however little he may
havedesired or wished it to happen" per Lord
Lane

Want

Moloney, R v (1985) HL
"I didn't want to kill him. It was kill or be
killed. I loved him, I adored
him." Moloney (and below)
Nedrick, R v (1986) CA
"I didn't want anyone to die, I am not a
murderer..." Nedrick

Desire

Hyam v DPP (1975) HL

[A] man may desire to blow up an aircraft in
flight in order to obtain insurance moneys.
But if any passengers are killed he is guilty of
murder, as their death will be a moral
certainty if he carries out his intention.
Nedrick, R v (1986) CA (above)

Motive

Moloney, R v (1985) HL
"A man who at London Airport, boards a
plane which he knows to be bound for
Manchester, clearly intends to travel to
Manchester, even though Manchester is the
last place he wants to be and his motive for
boarding the plane is simply to escape
pursuit." per Lord Bridge

Indirect or oblique intention

Section 8 Criminal
Justice Act 1967

S.8 requires that a jury shall not be bound to

infer whether a defendant intended or
foresaw a result of actions by reason only of
its being a natural and probable
consequence but shall decide by reference
to all the evidence.
This has been interpreted as requiring a jury
to consider only the subjective state of mind
of the accused.
Reference to the consequences
being "natural and probable" met with
disapproval by Lord Bridge in Moloney). It is
straightforwardly subjective and must be put
to the jury in such terms - what did the
defendant intend?
The wording of s.8 prohibits drawing a
conclusion about the accused's mental state
only by reason of it being thenatural and
probable consequence.
The word "only" seems to suggest that the
jury can follow a line of reasoning that
entitles them to draw a conclusion about the
accused's mental state from the objective
view of the reasonable man.
If they reason that the reasonable person
might have intended the consequence they
must, nevertheless, be satisfied that the
defendant did.

Moloney, Hancock and

Shankland, and Nedric
k
Confirmed by
Woollin

Referred to as the 'line of cases' are the

main Mens Rea cases in murder, they tell us
what intention, particularly indirect/oblique
means.

Moloney, R v (1985)
HL

Tells us about the relationship between

foresight of consequence and proof of

intention. The significance of the case is that

a prudent jury might well argue that Moloney
had foresight of consequences.
Did Moloney foresee that the death of his
stepfather was a "natural consequence" of
his actions? The answer seems not.
If D did not wish or desire the consequences
of his actions the judge will have to direct on
oblique intention.

Hancock and
Shankland (1986) HL

Murder convictions overturned, manslaughter

substituted, because the defendants had not
intended to bring about death.
Though death was a probability it was not
a "natural consequence".

Nedrick (1986) CA
supports Hancock and
Shankland

The facts of which were essentially the same

as in Hyam, but paraffin this time.
The principles coming from it being:
Lord Lane approved Lord Scarman's speech in
Hancock where he said:
"... the greater the probability of a
consequence the more likely it is that the
consequence was foreseen and that if that
consequence was foreseen the greater the
probability is that that consequence was also
intended."
In other words, evidence of foresight, is
evidence of intent.
When determining whether the defendant
had the necessary intent, it may therefore be
helpful to ask
(1) How probable was the consequence which
resulted from the defendant's voluntary act?
(2) Did he foresee that consequence?

"Natural consequence" becomes virtual

certainty which is a matter for the jury to
consider in seeking whether death was
intended.

Can we forget every

case
except Nedrick then?

No. The rules in Hyam, Moloney,

and Hancock and Shankland have been
developed and we need to extract from them
the meaning of Nedrick.
In Nedrick Lord Lane gave a model direction
a Judge should use when instructing a jury in
the rare event a direction on oblique intent is
necessary.

What about Woollin

Made slight amendments to the direction

in Nedrick.

Defendant's wish
different from
outcome

If the evidence is that the defendants wish

may have been something other than to
cause the result in question then R v
Nedrick and R v Walter and Hayles apply.

Lord Lane's model direction in

Nedrick

Lord Lane's direction refined in

Woollin

The Jury are entitled to "infer"

The jury are "entitled to find"
the necessary intention if death or
serious bodily harm was a virtual
the necessary intention if death or
certainty (barring some unforeseen serious bodily harm had been
intervention)
a virtual certainty (barring some
and that he appreciated that that unforeseen intervention)
was the case.
and that the defendant
appreciated that such was the
case,
the decision being one for them to

be reached on a consideration of all

the evidence;
The actual words used were:
...the Jury should be directed that
they are not entitled to infer the
necessary intention unless they feel
sure that death or serious bodily
harm was a virtual certainty
(barring some unforeseen
intervention) as a result of the
actions of the accused and that he
appreciated that that was the case

Transferred
malice

...the jury should be directed that

they were not entitled to find the
necessary intention for a conviction
of murder unless they felt sure that
death or serious bodily harm had
been a virtual certainty (barring
some unforeseen intervention) as a
result of the defendant's actions and
that the defendant had appreciated
that such was the case, the decision
being one for them to be reached on
a consideration of all the evidence;

It could be murder if the killer intended

to murder one person, but killed another

instead
When a person kills whilst committing a
crime or avoiding arrest, it would not be
murder unless there was an intention to
kill or inflict serious bodily harm R v
Hancock and Shankland (1985).

Transferred
malice, allegedly
a true story from
USA

A man, intent on suicide, jumps from the ninth

floor of his apartment block. Unknown to him,
his wife is on the floor below, having a heated
quarrel with her son. She draws a gun and fires
at the son, intending to kill him. She misses, the
bullet flies out of the window and hits - and kills
- her descending husband. Is she guilty of
murder? This was a real US case, I'm told. The
answer: Yes, if you mean to kill A and kill B
instead, it's murder, even if B was going to die
anyway in a few seconds. I feel sorry for B,
clearly wanting to be a suicide, instead of a
murder statistic.

The Relationship of GBH to Murder

Rv
Cunningham(1981)
HL

GBH means really serious bodily harm.

Cunningham attacked the deceased in a public
house and hit him repeatedly with a chair.
Cunningham argued that he had not intended to
kill. However, there was no doubt that the
seriousness of the beating had caused death.
The principle of the case was that if Cunningham
had intended to cause really serious injury he
would be guilty of murder.

Alternative
verdict

The Section 6 Criminal Law Act 1967 allows the

jury to return an alternative verdict of
manslaughter (and no other verdict).
The jury does not have to specify which form of
manslaughter they have found proved.

Only one
Punishment

The only punishment for murder is

imprisonment for life, and, when sentencing, the
judge may recommend a minimum term to be
served. This recommendation is known as the
"Tariff".

The specific defences to a murder charge

(and only a murder charge, nothing else)
Referred to as
"specific and
partial" defences.

Diminished
responsibility S2

Provocation S3

"Specific" because they are available only to a

charge of murder, "partial" because the
defendant is not totally acquitted, simply
convicted of manslaughter.

The defence is that the killer was

suffering from an abnormality of the
mind at the time of the crime that
impaired the mental responsibility for
committing the act or omission.
If accepted, the conviction would be for
manslaughter.
more in voluntary manslaughter, here

A defendant must show that the actions

and behaviour of the dead person was
such that any reasonable person would
lose control of the mind, and that the
loss of self-control was sudden and

temporary. R v Richens (1993).

If accepted, the conviction would be for
manslaughter.
The defence is not available to a
defendant who has time to think and
reflect before committing the murder. R v
Thornton (1992) CA.
more in voluntary manslaughter, here
Suicide Pact S4

Homicide Act
1957

"Suicide pact" means a common agreement

between two or more persons for them all to
die. It does not make any
difference whether they take their own life, or
kill each other.
There must be a settled intention by each party
to die in pursuance of the pact.
Suicide is no longer an offence of self-murder at
common law, since the Suicide Act 1961.
Where a person, acting in pursuance of a suicide
pact between himself and another, kills the other
or is a party to the other being killed by a third
party, he is guilty of manslaughter.
Needless to say, this is only relevant if one or
more of the parties survives the suicide pact.
more in voluntary manslaughter, here

The above defences, introduced by

the Homicide Act 1957, reduce the
charge of murder to manslaughter.
The effect is that murder carries the
minimum of life imprisonment,
manslaughter the maximum of life
imprisonment.

The below appear not to be part of your syllabus

Infanticide

is where a child under the age of 12 months is

killed:
(a) By its mother, and
(b) At the time of the killing, the mother was
mentally disturbed because of not fully
recovering from the effects of the child's birth.
The maximum punishment the same as for
manslaughter.
Causing death by reckless driving

Committed by a motorist who drives recklessly and causes the death of

another.
Maximum punishment 5 years imprisonment and/or a fine.

Manslaughter is unlawful homicide without malice afterthought.

For the purposes of the exam board specification, Manslaughter can be of two types:-

Involuntary Manslaughter
(a) A person acts with gross negligence and kills another person.
(b) A person kills another person whilst carrying out an unlawful act which would not
normally kill or seriously hurt that other person.
Voluntary manslaugher
The defendant pleads successfully the defences of provocation,
suicide pact or
diminished responsibility.

Corporate manslaughter
Formerly, only a human being could commit manslaughter.
However, the Corporate Manslaughter and Corporate Homicide Act 2007 has made some
important changes in respect of the liability of organisations (including companies).

Where an organisation organises or manages its activities and a person dies and it is shown
there was a gross breach of a relevant duty of care owed by the organisation to the
deceased, the organisation commits an offence.

It is not yet clear if manslaughter by gross negligence will still be available were
appropriate.
When a company is responsible for the death of person the law looks for someone within the
company who has been guilty of gross negligence.

The law will only convict a person or persons responsible who are the 'brains' (management)
of the company.

If it is one of the 'hands' (worker) of the company, it will be the individual and not the
company that the court will convict.

[ Next ]
Defence only available on charges of murder not attempted
murder
The law on
diminished
responsibility
is contained
insection 2 of
the Homicide
Act 1957.

"Where a person kills or is a party to the killing

of another, he shall not be convicted of murder
if he was suffering from such
abnormality of mind

Introduced
because

(whether arising from a condition of arrested

or retarded development of mind or any
inherent causes or induced by disease or
injury) as
substantially impaired his
mental responsibility for his
acts and omissions in doing or being a party to
the killing. "

Problems with the very narrow definition of insanity

under the M'Naghten rules.
Before the 1957 Act, over 40% of murder trials
involved a plea of insanity. Now most defendants will
opt of the defence of diminished responsibility.
DR is easier to prove, than insanity sometimes relying
on little evidence, for example in Price (1971) D killed
his severely handicapped son.
The following examples would not equate with
insanity and before 1957 so a defendant would be
found guilty of murder, which was thought to be
harsh.
Diminished Responsibility had long been known to the
Scottish Courts.
It is not available for attempted murder.

Examples of
conditions
held to
amount to
diminished
responsibility

Perverted sexual desires that created

irresistible impulses R v Byrne (1960)
Depression R v Gittens (1984) and R v
Seers (1985)
Battered Woman Syndrome R v
Hobson (1997) and R v Ahluwalia [1992]
Paranoid psychosis, arising from his
upbringing. R v Sanderson (1994)
Alcoholism or drug addiction R v Tandy (1989)
Post-natal depression and premenstrual
tension can constitute a disease R v
Reynolds (1988)
Extreme jealousy (so called "Othello
syndrome" - a state of morbid jealousy for
which there is no cause) R v Vinagre (1979)
'Mercy killing' where the dilemma which has
caused the accused to kill can be said to have
given rise to depression or some other
medically recognised disorder which can be
said to be the cause of an abnormality of
mind R v Price (1971)
Paranoid Personality disorder, thinking he was
in greater danger than he was R v
Martin [2003]

Reduces the
offence to
that of
manslaughte
r

Allowing the judge to exercise discretion in

sentencing.

Jury to
decide in
new or
borderline
cases.

Since 1962 pleas of diminished responsibility are

decided by the prosecution and judge, if they dont
agree it goes to the jury. New or borderline case are
left to the jury.

About 30% receive prison sentences. An alternative

sentence is a hospital order under s.37 Mental Health
Act 1983.

Peter Sutcliffe (The Yorkshire Ripper) pleaded

diminished responsibility. He murdered 13 women.
Medical reports were unanimous in suggesting that he
was a paranoid schizophrenic and the prosecution
were prepared to accept diminished responsibility.
The judge decided that it was in the public interest for
the jury to decide on the matter. The jury returned 13
verdicts of murder.
The jury's response reflects public reaction rather
than any clear cut rule of law and it illustrates rather

well that in practice medical evidence alone may not

be sufficient for the defence to succeed. It appears
they did not accept there was substantially impaired
responsibility which is a moral as well as a medical
decision.
Today only about 1 in 5 cases of diminished
responsibility go to a jury.

Balance of
probabilities

DR is raised by the defence, who have to prove it on

the preponderance of probabilities, Dunbar [1958]. It
is only argued in court when the prosecution rejects
the plea or has counter evidence, for example that D
is in fact insane.
The burden being on the defence does not breach the
ECHR, Article 6 R v Lambert [2001] HL (a drug and
murder cases conjoined).

The separate requirements

Abnormality of mind
In Byrne
[1960] Lord
Parker
defined
'abnormality
of mind' as:

"a state of mind so different from that of ordinary

human beings that the reasonable man would term it
abnormal. It appears to us to be wide enough to
cover the mind's activities in all its aspects, not only
the perception of physical acts and matters, and the
ability to form a rational judgment as to whether an
act is right or wrong, but also the ability to exercise
willpower to control physical acts in accordance with
that rational judgment."
Byrne was a sexual psychopath who found it difficult,
if not impossible, to control his perverted sexual
desires he strangled a young woman and horrifyingly
mutilated the body.
So, irresistible impulses are capable of amounting to
diminished responsibility.

"Abnormality
of mind",
which has to
be
contrasted
with the
expression
"defect of

It appears to cover the minds activities in all its

aspects.
It is not limited to the perception of physical acts and
matters, and the ability to form a rational judgment
whether an act is right or wrong.
It includes the ability to exercise will-power to control
physical acts in accordance with rational judgment R
v Byrne[1960] CA.

reason"
It is not necessary to show that the accuseds
abnormality existed from birth R v Gomez [1964]
CA.

Abnormality of
mind induced
by alcohol or
drugs is not
due to
inherent
causes

R v Gittens [1984] CA & R v Fenton (1975) CA.

If drinking alcohol has reached the stage that the
accuseds brain has been damaged so that there is
gross impairment of judgment, or the accused drinks
alcohol because he can no longer resist the impulse to
drink, the defence of diminished responsibility is
available R v Tandy [1989] CA.
If D was intoxicated during a killing and also has an
abnormality of the mind, the intoxication can
contribute to his diminished responsibility; R v
Dietschmann [2003]. He does not have to show he
would still have killed if sober.

A condition of arrested or retarded development of mind or any

inherent causes or induced by disease or injury
This includes
absence not
only of the
ability to tell
right from
wrong but
also of the
willpower to
control
physical acts.

Sec 2 restricts the defence so it is not available to

people who kill because of emotions such as hate or
jealousy (but note that so called "Othello Syndrome"
is a more serious form of jealousy and was allowed,
but this is doubted; R v Vinagre 1979 CA).
Depression or a medical disorder can be linked to
either an inherent cause or disease
Diminished responsibility must occur because of one
of the reasons in the list any other cause will not
suffice. The Act does not provide that a defence of
diminished responsibility must be based on medical
evidence, such a defence is not likely to succeed
without such evidence R v Dix (1981) CA.
Lord Parker in R v Byrne [1960]
"medical evidence is no doubt of importance, but the
jury are entitled to take into consideration all the
evidence, including the acts or statements of the
accused and his demeanour. They are not bound to
accept the medical evidence if there is other material
before them which, in their good judgment, conflicts
with it and outweighs it" .
arrested or retarded development
Is assumed to mean what was formerly referred to as
mentally subnormal individuals R v Egan [1992].
Inherent cause is widely assumed to allude to

functional mental illness as opposed to organic

disease or injury R v Sanderson (1993),
The issue which has arisen in connection with the
defence is what is meant by disease in this context. Is
battered womans syndrome a disease or injury?
There is a medical list the British Classification of
Mental Diseases of recognised mental diseases and
currently it does include battered womens
syndrome R v Hobson [1998].
Alcoholism at the level of an irresistible impulse to
take drink can give rise to a defence of diminished
responsibility R v Tandy (1987). However, mere
intoxication on a particular occasion or desire for
alcohol or drugs that falls short of irresistible cannot
be regarded as a disease or an injury for these
purposes R v OConnell [1997].
If someone is intoxicated and also suffering from
arrested or retarded development (for example) the
jury does not have to consider what the effect would
have been if the defendant were not intoxicated R v
Dietschmann [2003].
Injury is usually taken to apply to organic or physical
condition of the brain or parts of the body which can
affect behaviour.

Substantially impaired
The
abnormality
of the mind
had to be
such as to
substantially
impair the
defendant's
responsibility
for his
actions.

But this does not require that the defendant is not at

all responsible for his actions.
Substantially allows the jury to consider the issue of
degree.
The word means more than some trivial degree of
impairment but less than total impairment R v
Lloyd [1967].
Substantially suggests some quantitative
assessment, which suggests a moral judgment.
Medical witnesses feel uneasy about testifying about
responsibility which is a legal or moral concept but
do so in order that the defence can work.

Impaired mental responsibility

Mental
responsibility
for his acts

Means the extent to which the accuseds mind is

answerable for his physical acts which must include a
consideration of the extent of his ability to exercise
will-power to control his physical acts R v
Byrne [1960] CA.

Diminished
responsibility
is not a
medical
diagnosis, it
is a legal
concept
which
ultimately
only a jury
can decide

The state of mind must by a condition of arrested

development of the mind or any inherent causes
along with disease or injury.
Medical evidence from at least two psychologists is
also required. Medical evidence is important but the
jury is not bound to accept it.
Whether the abnormality of mind was sufficiently
substantial to impair his mental responsibility is a
question of degree.
Abnormalities from taking drugs or alcohol alone
cannot form the basis for a defence of diminished
responsibility.
An abnormality which substantially impairs his
mental responsibility involves a mental state which in
popular language a jury would regard as amounting
to partial insanity or being on the borderline of
insanity R v Byrne.
In R v Rose [1961] PC, a warning was given about
directing a jury that borderline of insanity could be
equated with abnormality of mind (case of chronic
reactive depression)).
The abnormality of mind has to substantially impair
the defendants mental responsibility for his acts or
omissions.
By contrast, insanity is concerned with the ability to
appreciate the nature and quality of the act.
Diminished Responsibility includes:
the perception of physical acts and matters

the ability to form a rational judgment whether

an act is right or wrong,
the ability to exercise will-power to control
physical acts in accordance with that rational
judgment.
The jury can take into account the medical evidence,
the conduct of the accused at the time of the killing,
and his statements, acts and demeanour. They are
not bound to accept the medical evidence.

[ Back ] [ Next ]
Diminished
responsibility is a
partial defence
which, if
successfully
pleaded, reduces
liability from
murder to
manslaughter (s
2(3) of the
Homicide Act
1957).

For a successful plea, the defendant bears the

burden of proof; he must prove (on the balance
of probabilities) that:
(a) he was suffering from an abnormality of
mind,
(b) resulting from a condition of arrested or
retarded development of mind or any inherent
causes or induced by disease or injury,
(c) that substantially impaired his responsibility
for the killing.
s 2(2) and R v Dunbar (1958)

R v Dix (1982) CA

The defence must not be left to the jury unless

there is medical evidence in support of the three
elements.

Alcohol can
substantially
impair mental
responsibility

Section 2(1) does not require the abnormality of

mind to be the sole cause of the defendants
acts.
Even if the defendant would not have killed if he
had not consumed alcohol, the causative effect
of the alcohol does not prevent an abnormality
of mind suffered by the defendant from
substantially impairing his mental responsibility
for the fatal acts.

Abnormality of
mind induced by
alcohol or drugs
is not due to
inherent causes

R v Gittens [1984] CA & R v Fenton (1975)

CA. Approved in Dietschmann
If drinking alcohol has reached the stage that
the accuseds brain has been damaged so that
there is gross impairment of judgment, or the
accused drinks alcohol because he can no longer
resist the impulse to drink, the defence
ofdiminished responsibility is available R v
Tandy [1989] CA.

The voluntary intoxication test

Rv
Dietschmann (2003
) HL

A problem arises where there are two

independent possible causes of the abnormality
of mind, one of which is an allowable cause
within s. 2(1) (e.g., a depressive illness) and the

other of which is voluntary intoxication (which is

clearly not allowable).
A defendant seeking to use diminished
responsibility where he had been drinking
does not have to show that if he was sober
(a) he would have killed as he in fact did; and
(b) he would have been under diminished
responsibility when he did so?
A jury may find defendant guilty of
manslaughter if it is satisfied that,
notwithstanding his alcohol consumption, his
abnormality of mind substantially impaired his
mental responsibility for his acts in doing the
killing.
The transient side-effects of a legal drug, which
include disinhibition and loss of memory, cannot
be characterised as injury within the meaning
of the 1957 Act s 2(1) R v OConnell [1997] CA.
The direction in R
v
Dietschmann(2003)
HL

"[...] has the defendant satisfied you that,

despite the drink, his mental abnormality
substantially impaired his mental
responsibility ... If he has satisfied you of that,
you will find him ... guilty of manslaughter. If he
has not satisfied you of that, the defence of
diminished responsibility is not available to
him."

Voluntary
intoxication is not
an acceptable
cause of the
abnormality

In R v Tandy [1989] D was an alcoholic who

strangled her 11-year-old daughter after
drinking nine-tenths of a bottle of vodka and
upon learning that her daughter had been
sexually abused.
She was clearly suffering from an abnormality of
mind at the time of the killing, and the amount
of alcohol in her bloodstream would have been
lethal for most people.
However, the Court of Appeal upheld the
conviction for murder based on the trial judge's
direction that, for the defence to succeed, the
abnormality had to be caused by the disease of
alcoholism rather than by the voluntary
ingestion of alcohol on the particular occasion.
This would be the case 'If the alcoholism had

reached the level at which her brain had been

injured by the repeated insult from intoxicants
so that there was gross impairment of her
judgment and emotional responses'.
Even if this was not the case (as the jury must
have found by their verdict), the alcoholism
might still found a defence if it meant that the
intoxication was not voluntary, i.e. if 2she was
no longer able to resist the impulse to drink".
Although the defence medical witnesses testified
to this effect, the prosecution witness was of the
view that D had control over whether she had
the first drink of the day, but once she had had
the first drink she was no longer in control, and
the Court of Appeal said that "the judge was
correct in telling the jury that, if the taking of
the first drink was not involuntary, then the
whole of the drinking [on that day] was not
involuntary".
Tandy was followed in Inseal [1992], where
the Court of Appeal approved of the trial judge's
direction only in terms of this second issue of
whether the drinking had become involuntary,
since no medical evidence had been given on the
first question of whether the brain had been
'injured by the repeated insults from
intoxicants'.
The relevance in Tandy of the distinction
between voluntary and involuntary intoxication is
in answering the question of whether the
abnormality of mind is caused by disease, i.e.
alcoholism.
If the intoxication is voluntary, then it
constitutes a novus actus interveniens and
breaks the causal link between the alcoholism
and the abnormality of mind.
If it is involuntary, in the sense that the
accused's alcoholism meant she was no longer
able to resist the impulse to take (even the first)
drink, then the actual intoxication is not a novus
actus but part of the causal chain between the
alcoholism and the abnormality of mind.
Watkins LJ said
"'if her drinking was involuntary then her
abnormality of mind at the time of the act of

strangulation was induced by her condition of

alcoholism".
If this is correct, then logically an alcoholic (or
anybody else for that matter) whose orange
juice, for example, is surreptitiously laced with
vodka by another, might have difficulty relying
on diminished responsibility.
Even though his abnormality of mind is caused
by involuntary intoxication, it would appear that
it is not induced by disease. This seems rather
harsh but a possible answer is that the
abnormality might be said to be due to one of
the other causes specified in s. 2(1), i.e.
"injury".
The spiker of the drinks could be said to be
inflicting an injury via the alcohol on the
accused's brain, just as much as if he clubbed
him over the head, and thus the abnormality
could be said to be induced by "injury".
However, in R v Di Duca (1959), the court was
'very doubtful' as to whether the transient effect
of drink could amount to an injury and in R v
O'Connell [1997] similar doubts were expressed
in respect of the transient effects of voluntarily
ingested Halcion (a sleeping drug).
These doubts can be explained on the grounds
that the courts were speaking of cases of
voluntary intoxication. Rather than deny that the
transient effect of drink or drugs can ever
constitute an injury, it would be better merely to
exclude voluntarily self-inflicted injuries
(including the effects of voluntary intoxication)
from the meaning of "injury" within s. 2(1).
Their exclusion can be justified on the grounds
that, being voluntarily self-inflicted, they are not
capable of substantially impairing responsibility
within the meaning of the section.
[ Back ] [ Next ]
Battered
Woman
Syndrome

It is an extremely common social event involving

physical and sexual violence by men against women
and children. It was medically recognised as a
mental disease until 1994. It is not a defence but a
means of convincing the court of diminished
responsibility or provocation.

What is it?

All syndromes are defined by clusters of symptoms.

Battered Woman Syndrome was initially proposed by
an American Leonore Walker (1984).
There are two premises: a cycle model of violence
and 'learned helplessness'.

Why doesn't
the woman
leave?

Women have always known that this is often the

most dangerous thing to do. It is professionals who
have not understood that fear is one of the most
potent reasons why women do not leave violent
men.

For every 100

men who kill
wives 23
women kill
husbands.

Accurate official data on women who kill is difficult to

access and incomplete.

Jane Mooney
(1994) North
London
Survey

As many as one in three women experience violence

in a heterosexual relationship; many of those fear
for their life.

Diminished
Responsibility

It can be used as evidence of an 'abnormality in

mind' in relation to diminished responsibility.

Provocation

It can be evidence of the characteristics which can

be used to assess the reasonableness of action for
the defence of provocation, see Kiranjit Ahluwalia's
appeal where it was recognised; although her appeal
succeeded on grounds of diminished responsibility.

Problems

It diverts attention from the previous behaviour of

the man and the case becomes about the woman's
personality defects rather than the man's behaviour.

Kiranjit
Ahluwalia

Provocation was unsuccessful because the delay

between her husband's last attack on her and her
retaliation (a few hours) was deemed to be a
"cooling down" period and not a "boiling over" period
as her defence suggested.
On appeal the expert evidence and psychiatric
reports which had not been presented at the original
trial were admitted. At re-trial she was found guilty
of manslaughter due to diminished responsibility and
sentenced to three years and four months (the time
she had already served), and so was released
immediately.

Emma
Humphreys

Her appeal succeeded because the judge at the

original trial should have directed the jury to

consider the cumulative provocation she suffered at

the hands of her boyfriend/pimp. At the original trial,
the jury was only directed to consider the final act of
provocation.
The second ground concerned provocation. Emma's
so called "abnormal personality" and her "attention
seeking traits", should have been taken into account
when considering the relevant characteristics of the
'reasonable man'.
For three years after her release Emma campaigned
for Justice For Women, but continued to battle with
anorexia. On the 11th July 1998 Emma died in her
sleep after an accidental overdose of prescription
medication.
Sara Thornton

Her plea of diminished responsibility focused on her

own state of mind rather than the batterings she had
received.
Her first appeal failed on the grounds that the 60
seconds it took to get the knife did not constitute "a
sudden and temporary loss of self-control". She
could have "walked out or gone upstairs".
A further appeal allowed new evidence showing the
extent of the domestic violence she had suffered and
its impact on her mental state. Taylor LCJ quashed
her murder conviction on the grounds that the judge
at her original trial had not directed the jury to
consider all the relevant characteristics of the
"reasonable man" test in provocation and ordered a
retrial. At retrial she was found not guilty of murder
but guilty of manslaughter. The jury did not indicate
whether it was on grounds of provocation or
diminished responsibility or a combination of both
that reduced her conviction from murder to
manslaughter. She was immediately released from
custody.

R v Hobson
[1998] CA

Battered woman syndrome is capable of giving

rise to a defence of diminished responsibility.
D had stabbed her abusive and alcoholic partner to
death during an argument. At the trial she
contended that she had acted in self-defence, and
there was a subsidiary issue on provocation. She had
been convicted in 1992.
On her appeal heard in 1997, application was made
for reception of the evidence of two psychiatrists.
They opined that the appellant had been a victim of
battered womens syndrome, a condition not
recognised in the standard British classification of
mental diseases until 1994, and therefore (it was

suggested) a condition not considered by British

psychiatrists at the date of the trial as capable of
founding a plea of diminished responsibility.
The Crown resisted the reception of this evidence,
relying on a report prepared for the appellant before
the trial which excluded the possibility of a
diminished responsibility defence.
The Court of Appeal ruled that the evidence should
be received, and in the light of that decision the
Crown did not seek to support the conviction as safe.
A retrial was ordered.
Organisations
campaigning

See here for more detail on BWS

[ Back ] [ Next ]

Only available in
a murder case

Provocation is only available in a trial for

murder, not for assaults or any other offence.
It has often been described as "a concession to
human frailty" introduced by the common law to
avoid the strictness of the single penalty (of
death) for murder.

Provocation is a
common law
defence which
has been
modified by
Section 3 of the
Homicide Act
1957 which
provides:

"Where on a charge of murder there is evidence

on which the jury can find that the person
charged was provoked (whether by things done
or by things said or by both together) to lose his
self-control, the question whether the
provocation was enough to make a reasonable
man do as he did shall be left to be determined
by the jury; and in determining that question
the jury shall take into account everything both
done and said according to the effect which, in
their opinion, it would have on a reasonable
man."

Section 3 does
not state the
effect of a
successful
defence - it is by
virtue of the
common law that
the offence is
reduced to
manslaughter.

The procedure:
1. Once the judge has decided there is
sufficient evidence that the defendant
was provoked, whether or not the
defence has been raised expressly by the
defendant, he must leave it to the jury to
answer the questions:
2. Was the defendant provoked to lose his
self-control? and
3. Was the provocation enough to make a

reasonable man do as he did?

Section 3 places
an evidential
burden on D.
D must raise
sufficient
evidence of
provocation for
the judge to leave
the defence to the
jury.
R v Doughty [1986]

Whether D has produced sufficient evidence is a

matter of law for the trial judge alone to decide.
Any witness at the trial, not necessarily by D
alone, can provide this evidence.
Since the 1957 Act, it has been capable for
anything to constitute provocation, including
words alone, actions by third parties, and
provocation directed at third parties.

The persistent crying of a 17-day-old baby could

constitute provocation. The jury should have
been directed to consider how the reasonable
man would have responded.

Was the defendant provoked?

The subjective (or factual) test
R v Acott [1997] HL

There are two tests,

the subjective test and (below)
The objective test
1. Subjective D must be shown to have
actually lost his self-control.
If there is evidence that his actions were
premeditated, or that he had been able to
compose himself between the provocation and
the killing, then the defence cannot be left to the
jury.

R v Duffy [1949]

Devlin
"the provocation must cause a sudden and
temporary loss of self-control, rendering the
accused so subject to passion as to make him or
her for the moment not master of his mind".
Where there is a gap in time between the
provocation and the killing - "cooling time" - D
may encounter difficulties in trying to establish
the defence of provocation.

R v Ibrams and
Gregory (1981)

Lawton LJ expressed the view that a time gap

between the last act of provocation and the
killing refuted any evidence that it had been
carried out by the defendants suffering from a
sudden and temporary loss of self-control as

envisaged by Devlin J in Duffy [1949].

Rv
Thornton [1992]

D argued that s.3 required the jury to have

regard to "everything both said and done
according to the effect which in their opinion it
would have on a reasonable man".
Beldam LJ rejected this:
"In every such case the question for the jury is
whether at the moment the fatal blow was
struck the accused had been deprived for that
moment of the self-control which previously he
or she had been able to exercise".

Provocation and
causation
contrasted.

In provocation the law is concerned with the

impact of the victim's conduct on the
defendant's mind.
When the issue is causation, the law is
concerned with the effect of the defendant's
conduct on the victim.
All evidence is admissible; including evidence of
any mental or other abnormality making it more
or less likely that the defendant lost his selfcontrol.

Battered Woman Syndrome

What it is

A post-traumatic stress disorder.

The jury in a murder trial can consider Battered
Woman Syndrome as a relevant characteristic,
which makes her more prone to loss of selfcontrol.
In 1994 battered women's syndrome was
included for the first time in the British
classification of mental diseases. An appeal out
of time was allowed in R v Hobson [1998]
CA and a retrial ordered to consider the new
medical evidence.
Battered woman syndrome was confirmed as a
characteristic in R v Smith (Morgan) [2001] HL
However, in Jersey v Holley [2005] PC the
position was returned to situation before Morgan
Smith.

This principle was

reaffirmed in R v
Thornton (No
2) [1996].

Following the introduction of fresh evidence, a

retrial was ordered by the Court of Appeal to
consider the effect of Battered Woman
Syndrome and the defendant was convicted of
manslaughter on the grounds of diminished
responsibility.

Rv
Ahluwalia [1992]

The trial judge's direction to the jury in

accordance with Duffy had rightly stated that
provocation was only available to a defendant
who killed whilst suffering from a sudden loss of
self-control, and that s3 of the Homicide Act
1957 had not been intended by Parliament to
affect the operation of the test in Duffy [1949].
(However, a retrial was ordered to consider the
defence of diminished responsibility including
the effect of "battered woman syndrome" and
Ahluwalia was convicted of manslaughter).

The Final Straw Principle

Rv
Humphreys [1995]
CA
a defence of
provocation can
succeed if there is a
series of incidents
over time which
drove the woman to
murder (the last
straw principle)

D pleaded provocation, claiming that a jibe

about wrist cutting had been the trigger which
caused her to "snap".
The Court of Appeal held that the judge had
misdirected the jury.
(1) The accused's psychiatric characteristics
(stemming from abuse) should have been
attributed to the reasonable person when the
jury considered the application of the objective
test.
(2) The jury was entitled to the benefit of an
analysis by the judge of the various strands of
provocation at the successive stages starting
from her first meeting with V and culminating in
his death. This was necessary because the
relationship was a very complex story, involving
both much earlier incidents of violence and the
breakdown of the sexual relationship, and a
series of events on the night of the killing,
including the threat of rape and he taunts. It
was not sufficient simply to leave it to the jury
to make sense of the importance of all these
events other than the final taunts.

R v Thornton (No

Lord Taylor CJ;

2) [1996]

On the relevance of battered woman syndrome

to the defence of provocation,
"a jury may find there was a sudden loss of
control triggered by a minor incident if the
defendant had endured abuse over a period, on
the "last straw" basis."

The objective (or evaluative) test

The reasonable
man test

The objective test;

Having decided that the defendant was
provoked, the jury must decide whether a
reasonable man would have acted as the
defendant did.
In the language of the statute, "the question
whether the provocation was enough to make a
reasonable man do as he did ... [taking] into
account everything both done and said
according to the effect ... it would have on a
reasonable man".
Broken down, this objective ingredient has two
elements.
1. The first element calls for an assessment
of the gravity of the provocation.
2. The second element calls for application
of an external standard of self-control:
"whether the provocation was
enough to make a reasonable man
do as he did".
The statutory reference to a 'reasonable man' in
this context is, by common accord, not the best
choice of words. It is difficult to conceive of
circumstances where it would be 'reasonable' for
a person to respond to a taunt by killing his
tormentor.
Rather, the phrase is intended to refer to an
ordinary person, that is, a person of ordinary
self-control.
The reasonable man is attributed with the
defendant's particular characteristics which
might be relevant to the provocation.

DPP v
Camplin [1978] HL

Lord Diplock gave the following definition of the

reasonable man:

" the "reasonable man" has never been

confined to the adult male. It means an ordinary
person of either sex, not exceptionally excitable
or pugnacious, but possessed of such powers of
self-control as everyone is entitled to expect
that his fellow citizens will exercise in society as
it is today."
The reasonable man is a person having the
power of self-control to be expected of an
ordinary person of the sex and age of the
defendant, but in all other respects showing
such of the defendant's characteristics as they
think would affect the gravity of the provocation
to him.
Lord Simon of Glaisdale in Camplin referred to
"a reasonable man" means "a man of ordinary
self-control".
Similarly in R v Morhall [1996], Lord Goff
commented that, despite the express words of
the statute, to speak of the degree of selfcontrol attributable to the ordinary person is
"certainly less likely to mislead" than to do so
with reference to the reasonable person.

Would such
person react as D
did?

The question is not merely whether such a

person would in the circumstances be provoked
to lose his self-control but also whether he
would react to the provocation as the defendant
did.

Age and sex

relevant, but not
always race or
physical
peculiarities

Hence, whilst the age and sex of the defendant

would always be attributed to the reasonable
man, other characteristics such as racial origin,
or physical peculiarity, would only be considered
to the extent that they were relevant.
In Camplin, the reasonable man would be the
reasonable 15 year old, as the defendant's youth
was a relevant characteristic.

Intoxication or
excitability not
relevant

As certain characteristics such as intoxication or

excitability would be ignored for policy reasons,
the defendant's drunkenness was irrelevant. A
slow down in traffic is not relevant (Steyn LJ
in Acott)

Taunts about past

behaviour can be

Whether the judge should exclude from the

jury's consideration characteristics and past

relevant

behaviour of the defendant at which the taunts

are directed, which in the judge's view are
inconsistent with the concept of a reasonable
man.

R v Morhall [1995]
HL

D contended that his addiction to glue sniffing

was a special characteristic that should have
been taken into account as affecting the gravity
of the provocation.

Alcoholism, drug
addiction,
paedophilia are
relevant factors

Lord Goff;
"In DPP v Camplin, the House of Lords had
stressed that the jury should take into account
"all those factors" or "the entire factual
situation" which would affect the gravity of the
provocation. There was nothing in that
judgment to rule out any disreputable
characteristics"

Addiction relevant
but being
intoxicated is not.

A distinction may have to be drawn between two

situations:
(a) where the D is taunted with his addiction (for
example, that he is an alcoholic, or a drug
addict, or a glue-sniffer), or even with having
been intoxicated on some previous occasion, in
which case it may where relevant be taken into
account as going to the gravity of the
provocation, and
(b) where the D was intoxicated (being drunk, or
high with drugs or glue) at the relevant time,
which may not be so taken into account,
because that, like displaying a lack of ordinary
self-control, is excluded as a matter of policy.

Luc Thiet Thuan v

R [1996] PC

Characteristics of the defendant, which make

him more prone to lose self-control than the
ordinary person, cannot be attributed to the
reasonable person for the purposes of the
objective test. In doing so, the Privy Council cast
doubt on the Court of Appeal decisions
in Ahluwalia (1992), Humphreys (1995),
and Thornton (No 2) (1996).

Self-induced
provocation

If the defendant induces the provocation by

some act of his own the defence will still be
available.

Jersey v
Holley [2005] PC

The reasonable man test might act harshly on a

defendant with a mental abnormality.
Section 2 should not be distorted to
accommodate the types of case for which
section 3 was specifically enacted.
Therefore the accused should be judged against
an inflexible, constant and objective standard.
This is something that many inadequate
defendants may never be able to achieve and to
that extent the test may deprive many of a fair
defence, battered women in particular. The law
of provocation is now uncertain and probably
back where it was 25 years ago.

R v Johnson [1989]
CA

Held: S3 of the Homicide Act 1957 provides

that anything can amount to provocation,
including actions provoked by the defendant.

The law of
provocation is in
a mess.

The Privy Council believes Parliament should sort

it out (together with all the law of homicide) as
soon as possible; the courts can do no more
with it, it is now up to Parliament.
Within less than 4 years, they have
pronounced R v Smith (Morgan) [2001] HL to be
wrong, in the case ofJersey v Holley.
This means that women suffering from Battered
Woman Syndrome may satisfy the first test in
Section 2 Homicide Act 1957, but not the second
objective test and so appear to be back in the
position they were before Morgan Smith and
have to rely on diminished responsibility. In fact,
their Lordships urged courts to read together
these two defences to obtain an overall,
balanced view of the law in this field.

Back to
Luc Thiet Thuan v
The Queen [1997]
DPP v
Camplin [1978] and
R v Morhall [1996]

In applying the second objective test we are

advised to no longer use the term
characteristics of a defendant, but to rigorously
apply a uniform objective standard of the degree
of self-control to be expected of an ordinary
person, to be judged by one standard, not a
standard which varies from defendant to
defendant.

The reasonable man described in Luc Thiet

Thuan, Camplin and Morhall are to be applied
to all defendants. The jury are required to judge
the defendant's loss of self-control by reference
to the standard of the degree of self-control to
be expected of an ordinary person of the
defendant's age and sex, and not a defendant
with the abnormalities of the accused.
The Board stated that in adopting the
formulation of Sec 3 Homicide Act 1957
Parliament recognised the potential hardship to
defendants suffering mental abnormality and
enacted the defence of diminished responsibility
in s 2.
Luc Thiet Thuan v The Queen [1997]. R v
Camplin [1978] and R v Morhall [1996] are
to be considered the correct test for the
objective test
Jersey v Holley [2005] PC has thrown the law of provocation into
position where it is in need of urgent reform. The following information
regarding the case of Morgan Smith now appears to be bad law insofar
as the second objective test is concerned.
R v Smith (Morgan James) (2000) HL
For a short time
fear became a
new defence for
women who
killed, but was
removed by R v
Holley

Lord Hoffmann:
"There are people (such as battered wives) who
would reject any suggestion that they were
'different from ordinary human beings' but have
undergone experiences which, without any fault
or defect of character on their part, have
affected their powers of self-control. In such
cases the law now recognises that the emotions
which may cause loss of self-control are not
confined to anger but may include fear and
despair."

Provocation
Homicide Act 1957
s3

Requires
1. A subjective determination of whether D was
in fact provoked to lose self-control ('whether by
things done or by things said or by both
together'), and
2. An objective determination of 'whether the
provocation was enough to make a reasonable
man do as [D] did'.

R v Smith (Morgan
James) (2000) HL

Morgan Smith in 1996 killed a former flatmate,

after they became embroiled in a fight over
stolen tools worth 4,000.
His defences were that he did not intend to kill
or cause grievous bodily harm; that he was
suffering from diminished responsibility; and
that he was acting under provocation. The jury
rejected all three defences and he was convicted
of murder in 1997.
D appealed.....

The objective
test.

The focus of the appeal was on the objective

part of the test for provocation and whether the
reasonable person could be given certain
characteristics of the accused, in this case the
characteristic of having a severe depressive
illness.

Held:

Certain characteristics of the defendant, beyond

simply their age and sex, could be taken into
account when applying the objective test.
Justice required that personal characteristics be
taken into account.
Lord Slynn:
"If the concept of the reasonable man expressed
in section 3 were accepted without any
qualification, successful pleas of provocation
would be rare indeed, since it is not altogether
easy to imagine circumstances in which a
reasonable man would strike a fatal blow with
the necessary mental intention, whatever the
provocation. It is in recognition of human frailty
that the scope of the defence of provocation
has, to a very limited extent, been enlarged."

Not all
characteristics
though

The House felt there was no problem in this

approach creating an overlap between the
defence of provocation and diminished
responsibility, which would now both take into
account the abnormality of the defendant. Lord
Slynn appears to approve of the decision of R v
Newell (1980), that the characteristic must have
a degree of permanency.
Lord Hoffmann:
"A person who flies into a murderous rage when
he is crossed, thwarted or disappointed in the
vicissitudes of life should not be able to rely
upon his anti-social propensity as even a partial
excuse for killing."

And
"Male possessiveness and jealousy should not
today be an acceptable reason for loss of selfcontrol leading to homicide, whether inflicted
upon the woman herself or her new lover."
However, in R v Weller [2003] CA this issue was
left open and the court explained that it was a
matter to be decided by the jury.
Provocation
sometimes
presents
difficulties for the
defence

Whether or not to rely on a defence of

provocation is a dilemma which often faces
those representing defendants in murder trials
whose main defence is self-defence or lack of
intent.
A defence of provocation may be intrinsically
inconsistent with, or may otherwise weaken,
other defences.
This was clear in the case of van Dongen and his
brother where the court of appeal
acknowledged this fact.

August 2004, Law

Commission
published report

The report from the Law Commission on partial

defences to murder has been published, here.
The report acknowledges the difficulties in
wording of the conduct that should amount to
provocation, particularly the objective test.
Much of their report appears to be in line with
the recommendations of the Board of the Privy
Council in Holley.
[ Back ] [ Next ]

Section 4 of the
Homicide Act
1957

(1) It shall be manslaughter, and shall not be

murder, for a person acting in pursuance of a suicide
pact between himself and another to kill the other or
be a party to the other killing himself or being killed
by a third person.

Suicide Pact

From Sec 4 it can be derived that Suicide Pacts are

still unlawful, but survival by one party should be
dealt with as manslaughter.
Suicide and attempted suicide are not crimes
(since s.1 Suicide Act 1961), but it is a criminal
offence to aid, abet, counsel, or procure the suicide
of another. (Suicide Act 1961, s.2.)

A suicide pact occurs when two or more persons

agree that they shall be killed by some means.
Survivors of such a pact are charged with
manslaughter, whether they killed another or
whether the dead person killed himself.
The party raising the defence has the legal burden of
proof.

Example

Two lovers decide to end their lives together.

B connects exhaust pipe of his car to the inside of
the car.
G dies. B is rescued by passing motorist.
B had deliberately killed G, which would normally be
murder.
Their settled expectation of dying together means he
can claim suicide pact and be convicted of
manslaughter.

Aiding suicide

A person who aids, abets, counsels or procures

suicide or attempted suicide is guilty of an offence
punishable with up to fourteen years.
In R v Sweeney (1986) CA it was stated that it is
the policy of the law to make suicide pacts unlawful;
those who enter into such pacts and survive when
the other party thereto dies should expect to be
punished.

"ex turpi causa

non oritur
actio"
No right of
action arises
from a
shameful cause

The courts will not lend their aid to a litigant so as to

enable him, his representative or beneficiary, to
obtain a benefit from his own crime or reparation for
the consequences of his own culpable criminal act.
This has effect for survivors of suicide pacts in
claiming insurance and other funds, Dubar v
Plant [1997].

Mens Rea
Mens rea for
murder is not
present

D need not realise the risk of causing some harm. As

long as the reasonable man in his position would
have so realised
DPP v Newbury and Jones [1976] killed train
driver.
If there is no mens rea for the unlawful act the
defendant will not be liable R v Lamb (1967)
Russian roulette.

Need not
realise it is
dangerous

D must have the mens rea for the unlawful act e.g.
intention or recklessness etc., but it is not necessary
for the defendant to realise that the act is unlawful
or dangerous Newbury and Jones (1977), AttorneyGeneral's reference(No 2 of 1999) (2000) Southall
Rail crash.

Sentence

Can range from life imprisonment to an absolute

discharge.

Actus reus
It must be
shown

1. that the accused had committed an unlawful

act;
2. that the act was a substantial cause of death;
3. that the accused intended to commit the act
as distinct from intending its consequence.
4. that the act was dangerous in the sense that
a sober and reasonable person would
inevitably recognise that it carried some risk
of harm;
R v Mitchell [1983] CA

Must be a
criminal act

Compare:
R v Lamb [1967] - Russian roulette
R v Arobieke [1988] killed on railway line
The consent of the victim will not prevent an act
from being unlawful. R v Cato [1976] friends
injecting heroin.

Unlawful act

The death must be caused by an unlawful act. A civil

wrong is not enough Franklin (1883) box off pier.

Must be an
act, not an
omission

There must be an act: an omission cannot not create

liability.
Lowe (1973) neglected child.

Act can be
aimed at
property
Goodfellow
1986)

The act need not be aimed at a person; it can be

aimed at property, provided it is 'such that all sober
and reasonable people would inevitably recognise
must subject another person to, at least, the risk of
some harm'Goodfellow (1986) burnt down house.

The objective test

The unlawful
act must be
dangerous an objective
test

It 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
there from, albeit not serious harm' Church (1966)
threw girl in river.

Type of harm
which has to
be reasonably
foreseeable

R v Larkin [1943] cut womans throat

accidentally at party

Fear and
apprehension
are not
enough

The risk of harm refers to physical harm; fear and

apprehension are not sufficient, even if they cause
the victim to have a heart attack Dawson (1985).

Frailty is
sufficient

However, where a reasonable person would be aware

of the victims frailty and the risk of physical harm to
him, then the defendant will be liable Watson
(1989) - burglary.

How much
knowledge
does one
attribute to
the
bystander?

R v Watson [1989] the sober and reasonable

bystander was to be endowed with whatever
knowledge the defendant possessed.

R v Church [1966]
The jury must be directed to consider the possibility
of physical harm as opposed to merely emotional
harm R v Dawson (1985) - robbed petrol attendant.

R v Ball [1989] - unknown live round in gun - the

sober and reasonable bystander could not be
endowed with any mistaken belief held by the

defendant.

Supplying
drugs

When a defendant supplies drugs to a drug user who

then takes the drug and dies, what is the liability of
the drug supplier.
The courts have been presented with a number of
different examples where the supplier has behaved
irresponsibly and where he has not.
The issue is one of causation, does supplying the
drugs cause death. Provided the supplier does not
help the user take the drugs it would appear not.
The issue appears to have been finally resolved by
the House of Lords in R v Kennedy [2007], they
decided that where the deceased was a fully
informed and responsible adult, it was never
appropriate to find guilty of manslaughter a person
who had been involved in the supply to the deceased
of a Class A controlled drug, which had then been
freely and voluntarily self-administered by the
deceased, and the administration of the drug had
caused his death.

Difference
between
UADA and
gross
negligence

This applies to unlawful act manslaughter and not

gross negligence manslaughter.
It is possible, in some circumstances, for a drug
supplier to be guilty of gross negligence
manslaughter. In Khan[1993] CA it was held to be
gross negligence not to call an ambulance, but the
point about the supply of drugs not causing death
remains the same.
[ Back ] [ Next ]

Actus reus of Gross Negligence Manslaughter.

Involuntary
manslaughter
by gross
negligence
requires a
breach of duty
which causes
death

The essential elements are:

(1) existence of the duty;
(2) breach of the duty causing death; and
(3) gross negligence which jury considers justifies
criminal conviction,
(4) the gross negligence was a substantial cause of
the death (see the indictment in R v
Litchfield (1998))

See R v Adomako [1994] HL which overruled R v

Seymour.
Who can be
liable for a
death?

In R v Bennett (1858) D had unlawfully kept in his

house a quantity of fireworks, which, through the
negligence of his employees, were set on fire, and
thus caused the death of the deceased, and it was
held that the accused could not be convicted of
manslaughter, it was held that D is not responsible
criminally if the death was directly caused in his
absence by the negligence of his employees or
others.
It is no defence that the death was caused by the
negligence of others as well as of the accused; if
death is occasioned by the act or default of
several, they are all guilty of manslaughter
R v Benge (1865)
R v Gibbins and Proctor (1918) (convicted of
murder)
R v Stone & Dobinson [1977] CA.
The particular negligence imputed to the accused
must, however, have been a substantial cause of
the death
Several persons in pursuit of a common purpose
may be guilty of negligence and so guilty of
manslaughter even if only one of their number
commits the actual negligent act. Although,
normally the law seeks liability in one person, R
(on the application of Bodycote HIP Ltd) v
County of Herefordshire Coroner [2008] QBD.

Can be a wilful
act or omission

Unlike Unlawful Act manslaughter, which cannot be

committed by an omission, Gross Negligence
manslaughter can be committed by either an act or
an omission.

The existence of a duty of care

The ordinary
principles of
the law of
negligence
apply as in the
definition of
"duty of care"

Lord Atkin in Donoghue v Stevenson [1932].

Duty of care
extends to a
person upon
whom the law
imposes a duty
of care or who
has taken upon
himself a duty,
to preserve life

D is liable where that duty exists or has been

undertaken and D, regardless of the life, safety,
welfare and health of others, neglects to perform
that duty or performs it negligently and thereby
causes the death of another person.
For example
R v Pittwood (1902)
R v Stone & Dobinson [1977].

Duty of care
can be
Dr/patient

A duty of care has been held to apply to a doctor

towards his patient Adomako (1994)

Manager of
property/tenan
t

a manager and maintainer of property where there

was a faulty gas fire Singh (1999)
the owner and master of a sailing ship to the
crew Litchfield (l998)

Master of
sailing
ship/crew
Electrician
Duty to
summon
medical
assistance

In Khan (1998) a duty situation was held to

include a duty to summon medical assistance in
some situations.
[ Back ] [ Next ]

Mens rea of Gross Negligence Manslaughter

Is gross negligence manslaughter an offence of strict liability.
The decision in Attorney-Generals Reference (No 2 of 1999) (2000)
CA suggested that mens rea is not always required for Gross
Negligence Manslaughter, in which case whether a form of recklessness
is relevant is put in doubt.
If AG's Ref No 2 was correctly decided the state of mind of D is
irrelevant and so therefore is the question of recklessness. Ergo, the
civil law of negligence is the only test, and that requires no mens rea,
one is either negligent or not.
Nature of the offence

There is no definition of Gross Negligence

Manslaughter, and the courts have not
been consistent in applying the law.

Reckless Manslaughter

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of

recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.

Procedure

Unlike Voluntary manslaughter which is

charged as murder until the defence is
raised, Involuntary manslaughter can be
charged as an offence.

The mens rea required

is negligence, rather
than recklessness as it
used to be

Nevertheless, the courts have held the

test to be applied is one of objective
liability rather than subjective culpability,
R v DPP, ex p Jones [2000] DC.
In R v Hennigan [1971] CA a case of
causing death by reckless driving
substantial was held to imply more than
minimal)
and in R v Cato [1976] CA causing death
by injecting heroin.
R v Pocock (1851) those responsible to
repair a road were held not chargeable
with manslaughter when a person was
killed because of their neglect to make a
contract for the repair of it.

In Adomako Lord Mackay

LC indicated the
requirements of the
offence

First, the general principles of the

law of negligence apply to
determine whether or not the
defendant has been in breach of a
duty of care towards the victim
who has died.
If such a breach is established, the
second question is whether that
breach of duty caused the death of
the victim.
If so, should that breach of duty
be categorised as gross negligence
and therefore as a crime?
This will depend upon the
seriousness of the breach
committed by the defendant in all
the circumstances in which the

defendant was placed when the

breach occurred.
Gross Negligence
manslaughter replaced
the difficult concept of
Reckless manslaughter

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of
recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
The dictum of Hewart LCJ in R v
Bateman (1925) was criticised in R v
Kong Cheuk Kwan (1985) PC as no longer
necessary or helpful in directing juries in
cases of reckless manslaughter.
And in R v Goodfellow (1986) CA Lord
Lane CJ said the question for the jury
was whether or not the accused had been
guilty of recklessness (or gross
negligence).
In R v Stone & Dobinson [1977] CA,
however, a submission that foresight of
the possibility of death or serious injury
had to be proved to establish involuntary
manslaughter based on gross negligence
was rejected; proof of recklessness,
although not mere inadvertence, was held
to be sufficient
In R v West London Coroner, ex p
Gray [1988] QBD it was held that for
unlawful killing because of neglect on the
part of the police, it must be show, that
there was a failure amounting to
recklessness to do what should have been
done for the health and welfare of the
deceased.

Gross negligence could

include:
indifference,

In Adomako (1994) the following were

held to constitute gross negligence

actual foresight, or
inattention

Mere carelessness is
not enough

indifference to an obvious risk of

injury to health
actual foresight of the risk coupled
with the determination
nevertheless to run it;
actual foresight of the risk
together with an intention to avoid
it but involving such a high degree
of negligence in the attempted
avoidance as the jury considered
justified conviction;
inattention or failure to advert to a
serious risk going beyond mere
inadvertence in respect of an
important matter which the
defendants duty demanded he
should address.

A higher degree of negligence is

necessary to render a person guilty
of manslaughter than to establish
civil liability against him.
Whether negligence is sufficient to
warrant criminal sanctions it is a question
for the jury and depends on the facts of
the particular case.

The standard of
negligence necessary to
constitute
manslaughter was
defined in Andrews v
DPP [1937]
and
R v Seymour [1983]
HL which adopted R v
Lawrence [1982] HL)

Other examples of the nature of

negligence were:
R v Timmins (1836) buses racing
R v Mastin (1834) accused and deceased
said to be racing
R v Swindall and Osborne (1846) inciting
to furious driving
R v Dalloway (1847) driving a cart
without holding reins
R v Jones (1870) contributory negligence
R v Baldessare (1930) CCA joy ride;
common purpose of reckless driving;
driver and companion both guilty of
manslaughter
R v Kong Cheuk Kwan (1985) PC liability
of captain of hydrofoil for collision causing
death, jury should have been directed in
accordance with R v Lawrence conviction
quashed.

Negligence must go
beyond that required

This requirement was laid down by Lord

Mackay in Bateman (1925) where there

for civil liability, which

is a question of degree
for the jury

was delay in sending patient to hospital.

"In explaining to juries the test which
they should apply to determine whether
the negligence, in the particular case,
amounted or did not amount to a crime,
the judges have used many epithets,
such as "culpable," "criminal," "gross,"
"wicked," "clear," "complete." But
whatever epithet be used and whether an
epithet be used or not, in order to
establish criminal liability the facts must
be such that, in the opinion of the jury..."
"... the negligence of the accused
went beyond a mere matter of
compensation between subjects and
showed such disregard for the life
and safety of others as to amount to
a crime against the state and conduct
deserving punishment.'"

How negligent?

the negligence has to be 'gross'.

How 'gross'?

The standard applied is defined in R v

Bateman (1925)

What amounts to
gross is for the jury

In Andrews v DPP [1937] Lord Atkin said

that whilst the test in Bateman was:
not . . . a precise definition of the
crime . . . the substance of the judgment
is most valuable, and in my opinion is
correct. In practice it has generally been
adopted by judges in charging juries in all
cases of manslaughter by negligence.
Lord Atkin said there was a very high
degree of negligence required:
Probably of all the epithets that can be
applied "reckless" most nearly covers
the case . . . but it is probably not allembracing, for "reckless" suggests an
indifference to risk, whereas the accused
may have appreciated the risk and
intended to avoid it and yet shown such a
high degree of negligence in the means
adopted to avoid as would justify a
conviction.
In Adomako [1995] the House of Lords
has restored gross negligence rather than
recklessness as the essential basis of
liability.

Foreseeable risk of
"health and welfare"

Khan [1998] & Singh [1999] one is faced

with the issue of foreseeability of what
type of risk?
Lord Mackay spoke of the jury "having
regard to the risk of death involved" but
he later approved of the formulation
in Stone [1977] & West London Coroner,
ex parte Gray [1988] in terms of a risk of
injury to the "health and welfare" of an
infirm person.

Drug dealers have no

parallel duty towards
their 'clients'

In Khan (1998) CA the duty to summon

medical assistance was held not to extend
to a drug dealer who supplied heroin to a
person who subsequently died.
The totality of the situation and not the
various individual roles a person performs
is to be considered to establish whether
the facts of the case are sufficient to give
rise to a duty of care: R v Singh
(Gurphal) [1999] CA.

Public policy requires

no duty of care in some
situations

However in R v Wacker [2003] (illegal

immigrants die in the back of a lorry) it
was held that, as a matter of public
policy, the principle of the law of
negligence that no duty of care arises
between the participants of a joint illegal
purpose had no application in criminal
law.

Test
is Caldwell Recklessnes
s

R v G [2003] HL delivered Caldwell a

fatal blow so far as the Criminal
Damage Act was concerned. It was not
clear what survived R v G, but we now
know that the test of recklessness for all
but Criminal Damage may have survived.
The authority for this is an unreported
case in the Court of Appeal, R v Mark and
another [2004] CA.

R v G and R [2003] HL
Whole case here

This case firmly rejected the 'objective'

recklessness concept in R v
Caldwell (1982) in Criminal Damage and

doubted R v Lawrence [1982] and R v

Reid [1992].
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
R v G and R [2003] did not change the
law in respect of Gross Negligence
Manslaughter, it was concerned only with
Criminal Damage.
Therefore the "reckless disregard for the
health and welfare of the deceased" must
still be approached with regard to
Caldwell/Lawrence recklessness.

Examples of conduct
which if recklessness or
grossly negligent
creates a liability

A person who deals with

dangerous medicines or
undertakes a dangerous operation
may be guilty of manslaughter if
death occurs.
Criminal negligence in driving a
motor vehicle or other vehicle or in
riding or navigating a vessel.
A driver, fireman or other railway
employee may be guilty of the
manslaughter of persons killed as
a result of the criminally negligent
performance of his duties.
Negligent use of a dangerous
weapon or other dangerous thing
likely to cause death in an
improper place or without taking
proper precautions to avoid injury.
A person who is in charge of a
mine or of machinery if a accident
occurs.
[ Back ] [ Next ]

Mens rea of Gross Negligence Manslaughter

Is gross negligence manslaughter an offence of strict liability.
The decision in Attorney-Generals Reference (No 2 of 1999) (2000)
CA suggested that mens rea is not always required for Gross
Negligence Manslaughter, in which case whether a form of recklessness

is relevant is put in doubt.

If AG's Ref No 2 was correctly decided the state of mind of D is
irrelevant and so therefore is the question of recklessness. Ergo, the
civil law of negligence is the only test, and that requires no mens rea,
one is either negligent or not.
Nature of the offence

There is no definition of Gross Negligence

Manslaughter, and the courts have not
been consistent in applying the law.

Reckless Manslaughter

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of
recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.

Procedure

Unlike Voluntary manslaughter which is

charged as murder until the defence is
raised, Involuntary manslaughter can be
charged as an offence.

The mens rea required

is negligence, rather
than recklessness as it
used to be

Nevertheless, the courts have held the

test to be applied is one of objective
liability rather than subjective culpability,
R v DPP, ex p Jones [2000] DC.
In R v Hennigan [1971] CA a case of
causing death by reckless driving
substantial was held to imply more than
minimal)
and in R v Cato [1976] CA causing death
by injecting heroin.
R v Pocock (1851) those responsible to
repair a road were held not chargeable
with manslaughter when a person was
killed because of their neglect to make a
contract for the repair of it.

In Adomako Lord Mackay

LC indicated the
requirements of the
offence

First, the general principles of the

law of negligence apply to
determine whether or not the
defendant has been in breach of a

Gross Negligence
manslaughter replaced
the difficult concept of
Reckless manslaughter

duty of care towards the victim

who has died.
If such a breach is established, the
second question is whether that
breach of duty caused the death of
the victim.
If so, should that breach of duty
be categorised as gross negligence
and therefore as a crime?
This will depend upon the
seriousness of the breach
committed by the defendant in all
the circumstances in which the
defendant was placed when the
breach occurred.

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of
recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
The dictum of Hewart LCJ in R v
Bateman (1925) was criticised in R v
Kong Cheuk Kwan (1985) PC as no longer
necessary or helpful in directing juries in
cases of reckless manslaughter.
And in R v Goodfellow (1986) CA Lord
Lane CJ said the question for the jury
was whether or not the accused had been
guilty of recklessness (or gross
negligence).
In R v Stone & Dobinson [1977] CA,
however, a submission that foresight of
the possibility of death or serious injury
had to be proved to establish involuntary
manslaughter based on gross negligence
was rejected; proof of recklessness,
although not mere inadvertence, was held

to be sufficient
In R v West London Coroner, ex p
Gray [1988] QBD it was held that for
unlawful killing because of neglect on the
part of the police, it must be show, that
there was a failure amounting to
recklessness to do what should have been
done for the health and welfare of the
deceased.
Gross negligence could
include:
indifference,
actual foresight, or
inattention

In Adomako (1994) the following were

held to constitute gross negligence
indifference to an obvious risk of
injury to health
actual foresight of the risk coupled
with the determination
nevertheless to run it;
actual foresight of the risk
together with an intention to avoid
it but involving such a high degree
of negligence in the attempted
avoidance as the jury considered
justified conviction;
inattention or failure to advert to a
serious risk going beyond mere
inadvertence in respect of an
important matter which the
defendants duty demanded he
should address.

Mere carelessness is
not enough

A higher degree of negligence is

necessary to render a person guilty
of manslaughter than to establish
civil liability against him.
Whether negligence is sufficient to
warrant criminal sanctions it is a question
for the jury and depends on the facts of
the particular case.

The standard of
negligence necessary to
constitute
manslaughter was
defined in Andrews v
DPP [1937]
and
R v Seymour [1983]
HL which adopted R v

Other examples of the nature of

negligence were:
R v Timmins (1836) buses racing
R v Mastin (1834) accused and deceased
said to be racing
R v Swindall and Osborne (1846) inciting
to furious driving
R v Dalloway (1847) driving a cart
without holding reins

Lawrence [1982] HL)

R v Jones (1870) contributory negligence

R v Baldessare (1930) CCA joy ride;
common purpose of reckless driving;
driver and companion both guilty of
manslaughter
R v Kong Cheuk Kwan (1985) PC liability
of captain of hydrofoil for collision causing
death, jury should have been directed in
accordance with R v Lawrence conviction
quashed.

Negligence must go
beyond that required
for civil liability, which
is a question of degree
for the jury

This requirement was laid down by Lord

Mackay in Bateman (1925) where there
was delay in sending patient to hospital.
"In explaining to juries the test which
they should apply to determine whether
the negligence, in the particular case,
amounted or did not amount to a crime,
the judges have used many epithets,
such as "culpable," "criminal," "gross,"
"wicked," "clear," "complete." But
whatever epithet be used and whether an
epithet be used or not, in order to
establish criminal liability the facts must
be such that, in the opinion of the jury..."
"... the negligence of the accused
went beyond a mere matter of
compensation between subjects and
showed such disregard for the life
and safety of others as to amount to
a crime against the state and conduct
deserving punishment.'"

How negligent?

the negligence has to be 'gross'.

How 'gross'?

The standard applied is defined in R v

Bateman (1925)

What amounts to
gross is for the jury

In Andrews v DPP [1937] Lord Atkin said

that whilst the test in Bateman was:
not . . . a precise definition of the
crime . . . the substance of the judgment
is most valuable, and in my opinion is
correct. In practice it has generally been
adopted by judges in charging juries in all
cases of manslaughter by negligence.
Lord Atkin said there was a very high
degree of negligence required:
Probably of all the epithets that can be

applied "reckless" most nearly covers

the case . . . but it is probably not allembracing, for "reckless" suggests an
indifference to risk, whereas the accused
may have appreciated the risk and
intended to avoid it and yet shown such a
high degree of negligence in the means
adopted to avoid as would justify a
conviction.
In Adomako [1995] the House of Lords
has restored gross negligence rather than
recklessness as the essential basis of
liability.
Foreseeable risk of
"health and welfare"

Khan [1998] & Singh [1999] one is faced

with the issue of foreseeability of what
type of risk?
Lord Mackay spoke of the jury "having
regard to the risk of death involved" but
he later approved of the formulation
in Stone [1977] & West London Coroner,
ex parte Gray [1988] in terms of a risk of
injury to the "health and welfare" of an
infirm person.

Drug dealers have no

parallel duty towards
their 'clients'

In Khan (1998) CA the duty to summon

medical assistance was held not to extend
to a drug dealer who supplied heroin to a
person who subsequently died.
The totality of the situation and not the
various individual roles a person performs
is to be considered to establish whether
the facts of the case are sufficient to give
rise to a duty of care: R v Singh
(Gurphal) [1999] CA.

Public policy requires

no duty of care in some
situations

However in R v Wacker [2003] (illegal

immigrants die in the back of a lorry) it
was held that, as a matter of public
policy, the principle of the law of
negligence that no duty of care arises
between the participants of a joint illegal
purpose had no application in criminal
law.

Test

R v G [2003] HL delivered Caldwell a

is Caldwell Recklessnes
s

fatal blow so far as the Criminal

Damage Act was concerned. It was not
clear what survived R v G, but we now
know that the test of recklessness for all
but Criminal Damage may have survived.
The authority for this is an unreported
case in the Court of Appeal, R v Mark and
another [2004] CA.

R v G and R [2003] HL
Whole case here

This case firmly rejected the 'objective'

recklessness concept in R v
Caldwell (1982) in Criminal Damage and
doubted R v Lawrence [1982] and R v
Reid [1992].
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
R v G and R [2003] did not change the
law in respect of Gross Negligence
Manslaughter, it was concerned only with
Criminal Damage.
Therefore the "reckless disregard for the
health and welfare of the deceased" must
still be approached with regard to
Caldwell/Lawrence recklessness.

Examples of conduct
which if recklessness or
grossly negligent
creates a liability

A person who deals with

dangerous medicines or
undertakes a dangerous operation
may be guilty of manslaughter if
death occurs.
Criminal negligence in driving a
motor vehicle or other vehicle or in
riding or navigating a vessel.
A driver, fireman or other railway
employee may be guilty of the
manslaughter of persons killed as
a result of the criminally negligent
performance of his duties.
Negligent use of a dangerous
weapon or other dangerous thing

likely to cause death in an

improper place or without taking
proper precautions to avoid injury.
A person who is in charge of a
mine or of machinery if a accident
occurs.
[ Back ] [ Next ]

Mens rea of Gross Negligence Manslaughter

Is gross negligence manslaughter an offence of strict liability.
The decision in Attorney-Generals Reference (No 2 of 1999) (2000)
CA suggested that mens rea is not always required for Gross
Negligence Manslaughter, in which case whether a form of recklessness
is relevant is put in doubt.
If AG's Ref No 2 was correctly decided the state of mind of D is
irrelevant and so therefore is the question of recklessness. Ergo, the
civil law of negligence is the only test, and that requires no mens rea,
one is either negligent or not.
Nature of the offence

There is no definition of Gross Negligence

Manslaughter, and the courts have not
been consistent in applying the law.

Reckless Manslaughter

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of
recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.

Procedure

Unlike Voluntary manslaughter which is

charged as murder until the defence is
raised, Involuntary manslaughter can be
charged as an offence.

The mens rea required

is negligence, rather
than recklessness as it
used to be

Nevertheless, the courts have held the

test to be applied is one of objective
liability rather than subjective culpability,
R v DPP, ex p Jones [2000] DC.
In R v Hennigan [1971] CA a case of
causing death by reckless driving
substantial was held to imply more than
minimal)

and in R v Cato [1976] CA causing death

by injecting heroin.
R v Pocock (1851) those responsible to
repair a road were held not chargeable
with manslaughter when a person was
killed because of their neglect to make a
contract for the repair of it.

In Adomako Lord Mackay

LC indicated the
requirements of the
offence

Gross Negligence
manslaughter replaced
the difficult concept of
Reckless manslaughter

First, the general principles of the

law of negligence apply to
determine whether or not the
defendant has been in breach of a
duty of care towards the victim
who has died.
If such a breach is established, the
second question is whether that
breach of duty caused the death of
the victim.
If so, should that breach of duty
be categorised as gross negligence
and therefore as a crime?
This will depend upon the
seriousness of the breach
committed by the defendant in all
the circumstances in which the
defendant was placed when the
breach occurred.

Until Adomako conduct that is now

described as Gross Negligence
Manslaughter was dealt with as a form of
recklessness.
Since Adomako all traces of reckless
manslaughter have been subsumed by
Gross Negligence Manslaughter.
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
The dictum of Hewart LCJ in R v
Bateman (1925) was criticised in R v
Kong Cheuk Kwan (1985) PC as no longer
necessary or helpful in directing juries in

cases of reckless manslaughter.

And in R v Goodfellow (1986) CA Lord
Lane CJ said the question for the jury
was whether or not the accused had been
guilty of recklessness (or gross
negligence).
In R v Stone & Dobinson [1977] CA,
however, a submission that foresight of
the possibility of death or serious injury
had to be proved to establish involuntary
manslaughter based on gross negligence
was rejected; proof of recklessness,
although not mere inadvertence, was held
to be sufficient
In R v West London Coroner, ex p
Gray [1988] QBD it was held that for
unlawful killing because of neglect on the
part of the police, it must be show, that
there was a failure amounting to
recklessness to do what should have been
done for the health and welfare of the
deceased.
Gross negligence could
include:
indifference,
actual foresight, or
inattention

In Adomako (1994) the following were

held to constitute gross negligence
indifference to an obvious risk of
injury to health
actual foresight of the risk coupled
with the determination
nevertheless to run it;
actual foresight of the risk
together with an intention to avoid
it but involving such a high degree
of negligence in the attempted
avoidance as the jury considered
justified conviction;
inattention or failure to advert to a
serious risk going beyond mere
inadvertence in respect of an
important matter which the
defendants duty demanded he
should address.

Mere carelessness is
not enough

A higher degree of negligence is

necessary to render a person guilty
of manslaughter than to establish
civil liability against him.

Whether negligence is sufficient to

warrant criminal sanctions it is a question
for the jury and depends on the facts of
the particular case.
The standard of
negligence necessary to
constitute
manslaughter was
defined in Andrews v
DPP [1937]
and
R v Seymour [1983]
HL which adopted R v
Lawrence [1982] HL)

Other examples of the nature of

negligence were:
R v Timmins (1836) buses racing
R v Mastin (1834) accused and deceased
said to be racing
R v Swindall and Osborne (1846) inciting
to furious driving
R v Dalloway (1847) driving a cart
without holding reins
R v Jones (1870) contributory negligence
R v Baldessare (1930) CCA joy ride;
common purpose of reckless driving;
driver and companion both guilty of
manslaughter
R v Kong Cheuk Kwan (1985) PC liability
of captain of hydrofoil for collision causing
death, jury should have been directed in
accordance with R v Lawrence conviction
quashed.

Negligence must go
beyond that required
for civil liability, which
is a question of degree
for the jury

This requirement was laid down by Lord

Mackay in Bateman (1925) where there
was delay in sending patient to hospital.
"In explaining to juries the test which
they should apply to determine whether
the negligence, in the particular case,
amounted or did not amount to a crime,
the judges have used many epithets,
such as "culpable," "criminal," "gross,"
"wicked," "clear," "complete." But
whatever epithet be used and whether an
epithet be used or not, in order to
establish criminal liability the facts must
be such that, in the opinion of the jury..."
"... the negligence of the accused
went beyond a mere matter of
compensation between subjects and
showed such disregard for the life
and safety of others as to amount to
a crime against the state and conduct
deserving punishment.'"

How negligent?

the negligence has to be 'gross'.

How 'gross'?

The standard applied is defined in R v

Bateman (1925)

What amounts to
gross is for the jury

In Andrews v DPP [1937] Lord Atkin said

that whilst the test in Bateman was:
not . . . a precise definition of the
crime . . . the substance of the judgment
is most valuable, and in my opinion is
correct. In practice it has generally been
adopted by judges in charging juries in all
cases of manslaughter by negligence.
Lord Atkin said there was a very high
degree of negligence required:
Probably of all the epithets that can be
applied "reckless" most nearly covers
the case . . . but it is probably not allembracing, for "reckless" suggests an
indifference to risk, whereas the accused
may have appreciated the risk and
intended to avoid it and yet shown such a
high degree of negligence in the means
adopted to avoid as would justify a
conviction.
In Adomako [1995] the House of Lords
has restored gross negligence rather than
recklessness as the essential basis of
liability.

Foreseeable risk of
"health and welfare"

Khan [1998] & Singh [1999] one is faced

with the issue of foreseeability of what
type of risk?
Lord Mackay spoke of the jury "having
regard to the risk of death involved" but
he later approved of the formulation
in Stone [1977] & West London Coroner,
ex parte Gray [1988] in terms of a risk of
injury to the "health and welfare" of an
infirm person.

Drug dealers have no

parallel duty towards
their 'clients'

In Khan (1998) CA the duty to summon

medical assistance was held not to extend
to a drug dealer who supplied heroin to a
person who subsequently died.
The totality of the situation and not the
various individual roles a person performs
is to be considered to establish whether

the facts of the case are sufficient to give

rise to a duty of care: R v Singh
(Gurphal) [1999] CA.
Public policy requires
no duty of care in some
situations

However in R v Wacker [2003] (illegal

immigrants die in the back of a lorry) it
was held that, as a matter of public
policy, the principle of the law of
negligence that no duty of care arises
between the participants of a joint illegal
purpose had no application in criminal
law.

Test
is Caldwell Recklessnes
s

R v G [2003] HL delivered Caldwell a

fatal blow so far as the Criminal
Damage Act was concerned. It was not
clear what survived R v G, but we now
know that the test of recklessness for all
but Criminal Damage may have survived.
The authority for this is an unreported
case in the Court of Appeal, R v Mark and
another [2004] CA.

R v G and R [2003] HL
Whole case here

This case firmly rejected the 'objective'

recklessness concept in R v
Caldwell (1982) in Criminal Damage and
doubted R v Lawrence [1982] and R v
Reid [1992].
In Gross Negligence Manslaughter there
must be a disregard of the duty of care,
that disregard must amount to
recklessness. This has been held to be
Caldwell/Lawrence type recklessness.
R v G and R [2003] did not change the
law in respect of Gross Negligence
Manslaughter, it was concerned only with
Criminal Damage.
Therefore the "reckless disregard for the
health and welfare of the deceased" must
still be approached with regard to
Caldwell/Lawrence recklessness.

Examples of conduct

A person who deals with

which if recklessness or
grossly negligent
creates a liability

dangerous medicines or
undertakes a dangerous operation
may be guilty of manslaughter if
death occurs.
Criminal negligence in driving a
motor vehicle or other vehicle or in
riding or navigating a vessel.
A driver, fireman or other railway
employee may be guilty of the
manslaughter of persons killed as
a result of the criminally negligent
performance of his duties.
Negligent use of a dangerous
weapon or other dangerous thing
likely to cause death in an
improper place or without taking
proper precautions to avoid injury.
A person who is in charge of a
mine or of machinery if a accident
occurs.
[ Back ] [ Next ]

New corporate manslaughter offence

Corporate
Manslaughter and
Corporate Homicide
Act

The Corporate Manslaughter

Act effective April 2008, this followed 10 years
of campaigning.
Under the new law companies, organisations
and, for the first time, Government bodies face
an unlimited fine, for corporate manslaughter, if
they are found to have caused death due to their
gross corporate health and safety failures.

All companies,
big and small
now may be
prosecuted

A key obstacle to successful prosecutions has

now been removed. It means that both small
and large companies can be held liable for
manslaughter where gross failures in the
management of health and safety cause death.
The Act builds on existing health and safety
legislation - so the new offence does not impose
new regulations on business. It is about
corporate liability, not increasing liability for
individual directors or managers who can already
be held to account through health and safety
laws and the common law of manslaughter.

No liability for
"accomplice"

It is explicit that, no matter how senior, an

individual cannot be convicted of being an
accomplice to a corporate manslaughter /
homicide conviction.

Liability of
individuals

There is nothing in the legislation that alters the

position of an individual who by gross negligence
causes the death of another, he can still be
prosecuted for gross negligence manslaughter.

Hospitals, police
etc

Crown bodies - such as Government

departments, police forces, local authorities,
NHS Trusts and certain other bodies - will be
liable to prosecution.
The government has indicated that the number
of anticipated prosecutions will be low, in the
region of 10 - 13 each year.

Unlimited fine

If a corporate body is convicted of this offence it

faces the prospect of an unlimited fine. Given
the upward trend in health and safety fines in
recent years, with 15m the highest fine to date,
it is to be expected that convictions for this
offence could easily attract 6 and 7 figure
penalties.

"Publicity Order"

The courts will also have the power to make a

publicity order, requiring any company convicted
of this offence to publicise their conviction,
including details of the offence, the amount of
fine imposed and any remedial order made.
The reputational damage and stigma resulting
from a conviction would be significant. In
addition the court can make a remedial order
requiring the organisation to take steps to
remedy deficiencies in the management of
health and safety risk.

The legislation states that:

Duty of care

an organisation is guilty of the new

offence if the way in which its senior
managers organised or managed its

activities caused a persons death and

there was a gross breach of a duty of
care which the organisation owed that
person
"senior manager"

a senior manager is a person who

manages or organises a whole or
substantial part of an organisations
activities or makes decisions about how
those activities are managed or organised

Standards

the offence requires a management

failure that fell far below what could
reasonably be expected in the
circumstances in assessing this, the jury
will consider such aspects as compliance
with health and safety legislation and
whether the company tolerated or
encouraged a culture of non-compliance

In force 6 April
2008

The Act will come into force on 6 April 2008 and

the Ministry of Justice will issue further guidance
for organisations affected by the Act in the
Autumn. (The offence to deaths in custody will
not come into effect on the 6 April, but at a later
date).
More information about HSE can be found
at: http://www.hse.gov.uk

Exam focus

The OCR exam board 12 month rule means that

the above information will not be included in any
exam question until, at least, June 2009.

In view of the above, the below information will be re-written,

for the June 2009 exam.
Companies that
kill

Corporate Manslaughter is the name given to

gross negligence manslaughter when death
follows the negligence of a company.
This has proved problematic for the courts and
prosecutors who find it difficult to find a single
"mind" that has been negligent.
The government has promised reforms in this
area.
It is often said that those responsible hide
behind the "Corporate Veil".

Between April 1992 and August 2001, there

were 135 case referrals by the Health ands
Safety Executive to the Crown Prosecution
Service for corporate manslaughter. Of these, 18
resulted in prosecutions against directors.

27,000 deaths,
few prosecutions
even fewer
convictions

Between 1965 and 2000, 27,000 people were

killed in incidents at work or in disasters.

Zeebrugge

The modern history of corporate manslaughter

dates back to 1987 when 187 died when the
"The Herald of Free Enterprise" ferry capsized
coming out of Zeebrugge harbour.

There have probably only ever been about a

dozen prosecutions for corporate manslaughter
and only a handful of convictions.

Although the case brought by the Crown against

P&O Ferries collapsed, corporate killing became
an admissible crime in English courts for the first
time. (see here for BBC comment and video)

King's Cross fire

Also in 1987 was the King's Cross underground

fire (31 deaths). (see here for BBC comment)

On December 8,
1994, OLL Ltd
became the first
company in
English legal
history to be
convicted of
homicide.

The managing director of OLL, Peter Kite, 45,

was the first director to be given an immediate
custodial sentence for a manslaughter conviction
arising from the operation of a business.

Jackson
Transport
(Ossett) Ltd and
director James
Hodgson.

Jackson Transport (Ossett) Ltd was convicted of

manslaughter, together with a director, James
Hodgson.

Four teenagers drowned in Lyme Bay while on a

canoe trip, in 1993, organised by the defendant
leisure activity company.

The case was brought after a 21-year-old

employee died after being sprayed in the face
with a toxic chemical while cleaning chemical
residues from a road tanker.
There was inadequate supervision, training, and

protective equipment.

R v Great West
Trains (1999)

16 February 2000 Court of Appeal

Southall train crash seven passengers died.
Mr Justice Scott Baker acquitted Great Western
Trains of manslaughter.
Confirmed by the Court of Appeal.
Prosecution offered no evidence against Larry
Harrison, driver, "for parity" (the same as they
did for the company)
Although Richard George, managing director of
Great Western Trains at the time, was head of
safety the prosecution could not prove a
particular senior executive was grossly
negligent.
P&O Ferries was prosecuted for corporate
manslaughter (after the "Herald of Free
Enterprise capsize) and the trial was stopped for
exactly the same reasons.
Mr Justice Scott Baker:
"There is little purpose in the Law Commission
making recommendations if they are to be
allowed to lie for years on a shelf gathering
dust.It has remained notoriously difficult for
the Crown to establish manslaughter against a
corporation and as far as I am aware they have
only succeeded once and that was in the case of
a one-man company."
Great Western pleaded guilty under health and
safety legislation and faced unlimited fines
In September 1997 Mr Harrison was packing his
bag and not looking when the express travelling
at 125mph from Swansea to London, went
through two warning signals before colliding with
a freight train. 151 people injured 10 million
worth of damage.
Reports indicated that the crash was the fault of
Great Western Trains, who forced Mr Harrison to
drive an express "whose automatic warning
system was not working.

Thames Trains,

April 2004:

record fine

Thames Trains were fined a record 2million for

the collision at Ladbroke Grove. The fine
followed a one-day sentence hearing at the Old
Bailey, where the judge also awarded costs of
75,000 in addition to the fine. The fine was for
breach of Health and Safety regulations.
On 5 October 1999 a Thames Trains Turbo
passenger train passed signal 109 at red shortly
after leaving Paddington station. The Turbo
collided head on with a First Great Western highspeed train that was approaching Paddington
station. Fire broke out immediately following the
collision. 31 people died, including both train
drivers, and many more suffered serious
injuries.
The maximum sentence in a Crown Court for a
single offence is an unlimited fine.
News report, here

Rv
Henderson (1995
)

A summer-night party was in full swing when the

Marchioness was in collision with the gravel
dredger Bowbelle on the Thames near
Southwark Bridge in the early hours. The
Marchioness sank and although 81 passengers
survived, 51 died. Francesca Dallaglio, sister of
former England rugby captain Lawrence
Dallaglio, 19, was killed.
A Marine Accident Investigation Branch report
found that the cause of the accident was the
failure of crew on the Marchioness and the
Bowbelle to keep an adequate lookout. However,
relatives of the victims insist that some vital
details of the last moments before the collision
have never been disclosed, and blame lawyers
for blocking a full inquiry.
An inquest jury found that the disaster had been
caused by "gross negligence", but the Crown
Prosecution Service decided there was
insufficient evidence to prove such a criminal
charge.
Two trial juries had earlier failed to reach a
verdict against Captain Douglas Henderson,
skipper of the Bowbelle, who was formally
acquitted of endangering life by failing to keep

an adequate lookout.
A public enquiry followed in 1992 and the
enquiry report stressed that the onus for the
safety of travellers rests with the operators, who
undertake to provide a service for profit.
The study leads to the conclusion that the
Department, acting through the Marine
Directorate, showed technical competence and
dedication, but lacked the vision and drive to
lead the river marine industry into accepting that
high safety standards and commercial success
were compatible.
The Committee's recommendations include
changes to the future organisation of marine
safety, action on rivers, changes to the Marine
Accident Investigation branch, improved
legislation, and information and new powers
over boat owners and operators.

Rv
Bowles (1999)

11 December 1999:
Two directors a brother and sister of a haulage
company were found guilty of corporate
manslaughter, after ignoring the excessive hours
of one of their drivers, who caused a fatal crash
after falling asleep at the wheel of his lorry.
Given suspended sentences of 15 months and 12
months respectively.
Stephen and Julie Bowles were convicted when
the jury decided that they knew, or that they
should have known, that their driver, Andrew
Cox, was in a "dangerously exhausted state".
Cox who often worked more than 60 hours
without taking proper breaks killed two motorists
on the M25 in October 1997.

The first
corporate
manslaughter
case of its kind,
fails
July 2006

Barrow Borough Council was cleared of corporate

manslaughter midway through the trial, but
pleaded guilty to breaching the Health and
Safety at Work Act.
Barrow Borough Council in Cumbria was
prosecuted for the manslaughter of seven
people who died from legionnaire's disease,
The Crown Prosecution Service pressed charges

not only against the council but also one of its

employees Gillian Beckingham, a design services
manager with Barrow Council, charged with
breaching health and safety regulations.
Seven people died following an outbreak of
legionnaire's disease in 2002, and a further 140
people were infected as a result of an airconditioning unit at the council-run Forum 28
arts centre. It was later discovered that a
maintenance contract to clean the unit at the
Forum 28 arts complex was axed by the council.

Hatfield Rail Crash

17 October 2000

Four people died in a rail crash at Hatfield station

and 102 other passengers and staff suffered
injuries. Railtrack Plc (now Network Rail), was
responsible for the track at the time of the
crash. Balfour Beatty Plc, Europe's largest track
engineer, was contracted for repairs to the
stretch of line involved.

9 July 2003

The Crown Prosecution Service announced that

Railtrack Plc and Balfour Beatty Plc, directors
and managers would be charged with gross
negligence manslaughter and offences involving
a failure to discharge a duty under the Health
and Safety at Work Act (HSWA).

1 September 2004

Most manslaughter charges were dropped by the

high court due to insufficient evidence. The court
also dropped health and safety charges.
This decision by the high court has caused fresh
calls for a new offence of reckless killing, or
killing by gross carelessness. However, the CPS
has confirmed that nine other engineers and
executives from Railtrack, and Balfour Beatty,
would continue to face charges under the HSWA,
in connection with the crash. Balfour Beatty also
still faces a charge of corporate manslaughter.
This will be a landmark case when, or if, it
comes to trial, involving as it does large
companies and both current and former
engineers and managers.

October 2005

Largest ever fine in an English court imposed on

Balfour Beatty, 10 million, later reduced to
7.5m on appeal.

A New Offence of
Corporate Killing

In its report Legislating the Criminal Code:

Involuntary Manslaughter , the Law Commission
recommended a new offence of "corporate
killing".
In 1846, Lord Denman CJ:
"There can be no effectual means for deterring
from an oppressive exercise of power for the
purpose of gain, except the remedy by
indictment against those who truly commit it,
that is the corporation, acting by its majority;
and there is no principle that places them
beyond the reach of the law for such
proceedings."

July 2006 Bill

presented to
Parliament

New legislation to prosecute companies whose

gross negligence leads to the death of
employees or members of the public has been
published in the Corporate Manslaughter and
Corporate Homicide Bill. The bill also takes the
unprecedented step of lifting Crown immunity for
the first time.
A proposed new criminal offence will enable the
courts to consider the overall picture of how an
organisation's activities were managed by its
senior managers, rather than focusing on the
actions of one individual.
An organisation will be guilty of the new offence
if someone has been killed as a result of
the gross failure of an organisation's senior
managers for example to:
ensure safe working practices for their
employees and
maintain the safety of their premises.
However, currently it will not be possible to
prosecute a company where the failings are at
junior management levels, but the Government
will look to refine this definition during the bill's
parliamentary passage, if a better way of
achieving this can be found.
The Bill has now passed through Parliament and

will be in force in April 2008.