NTU - Criminal Law Guidance Text 2009-2010

Distance Learning Materials
Criminal Law
GUIDANCE TEXT
2009
• • • •
2010
2009
• • • •
Criminal Law
2010 INTRODUCTION
Topics to be studied:
• Introduction to criminal law, the appeals process and the burden of proof
1. OBJECTIVES
By the end of this study guide you should be able to:
• Understand what we mean by ‘a crime’ and how offences are classified.

• Appreciated the appeals system.
• Explain the criminal burden of proof.
• Be aware of the suggestions for reform.
2. ESSENTIAL READING
1. This study Guide

2. McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and
Maxwell, Chapter One
3. Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet and
Maxwell, Chapter One
3. INTRODUCTION
In the criminal law we are concerned only with whether D (the accused) is liable for any offence
and, if so, which. It is not a study of procedure, evidence, or sentencing. This question of
liability is often complex and the criminal law has been proven to be a difficult area for both
students and the judiciary. Thus, even though academic criminal law may not be quite what you
expected, we hope and believe that you will find it interesting and enjoyable.
This guidance text seeks only to direct your reading – you MUST perform the wider reading
directed in order to fully understand the substantive issues.
3.1 What is a crime?
A crime has historically been understood as a wrong against society; conduct that has been
recognised as too important to leave to the private citizen wronged to bring civil proceedings. It
is then important to define which offences will be subject to regulation by the civil courts and
which will be subject to denunciation by the State. As the sociologist Howard Becker set out
"Deviance is not a quality of the act the person commits, but rather a consequence of the
application by others of rules and sanctions to an offender. The deviant is one to whom that
label has successfully been applied; deviant behaviour is behaviour that people so label."
(Outsiders: Studies in the Sociology of Deviance, New York, Free Press, 1963, p.9).
However, conduct that one individual may subjectively conceive as deviant another may not.
The State must then establish the boundaries of criminality and writers have been forced to
abandon the search for the ‘nature’ of a crime and to fall back on definitions based on the type
of legal proceedings which may follow from the act. In other words, an act is a crime if it ‘is
capable of being followed by criminal proceedings, having one of the types of outcome
(punishment, etc.) known to follow these proceedings’ (Professor Glanville Williams, 8 CLP 107,
p. 123).
© 2009 Nottingham Law School Page 1

2009 Criminal Law
• • • •
2010 INTRODUCTION
It is therefore a case of the State deciding that certain conduct ought to be criminal because it
is the State takes it upon itself to discourage such conduct. In one way, the wheels of change
run slowly and it is inevitable that conduct that is no longer considered to be in this category
remains criminal, however new criminal offences abound and more than 3,000 offences have
been created in the past 10 years (although some were merely enacted to up-date existing
provisions).
There are a number of reasons the rules governing criminal liability should be clear and certain,
primarily in order to enable people to ascertain in advance whether any conduct will or will not
involve criminal liability. Unfortunately, as we shall see, this is commonly far from the case.
Moreover, the substantive rules of criminal liability define the apparatus of the criminal justice,
specifically the interference with personal liberty by way of search and arrest etc. and the power
of the courts to convict and sentence. The social control mechanism which is the criminal justice
system is founded upon the rules prescribing what a crime is.
CASE BOOK ACTIVITY
Please read Text and Materials from the introduction to Chapter One up to (but not
including) the extract by J Kaplan.
From your reading is there any conduct (a) which is not criminal which you would
like to see made criminal and (b) which is criminal which you think should be de-
criminalised?
As you will have read, defining criminality is not a moral exercise. As The Wolfenden Committee
Homosexual Offences and Prostitution ((1957) Cmnd 247) concluded the criminal law should
not be used to impose society’s current moral standards on non-conformist individuals (even
assuming these standards are readily ascertainable). This probably represents the prevailing
view of the judiciary now. The truth is that whilst there might be a large measure of agreement
about the central core of any criminal law, the issue of whether conduct on the periphery should
be criminal often involves balancing a number of competing considerations and interests, and is
ultimately a matter of social, moral, economic and political judgement.
3.2 Classification of offences
Offences are classified as summary, indictable or triable either way. Summary offences are
those less serious crimes which can only be tried in the magistrates’ court without a jury such
as common assault, battery, and drink-driving offences. Indictable offences are more serious
offences which can be tried in the Crown Court with a judge and jury. Some indictable offences
such as murder and manslaughter can only be tried on indictment and this is the sense in which
we use the term ‘indictable’ above.

2009 Criminal Law
• • • •
2010 INTRODUCTION
Offences triable either way are (unsurprisingly) offences that can be tried in either the
magistrates’ court or the Crown Court, dependant upon their seriousness. For example theft can
range from theft of a chocolate bar to theft of the crown jewels - and is triable either way –
summarily in the first case, but on indictment in the second case. Where an offence is triable
either way, the magistrates decide whether it should be tried summarily or on indictment,
although the accused may elect to be tried on indictment before a jury where the magistrates
rule in favour of summary trial.
The old distinction between felonies (serious offences) and misdemeanours (less serious
offences) was abolished by the Criminal Justice Act 1967, but you will still occasionally come
across those terms.
4. APPEALS
TEXT BOOK ACTIVITY
Please read Criminal Law – the Fundamentals ‘Structure of the courts and appeals
against conviction or acquittal’ to familiarise yourself with the appeals system.
In many of the appeal cases in this syllabus it has been for the Court of Appeal to decide
whether the trial judge’s explanation of the law to the jury was correct; as if D may have been
prejudiced by an error of the trial judge in explaining the law to the jury, the Court of Appeal
must give D the benefit of any doubt and, if the jury might have returned a different verdict,
the court must quash the conviction.
The rules of substantive law are largely set by appeal cases and much of this text will be
devoted to such cases. In the majority of decisions relevant to us, the appeal is at least partly
on the ground that the trial judge has got the law wrong in his direction to the jury. It is
possible for the Attorney-General to ‘refer’ the case to the Court of Appeal for a ruling on the
point of law decided by the Crown Court against the prosecution. Whatever the Court of
Appeal’s view on the point of law, D’s acquittal cannot be overturned under this procedure.
When D appeals against conviction from the Crown Court he will now appeal on the grounds the
conviction was unsafe and may be on a point of law, fact or both.
You may be familiar with the rule of ‘double jeopardy’, where a defendant could not be tried for
the same crime twice. However, this rule has been partially abolished and if the defendant had
been charged with a qualifying offence a retrial may take place if new persuasive evidence
comes to light (Criminal Justice Act 2003 s. 75 and s.76).
5. BURDEN OF PROOF
It is a fundamental principle of English law, reinforced by Article 6(2) of the European

Convention of Human Rights, that a person is innocent until proved guilty. This means that the
legal burden of proof is placed squarely on the prosecution. It must prove ‘beyond reasonable
doubt’ that D committed the crime charged (Woolmington v DPP [1935] All ER Rep 1, HL).

2009 Criminal Law
• • • •
2010 INTRODUCTION
CASE BOOK ACTIVITY
Read the extract from the case of Woolmington [1935] All ER Rep 1 (HL) in Text and
Materials.
What were the facts of the case?
What was wrong in law with the direction which had been given by the trial judge?
What is the ‘golden thread’ referred to by Lord Sankey?
What exceptions to the ‘golden thread’ were recognised by Lord Sankey?
At trial, the prosecution will first present its case and assuming the prosecution has made out a
prima facie case, the defence presents its case. At the close of evidence each side in turn makes
a closing address to the court. The trial judge then has to sum up for the jury. He must review
the evidence for them, summarising each side’s case, pointing out discrepancies and weak
points and focusing the jury on the crucial issues to be determined on the facts. He must also
direct them on any relevant law.
TEXT BOOK ACTIVITY
How would the prosecution be able to prove what was going on in D’s head when the
gun went off?
Please read ‘Burdon and Standard of Proof’ in Criminal Law - the Fundamentals.
Which two defences impose a reverse burden of proof?
5.1 Proof of specific issues
In satisfying their legal burden in serious crimes, one of the standard requirements for the
prosecution is to prove that D had a particular state of mind at the time of performing the
prohibited conduct. This is the mens rea for the crime. The difficulty lies in how it can be proved
beyond reasonable doubt what D was thinking at the time of the act as clearly we cannot look
inside D’s head.
What the jury must do if it wishes to convict in cases where D has not admitted to the requisite
intention or foresight (realisation) is to infer that intention or foresight from proof of what
actually happened, what D did and the surrounding circumstances. This rule is enshrined in s. 8
of the Criminal Justice Act 1967 (see chapter 3 of the guidance text).

2009 Criminal Law
• • • •
2010 INTRODUCTION
However, the position is more complicated if D admits to performing the acts but claims he has
a defence. It would be ridiculously onerous for the prosecution if it had to deal with and
eliminate every possible defence which D might have raised and the law does not require it to
do so. An evidential burden is placed on D to put forward some credible evidence to support his
claimed defence. Only if he does this will the prosecution then have the legal burden of
disproving this defence.
5.2 Reverse proof burdens
As you will have read there are defences where the burden upon D is even higher, where he
bears the legal burden of persuading the court that, more probably than not, he satisfies the
conditions for the claimed defence. The primary defences that exemplify this approach for your
purposes are insanity and diminished responsibility and these will be dealt with in the guidance
text at the appropriate chapters.
The House of Lords has considered reverse proof burdens in a number of cases and all agree
that placing a burden of proof on D is prima facie a contravention of the presumption of
innocence guaranteed by Article 6(2) of the European Convention on Human Rights, but that
some inroads are permissible. Such inroads must be confined within “reasonable limits”, be
“objectively justified” and comply with the “principle of proportionality.” (Lord Steyn in Lambert
[2001] UKHL 37). Where any inroad is unreasonable, unjustifiable or disproportionate, the
judiciary should invoke s.3(1) of the Human Rights Act 1998 to “read down” the statutory
provision so that when it said “prove”, it did not mean ‘prove on the balance of probabilities’ but
only “giving sufficient evidence.” Thus an apparently clear imposition of a burden of proof on D
is interpreted as a mere evidential burden so as to make the legislative provision comply with
Article 6(2).
6. REFORM OF THE CRIMINAL LAW
As you begin your study of the criminal law you will identify inconstancy and confusion – even
in key concepts such as intention. The reasons for this are often laudable, as the judiciary seek
to stretch legal concepts in order to acquit defendants who have morally justifiable motivations
or convict those who are ‘villains’. However this approach has caused incoherency and
inconsistency.
6.1 The Law Commission
Consequently, the Law Commission has been at the forefront of the push for reform and its
output of material on criminal law in recent years has been phenomenal. We will be referring to
the Law Commission’s proposals in throughout this text, and so it is appropriate at this point to
explain in general terms something about the work of the Commission.
At the centre of the Law Commission’s endeavours is a proposal for a comprehensive criminal
code to replace much of the existing law. A criminal code exists in many common law
jurisdictions and although our most up to date version was published by the Law Commission as
The Report and Draft Criminal Code Bill for England and Wales in 1989 (Law Com. No. 177) a
criminal code has been mooted for nearly 200 years.

2009 Criminal Law
• • • •
2010 INTRODUCTION
In addition to these generalised reports, the Commission has also produced a number of reports
and consultation papers on specific topics, such as the defence of intoxication (1995),
involuntary manslaughter (1996) and homicide (2005-2006). The procedure is that the
Commission in the first instance issues a consultation paper discussing the existing law,
indicating its preliminary views on changes and inviting comments from readers. Following
consideration of these comments, it issues a report containing its final recommendations, which
can differ quite dramatically from the initial consultation paper. These reports and papers often
contain more lucid expositions of the current law and its anomalies and it is extremely
instructive to read these sections of them. Some of the Commission’s Reports have stirred the
Home Office into action, for example in the recently passed Sexual Offences Act 2003 and Fraud
Act 2006.
6.2 The Human Rights Act
The Human Rights Act 1998 incorporated the provisions of the European Convention on Human
Rights into domestic law, paving the way for accused persons to argue that current
interpretations of penal laws contravene rights enshrined in the Convention. Resultantly the
courts are charged with reinterpreting existing principles and statutory provisions so as to
accord with Convention rights or, in the case of statutory provisions, to precipitate legislative
amendment by declaring them incompatible with the Convention. We will address specific
articles when they arise.
Study Checklist
Please check you can now
• Understand what we mean by ‘a crime’ and how offences are classified.

• Understand the process of criminal appeals.
• Explain the criminal burden of proof.
• Be aware of vehicles for reform.

2009
• • • •
Criminal Law
2010 ACTUS REUS
• Actus reus
• Omissions
• Causation
1. OBJECTIVES
By the end of this study guide you should be able to:
• Analyse the general concept of actus reus and its constituent elements;
• Identify the bases on which the law imposes criminal liability for omissions;
• Describe the principles governing causation in the criminal law and apply them to any given
fact situation.
1. This study guide

Maxwell, Chapter Two
Maxwell, Chapter Two and Chapter Four
A number of issues will be addressed in this chapter and it is integral that you perform the
directed reading to FULLY understand the legal principles. The more problematic legal principles
will be addressed in a little more detail but please remember that this text only seeks to guide
you through the recommended textbook and the text and materials.
3. INTRODUCTION
Two basic building blocks are required to establish liability for most of the crimes which are
considered in this guidance text; actus reus and mens rea. Liability for most mainstream
criminal offences requires that:
(a) D caused the prohibited conduct (actus reus);

(b) with the relevant state of mind or fault element (mens rea);
(c) in circumstances where no defence is available (absence of defence).
All ingredients must be present to establish criminal liability.
The criminal law is not concerned with evil thoughts and criminal liability will not be imposed
until the D has carried out the physical conduct prohibited by the particular offence. It is this
physical conduct that we call the actus reus of an offence.

2009 Criminal Law
• • • •
2010 ACTUS REUS
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the beginning of chapter two
up to ‘Omissions’ for an introduction to this area and complete the following;
The actus reus of most crimes comprises one or more of the following elements:
(a)
(b)
(c)
Please be aware that difficulties commonly arise in identifying the actus reus of an offence, not
only for students but for the judiciary! As the Law Commission have suggested in its draft
Criminal Code Bill (Law Com. No. 177) it may be more helpful for you to think of the actus reus
as comprising the external elements of an offence, namely those elements of the offence that
are not concerned with the mental element.
Such conduct consists usually of some act or acts on the part of D which produces any
necessary consequence or result and/or takes place in any necessary circumstances.
Exceptionally the conduct can consist of a failure or omission to act by D, e.g. willful neglect of
a child. Even more exceptionally, in a very limited number of cases the actus reus may not
require any conduct by D at all. This is where the offence simply requires proof of a defined
state of affairs without regard for conduct or consequences.
Some of our most well-known crimes require that D causes a particular prohibited consequence
or result. Crimes which do require the production of a proscribed consequence are known as
‘result crimes’. Murder is an obvious example because D must cause the death of another
person. The offence does not define the nature of D’s conduct required (it can be by way of
drowning, stabbing, shooting etc) only that it must cause the forbidden result, in this case the
death of another person. An offence may also dictate that certain circumstances must be
present for an offence to be complete; the most obvious example of this is the offence of
bigamy that requires D already be married.

2009 Criminal Law
• • • •
2010 ACTUS REUS
ACTIVITY
Section 1 of the Theft Act 1968 sets out the offence of theft is committed when a
person ‘…dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it…’
• Is this a conduct crime or a result crime?
• In respect of the actus reus, which words describe the conduct which is the central
feature of the crime; which, if any, describe circumstances that must be present;
and which, if any, describe consequences that must be produced?
If you cannot answer this question please read Criminal Law - The Fundamentals from
the ‘Introduction’ though to ‘Omissions’ for a discussion of the principles discussed
thus far.
The actus reus of theft is ‘appropriates property belonging to another’; the mens rea (D’s
required state of mind) is ‘dishonestly’ and ‘with the intention of permanently depriving the
other of it’. The conduct which is the central feature of the crime is ‘appropriates property’ and
an essential circumstance which must be present is that the property ‘belongs to another’.
Nothing needs to result from D’s act of taking the property (e.g. the owner does not need
actually to be deprived of his property) and therefore theft is a conduct crime.
No crime can be committed unless all the elements of the actus reus are present, including any
prescribed circumstances. For example in the case of White [1910] 2 K.B 124 (a causation case
discussed in more detail below) D put poison in his mothers drink, but before she consumed the
drink she died of a heart attack. While here we have both an intention to kill (the mens rea of
murder) and the death of a human (the prohibited result) however an essential element of the
actus reus is that D causes death and it cannot be said here that D caused her death.
3.1 Voluntary Conduct
As you will have read voluntary conduct is exactly as it sounds. D’s muscular movements must
be willed by D. If they are not so willed they are regarded as involuntary and D does not
perform the actus reus. However, the concept of ‘involuntariness’ is exceedingly narrow. An
expression which is often used to denote involuntary conduct in this sense is ‘automatism’.
ACTIVITY
From your reading can you think of any situations where D’s action will not be
‘willed’?

2009 Criminal Law
• • • •
2010 ACTUS REUS
Goff LJ in Bell [1984] 3 All ER 842 provided a list of circumstances in which D’s conduct will not
be willed; including being attacked by a swarm of bees, being affected by a sudden blinding
pain and vehicular failure such as a tire blow out. To these rather dramatic examples we may
add more common incidences such as;
a) suffering a blow to the head

b) medication for the physical conditions of epilepsy and diabetes
c) administration of anaesthetic
d) hypnosis
As a caveat to this principle, if D is at fault in getting himself into the situation, for example, if D
falls asleep whilst driving, he can still be convicted of careless and dangerous driving, even
though he is not conscious when the car goes out of control, because he ought to have stopped
driving when he became drowsy.
4. OMISSIONS
A number of offences can be ‘committed’ by omission. By omission we mean the failure to act in
circumstances under which you are under a duty to act.
CASE BOOK ACTIVITY
Can you think of a crime based upon an omission to do something?
Should there be a general duty to act?
Please read Text and Materials ‘A General Duty to Act’ to (but not including) ‘R v
Stone and Dobinson’.
The cases discussed below provide a number of examples of positive duties to act; however you
will have undoubtedly found it more difficult to think of offences committed by way of an
omission than by way of an act. This is due to a number of reasons, both practical and in terms
of preserving individual autonomy. In practical terms it is easier for the law to focus on positive
acts that cause harm and which are committed by identifiable individuals. In terms of personal
freedom, to place a positive duty to act upon persons has historically been conceived as an
interference with personal autonomy.
Consequently in order to ascribe responsibility to an individual for a failure to act, the law must
define the situation as one where D was obliged to act. D will only be liable if the law imposes a
duty on him to act. The key question is then when will the law impose a duty to act?

2009 Criminal Law
• • • •
2010 ACTUS REUS
4.1 When Will Liability for Omissions Arise?
Our starting point is that the offence itself must be one capable of being committed by way of
an omission. Certain offences expressly preclude liability by omission, for example the offence
of attempt under the Criminal Attempts Act 1981 (discussed below). Other offences are not so
clear.
ACTIVITY
In Fagan v MPC [1968] 3 All ER 442, DC. After a disagreement with a policeman D
parked his car on the officer’s foot. When the officer requested he remove the car
from his foot, D refused. It was accepted that the initial parking on the foot was
accidental. However upon request D refused to remove the car.
Do you consider the refusal to move the car an omission to act or a positive act?
Because of doubts over whether it was possible to assault or batter someone by an omission,
the court took the view that driving the car onto the foot and leaving it there was a continuous
act. A better solution to this situation is addressed below.
4.2 Imposing a Duty to Act
The general position is that there is no duty to act. The law must then decide as a matter of
policy when there is a good reason to depart from this general principle and the exceptions to
this general rule are addressed below.
4.2.1 SPECIFIC STATUTORY PROVISION
Numerous statutory offences impose liability for not doing something. Many minor driving
offences impose liability for omissions, for example, failing to display a vehicle tax disc, failing
to stop after or report an accident and failing to conform to a traffic signal. Outside of motoring
offences that we may consider more serious can be committed by way of omission, for example
the wilful neglect of a child.
4.2.2 COMMON LAW DUTY
Law students are commonly informed they may walk past a drowning child without affecting a
rescue or watch a blind man walk over a cliff without shouting a warning. These rather dramatic
examples illustrate the common law stance which emphasises personal autonomy and freedom
at the expense of a wider view of social responsibility. The law fixes liability only on those who
have a duty to act and confines the scope of liability by a narrow interpretation of the notion of
duty in this context.

2009 Criminal Law
• • • •
2010 ACTUS REUS
ACTIVITY
From your reading can you think of any general situations where the common law
might want to impose a duty to act?
We will now turn to the circumstances in which the law has imposed a duty to act.
• Contractual Duty
Doctors commonly have to decide whether to discontinue treatment for patients who are in a
persistent vegetative state. We can say these doctors have assumed responsibility for their
patents care and thus have a duty to continue care. Two questions arise from these
circumstances;
• What is the legal position then for these doctors when they withdraw treatment?
• Is such withdrawal of treatment an act or an omission?
TEXT BOOK ACTIVITY
For the answer to these questions please read Criminal Law – The Fundamentals
‘Contractual Duty and ‘Duty arising out of a public office’.
As you will have read the issue above was explored in the civil case of Airedale NHS Trust v
Bland [1993] 1 All ER 821. In this case the House of Lords held the doctors were not obliged to
continue such treatment and care (or to institute it, in appropriate cases) where ‘responsible
and competent medical opinion’ took the view that it was not in the patient’s ‘best interests’ to
continue the treatment and care. This discontinuance of treatment was treated as an omission
to act.
ACTIVITY
What would be the legal position if a malicious stranger crept into the hospital and
removed the feeding tube causing death?

2009 Criminal Law
• • • •
2010 ACTUS REUS
The House of Lords stated that in these circumstances the removal of the feeding tube would be
an act!
Where the failure by D to fulfil a contractual duty to act endangers lives the criminal law also
imposes a duty to act. The classic example is found in Pittwood (1902) 19 TLR 37 where D was
employed by a railway company to operate a level crossing. He omitted to shut the gate before
a train was due with the result that P was killed by a train on the crossing. D was convicted of
manslaughter, his contractual obligation to close the gate to safeguard the public having
spawned a criminal law duty to the public.
• Public Office
The common law has recognised a duty arising from the position of being in public office
(Dytham [1979] QB 722). This exception again overlaps with that of contract duty.
• Blood or other close relationship
An obvious situation where the law imposes a duty to act is where there is a relationship of
parent or guardian and dependant child. Failing to feed or get medical assistance for a child who
consequently dies could be either murder or manslaughter depending on whether the parent
intended the child to die.
In Gibbins and Proctor (1919) 13 CR. APP. R. 134 Gibbins and his common law wife failed to
feed Gibbins’ 7-year-old daughter who died. Both parties were charged with murder and it was
accepted that Gibbins owed a duty by virtue of being the girl’s father, the stepmother was held
to have assumed a de facto parental relationship, but it seems more likely she was liable by
virtue of an assumption of responsibility addressed below.
CASE BOOK ACTIVITY
Please read Text and Materials from ‘Duty to Act’, up to (but not including) ‘Where
responsibility has been assumed’.
From the cases mentioned in this extract here can you list the relationships that give
rise to a duty to act?
As you can see, the case law gives little guidance as to what other relationships would give rise
to a responsibility; situations such as ‘live in lovers’, brother and sister and separated spouses
have not been attended to by the courts. Moreover, the duty placed upon a parent for his or her
child does not specify at what age one stops being a child. However, many of these more
distant relationships would be caught by our next category.
• Assumption of responsibility
If a duty does not arise from the fact of blood or other close relationship, it may be assumed by
D’s conduct towards the victim. In many cases in which liability has been found D has takes it
upon himself to look after a person unable to care for themselves.
2009 Criminal Law
• • • •
2010 ACTUS REUS
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘Assumption of responsibility’ paying

particular attention to the principles applied in Stone and Dobinson [1977] 2 All ER
341, CA. For further discussion please read the extract and commentary upon Stone
and Dobinson in Text and Materials.
If your elderly infirm aunt called to say she was seriously ill would you incur liability if
you
a) ignored the call and did nothing to help and she consequently died.
b) out of the kindness of your heart, took her in and made an attempt to care but
failed to call for medical help when she when she became seriously ill and died.
This case suggests the best course of action would have been to have done nothing at all! We
would, however, make the point that, it would have been comparatively easy to discharge the
responsibility once it had been assumed, by alerting the medical authorities or the local
authority’s social services department.
The case of Smith [1979] Crim LR 251 suggests you could be released from this duty to act if
the person to whom the duty is owed requested D did nothing more, such as summoning
medical help. In such cases P must however have full capacity to make such a decision.
Instan (1874) 13 Cox CC 75 illustrates the close relationship between incidences of contract and
assumption of responsibility. It could be argued that the contract cases (above) are merely
instances of an assumption of responsibility by D and the contract is merely evidence of the
scope of that responsibility.
• Where D creates a dangerous situation
CASE BOOK ACTIVITY
Please read Miller [1983] 1 All ER 978, HL in Text and Materials and the commentary
following the case and Criminal Law – The Fundamentals ‘Creation of a dangerous
situation’.
Was D liable for arson (causing criminal damage by fire)?
Yes/No. If yes, on what basis?

2009 Criminal Law
• • • •
2010 ACTUS REUS
We can formulate the principle applied here thus: Where D inadvertently, without fault, creates
by his own conduct a dangerous situation, he will be liable if, on becoming aware of what has
happened, he fails to take reasonable steps to eliminate or minimise the danger he has created.
The House of Lords in Miller held that D had a duty to take steps reasonably available to him to
prevent further damage and was therefore guilty of arson. It would be up to the court to decide
what steps are reasonable in any given situation but they would certainly not include any
actions putting himself at significant risk D only has to do what is reasonable, e.g. calling the
fire brigade.
ACTIVITY
How did the Court of Appeal reason a dangerous situation was created in;
DPP v Santa-Bermudez [2004] Crim LR 471 and
Khan and Khan [1998] Crim LR 830?
From this legal principle it follows that Fagan (above) should have been convicted on the basis
that he had, albeit inadvertently, created the dangerous situation and he was therefore under a
duty to act to counteract it when he realised what had happened. His omission to do so with the
appropriate mens rea made him therefore liable.
ACTIVITY
Please consolidate your knowledge of omissions by completing the chart below
Omissions – Imposing a duty to act
Exception Case examples Legal Principles

Statutory
Contractual Duty

2009 Criminal Law
• • • •
2010 ACTUS REUS
Public Office
Blood or other close

relationships
Assumption of
responsibility
Creation of a
dangerous situation
5. CAUSATION
Our starting point here is that the law proceeds on the assumption that people are independent
actors who are the authors of their own effects in the world. Here we are once again concerning
with the accused being criminally culpable.
5.1 Legal Principles
CASE BOOK ACTIVITY
Read the extract from Pagett (1983) 76 Cr App R 279, CA in Text and Materials.
What principles of law can you find?
When the issue of causation arises it is for the jury to decide whether the prosecution has
established the necessary causal link between D’s conduct and the proscribed result, although it
is the trial judge’s duty to direct the jury on the legal principles (Pagett (1983) 76 Cr App R
279, CA).
First, we must establish a chain of causation, that is, we must find a link between D’s acts and
the consequence. The test to establish the chain of causation has two limbs:
(a) D’s conduct must in fact cause the prohibited consequence; and
(b) D’s conduct must in law cause that consequence.
Both must be satisfied before the harmful consequence will legally be attributed to D’s act.

2009 Criminal Law
• • • •
2010 ACTUS REUS
5.1.1 FACTUAL CAUSATION
TEXT BOOK ACTIVITY
Please read Criminal Law The Fundamentals from ‘Establishing the Chain of
Causation up to (but not including) ‘Breaking the Chain of Causation’.
What do we mean by ‘significant cause’?
The test which is often used is called the ‘but for’ test. If the result would not have occurred in
the way it did but for D’s conduct, then D has in fact caused that result. For example White
(above) illustrates that D’s acts were not a factual cause of death – his mother would have died
in the same way whether he had acted or not. The lack of an actus reus prevented D’s
conviction for murder itself though he was convicted of attempted murder.
5.1.2 LEGAL CAUSATION
Cause in fact is only the first stage, as a principle it could attribute results to too broad a class
of people. Imagine D stamps on P’s foot in anger and P then has to catch a bus to the hospital,
a bus that is involved in a road accident where P is killed.
CASE BOOK ACTIVITY
Why do you think this second stage is necessary?
Why does the criminal law not treat proof of factual causation as establishing that
D caused the consequence?
Refer to Text and Materials ‘Causation – Introduction’ from the commentary upon
the Welansky case up to (but not including) ‘Approaches to Causation’ for a
discussion of these issues.
In the example above it will hardly be fair to hold that D caused P’s death in these
circumstances.
We are then concerned here with attributing moral responsibility. A value judgement or policy
decision is being made as to whether or not it is right to ascribe that consequence to D’s act.
The point is that any action a person performs may have infinite consequences and many actors
may be ‘to blame’; there comes a point where the law will say that it is not fair to legally
attribute the harmful consequences to D’s acts.
2009 Criminal Law
• • • •
2010 ACTUS REUS
How then do the courts decide whether D’s act is or is not a legal cause of the relevant
consequence? Unfortunately, there is no overriding principle, although there are a number of
guidelines and it is these we must go on to address.
TEXT BOOK ACTIVITY
Please check your knowledge of legal causation so far by answering the following
questions.
Substantial cause was defined by Kimsey as….?
Must the actions by D be the only cause?
What is the position if 3rd parties contribute to the result?
5.1.3 BREAKING THE CHAIN OF CAUSATION
The chain of causation may be broken by a novus actus interveniens (an intervening act). This
act must be ‘free, deliberate and informed’ and (broadly speaking) abnormal. Acts that are
foreseeable or are compelled by, for example, pressure (see below) will not break the chain of
causation. (See Hart and Honore Causation in the Law OUP 1985).
These concepts are subject to interpretation in light of policy considerations and as we shall see
this has lead to some rather surprising results, particularly in the field of medical intervention
and the taking of illegal drugs (the drug cases are addressed further at the chapter dealing with
involuntary manslaughter.)
ACTIVITY
If you assaulted D and left him on the beach at low tide would the chain
of causation be broken if
D died as a result of the tide coming in?
D died as a result of a lightening strike?
Please refer to the principles above and the relevant portion in your
textbook in answering this question.

2009 Criminal Law
• • • •
2010 ACTUS REUS
5.1.3.1 Interventions by a third party
The general principle is, then, that a subsequent, voluntary act of another will absolve D from
any further causal responsibility. However, there are a number of important exceptions
which qualify this general rule.
TEXT BOOK ACTIVITY
Please read Criminal law – The Fundamentals from ‘Breaking the Chain of
Causation to ‘Reform’. The following discussion excludes the facts of many of the
‘exception cases’ and thus it is integral you read both the textbook chapter and
those cases indicated at the case book activities.
As you will have read, a number of events may break the chain of causation and the legal
principles are addressed in more detail below (excepting the drug cases which will be addressed
further at the chapter addressing involuntary manslaughter).
Exception 1: Conduct of a third party
Firstly, the courts are apparently willing to depart from the general principles where they judge
that the ‘purpose and scope’ of the offence charged shows an intention to make D responsible
for deliberate acts of third parties (or natural events). In Empress Car Co. (Abertillery) Ltd. v
National Rivers Authority [1998] 1 All ER 481 HL the House of Lords held the issue turned on
whether the third party’s act:
. . . should be regarded as a normal fact of life or something extraordinary. If it was in the

general run of things a matter of ordinary occurrence, it will not negative the causal effect of
the defendant’s acts, even if it was not foreseeable that it would happen to that particular
defendant or take that particular form. If it can be regarded as something extraordinary, it
will be open to the justices to hold that the defendant did not cause the pollution. . . . The
distinction between ordinary and extraordinary is one of fact and degree to which the justices
must apply their common sense and knowledge of what happens in the area.
Lord Hoffman held that the same principles applied in the case of a natural event, e.g. a storm
damaging the tank as opposed to an act of another. The fallacy in Lord Hoffman’s argument
was in the equation of voluntary human acts with natural events. It has never been necessary
for the free, deliberate and informed acts of a human third party to be ‘extraordinary’ or
unforeseeable in order to break the chain of causation. Happily this principle has now been
recognised as one restricted to cases concerning pollution or environmental crime by their
Lordships in Kennedy (No. 2) [2007] UKHL 38 – discussed at chapter five.
Although the general principle is, then, that a subsequent, voluntary act of another will
absolve D from any further causal responsibility you must be sure the third party intervention is
voluntary.

2009 Criminal Law
• • • •
2010 ACTUS REUS
ACTIVITY
From your reading of the case facts in Pagett, why did the Court of Appeal hold the
police shooting was not a voluntary intervention by a third party?
A third party’s act cannot be ‘free’ if it was brought about by intimidation, pressure or
misapprehension created by D’s conduct. In Pagett the police shooting was not a ‘free’ act and
was a reasonably foreseeable outcome of D’s conduct.
Exception 2: Conduct of the Victim
The ‘escape’ cases, where D’s threatening conduct causes the victim to kill or injure himself
whilst attempting to escape (e.g. by jumping out of a building or a moving car), exemplify
situations where the victim’s reaction is not a ‘free’ act but induced by pressure from D.
CASE BOOK ACTIVITY
From Text and Materials read the extracts from R v Roberts (1971) 56 Cr App R 95
and Williams [1992] 2 All ER 183, CA (including the commentary upon the case).
Did the reaction of the victim in R v Roberts break the chain of causation?
The rule is that, as long as P’s reaction was understandable in the circumstances, i.e. not
unexpected, D will be responsible. If the reaction was not reasonably foreseeable, i.e.
unexpected or ‘daft’, it will break the chain of causation and D will be held not to have caused
the resulting death.
As it was put in Williams, the question is ‘whether the deceased’s reaction in jumping from the
moving car was within the range of responses which might be expected from a victim placed in
the situation in which he was. The jury should bear in mind any particular characteristic of the
victim and the fact that in the agony of the moment he may act without thought and
deliberation’. In Roberts the victim’s response was not held to be ‘daft’ in the circumstances.
Furthermore if the victim is drunk or mentally ill, this must be taken into account in judging the
range of responses to be expected to D’s attack (Corbett [1996] Crim LR 594.) Presumably this
would only apply to characteristics which are either known to D or about which he ought to
have known (a reasonable person test – see Marjoram [2000] Crim LR 372, CA) since only
these would be reasonably foreseeable in the circumstances.

2009 Criminal Law
• • • •
2010 ACTUS REUS
The ‘take your victim as you find him’ rule
You will be familiar with this rule from civil law. This rule means that owing to some pre-existing
abnormality or condition, P suffers greater harm than would have been otherwise anticipated.
Providing D’s acts caused the full extent of the injuries, even though they were not reasonably
foreseeable, D will be held liable.
CASE BOOK ACTIVITY
Please read Blaue [1975] 3 All ER 446 in Text and Materials.
How did the Court of Appeal extend the rule that you must take your victims physical
condition as you find it?
Does this principle conflict with any of those you have read so far?
In Blaue the Court of Appeal extended this rule to include not only physical peculiarities of the
victim, but also the mental outlook and beliefs of the victim. In fact, as we shall see shortly, this
decision is probably better explained on another ground.
Does this principle conflict with the principle that an unreasonable reaction will break the chain
of causation? Yes, if D must take the victim’s psychological condition as he finds it, then it is D’s
hard luck that he happens to have picked on an exceptionally nervous person who is prone to
jump out of fast-moving cars.
ACTIVITY
From your reading which other legal principle could be used in order to argue the
D in Blaue continued to be legally responsible for the victim’s death?
Exception 3: Medical Treatment
Intervention by doctors would seem to constitute ‘free, deliberate and informed’ conduct and
should therefore break the chain of causation.

2009 Criminal Law
• • • •
2010 ACTUS REUS
CASE BOOK ACTIVITY
Please read Smith [1959] 2 All ER 193 Texts and Materials.
According to Lord Parker C.J. in what circumstances will D be relieved of liability?
How may the principles expressed in Smith preserve the chain of causation in Blaue?
Where there is no doubt that D has caused some initial injury e.g. by a direct attack the
question is whether he is also responsible for the death (or more serious injury) which
ultimately occurs e.g. after bad medical treatment for the initial injury. The rule that D is
responsible for the death if the initial injury is still a ‘substantial and operating cause’ at the
moment of death illustrates the possibility of there being two or more persons acting
independently (D and the doctor) who are both legal causers of the same death.
Blaue may then be explained in the following terms. If P, for whatever reason, refuses to
undergo medical treatment which would have prevented the death, the wound will be a
substantial and operating cause of death and D will be held to have caused that death.
Moreover, the discontinuance of medical treatment which ends in death, e.g. switching off a
ventilator, will not break the chain of causation between D’s acts and the death (Malcherek
[1981] 2 All ER 422, CA). In an even more dramatic example, if P’s wounds are properly treated
and then re-open, whether accidentally or even by P’s own, deliberate act, and P does nothing
to staunch the blood, D will be held to have caused the death if the initial wounding is still a
substantial and operating cause of death (Dear [1996] Crim LR 595, CA).
You can see from this it is uncommon for medical intervention, even negligent medical
intervention, to break the chain of causation. One case in which it was held the wound had
become ‘merely part of the history’ was Jordan (1956) 40 Cr App R 152, CA in which the
original wound caused by D had almost healed when P died because the hospital had continued
to administer an antibiotic to P to which he had already shown himself intolerant. Here the
treatment was “palpably wrong” and the wound had healed.
CASE BOOK ACTIVITY
Read the leading case of Cheshire [1991] 3 All ER 670 in Texts and Materials.
What key statement of law does the Court of Appeal make in this case?
If you cannot identify the key legal principle here please refer back to Criminal Law –
The Fundamentals ‘Negligent medical treatment’.

2009 Criminal Law
• • • •
2010 ACTUS REUS
Our attention must then turn to those circumstances in which D’s act is no longer a substantial
and operating cause. In these circumstances can D still be said to be the cause of death?
ACTIVITY
Compare the principles expressed in Cheshire with your knowledge of Jordan, how
may we distinguish Jordan from Cheshire?
Unless, in the words of Cheshire the intervening act was ‘so independent of’ D’s acts and ‘so
potent in causing death’ that D’s acts became ‘insignificant’ the chain of causation will be
preserved, even though the initial wound is no longer a substantial and operating cause at the
moment of death.
In Cheshire, it is clear that the court viewed the consequences flowing from the medical
treatment of the victim as being directly caused by D’s initial acts. The court would (perhaps
worryingly for us!) regard negligent medical treatment in the modern health service as within
the range of normal or rather reasonably foreseeable risks arising from hospitalisation. In
contrast in the case of Jordan the treatment was both potent in causing death and independent
of D’s acts, although some academics still argue Jordan was wrongly decided.
D’s responsibility is even clearer where P is killed not by the wound, but by an unexpected
reaction whilst undergoing proper medical treatment for the wound, e.g. allergy to anaesthetic
(see the ‘take your victim’ rule above and also Malcherek [1981] 73 Cr App R 173, CA).
5.2 Reform
The Law Commission’s Draft Criminal Code Bill 1989 does little to clarify the law, using the
same elastic concepts as the case law. Clause 17 reads:
(1) Subject to subsections (2) and (3), a person causes a result which is an element of an
offence when
a. he does an act which makes a more than negligible contribution to its occurrence;
or
b. he omits to do an act which might prevent its occurrence and which he is under a
duty to do according to the law relating to the offence.
(2) A person does not cause a result where, after he does such an act or makes such an
omission, an act or event occurs
a. which is the immediate and sufficient cause of the result;
b. which he did not foresee, and
c. which could not in the circumstances reasonably have been foreseen.

2009 Criminal Law
• • • •
2010 ACTUS REUS
ACTIVITY
Please consolidate you knowledge of these principles by completing the following

chart.
Exceptions Case examples Legal Principles

Exception 1:
Conduct of a third
party
Exception 2:
Conduct of the
victim - including
the egg shell skull
rule
Exception 3:
Medical
Treatment

2009 Criminal Law
• • • •
2010 ACTUS REUS
TEXT BOOK ACTIVITY
Please finish Chapter Two of Criminal law -The Fundamentals paying

particular attention to the diagram at the end of the chapter.
6. INCOMPLETE ACTUS REUS
Although the law is reluctant to intervene until the full actus reus of the crime has been
completed an attempt to commit an offence demonstrates both dangerousness and intent (in
the everyday sense). The problem lies in determining how far along the line towards the
commission of the substantive offence D must go before he is regarded as having performed
the actus reus of an attempted crime.
Section 1(1) of the Criminal Attempts Act sets out ‘If, with intent to commit an offence to which
this section applies, a person does an act which is more than merely preparatory to the
commission of the offence, he is guilty of attempting to commit the offence.’
Whether what D has done is ‘more than merely preparatory’ is a question of fact for the jury,
although the judge can rule that the acts in question are not reasonably capable in law of
amounting to an attempt (s. 4(3)).
The first point we can make is that the reference to acts in s. 1(1) means that it is presumably
not possible to be guilty of attempting to commit a crime of omission. The second point is that
the act(s) must be ‘more than merely preparatory’.
CASE BOOK ACTIVITY
Please read the extracts from Rowley (1992) 94 Cr Ap R. 95, CA and Jones
[1990] 1 WLR 1057, CA in Text and Materials
Where the D’s acts here ‘more than preparatory’?
It is clear from these cases that D had to have gone very close to the last act before there
would even be sufficient evidence for a jury to be able to conclude that acts were ‘more than
merely preparatory’. In Rowley the notes only sort to ‘engineer a preliminary meeting’ and in
Jones the court noted the obtaining of the gun, shortening it and putting on a disguise were
only preparatory acts.

2009 Criminal Law
• • • •
2010 ACTUS REUS
7. COINCIDENCE OF MENS REA AND ACTUS REUS
As you will have already read it is a general rule of liability that the mens rea or fault element
prescribed by the crime charged must coincide with the performance of the actus reus.
However the courts have shown willingness to, perhaps unnecessarily, treat this principle a little
loosely. The best example of judicial creativity in this field is illustrated by the case of Thabo
Meli [1954] 1 All ER 373, PC.
CASE BOOK ACTIVITY
Please read Thabo Meli [1954] 1 All ER 373, PC in Text and Materials.
Can you identify the problem with the coincidence of actus reus and mens rea in
this case?
What solution did the court find?
Can you think of an alternative solution based upon principles discussed earlier in
the guidance text?
The Privy Council held ‘it was impossible to divide up what was really one series of acts in this
way. There is no doubt that the accused set out to do all these acts in order to achieve their
plan, and as parts of their plan . . .’. Here the Privy Council hold that it is enough that D has the
mens rea at any time during the ‘series of acts’ which led to death. This reasoning was also
adopted in the case of Church [1965] 2 All ER 72, CCA where D, with the mens rea for murder,
beat a woman unconscious and, in a panic and thinking she was dead, threw her into a river. At
the time she was alive but died from drowning. The court held that the jury could have
convicted of murder ‘if [it] regarded the appellant’s behaviour from the moment he first struck
her to the moment when he threw her into the river as a series of acts designed to cause death
. . .’. This seemed to extend the principle in Thabo Meli to a case where there was no planned
series of acts and the disposal was thought of only after the initial attack (see also Le Brun
[1991] 4 All ER 673, CA).
However, remember that in light of the causation discussion above that the conduct need not
be the only cause of death; can we not say that the accused’s act of knocking D unconscious,
which was accompanied by the mens rea for murder, was a substantial cause of death? The act
of rolling D off the cliff could not be regarded as breaking the chain of causation. It was then
perhaps unnecessary to adopt the ‘continuing transaction’ analysis. In Le Brun the court
recognised that an alternative way of solving the problem was the causation analysis. In its
view it could not ‘be said that the actions of the appellant in dragging the victim away with the
intention of evading liability broke the chain which linked the initial blow with the death’.

2009 Criminal Law
• • • •
2010 ACTUS REUS
ACTIVITY
What is the position in the converse case where, when D performs the initial act
causing the harm, he does not have the mens rea, but when he learns of the true
situation, he does have the mens rea? You have already encountered this situation
earlier in the chapter. Refer back to check your answer.
Again, it is not necessary to create an exception to the coincidence principle, as long as we rely
on the principle enunciated by the House of Lords in Miller (above) which founds liability on D’s
intentional omission to counteract the dangerous situation he has inadvertently created.
Clause 31 of the draft Criminal Law Bill 1993 prefers the idea of a ‘continuing actus reus’, but
achieves much the same result as the Miller principle (Law Com. No. 218).
Study Checklist
• Understand the general concept of actus reus and its constituent elements;
• identify the bases on which the law imposes criminal liability for omissions;
• describe the factual and legal principles governing causation in the criminal law and apply
them to any given fact situation;
• appreciate how the chain of causation may be preserved.

2009
• • • •
Criminal Law
2010 MENS REA
• Mens rea
• Strict Liability
1. OBJECTIVES
By the end of this chapter you should be able to:
• Identify and describe the basic concepts of mens rea;

• Analyse the concept of intention and understand its relationship with motive and subjective
recklessness;
• Explain the difficulties and uncertainties surrounding the mens rea of murder;
• Analyse recklessness and it from negligence;
• Identify when the doctrine of transferred malice applies in a given fact situation;
• Explain the nature of strict liability.
1. This study Guide

Maxwell, Chapter Three
Maxwell, Chapter Two and Chapter Five
In this chapter you will be directed to read a number of cases. It is very important that you take
the time to perform this reading and answer the set questions as the principles discussed here
provide the backbone for the offences you will go on to study.
3. INTRODUCTION
If you cannot remember the distinction between the actus reus and the mens rea of an offence
please return to the introduction of the actus reus chapter to refresh your memory.
Mens rea is one of the most important concepts in criminal law supplying the element of
culpability for an offence. Here we are then concerned with the state of mind of the defendant
at the time the actus reus was committed.
Before we look at mens rea concepts in detail, it might be useful to have an overview of the
most frequently used states of mind and fault elements in the form of the following diagram.

2009 Criminal Law
• • • •
2010 MENS REA
Figure 1 Mens rea in relation to doing an act or omitting to act and/or producing a
consequence
SUBJECTIVE OBJECTIVE
(D’s own view – depends on what the (Depends on the court’s view of how D
court finds D was thinking) ought to have behaved in the situation
not on D’s state of mind)
Subjective Objective
(Cunningham) (Caldwell)
INTENTION RECKLESSNESS RECKLESSNESS NEGLIGENCE

(effectively
D’s aim or purpose D consciously takes abolished by G)
is to do the act or the risk of the D gives no thought
produce the prohibited act or to an obvious risk of
consequence consequence i.e. he the prohibited act or
forbidden realises it might consequence
happen resulting
Ordinary Negligence
Gross Negligence
D falls short of
D falls seriously the standard
short of the expected of the
standard expected ordinary, prudent
of the ordinary, person
prudent person
Extreme Average
Carelessness Carelessness
‘Grey area’
known as
oblique
intention
This diagram is merely indicative and the definitions given are far from being comprehensive.
You should find it a useful aide-mémoire and we would recommend you to refer back to it,
whenever you become confused about the basic mens rea concepts and the relationships
between them.
Subjectivity
There are two subjective states of mind to consider here – intention and subjective
recklessness. Some crimes can be satisfied only by proof of intention, making it necessary to
know where intention ends and recklessness begins. We hope the following diagram will make
the general idea clearer.

2009 Criminal Law
• • • •
2010 MENS REA
Figure 2 Subjective mens rea
Subjective recklessness
D is aware he might do the prohibited act/cause
the prohibited result
Intention
D is aware he might do the prohibited act/cause the
prohibited result and he aims to do it
The grey area sometimes called oblique intention

which, in effect is intention even though D does not aim
to do the prohibited act/cause the prohibited result.
4. INTENTION
4.1 Direct intention
Although intention appears to a fairly straightforward concept, the courts have struggled to
define its limits, despite a number of recent attempts by the House of Lords. The difficulties and
uncertainties surrounding the definition of intention generally stem from the issue of how far, if
at all, intention stretches beyond the core notion of direct intention (the core of our diagram 2)
and into ‘non-purpose’ (the grey area of diagram 2) Non-purpose intention has often been
referred to as ‘oblique intention’ or ‘indirect intention’.
ACTIVITY
Please write down any synonyms you can think of for ‘intention’?
Possible synonyms you have identified include, desire, aim or purpose. In Mohan the Court of
Appeal, said that intention meant: ‘a decision [by D] to bring about . . . the commission of the
offence which it is alleged D attempted to commit, no matter whether D desired that
consequence of his act or not’. It follows that where D undoubtedly intends to kill i.e. it is his
purpose or aim to kill; this is ‘direct intent’.

2009 Criminal Law
• • • •
2010 MENS REA
ACTIVITY
If D takes a pot-shot at P aiming to kill him, does he intend to kill even though he
is a rotten shot and P is outside the normal range for D’s gun?
Please read Criminal Law – The Fundamentals, ‘Intention’ and ‘direct intent’.
As Smith and Hogan state “If D has resolved to kill P and he fires a loaded gun at him with the
object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot,
that P is nearly out of range, and that his chances of success are small. It is sufficient that
killing is his object or purpose, that he wants to kill, that he acts in order to kill.” (Criminal Law
(8th ed., 1996), p.57.)
It is integral that you understand that this is a subjective test.
CASE BOOK ACTIVITY
Please read Director of Public Prosecutions v Smith [1961] A.C 290, HL AND the
commentary following the case in Text and Materials.
What does section 8 of the Criminal Justice Act 1967 set out?
4.2 Oblique Intention
Oblique intention is where D foresees a consequence as almost certain to occur as a result of

his conduct. Here, D’s primary purpose can, at least theoretically be achieved, without
producing the forbidden result.
Two key concepts have concerned the law here.
(a) The first is how much foresight of a result amounts to intention. For example, if D
foresees a result as possible, that is clearly not the same as intending it; but what about
where he foresees the result as probable, highly probably or virtually certain? How much
foresight equals intention? This is addressed below.
(b) Once we know how much foresight equals intent, then we must ask whether intent is a
matter of fact or law. This issue is one which is addressed below and in more detail at
the section headed ‘Foresight and Intention - What is the relationship?’

2009 Criminal Law
• • • •
2010 MENS REA
At this point we should state that the judge should avoid directing the jury as to the meaning of
intention unless he feels the jury is unable to return a verdict without assistance.
CASE/TEXT BOOK ACTIVITY
You should now explore point (a) ‘how much foresight of a result amounts to
intention’ by looking at the historical key cases in chronological order in Text
and Materials and Criminal Law – The Fundamentals. Please bear in mind the
leading case is now Woollin [1998] 4 All ER 103 which is addressed below.
Case Brief facts What state of mind was

found to satisfy the mens
rea for murder?
Hyam v DPP [1974] 2 All
ER 41, HL
Moloney [1985] 1 All ER

1025
Hancock and Shankland

[1986] 1 All ER 646
Nedrick [1986] 3 All ER 1

2009 Criminal Law
• • • •
2010 MENS REA
The leading case - Woollin [1998] 4 All ER 103
CASE BOOK ACTIVITY
Read the speech of Lord Steyn in Woollin in Text and Materials. This speech is of utmost
importance in understanding the current legal position regarding oblique intention – ensure you
read the passage carefully and check you thoroughly understand the principles expressed in this
case.
In Woollin Lord Steyn confirmed the Nedrick direction that the prosecution must prove foresight
of virtual certainty subject to one slight change, that the jury should be directed they were not
“entitled to find…unless” - instead of the Nedrick formulation of “entitled to infer…unless”.
4.2.1 FORESIGHT AND INTENTION – WHAT IS THE RELATIONSHIP?
WE MUST NOW RETURN TO POINT (B) ABOVE, whether foresight of a consequence as a

virtually certain is a matter of fact or law. Students commonly struggle with this concept and it
is worth taking the time to appraise this area very carefully.
TEXT BOOK ACTIVITY
Text Book Activity Begins’ up to (but not including) Re A at the ‘Common Forms of
Mens Rea’ chapter.
As you will have read the Court of Appeal in Nedrick took a restrictive view as to when it was
permissible for the jury to draw the inference of intention from foresight:
. . . the jury [is] not entitled to infer the necessary intention unless [it] feel[s] sure that
death or serious bodily harm was a virtual certainty (barring some unforeseen intervention)
as a result of the accused’s actions and that the accused appreciated such was the case.
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 have desired or wished it to happen. The decision is one for the jury
to be reached upon a consideration of all the evidence.
Lord Lane CJ came close to saying that realisation by D that the harmful consequence is
virtually certain is a species of intention in stating ‘the inference may be irresistible’. However,
he could not say that it was intention because the House of Lords in Hancock had categorically
stated that it was not intention.

2009 Criminal Law
• • • •
2010 MENS REA
In Woollin the House initially appeared to take the step denied to the Court of Appeal in Nedrick
and rule that where D foresees a consequence as virtually certain, he intends that consequence.
On that view, intention extends beyond aim or purpose and would include foresight of virtual
certainty (but nothing less than virtual certainty). Such foresight would no longer be
merely evidence from which a jury might infer intention: it would amount to intention (a
definitional interpretation – see Text and Materials below at the case book activity)
ACTIVITY
Is this then the definitive statement of law from this case?
Are any statements made that potentially conflict with the principle that that
foresight amounts to intention?
In the concluding part of the Woollin judgment, the House appear to have reverted to a slightly
modified Nedrick test; stating the jury would not be entitled to find the necessary intent unless
they felt sure the prohibited consequence was virtually certain to result from D’s actions and
that D appreciated this was the case. If it is a form of intention as was set out earlier in the
judgment and the jury find that D did foresee the consequence as virtually certain to result,
they must find intention and it therefore misleading to talk about ‘being entitled to find’ it. That
implies a discretion which, according to the earlier part of the judgment, they do not have. This
issue is addressed further below.
Consequently, an ambiguity remains, one that has been addressed in two later cases; Matthews
and Alleyne [2003] EWCA Crim 192 and Re A (Children) [2001] 2 WLR 480.
4.2.2 THE POST WOOLLIN CASES
Before we look at the post Woollin cases it is worth considering why the courts may wish to give
the jury discretion in this area.
ACTIVITY
Can you think of any policy reason why the House of Lords have not obliged juries to
find intention where they were satisfied that D, whilst not aiming to kill, foresaw
death as virtually certain ?
Read the article by R.A Duff ‘Intention, Agency and Criminal Liability’ and the
following cases of Matthews and Alleyne [2003] EWCA Crim 192 and Re A (Children)
[2001] 2 WLR 480 in Text and Materials.

2009 Criminal Law
• • • •
2010 MENS REA
Is foresight of a result as a virtual certainty the same as intention as a matter of law?

Or might it be as a question of fact?
In answer to the first question, it may well be the case that the House wanted to give the jury
an area of discretion in non-purpose cases so as to allow them not to find intention in
‘deserving’ cases. This is especially true of what some writers call ‘double effect’ cases where D
has a legitimate primary purpose but realises the virtual inevitability of the illegitimate side-
effects of his actions. The difficulty with this approach is that it is uncertain. Individuals may not
know what a particular jury would adjudge to be morally acceptable. It may then be better to
admit that the intention is present and to articulate a defence to liability based on necessity or a
special doctor’s defence.
In answer to the second question you will hopefully have identified a conflict in the law. In Re A
the majority of the court held that Woollin meant that the doctors performing the operation
would intend to kill, whereas in Matthews and Alleyne [2003] EWCA Crim 192 (without referring
to Re A), the Court of Appeal rejected the idea that the law had ‘reached a definition of intent in
murder in terms of appreciation of virtual certainty.’ The Court did not ‘regard Woollin as yet
reaching or laying down a substantive rule of law’ but in an admirable statement of reality
thought that ‘once what is required is an appreciation of virtual certainty of death, and not
some lesser foresight of merely probable consequences, there is very little to choose between a
rule of evidence and one of substantive law.’
TEXT BOOK ACTIVITY
Please read reading Criminal Law - The Fundamentals from the discussion
regarding Re A and Matthews and Alleyne to ‘Unresolved Issues’ and complete
the table below.
Case Evidential or Substantive? Please include any critique

directed at the decision.
Hyam
Moloney
Hancock and Shanklin

2009 Criminal Law
• • • •
2010 MENS REA
Nedrick
Woollin
Mathews and Alleyne
Re A
The intention cases above have all concerned the offence of murder. Thus the question arises as
to whether they set out a definition of intention that applies across the criminal law. Walker and
Hayles (1990) 90 Cr App R 226, CA applied the cases to a charge of attempt (admittedly it was
attempted murder) and they have also been applied to s. 18 of the Offences Against the Person
Act 1861 in Bryson [1985] Crim LR 669, CA. Consequently it would appear that the comments
in those cases also apply to intention in the law generally. Although then the House of Lords in
Woollin (now the leading case on intention) entered the caveat that ‘intent’ does not necessarily
have ‘precisely the same meaning in every context in the criminal law’ we would suggest that it
will only be in exceptional situations that the courts will depart from the Woollin view of intent
whatever the offence in question.
5. INTENT AND ATTEMPTS
Under s. 1(1) of the Criminal Attempts Act, D must intend to commit the offence alleged to
have been attempted.
CASE BOOK ACTIVITY
Read the commentary upon the mens rea for an attempt in Text and Materials at
chapter 5 and the extract from Mohan [1976] QB 1, CA that follows.
Direct intent seems to encompass more than a single purpose or aim.
How is it defined?
The answer is that intent does not encompass mere foresight of a possibility, of a type of
recklessness, but does include undesired consequences of a deliberate act; ‘proof of specific
intent, a decision to bring about, insofar as it lies within D’s power, the commission of the
offence which it is alleged the accused attempted to commit, no matter whether the accused
desired that consequence of his act or not’. A person can be convicted of an attempted crime
only where it is his intention to commit the full offence.

2009 Criminal Law
• • • •
2010 MENS REA
CASE BOOK ACTIVITY
Section 1(2) provides that a person can be guilty of attempt ‘even though the facts
are such that the commission of the offence is impossible’.
What about the situation contemplated where, unknown to D, the prevailing

circumstances make it impossible for him to complete the offence that he is intending
to commit?
Please read Shivpuri [1986] 2 All ER 334 at chapter 5 of Text and Materials
We may therefore summarise the law on impossibility as follows. As long as D intended to

commit the offence in question and had done an act which was more than merely preparatory
to the offence he intended to commit, even though, unknown to him, it could not be committed,
he would be guilty of attempt no matter why it was impossible to commit.
6. INTENTION AND MOTIVE
It is a basic principle of English law that motive is generally irrelevant to criminal liability. For
example, if D intends to kill, he has the mens rea for murder whether or not he feels or would
be regarded by people generally as morally blameworthy. Desire is also irrelevant here. You
may intend to kill even though you fervently wish V did not have to die. Mohan [1975] 2 All ER
193 says that a decision to kill is intention ‘no matter whether D desired that consequence of
his act or not’.
There are two primary reasons why the law should want to exclude issues surrounding motive
from the question of criminal liability.
• First and most important, it would undermine the law’s claim to define what is legally
wrong. Acceptance that a ‘good’ motive could avoid legal wrongness would enable
alternative views of right and wrong to compete with the criminal law’s right to impose
social order and raise issues of subjective morality.
• The second reason is to preserve the law’s individualist conception of responsibility. Each
person is a distinct individual, acting in isolation from his social context and held
accountable and responsible for his actions. To allow an examination of why D acted as
he did in deciding whether he is blameworthy would introduce difficult considerations of
the extent to which legal responsibility is negated by the social context and mores in
which D lives and operates.
Equally, it is generally unnecessary to show that D knew he was committing a crime because
such a state of mind will be no part of that required by the definition of the offence. If D knows
he is or may be committing the actus reus of the crime, there is no need to prove that he
realised that such conduct constituted a criminal offence. Nonetheless, there are certainly cases
where a good motive has led the courts to the view that the ingredients of the offence were not
established where it is inconceivable that they would have so held had D’s motive been bad for
example see the cases of Steane [1947] KB 997 and Gillick v West Norfolk Area Health

2009 Criminal Law
• • • •
2010 MENS REA
Authority [1985] 3 All ER 402 in Criminal Law - The Fundamentals at chapter eleven for a
similar line of reasoning.
7. MOTIVE AND DEFENCES
A final, important note on motive, however, is that it might be an essential consideration in the
elements of a number of the general defences to criminal liability. Thus, D will avoid criminal
liability for violence inflicted in using reasonable force in self-defence or the prevention of crime.
His reason for acting (i.e. his motive) must be self-defence or the prevention of crime. Similarly
if D’s motive for committing the ‘crime’ is threats of serious violence if he does not, this could
give him the defence of duress by threats. A laudable motive may open the way for the defence
of necessity (or, at least, duress of circumstances) to be invoked.
8. OTHER ‘FORMS’ OF INTENTION
8.1 Further intent
‘Further’ and ‘ulterior’ intent are terms which are synonymous and can be used inter-
changeably. They arise where a crime is so defined that the mens rea includes an intention to
produce a consequence which goes beyond (is ulterior to) the physical conduct required by
the actus reus of the crime.
The classic example of ulterior intent is to be found in s. 9(1)(a) of the Theft Act 1968 which
broadly sets out that a person is guilty of burglary if he enters any building or part of a building
as a trespasser with intent to commit any such offence as: theft, criminal damage or grievous
bodily harm. The offence is one of ulterior intent because it must be proved that at the time of
entering the building or part of the building the defendant intended to committ theft, to cause
criminal damage or inflict grievous bodily harm.
8.2 Specific intent
The term specific intent will be used in this guidance text and your text book to mean an
offence for which voluntary intoxication may be a defence and will be dealt with at the relevant
chapter.
9. RECKLESSNESS
In essence, recklessness means unjustifiable risk-taking, i.e. actions involve a risk of the
prohibited conduct or consequence occurring and it is unreasonable in the circumstances to
take that risk.
For many crimes proof of either intention or recklessness will secure a conviction (for example
s.20 OAPA and s.47 OAPA). Therefore if a person is reckless as to the prohibited consequence
that will often be enough. The only way to find out if proof of recklessness is enough for a
conviction in any particular case is to examine the definition of the offence charged.

2009 Criminal Law
• • • •
2010 MENS REA
ACTIVITY
What do you understand by the term recklessness? Try to think of some examples
of reckless behaviour.
9.1 Unjustifiable risk
In both types of recklessness, subjective or objective, the risk of the proscribed consequence
which D is taking must be an unjustifiable risk. It must be unreasonable to run the risk of the
harmful consequence.
ACTIVITY
If P has been injured by D engaging in conduct which D had realised, before engaging
in it, might cause injury to others, can you explain why we might not regard him as
reckless in relation to causing injury?
Many of our everyday activities involve the risk of, say, injuring another or damaging property.
It is an objective not a subjective question. It is not whether D thinks that it is unjustifiable but
whether the court decides that it is unacceptable. In making that judgment the court will
balance the social utility of the activity against the probability of the harmful consequence
occurring coupled with the seriousness or gravity of that consequence if it does ensue, e.g. an
ambulance driver on his way to an emergency would receive more latitude than someone who is
late for a concert.
ACTIVITY
Once the risk has been judged to have been (objectively) unjustifiable, the next question is to
consider the perspective from which we judge the risk.
(a) If we judge the risk from whether D foresaw it or not, is that a subjective or objective test?
(b) If we judge the risk according to whether a reasonable person would have foreseen it, is
that a subjective or objective test?

2009 Criminal Law
• • • •
2010 MENS REA
9.2 Subjective Recklessness
At this point, to refresh your knowledge, please reappraise the subjective mens rea chart
above.
The key element in subjective recklessness is that D must know that he is taking a risk of the
forbidden consequence occurring. He knows it might happen but he carries on regardless
deliberately taking the risk. If the court decides the risk was unjustifiable, D is subjectively
reckless in regard to it. Subjective recklessness suffices for a number of offences including 20
and 47 of the Offences Against the Person Act 1861, the offence of common assault and since G
[2003] UKHL 50 criminal damage.
CASE BOOK ACTIVITY
1. Read the extract from the case of Cunningham [1957] 2 All ER 412 in Text and
Materials.
What does the word ‘malicious’ in section 23 Offences against the Person Act 1861
mean according to the Court of Appeal?
2. Read Stephenson [1979] 2 All ER 1198 in Text and Materials.
If D does not foresee a risk, can we say he was subjectively reckless or not?
You can hopefully see, then, that if D does not foresee a risk D cannot be said to be subjectively
reckless. Subjective recklessness is not satisfied on the basis of what D should have
foreseen, but what he did foresee.
ACTIVITY
Suppose you see an old car tyre on top of a cliff and you decide to roll it over the cliff
edge on to the beach below. If it strikes and injures someone on the beach, what
would determine whether you (a) intended to injure or (b) were subjectively reckless
as to injury?
If you were hoping (or aiming) to injure someone, you would intend it. Intention can also be
found from the fact that D realised that injury was virtually certain (Woollin). If you knew that
people were packed on the beach below, this might be feasible. In terms of subjective
recklessness, the prosecution would have to show two things:

2009 Criminal Law
• • • •
2010 MENS REA
(a) that you were aware of the risk of injury; and

(b) that it was unreasonable in those circumstances for you to take that risk.
You need to recognise injury was a possibility, however slight (Chief Constable of Avon v
Shimmen (1986) 84 Cr App R 7, DC; DPP v A [2001] Crim LR 140, DC). If, however, the
possibility of injuring never occurred to you, subjective recklessness would be ruled out.
9.2.1 RECKLESSNESS AND WILFUL BLINDNESS
If D is willfully blind, he suspects that facts or circumstances exists but deliberately refrains
from enquiring further in case he learns the unpalatable truth. In the ordinary case, the courts
will read the term ‘knowingly’ as embracing wilful blindness, which is sometimes referred to as
knowledge of the second degree.
ACTIVITY
In Westminster City Council v Croyalgrange Ltd [1986] 2 All ER 353, HL, D was
charged with the offence of ‘knowingly’ permitting his premises to be used as a sex
establishment without a licence. In the light of the discussion above, what do you
think would suffice as the mens rea for this offence?
Where ‘knowingly’ appears, it will normally be construed as applying to all the elements
necessary for the actus reus, not just one or some of them. Therefore in the Croyalgrange case,
D had to ‘know’ that the premises were being used as a sex establishment and that there was
no licence. ‘Know’ was, as usual, construed to include not only actual knowledge of these two
facts but also wilful blindness as to them (a form of subjective recklessness).
9.3 Objective recklessness
As we have stated it is likely that the House of Lords’ decision in G has effectively abolished
objective recklessness. However it held an importance place in the criminal law and you must
understand both its rise and its demise.

2009 Criminal Law
• • • •
2010 MENS REA
CASE BOOK ACTIVITY
Please read Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961 in

Text and Materials. What model direction did Lord Diplock set out in this case?
‘A person is reckless as to whether or not any property would be destroyed or

damaged if:
1)
2)
Which of these elements is essentially subjective recklessness?
Concentrating on element 2 of Lord Diplock’s statement, in what way does this

differ from subjective recklessness?
How did Lord Diplock justify reading recklessness in the Criminal Damage Act as
objective recklessness?
CASE BOOK ACTIVITY
Read Elliott v C [1983] 2 All ER 1005, DC in Text and Materials.
Would the risk have been obvious to C if she had thought about it?
Read the case of G [2003] UKHL 50 including the commentary upon the case and the
evaluation of the law that follows.
Summarise the grounds for overruling Caldwell.
Now please read Criminal Law – The Fundamentals ‘The journey to G via
Cunningham’.

2009 Criminal Law
• • • •
2010 MENS REA
ACTIVITY
This is a good time to pause and take stock of your progress so far before we move
on. Please revisit the grid and circle above. Are you reasonably satisfied that you can:
• Define direct intent?
• Explain the concept of oblique intent?
• Define subjective recklessness?
• Define what objective recklessness was, and why it was so controversial?
• Explain why the House in G overruled Caldwell?
10. NEGLIGENCE
Negligence is a failure by D to act in conformity with an objective standard decided on by the

court looking back on what actually happened in the situation. D’s actual state of mind at the
time of his actions is irrelevant. The yardstick used by the court in judging D’s conduct is how it
would expect a reasonable person to have behaved in those circumstances.
TEXT BOOK ACTIVITY
Please read the section on Negligence in Criminal Law – The Fundamentals for an
overview of the two forms of negligence.
11. SOME OTHER MENS REA WORDS
Maliciously - As discussed above it is now settled that the term ‘maliciously’ imports a
requirement of subjective recklessness and can be regarded as synonymous with that
expression (Savage; Parmenter [1991] 4 All ER 698, HL)
Wilfully - According to Lord Diplock in Sheppard [1980] 3 All ER 399, HL the term wilfully
imports the mens rea of intention or recklessness; it does not merely mean to act voluntarily.
Dishonestly - Dishonesty is an important constituent of many crimes against property such as

theft and fraud. We shall therefore reserve our examination of it until we deal with theft.

2009 Criminal Law
• • • •
2010 MENS REA
Awareness - A new mens rea term of “awareness of risk” was suggested by the Law
Commission in its report, ‘Murder, Manslaughter and Infanticide’ (Law Com No 304, 2006), to
be used in a new ladder of homicide offences of first and second degree murder. “Awareness,”
would involve “conscious advertence to the risk”.
12. MISTAKE AND MENS REA
The question of whether D’s liability is affected where he makes a mistake about the situation is
dealt with extensively later in this text. Whether a mistake does negate D’s mens rea can only
be ascertained by identifying the precise mens rea required for the crime charged. A mistake
may prevent D having the mens rea. Where the crime charged requires proof of at least
subjective recklessness in relation to that part of the actus reus about which the mistake has
been made, there is no need for the mistake to be reasonable.
ACTIVITY
Before the Sexual Offences Act 2003 re-defined it, the offences of rape required,
among other things, proof that D knew or was subjectively reckless as to the fact that
the victim was not consenting. If D had sexual intercourse with P, believing that she
was consenting when she was not, would he have satisfied this mens rea
requirement?
Because an unreasonable mistake will still prevent D having the necessary subjective
recklessness, D lacks the necessary mens rea and cannot be convicted of rape. Thus, a finding
that D did genuinely make a mistake and believed that his victim was consenting is
incompatible with a finding that he knew she might not be consenting.
ACTIVITY
What kind of offences would require the mistake to be reasonable before it could
possibly negative the fault element of the crime?
Are there any offences where even a reasonable mistake as to a component of the
actus reus could not prevent liability?

2009 Criminal Law
• • • •
2010 MENS REA
Offences which can be satisfied by proof of an objective fault element such as negligence could
not be defended by pleading an unreasonable (ordinary negligence) or grossly unreasonable
(gross negligence) mistake. If the mistake is unreasonable then, far from negating your mens
rea, the mistake actually supplies it because it establishes the fault element of negligence. By
definition it must be negligent to make an unreasonable mistake.
One final thought concerns offences of strict liability which we deal with below. This means that
no fault element is required in relation to one or more elements of the actus reus. It follows
that there is no mens rea or blameworthiness for the mistake to negate and so even the most
reasonable mistake in the world will not avail the defendant. (Prince (1875) LR 2 CCR 154 -
note the doubt about Prince in B v DPP [2000] 2 WLR 452, HL below – and that the offence in
question has been repealed by the Sexual Offences Act 2003).
The issue of mistake is very much bound up with mens rea. There are, however, many more
complex issues which it raises but these can be postponed until we address mistake later in the
guidance text.
13. TRANSFERRED MALICE
In a case of ‘transferred malice’ the situation is that D aims to kill or injure X but accidentally
misses and kills or injures Y instead.
CASE BOOK ACTIVITY
Please read ‘Transferred Malice’ up to (but not including) ‘Mistake’ in Text and
Materials for an introduction to and criticisms of the doctrine.
Judgments in the House of Lords imply (though do not clearly express) that the doctrine of
transferred malice extends only to transferring a mens rea of intention and not, for example,
one of subjective recklessness. The proposed cl. 32 in the Law Commission’s draft Criminal Law
Bill would allow both intention and subjective recklessness to be transferred.
However, one may question whether the doctrine of transferred malice is needed as a separate
doctrine at all. For example, for the offence of murder proof that D caused the victim’s death by
conduct accompanied by an intention to kill would automatically satisfy the definition of the
crime charged. The ‘transfer’ of intention would not be an issue.

2009 Criminal Law
• • • •
2010 MENS REA
ACTIVITY
If you throw a stone at P intending to injure him but he ducks and the stone breaks a
window in the building behind him, will your intention to injure P supply the mens rea
for a charge of criminal damage to the window?
Please refer to Criminal Law – The Fundamentals for the answer to this question.
14. STRICT LIABILITY
14.1 Introduction
An offence of strict liability means an offence which requires no blameworthiness on the part of
D (i.e. no mens rea or even negligence) in respect of at least one element of the actus reus.
Strict liability offences are not uncommon and must be contrasted with those rare offences of
absolute liability. An absolute offence is an offence which, not only does not require proof of
any mens rea or negligence, or even require proof that D’s conduct was voluntary but does not
admit of any defence. The established absolute offences are offences where the actus reus
involves proof of a ‘state of affairs’. Confusingly, the courts regularly use the term ‘absolute
offence’ to mean simply ‘strict liability offence’.
CASE BOOK ACTIVITY
Please read Larsonneur (1933) 24 Cr App R 74 and Winzar v Chief Constable of

Kent, The Times, 28 March 1983 in Text and Materials.
In Larsonneur why was the student held liable?
Other than deportation in what other circumstances would she have committed the
offence?
The Court of Criminal Appeal refused to imply any requirement of culpability or voluntariness
and presumably would have arrived at the same decision even if D had been kidnapped in Eire
and brought to the UK by her kidnappers! Similarly in Winzar we may certainly argue it was not
Winzar’s fault he was drunk in the highway.
In contrast to absolute liability offences, strict liability offences, like all other offences, always
need the element of voluntariness and thus may be negated by pleading any of the general
defences. However, strict liability crimes will not require any other culpability in respect of one

2009 Criminal Law
• • • •
2010 MENS REA
or more components of the actus reus( see Prince [1874–80] All ER Rep 881 in Criminal Law –
The Fundamentals).
14.2 The Development of Strict Liability
CASE BOOK ACTIVITY
Please read Text and Materials from ‘Are Strict Liability Offences Justifiable’ up to
(but not including) ‘Enforcement’.
How are offences of strict liability justified?
Strict liability is almost exclusively confined to statutory offences. The common law offences of
public nuisance and criminal libel are often said to be crimes of strict liability but the matter has
yet to be definitively established. However, the House of Lords in Lemon [1979] 1 All ER 898
appears to make the common law offence of blasphemous libel a strict liability crime.
14.3 How do the courts decide on strict liability?
The courts have not been consistent in their decisions and this makes predicting what they will
decide in respect of an offence which has not been the subject of a court decision a difficult
exercise.
Since we are almost exclusively concerned with statutory offences, the exercise is one of
statutory interpretation. Theoretically, the court is simply endeavouring to ascertain the will of
Parliament as expressed in the wording of the offence. If that wording expresses the mens rea
for the offence clearly, e.g. by using words like ‘intentionally’, ‘recklessly’ or ‘negligently’, there
is no problem. Equally, if the wording expressly provides that the offence is to be strict liability
in one or more respects, there is again no problem, although it is rare for Parliament to do so.
The problem comes when, as happens surprisingly often, Parliament does not provide expressly
one way or the other.

2009 Criminal Law
• • • •
2010 MENS REA
14.3.1 PRESUMPTION OF MENS REA
CASE BOOK ACTIVITY
Read Sweet v Parsley [1969] 1 All ER 347 in Text and Materials.
What is the role of the judiciary when confronted with a statutory provision which is
silent as to mens rea?
If you cannot identify the relevant portion of the opinion please refer to the relevant
section in Criminal Law - The Fundamentals.
The Privy Council in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] All ER
503 strongly reiterated the importance of this presumption.
Please note the principles expressed in Gammon from Criminal Law – The
Fundamentals
1)
2)
3)
4)
5)
Bringing this up to date the strength of the presumption in favour of mens rea was stressed by
the House of Lords in the important decision of B v DPP [2000] 2 WLR 452.

2009 Criminal Law
• • • •
2010 MENS REA
CASE BOOK ACTIVITY
Please carefully read B v DPP [2000] 2 WLR 452 in Text and Materials.
Please make a note of the factors their Lordships stated should be taken into
account when deciding whether an offence is one of strict liability.
Under the new Sexual Offences Act 2003 strict liability has been instituted in relation to age
when the offence is against one under the age of 13 in order to specifically protect children
under this age. – Please note this does not usurp the general presumption of mens rea for other
offences expressed in B v DPP.
14.3.2 REGULATORY OFFENCES VS. TRULY CRIMINAL OFFENCES
Where the court regards an offence as regulatory (sometimes also referred to as quasi-
criminal), the presumption of mens rea is much weaker. It follows that one manner of assessing
whether an offence is strict liability or not is to classify the offence as either truly criminal on
the one hand, or regulatory on the other.
ACTIVITY
Can you suggest some examples of the sort of offences which might be termed
‘regulatory’?
Please read Criminal Law – The Fundamentals ‘True Crimes’ for a discussion of the
distinction between regulatory offences and truly criminal offences.
CASE BOOK ACTIVITY
Please read Muhamad [2003] 2 WLR 1050 in Text and Materials.
What ‘test’ did the Court of Appeal prefer over the criminal/regulatory
distinction?

2009 Criminal Law
• • • •
2010 MENS REA
The Court of Appeal favoured a ‘seriousness’ test: ‘the more serious the offence, the greater
weight to be attached to the presumption’. However, given that regulatory offences tend by and
large to be ‘less serious’ offences compared with ‘truly criminal’ offences, the different approach
may not matter unduly in practice. The Court also rejected the idea that the imposition of strict
liability contravened Article 6 of the European Convention on Human Rights (as did Kearns
[2003] 1 Cr App 7 CA).
The sentence attached to an offence has also been relevant when deciding upon the seriousness
of the offence (see Blake [1997] 1 All ER 963 and cf. Harrow LBC v Shah [1999] 3 All ER 302
and the Storkwain case).
14.3.3 THE STATUTORY CONTEXT
As stated the court are in actuality engaged in an exercise of statutory interpretation. It is their
job to give effect to the intention of Parliament as expressed in the words used to define the
offence and any decision of the courts must involve a close analysis of the statutory wording,
and also the contexts in which it appears.
CASE BOOK ACTIVITY
Please read the extract from Pharmaceutical Society of Great Britain v Storkwain Ltd
[1985] 3 All ER 4 in Text and Materials.
How may reading the offence in context reveal Parliaments intention?
For further discussion see Criminal Law – The Fundamentals ‘Necessary implication to
displace the presumption’.
Light may be thrown on Parliament’s intention by comparing the wording of the offence charged
with the wording used for other offences in the surrounding sections or subsections of the same
act.
The court may also derive some assistance by examining the wording under previous
enactments and comparing it with the wording for the same offence in the current statute. The
same wording would confirm Parliament’s intention not to alter the position, whereas changed
wording may lead the court to reassess its previous classification (cf. Smedleys Ltd v Breed
[1974] 2 All ER 21, HL).
The court may also reason by analogy from similarly worded offences in statutes covering
different activities. For example, offences involving ‘selling’ or ‘using’ appear in many different
contexts. We might also point to ‘causes’, which is generally interpreted as not importing mens
rea (unless qualified in the statute by an express mens rea word).
Finally, a large number of offences are phrased in terms of ‘permitting’ or ‘allowing’ something
to occur. The tendency hitherto has been to regard both as implying a mens rea of knowledge
(including wilful blindness) on the basis that one cannot permit something without being aware
that it is or at least may be happening (James & Son Ltd v Smee [1954] 3 All ER 273, DC). On
2009 Criminal Law
• • • •
2010 MENS REA
the other hand, the offence of ‘permitting’ a vehicle to be used whilst uninsured has been held
not to require any knowledge or even negligence that the vehicle was in fact uninsured (Chief
Constable of Norfolk v Fisher [1992] RTR 6, DC).
14.3.4 SOCIAL CONCERN
The presumption of mens rea can be displaced if the offence is one of social concern (see
Gammon). For difficulties in applying this principle see Criminal law - The Fundamentals.
14.3.5 VIGILANCE AND COMPLIANCE
From your reading at the beginning of this section you will have noted that one of the primary
aims of strict liability is to encourage greater vigilance, particularly in terms of regulating
businesses. Thus the presumption of mens rea can only be displaced where strict liability will
encourage such vigilance.
TEXT BOOK ACTIVITY
To consolidate your knowledge of these elements please complete the strict

liability chapter in Criminal Law - The Fundamentals. You may find the chart below
useful for revision of these elements.
Deciding upon Strict Liability Comments and cases
Presumption of mens rea
Regulatory versus truly criminal
(including seriousness)

2009 Criminal Law
• • • •
2010 MENS REA
Sentencing provision
Statutory Context
Surrounding statutory context
Historical context
Similarly worded offences
Social Concern
Vigilance and Compliance
14.4 Challenges under the European Convention on Human Rights
You will see there is one issue that we have alluded to so far, yet not addressed; the challenges
made under the European Convention on Human Rights to the imposition of strict liability.
ACTIVITY
From your reading do you think strict liability is contrary to Article 6 or 7 of the
European Convention on Human Rights?
While it has been confirmed (see Barnfather v Islington LBC [2003] 1 WLR 2318 and R v G and
the Secretary of State for the Home Department [2006] EWCA Crim 821 CA) that strict liability
offences cannot be challenged as being contrary to Article 6, as 6(2) does not extend to
consideration of the substance of a domestic offence, challenges under Article 7 are of more

2009 Criminal Law
• • • •
2010 MENS REA
interest. Where Article 7 provides for clarity in the criminal law as we have seen strict liability
offences are rarely clearly defined in statute and a challenge under this section may, in the
future, be successful.
14.4 Can Strict Liability be Justified?
ACTIVITY
From your reading thus far briefly outline the justifications for imposing strict
liability.
Is the doctrine justifiable?
Do the benefits outweigh the criticisms?
Study Checklist
• identify and describe the basic concepts of mens rea;

• analyse the concept of direct and oblique intention;
• understand its relationship with subjective recklessness;
• analyse the concepts of subjective and objective recklessness and distinguish recklessness
from negligence;
• identify when the doctrine of transferred malice applies;
• explain the nature of strict liability and when and the justifications and criticisms of its
imposition.

2009
• • • •
Criminal Law
2010 NON-FATAL OFFENCES AGAINST THE PERSON
• Non-Fatal Offences Against the Person

• Consent
1. OBJECTIVES
• define and analyse assault and battery;

• define and analyse the offences created by ss. 18, 20 and 47 of the OAPA 1861;
• identify the problems surrounding the mens rea of s. 47;
• explain the differences between ss. 18 and 20;
• explain the concept of ‘unlawful’ force.
1. This study guide

Maxwell, Chapter Five
Maxwell, Chapter Three and Chapter Seven.
3. INTRODUCTION
This chapter is concerned with offences of violence falling short of killing people. You will be
familiar with a number of these offences from common usage and particularly from the media –
however please disregard any assumptions you have as you will find the substantive law is very
different.
4. THE COMMON LAW OFFENCES - ASSAULT AND BATTERY
Here we have the ‘least serious’ offences – ones which do not require the victim to have
suffered any injury. Please note that the term assault is commonly used by laypeople and
lawyers alike as a ‘catch all’ term. However, at common law there are two quite distinct
offences of assault (technical assault) and battery (physical assault). Although these are
common law offences the penalties are now prescribed by s. 39 of the Criminal Justice Act
1988.
4.1 Technical assault
This offence is committed where D intentionally or subjectively recklessly causes the victim to
apprehend immediate unlawful force to his person.

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the Introduction up to (but not
including) ‘Battery’.
Now please list 3 ways in which you could assault someone.
There are numerous possibilities including pointing a gun at P, waving your fist under P’s nose,
riding your bicycle at P or throwing a stone at P. If in any of these cases you actually touch P,
you could be committing battery as well as assault.
4.1.1 The ACTUS REUS – APPREHENDING IMMEDIATE UNLAWFUL FORCE TO THE

PERSON
Apprehension of immediate violence
It is essential that P actually apprehends violence to himself so that if the threatening actions
are unseen by P and done without his knowledge or if, say, P knows that the gun pointing at
him is unloaded or an imitation, no psychic assault is committed. It is unnecessary to prove any
physical contact between the defendant and the victim, contact being the hallmark of battery
(physical assault).
The definition requires there to be an apprehension of immediate violence and this was
recently confirmed by the House of Lords in Ireland [1997] 3 WLR 534. (The consolidated
appeal Ireland;Burstow is referred to extensively in this chapter and it would be valuable to
take the time to read this case – perhaps as a revision exercise.)

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Case Book Activity
The table below identifies three key cases in which the courts have interpreted
the term immediacy. Please read the extracts from Text and Materials at chapter
seven, from R v Ireland up to and including the commentary upon the Stalking
Consultation Paper. Please complete the table below as an aide memoir for the
future.
Case Brief Facts Decision regarding Immediacy
Ireland [1997] 3 WLR

534
Smith v Chief
Superintendent,
Woking Police Station
(1983)
Constanza [1997] 2 Cr
App R 492
It seems that, in order to meet an emerging social evil, known fashionably as stalking, the
courts stretched the crime of assault towards a more general one of making threats of violence.
As you will have read the irony is that this occurred just at the time Parliament was enacting
some new bespoke offences to deal with stalking and other forms of harassment in the
Protection from Harassment Act 1997. Section 4 of the 1997 Act creates an offence carrying a
maximum of five years’ imprisonment of causing ‘another to fear, on at least two occasions,
that violence will be used against him . . .’. No immediacy requirement here but P has to fear
not just that violence may be carried out (as for assault) but that it will be carried out.
Assaulting by words alone?
In Ireland, for Lord Steyn, with whom the remaining judges concurred, ‘A thing said is also a
thing done. There is no reason why something said should be incapable of causing an
apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley
saying, ‘‘Come with me or I will stab you’’.’ (see also the Court of Appeal in Constanza [1997]
where an assault had taken place by letters).

2009 Criminal Law
• • • •
Words negativing assault
ACTIVITY
From your reading is it possible for words to negative an assault? For the answer
to this question refer to the case of Tuberville v Savage (1669) 1 Mod Rep 3.
Unlawful force
As an essential element of all of the non-fatal offences, this will be dealt with at the end of the
chapter.
ACTIVITY
An assault is committed where D intentionally or subjectively recklessly causes the

victim to apprehend immediate force to his person.
To satisfy the mens rea, what does D have to intend or foresee that P might be
thinking?
4.1.2 MENS REA OF AN ASSAULT
The prosecution must prove either an intention to create in P the expectation of the immediate
application of force to his person or, alternatively, subjective recklessness as to that, i.e. a
realisation by D that P may think that D is about to apply force to P’s person (Venna [1975] 3
All ER 788). (Subjective recklessness see Spratt [1991] 2 All ER 210, CA and Parmenter [1991]
2 All ER 225, CA).
4.2 BATTERY OR PHYSICAL ASSAULT
Battery is committed where D intentionally or subjectively recklessly applies unlawful force to

another. Battery is usually but not necessarily preceded by a psychic assault.

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
Please read the discussion of battery in Criminal Law – The Fundamentals.
What is an essential element of the offence of battery?
4.2.1 ACTUS REUS – APPLYING UNLAWFUL FORCE TO ANOTHER
The House of Lords in Ireland confirmed that it is essential that there be an actual application of
force by D to P so that there could be no battery where the activities of a stalker who did not
touch the victim caused psychiatric harm. However, the notion of ‘force’ is extremely wide and
the slightest touching will suffice (see Day (1845) 1 Cox CC 207; Thomas (1985) 81 Cr App R 3,
CA). However, according to Sherriff [1969] Crim LR 260, for D merely to pull away from
someone attempting to hold him is not in itself a battery.
Indirect battery?
Suppose someone frightened you into jumping out of a window so that force was applied to
your body when you hit the ground. Would this be the actus reus of battery? Although case law
establishes that, if grievous bodily harm results, this can constitute an offence under ss. 20 or
18 of the OAPA 1861 (depending on D’s mens rea), the courts have never clearly determined
whether, if no injury resulted, it would constitute the offence of battery.
With reference to your textbook please complete the following table with the facts and decisions
reached in these cases.
Case Brief Facts Decision
DPP v K [1990] 1 All ER

331, DC
Haystead v Chief Constable

of Derbyshire [2000] 3 All
ER 89
Wilson [1983] 3 All ER 448,

HL

2009 Criminal Law
• • • •
Battery by omission?
Fagan v MPC [1968] 3 All ER 442, discussed at chapter two, expressed the view that a mere
omission to act, even though it results in an application of force to P, could not constitute a
battery.
ACTIVITY
The case of Fagan, DPP v K and DPP v Santa-Bermudez [2004] Crim LR 471 can all
be explained by way of the Miller [1983] 1 All ER 978, HL principle. What is this
principle?
If you cannot remember please return to chapter two of the guidance text for the
answer.
4.2.2 MENS REA OF BATTERY
The prosecution must prove an intention to apply unlawful force to another or subjective
recklessness as to the application of such force, i.e. realisation by D that unlawful force might
be applied as a result of his actions.
ACTIVITY
Would D have the mens rea for battery if he thought he was preventing P from
assaulting a third party when P was in fact effecting a lawful citizens arrest
against that third party?
Can we say that D here intends or is subjectively reckless as to the application of

unlawful force?
The above example illustrates the facts of Williams (1984) 78 Cr App R 276, CA. This case
highlighted the importance of an intention to apply unlawful force; thus because of his mistake
D lacked the intention to apply unlawful force, nor did he realise that he might be applying
unlawful force, and so was not guilty. This specific issue will be discussed further when we
address self defence.

2009 Criminal Law
• • • •
5. THE STATUTORY OFFENCES
If harm results from the assault or battery (actual or grievous), then there can also be an
offence under the 1861 Act.
SECTION 47 OF THE OFFENCES AGAINST THE PERSON ACT 1861
Whosoever shall be convicted on indictment of any assault occasioning actual bodily

harm shall be liable . . . to be imprisoned for any term not exceeding five years . . .
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the discussion of ‘Assault
occasioning actual bodily harm’ up to (but not including) ‘wounding and grievous
bodily harm’.
5.1.1 ACTUS REUS – ASSAULT OCCASIONING ABH
Assault
Although the term assault is used in the statutory offence this has been held to include an
assault and a battery (see above).
Occasioning
‘Occasioning’ is synonymous with the term ‘causing’ and whether the assault can be said to
have caused the harm depends on applying the normal principles of causation considered
mainly in Chapter 2 in connection with actus reus.
ACTIVITY
How did D ‘occasion’ the offence in the case of Roberts (1971) 56 Cr App R 95?
What kind of reaction by the victim in Roberts would have broken the chain of
causation?
For the answer to this question please see the discussion of the actus reus of
section 47 in Criminal Law - The Fundamentals.

2009 Criminal Law
• • • •
Actual Bodily Harm
Using your textbook please note how the following cases have defined ABH.
Case Principle
Donovan [1934] 2 K.B

498
Brown [1993] 2 All ER

75, HL
Chan-Fook [1994] 2 All

ER 552
Ireland
5.1.2 MENS REA OF S.47
ACTIVITY
What is the respective mens rea for assault and battery?
The House of Lords in the consolidated appeals of Savage; Parmenter endorsed the view in
Roberts that s. 47 does not require proof of any mens rea in relation to the causing of harm. It
does not matter that D neither intended nor foresaw any harm. The only mens rea needed for s.
47 is either intention or subjective recklessness as to the application of force (i.e. the mens rea
for battery) or intention or subjective recklessness as to putting someone in fear of immediate
force (i.e. the mens rea for psychic assault).

2009 Criminal Law
• • • •
ACTIVITY
What is the difference between a common assault and an offence under s. 47 OAPA?
It follows from the above that the only difference between s.47 and common assault is the
requirement to cause actual bodily harm (G [2001] Crim LR 898 CA). If there is no common
assault, there is no s.47 offence either (Blackburn v Bowering [1994] 3 All ER380 CA).
SECTION 20 OF THE OFFENCES AGAINST THE PERSON ACT 1861
…unlawfully and maliciously wound or inflict any grievous bodily harm upon any other
person, either with or without any weapon or instrument.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the discussion of ‘Wounding
and grievous bodily harm’ up to (but not including) ‘Unlawful and malicious
wounding’.
Both alternatives are regarded in practice as more serious than the offence under s. 47,
although, surprisingly, the maximum sentence is five years’ imprisonment for both s. 20 and s.
47.
ACTIVITY
In what two ways can this offence be committed?
(a)
(b)

2009 Criminal Law
• • • •
5.2.1 ACTUS REUS OF S.20
(a) Inflicting grievous bodily harm
How have the courts defined grievous bodily harm in the following cases?
Case Principle
DPP v Smith [1961]

AC 290
Saunders [1985] Crim

LR 230
Ireland
The non-statutory Charging Standard recommends a s. 18 or s. 20 charge only for injuries

resulting in permanent disability or loss of sensory function, non-minor permanent disability or
loss of blood and injuries resulting in lengthy treatment or incapacity. GBH can certainly include
sexually transmitted diseases such as HIV, (Dica 2004).
ACTIVITY
In Bollom [2004] 2 Cr App R 6 the victim sustained bruises and abrasions.
Is this ABH or GBH?
The victim was a 17 month-old baby.
Does this make any difference to your answer?
Normally these injuries amount to ABH only however the Court of Appeal held that in deciding
whether injuries were grievous, they had to be considered in their real context, which included
the effect of the harm on the particular victim, so what would be ABH in an adult could amount
to GBH in a child so young.

2009 Criminal Law
• • • •
What does ‘inflict’ mean?
It is important to recognise that this actus reus term has caused some difficulty and you need
to be aware of the historical interpretations of the term.
CASE BOOK ACTIVITY
Read the portion of Text and Materials which discusses the actus reus of the section
20 offence and the extract from the case of R v Ireland; R v Burstow that follows and
then answer the following questions.
How did the Court interpret the term inflict in the case of Clarence (1888) 22 QBD 23?
Did the House of Lords find GBH could be inflicted without an assault or battery in
Wilson [1983] 3 All ER 448?
In Ireland did the House hold there to be any difference between ‘cause’ in s. 18 and
‘inflict’ in s. 20?
If so, what?
The conclusion we draw is that, in future, where D has caused GBH under the normal principles
of causation, he will be held to have also inflicted GBH. Thus, if D infects P with AIDS through
unprotected sexual intercourse, then it follows from Burstow that D inflicts GBH, even if the
intercourse is consented to by P.
(b) Wounding
For a wound to be suffered, both the inner and outer skin, i.e. the dermis and the epidermis,
must be broken (JJC v Eisenhower [1983] 3 All ER 230).

2009 Criminal Law
• • • •
ACTIVITY
Whether the actus reus is based on a wound or an infliction of GBH, the prosecution must
prove that D acted ‘maliciously’. What has this term been understood to mean?
For the answer to this question please see the discussion of the mens rea for a section 20 in
Criminal Law – The Fundamentals.
Intention or subjective recklessness is required, but what is the consequence which D must
intend or be subjectively reckless about? It was laid down in Mowatt [1967] 3 All ER 47, CA that
D need only have intended or foreseen the possibility of some physical harm occurring to the
victim, albeit neither serious nor a wound. This was endorsed by the Court of Appeal in Sullivan
[1981] Crim LR 46 which made it clear that an intention merely to frighten did not suffice.
In the light of the holding in Ireland; Burstow that actual bodily harm includes psychological
illness and injury, it seems inevitable that the Mowatt principle will be extended to include
intending or foreseeing some recognised psychiatric harm.
5.3 SECTION 18 OF THE OFFENCES AGAINST THE PERSON ACT 1861
…unlawfully and maliciously wound or cause any grievous bodily harm to any person
by any means whatsoever with intent to do some grievous bodily harm, or with intent
to resist or prevent the lawful apprehension or detainer of any person.
5.3.1 ACTUS REUS – WOUNDING OR CAUSING GRIEVOUS BODILY HARM
The terms ‘wound’ and ‘grievous bodily harm’ presumably bear the same meaning as for s. 20.
Causing also carries the same meaning as discussed at the actus reus chapter and should be
established on the normal principles of causation although as previously intimated, the meaning
of cause was traditionally held to be wider than inflict in s. 20. This is underlined by the use in
s. 18 of the words ‘by any means whatsoever’.
As the most serious of the non-fatal offences intention and intention alone suffices for the mens
rea. As can be seen from the words of the section there are two alternative possibilities. The
most common in practice is the intent to do grievous bodily harm (GBH). D must be proved to
have the aim or purpose of causing GBH (Belfon [1976] 1 WLR 741).

2009 Criminal Law
• • • •
ACTIVITY
In Mowatt, the Court of Appeal said that the word ‘maliciously’ which is part of the
statutory definition of s. 18 was superfluous and added nothing to the mens rea. Is
this correct?
When the prosecution’s charge is based on an intention to do GBH it is clear that the word
‘maliciously’ adds nothing to the mens rea because if D intends GBH, he necessarily acts
maliciously. Students typically find section 18 problematic. This is partially due to confusion
over the form of charge the offence may take and you may find the examples at (a) to (d)
below helpful.
(a) [maliciously] causing GBH with intent to cause GBH
If the D is charged with this form of the offence the word maliciously is superfluous. If you
intend to cause GBH you clearly foresee that GBH may result.
(b) [maliciously] wounding with intent to cause GBH
Here maliciously is superfluous for the reasons outlined above. As with the form of the offence
above if you intend to cause GBH then clearly you foresee that some physical harm will result.
So maliciously here means foreseeing some physical harm (although in terms of the actus reus
a wound must be suffered).
The alternative mens rea of an ‘intention to resist or prevent the lawful apprehension or
detainer of any person’ has been overlooked by the courts. If the prosecution is using this
alternative intention as the basis of its charge, then it is clear that ‘maliciously’ would add an
extra ingredient, requiring proof that D at least foresaw the risk of some harm being caused by
his conduct. A person can intend to resist lawful arrest, e.g. by pushing past a policeman,
without realising that his conduct might cause some harm. In such a case he would not be
acting maliciously and therefore should not be convicted of the s. 18 offence, even if he causes
GBH (cf. Morrison (1988) 89 Cr App R 17, CA).
(c) maliciously causing GBH with intent to resist arrest
D must intend to resist arrest but he must also foresee that some physical harm will result; so
maliciously here means foreseeing some physical harm. For example, D may intend to resist
arrest but may not foresee that when he pushes the police officer the officer will suffer GBH
from banging his head on the pavement (again in terms of the actus reus GBH must be
suffered).
(d) maliciously wounding with intent to resist arrest
D must intend to resist arrest but he must also foresee that some physical harm will result. For
example, D may intend to resist arrest but may not foresee that when he pushes the police
officer the officer will suffer a gash to his head from the pavement. (again in terms of the actus
reus wounding must be suffered)

2009 Criminal Law
• • • •
6. REFORM
TEXT BOOK ACTIVITY
Please read and make notes on the discussion of the proposed reform in this area
of the law from Criminal Law - The Fundamentals and from the section entitled
‘evaluation’ in Text and Materials.
7. UNLAWFUL FORCE
To constitute the actus reus of the offences discussed above the force applied to the victim
must be unlawful force. We can identify four main situations where the use of physical force
could be lawful: self-defence and prevention of crime; parental chastisement; necessity; and
consent. Consent will be the element that we will concentrate upon in this chapter.
• Self-defence and prevention of crime
Anyone is entitled to use reasonable force in self-defence or in the prevention of crime (s. 3 of
the Criminal Law Act 1967). This topic is considered in more detail under general defences.
• Parental chastisement
Parents are entitled to take reasonable disciplinary measures against their children, including
the use of moderate physical punishment. Clearly this does not allow the use of force which is
excessive or unreasonable in nature, degree or duration (Hopley (1860) 2 F & F 202; Smith
[1985] Crim LR 42.)
• Necessity
Emergency situations can justify a deliberate application of force even if that would otherwise
amount to a battery. This is considered more fully under general defences, but examples could
include medical treatment of an unconscious patient; pushing P, frozen with fright, down the
emergency chute of a blazing aeroplane (after landing!).
• Consent
It is consent we will go on to address below in detail.
7.1 CONSENT
Acts are criminal only if done without the valid consent of the person affected; that is, the
person who would otherwise be the ‘victim’ if he had not consented. Although consent is often
referred to as a ‘defence’, it is not for the defendant to prove. Instead, it is an assertion by the
defendant that the prosecution cannot satisfy its burden of proof with respect to the crime as
charged. In the definition of each of the non-fatal offences, the force applied to V must be
unlawful force. Any force applied by the defendant to another with the other’s consent, cannot

2009 Criminal Law
• • • •
be unlawful force. This means that valid consent negates the actus reus of the crime; there is
no actus reus. This view prevailed in Kimber [1983] 1 WLR 1118, CA, approved by the House of
Lords in B v DPP [2000] 1 All ER 833.
Not all consent given by the victim will be valid, in which case the defendant will remain liable.
7.1.1 THE REALITY OF CONSENT
TEXT BOOK ACTIVITY
Please read the first portion of the consent discussion in Criminal Law - The
Fundamentals from ‘Consent’ up to (but not including) ‘Consent to actual bodily
harm’.
Not all frauds, lies or failures to tell the whole truth will negate consent. It all depends on the
precise issue or matter to which the fraud relates. Contentious matters which have led to
appeals in this area of law include fraud or deceit as to the identity of the accused and as to the
nature or quality of the act. The relevant sections in your textbook summarise these areas of
the law, however in order to fully comprehend the legal principles please complete the following
tables.
(a) Consent and Identity
Case Brief Facts Legal Principle
Richardson [1998] 3
WLR 1292, CA
Tabassum [2000] 2 Cr
App R 328

2009 Criminal Law
• • • •
(b) Consent and the nature and quality of the act
Case Brief Facts Legal Principle
Clarence (1888) 22 QB
23
Tabassum [2000] 2 Cr
App R 328
Dica [2004] 3 WLR

213
Konzani [2005] EWCA

Crim 706.

2009 Criminal Law
• • • •
7.2 Consent to Actual Bodily Harm
CASE BOOK ACTIVITY
Carefully read the case of Brown [1994] 1 AC 212 at chapter three of Text and
Materials.
Would you have decided the case the same way?
To what extent, according to the House, can a person consent to harm? (please
ensure you make a note of this legal principle – it is integral)
How is our ability to consent limited by the law?
Do you agree with where the limits are set?
For a full discussion of these principles please read Criminal Law – The Fundamentals
‘Consent to actual bodily harm’.
A later appeal to the European Court of Human Rights was also unsuccessful (Laskey v United
Kingdom (1997) 24 EHRR 39) as it was held that State interference in this aspect of private life
could be justified on the basis of ‘protection of health’.
CASE BOOK ACTIVITY
For commentary upon the moral aspect of the Brown case please return to Chapter
One of Criminal Law – Text and Materials and the articles written by Herbert
Packer, Patrick Devlin and William Wilson at the section dealing with ‘What
conduct ought to be Criminal?’

2009 Criminal Law
• • • •
7.2.1 Retreat from Brown
ACTIVITY
Please read Criminal Law – The Fundamentals ‘Retreat from Brown’ and answer
the following questions
How was Brown distinguished in Slingsby [1995] Crim LR 570?
How was Brown distinguished in Wilson [1996] 2 Cr App R 241?
Are you satisfied that the reasons given in Wilson are sustainable?
How does Dica further limit the decision in Brown?
It is important that you understand that the case of Dica was concerned with ‘normal’ sexual
activity and the effect of consent when the HIV virus was passed to a sexual partner. HIV is
clearly serious harm and if the principle in Brown was to be applied consent would not negate
liability – even if the participants were both fully informed and consenting to sex (and
consequently the risk of infection). However, Dica ‘says’ change to held consent can be a
defence, in certain circumstances, even where actual bodily harm or worse is caused. Judge LJ
stated:
“In our judgment the impact of the authorities dealing with sexual gratification can too
readily be misunderstood. It does not follow from them, and they do not suggest, that
consensual acts of sexual intercourse are unlawful merely because there may be a
known risk to the health of one or other participant. These participants are not intent on
spreading or becoming infected with disease through sexual intercourse. They are not
indulging in serious violence for the purposes of sexual gratification. They are simply
prepared, knowingly, to run the risk - not the certainty - of infection, as well as all the
other risks inherent in and possible consequences of sexual intercourse, such as, and
despite the most careful precautions, an unintended pregnancy…”
Consent in such cases must be informed consent (see Konzani [2005] EWCA Crim 706).
If you cannot understand how the sexual activity in Dica was distinguished from that in Brown
you may find it useful to read the case of Dica, in which their Lordships provide a summary of
the consent case law.

2009 Criminal Law
• • • •
ACTIVITY
Why was the defence of consent unavailable in the case of Emmett (1999) The Times,
15 October 1999?
7.4 Consent in the public interest
ACTIVITY
What rules were established by The Court of Appeal in Barnes [2004] All ER (D) 338
(Dec)?
For which other ‘activities’ may a person give valid consent?
For answers to these question see Criminal law – The Fundamentals ‘Situations in which
consent to harm is in the public interest’.
ACTIVITY
To review your knowledge of the legal principles governing consent, in each of the following
situations say whether you think P’s consent should be invalid for the purposes of preventing a
battery.
(a) P consents to undergo a medical examination by D, who has falsely claimed to be a

doctor
(b) P consents to undergo a medical examination by D, a doctor, who falsely pretends that
this examination is medically necessary
(c) P consents to undergo a necessary medical examination by D, a doctor, in the presence

of X, whom D falsely represents as a medical trainee but who is present for sexual
gratification
(d) P consents to sexual intercourse with D, who deliberately fails to tell P that he (D) is
HIV positive and has AIDS

2009 Criminal Law
• • • •
As previously stated, the rule is that if the apparent consent has been procured by fraud as to
the identity of the accused or as to the nature of the act, it will be invalid. The question is: has
P consented to (a) the act which was done (as opposed to an act fundamentally different) and
(b) that act being done by the person who did it and not somebody else (cf. para. 5.20 Law
Commission Report: Consent in Sex Offences). It follows that in situations (a), (b) and (d)
above, the ‘consent’ would be invalid whereas in (c) it would be valid. If in (c) X took part in the
examination it would be the same as (a).
You may find the table at the end of this chapter useful for revision purposes.
Study Checklist
• Define and analyse the common law offences;

• Define and analyse the offences created by ss. 18, 20 and 47 of the OAPA 1861;
• Explain the concept of ‘unlawful’ force and analyse the leading authorities regarding consent

2009 Criminal Law
• • • •
Offence Actus Reus Mens Rea Comments and cases
s. 18 OAPA Unlawfully Intent to cause GBH
Wound or
Or maliciously + with
intent to resist
Cause GBH lawful apprehension
etc …
s. 20 OAPA Unlawfully Maliciously
Wound meaning…
Or
Inflict GBH
s. 47 OAPA Assault Mens rea as for the

(either physical or physical and/or
technical or both) technical assault
Occasioning
ABH
Common/ Application of Intention or

Physical unlawful force to recklessness to
Assault victim apply unlawful force
to the victim
Battery
Common/ Causing the victim Intention or

Technical/ to apprehend recklessness to
Psychic immediate cause the victim to
Assault unlawful force apprehend
(harm? violence?) immediate force
(etc)

2009
• • • •
Criminal Law
2010 MURDER AND MANSLAUGHTER
• Murder
• Voluntary manslaughter
• Involuntary manslaughter
1. OBJECTIVES
• Define the basic ingredients of homicide and distinguish between murder, voluntary
manslaughter and involuntary manslaughter;
• Explain the difficulties and uncertainties surrounding the mens rea of murder;
• Analyse the requirements for the defences of provocation and diminished responsibility;
• Describe the rules governing gross negligence manslaughter;
• Identify the offence of subjective reckless manslaughter;
• Identify the anomalies and shortcomings of unlawful act manslaughter;
• Comment on the proposals for the reform of the homicide laws.
1. This study guide

Maxwell, Chapter Four
Maxwell, Chapter Eight.
3. INTRODUCTION
Although there are a number of homicide offences this guidance text concentrates upon murder
and manslaughter. Both crimes share the same actus reus; the unlawful killing of a human
being by a human being under the Queen’s peace.

2009 Criminal Law
• • • •
4. ACTUS REUS OF MURDER
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the introduction to

homicide up to (but not including) ‘Murder’ and complete the following table.
Actus reus element Explanation
Unlawful killing
Human Being
Causing Death
Under the Queens Peace
5. MURDER
Having considered the actus reus of murder, we can turn immediately to the factor which
distinguishes murder from manslaughter – the mens rea.
5.1 Mens rea ‘malice aforethought’
The traditional term used for the mens rea of murder is ‘malice aforethought’. However, there
need be neither ‘malice’ nor ‘aforethought’. Equally there is no need to prove that the
intentional killing was done with any ‘aforethought’. A spur of the moment decision to kill
suffices.
What then is ‘the necessary mental element’ for murder? The answer is surprisingly simple. In
Moloney [1985] 1 All ER 1025 it was held it means either:
(a) an intention to kill; or

(b) an intention to cause grievous bodily harm (implied malice)

2009 Criminal Law
• • • •
5.1.2 IMPLIED MALICE
ACTIVITY
Do you recall the meaning of the term ‘grievous bodily harm’?
If death unexpectedly results from an intentional causing of grievous bodily harm, do

you agree it should it be murder?
Most commentators regard intention to cause grievous bodily harm as unacceptably wide for the
mens rea of murder. We saw in the previous chapter that grievous bodily harm means no more
than ‘really serious’ harm according to DPP v Smith [1960] 3 All ER 161, HL. Thus it does not
necessitate intending to cause a life-threatening injury. If D aims to break someone’s leg, he
intends to cause grievous bodily harm. It seems wrong that he should be convicted of murder if
the victim dies due to unforeseen medical complications. But that is the law.
5.1.3 INTENTION
Since the House of Lords’ decision in Woollin, we can state the mens rea of murder with
reasonable if not complete confidence. See chapter three for the full discussion. #
6. MANSLAUGHTER
CASE BOOK ACTIVITY
Please read Criminal Law – Text and Materials ‘IV. Manslaughter’ up to (but not
including) ‘(subjective) reckless manslaughter’ for a concise introduction to the
forms of manslaughter.

2009 Criminal Law
• • • •
MANSLAUGHTER
ACTIVITY
Voluntary Involuntary
(D has the mens rea for murder) (D does not have the mens rea for
murder)
Provocation Diminished Suicide Gross Subjective Unlawful Act

(D provoked Responsibility Pacts Negligence Recklessness also termed
to lose his (Mental Manslaughter Manslaughter Constructive
self-control) Disorder) Manslaughter
6.1 VOLUNTARY MANSLAUGHTER
As our diagram indicates, there are three distinct sets of circumstances which can mitigate what
would otherwise be murder to voluntary manslaughter. One of the main reasons for doing this
is to allow the judge discretion in sentencing to reflect the reduced culpability of the accused,
despite the fact that he intended to kill P or cause him serious harm.
6.1.1 DIMINISHED RESPONSIBILITY
This defence was first created by the Homicide Act 1957 and is quite a straightforward defence
(comparatively!). Section 2 of the Homicide Act 1957 sets out;
“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 (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.”
ACTIVITY
Identify the three ingredients required for a successful defence.
a)
b)
c)

2009 Criminal Law
• • • •
ACTIVITY
Please read the introduction to diminished responsibility in Criminal Law – The

Fundamentals up to (but not including) ‘abnormality of the mind’.
When diminished responsibility is raised is the burden of proof upon the
prosecution to disprove the defence or is the burden upon the defendant?
Does this contravene the European Convention on Human Rights?
(a) Abnormality of mind
ACTIVITY
Read the commentary upon diminished responsibility in Text and Materials from
‘Section 2’ to the ‘Report of the Committee on Mentally Abnormal Offenders’.
In the case of Byrne [1960] 3 All ER 1 how did Lord Parker CJ ‘define’ an abnormality
of the mind? – please make a note of this important ‘definition’ below.
This concept of ‘abnormality of mind’ is vague and elastic and courts and juries have taken full
advantage of the ability to stretch it to cover situations where D engages the sympathy of the
court. For example,
• Perverted sexual desires that created irresistible impulses - R v Byrne (1960)

• Pre-Menstrual Syndrome - Reynolds [1988] Crim LR 679
• Depression - Seers (1984) 79 Cr App R 261, CA
• Paranoid psychosis - Sanderson (1994) 98 Cr App R 325, CA
• Extreme jealousy - R v Vinagre (1979)
(b) Specified causes
Section 2 sets out that the abnormality must result from one of the specified causes and
suitable medical evidence is needed to establish that the abnormality results from one of these
specified causes (Byrne). It seems less difficult to show what does not come within ‘specified
causes’. Hate, jealousy, or bad temper causing an abnormality would not, according to Fenton
(1975) 61 Cr App R 261, CA (though even this is contradicted by some first instance decisions –
Miller, The Times, 16 May 1972 and Asher, The Times, 9 June 1981, cf. Vinagre (1979) 69 Cr
App R 104, CA (jealousy); and Coles (1980) 144 JPN 528 (rage))

2009 Criminal Law
• • • •
Alcohol and abnormality
Where alcohol is one of the causes of the abnormality, the jury must ignore the effects of that
and consider whether the other cause brought about an abnormality which substantially
impaired the mental responsibility (Gittens [1984] 3 All ER 252 approved by the House of Lords
in Dietschmann [2003] UKHL 10). It appears from Dietschmann that the above rules do not
apply where D suffers from alcohol dependence syndrome (chronic alcoholism) because that is
recognised as a disease. If it causes permanent injury to the brain, that would certainly be an
abnormality of mind (Tandy (1988) 87 Cr App R 45). Alternatively, if the alcoholic’s craving for
a first drink is irresistible, he may have a defence, because he would not be ‘responsible’ for his
intoxication which would therefore be ‘involuntary’ (Tandy; Inseal [1992] Crim LR 35, CA).
(c) Substantial impairment of responsibility
The abnormality must have substantially impaired the defendant’s mental responsibility for his
acts. This phrase is just as vague and elastic as ‘abnormality of the mind’ allowing the jury a
large measure of discretion.
6.2 PROVOCATION
Our second defence is that of provocation
ACTIVITY
What have the courts determined the jury should take into account when determining
whether there has been a substantial impairment?
For the answer to this question please read the ‘substantial impairment of
responsibility’ section in Criminal law - The Fundamentals paying particular attention
to the following cases:
Byrne
Lloyd [1967] 1 All ER 107
Mitchell [1995] Crim LR 506
The defence applies only to a charge of murder and is only a partial defence, reducing the
crime from murder to manslaughter. Remember provocation is raised as a defence when D has
committed the actus reus of murder with the requite mens rea.

2009 Criminal Law
• • • •
ACTIVITY
A number of key ingredients will be addressed in the following section and it is worth
giving some thought to these issues at this point and returning to them at the end of
the discussion to ensure you have identified the relevant legal principles. Issues to
consider:
How much provocation would be needed for the defence to be successful?
On what basis would you judge the defendant? Subjectively or objectively?
How would you assess the level of his reaction?
If objectively which (if any) of the defendants characteristics should be taken into
account?
Does his reaction have to be proportionate?
Would you permit the defence to be successful because of provoking words, or would
you permit it only because of provocative acts? Is there a difference?
What if the defendant was unusually prone to anger, jealousy or rage?
The essence of provocation is that D kills someone in the heat of the moment, having
momentarily lost his self-control. However, to prevent the defence unduly favouring those
who are prone to lose their self-control at the slightest provocation, D’s loss of self-control is
judged against the yardstick of how an ordinary, average person might have reacted in
the same situation. The law regards it as fair to excuse D’s lack of self-restraint and lethal
reaction only if the average person might have done as D did in the same circumstances.
Provocation is a common law defence and, as such, the definition has to be gleaned from an
examination of the case law. Nonetheless, very significant changes to the common law
formulation were wrought by s. 3 of the Homicide Act 1957. Although not a comprehensive
definition, s. 3 is undoubtedly the starting point for any study of the defence:
“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.”

2009 Criminal Law
• • • •
ACTIVITY
From this statutory definition can you identify the three basic elements which make
up provocation?
a.
b.
c.
If you have not managed to identify the elements please read ‘the nature of the
defence’ in Criminal Law - The Fundamentals.
(a) Provocative Conduct
According to s. 3 the provocative conduct may be ‘things done or things said or both together’.
This was enacted to overrule the case of Holmes v DPP [1946] 2 All ER 124, HL which appeared
to hold that words of abuse were incapable of constituting provocative conduct for the purposes
of the defence.
CASE BOOK ACTIVITY
Please read the extract from the case of Doughty (1986) 83 Cr App R 319, CA in
Text and Materials.
Did the ‘action’ of the victim amount to provocation in this case?
Provocation and third parties
At common law, one could only take into account ‘acts done by the dead man to the accused’
(see Duffy [1949] 1 All ER 932).

2009 Criminal Law
• • • •
ACTIVITY
This imposed two limitations. Can you identify them?
The first was that any provocative conduct from anyone other than the deceased victim had to
be ignored. Davies [1975] 1 All ER 890, CA confirms that this rule is implicitly abolished by s. 3.
Secondly, Pearson [1992] Crim LR 193 holds that the rule that provocative conduct by the
deceased victim which was directed at someone other than the accused had to be ignored has
also been impliedly overturned by s. 3.
(b)The subjective limb: actual loss of self-control by d
TEXT BOOK ACTIVITY
Please read ‘The subjective test - the defendant must lose his self-control’ in
What is an actual loss of self-control? Please pay particular attention to the

definition given in Duffy [1949] 1 All ER 932.
This is an entirely subjective test: did the accused actually lose his self-control? If D did not
lose his self-control, the defence fails, even if a reasonable person would have (cf. Cocker
[1989] Crim LR 740). Whether D did lose his self-control is a question of fact for the jury, which
must take into account all the circumstances.
The issue of provocation will only be left to be decided by the jury, if the judge is satisfied that
there is, in the words of s. 3, ‘evidence on which the jury can find that the person charged was
provoked . . . to lose his self-control . . .’. If, therefore, he is satisfied that on the evidence
given, no reasonable jury could possibly conclude that the accused lost his self-control, he must
withdraw the issue from the jury and the defence fails.

2009 Criminal Law
• • • •
ACTIVITY
Does this mean that no account can be taken of past incidents of provocation as, for
example, in the case of battered wives, because ‘reason has had time to resume its
seat’ after those incidents?
For this answer to this question please see the case of Humphreys [1995] 4 All ER
1008, CA.
CASE BOOK ACTIVITY
Read the short extract from the case of Ahluwalia [1992] 4 All ER 889 CA in Text and
Materials. You will see below that her appeal on the ‘cooling off’ period was
dismissed.
Explain why the appeal was unsuccessful on this ground.
Here, the court managed to find the ‘compassionate’ way out which it had failed to find in
Thornton by holding that there was evidence that D might have been suffering from diminished
responsibility (due to endogenous depression – not battered wife syndrome), a defence which,
through no fault of hers, was not raised at the trial. A retrial was therefore ordered and that
resulted in a finding of manslaughter on the ground of diminished responsibility.
(c) The objective limb
Section 3 makes it clear that the provocative conduct had to be such as might cause a
reasonable person to lose their self-control and do as the accused did. How a reasonable
person might have reacted provides the standard against which D’s actions are judged. As Lord
Goff put it: ‘The function of the test is only to introduce, as a matter of policy, a standard of
self-control which has to be complied with if provocation is to be established in law.’ (Morhall
[1995] 3 All ER 659, HL).
The nature of the reasonable person
The primary difficulty for the courts in this area has been the question of what characteristics
may be afforded to the reasonable person when deciding whether he would have acted as the D
did.

2009 Criminal Law
• • • •
Prior to s. 3, the courts insisted that the reasonable person was ‘normal’ or ‘average’ in every
way and did not possess any special characteristics which D had, even if the provocation was
directed at these ‘special’ characteristics. Thus, in Bedder v DPP [1954] 2 All ER 801, HL, the
reasonable man could not be invested with D’s sexual impotence, even though the prostitute he
killed had taunted him about his inability to perform sex with her.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from ‘The objective test’ up to (but
not including) ‘Proportionality’.
You will have gleaned from your reading that this has been a contentious area of the law and it
is now worth taking the time to carefully go through the case law to appraise the conflicts that
have emerged and establish the current legal principle.
ACTIVITY
Read the extract from the case of DPP v Camplin [1978] 2 All ER 168 in Text and
Materials.
Is Bedder still good law?
What characteristics does the reasonable person possess?
The House of Lords in Camplin held that s. 3 impliedly overruled the principle laid down in
Bedder so that if similar circumstances arose again, the reasonable man would be invested with
D’s impotence. According to Camplin, the reasonable person was someone ‘having the power of
self-control to be expected of an ordinary person of the sex and age of the accused but in other
respects sharing such of the accused’s characteristics as . . . would affect the gravity of the
provocation on him . . .’.

2009 Criminal Law
• • • •
ACTIVITY
Does this mean that the reasonable person should be given all of D’s characteristics?
Why would this be impossible without undermining the whole basis of the present
defence?
What bottom line characteristic(s) should the reasonable person possess in every
case?
To maintain this objective yardstick, there was always one objective characteristic which the
reasonable man should possess in every case: he should always possess the average degree
of self-control so that he can never be invested with the accused’s ‘exceptional excitability… or
pugnacity or ill-temper’ (per Lord Simon in Camplin). Equally, the reasonable man would never
become temporarily excitable through the effect of alcohol. Morhall confirmed that the
reasonable person is always sober, even if D’s self-control is impaired by alcohol or drugs.
CASE BOOK ACTIVITY
Read the extract from Morhall [1995] 3 All ER 659, HL in Text and Materials, paying
particular attention to the paragraph starting “At all events it follows that, in a case
such as the present, a distinction may have to be drawn between two different
situations”.
What are the two situations to which Lord Goff is referring?
The issue identified by Lord Goff is that there is a difference between characteristics which
affect the gravity of the provocation and characteristics which affect D’s general level of self
control.
Characteristics affecting the gravity of the provocation
What we are looking at here is any characteristic of the defendant’s which is the butt of the
taunt, or which makes the provocative conduct even more provocative in its affect on D. See for
example Morhall where D’s addiction to glue-sniffing was relevant because the victim nagged
and taunted him about that very trait and his inability to kick his habit.

2009 Criminal Law
• • • •
Characteristics affecting D’s general level of self-control
This is the aspect that has caused conflict between the Privy Council and the House of Lords.
The central issue has been whether a characteristic be taken into account if it merely made D
more prone to be provoked in general, for example, where D is suffering from some kind of
brain injury that affords him a lower level of self control than the average person.
CASE BOOK ACTIVITY
Read the extracts of the cases of Luc Thiet Thuan v R [1996] 2 All ER 1033 and Smith
(Morgan) [2000] 4 All ER 289 in Text and Materials.
What characteristics did the Privy Council suggest could be attributed to the
reasonable man?
What characteristics did the House of Lords suggest could be attributed to the
reasonable man?
The cases clearly conflict. In your opinion, which is right? Why?
Although Smith was astonishingly wide, deciding that aspects of the D relevant to the loss of
the self control could be considered, every characteristic was not to be left to the jury to make
what they will of it. The trial judge had to direct the jury to ignore emotional traits ‘such as
jealousy and obsession’ or a ‘tendency to violent rages or childish tantrums.’ These were
regarded as ‘defects in character rather than an excuse . . . In deciding what should count as a
sufficient excuse, they [the jury] have to apply what they consider to be appropriate standards
of behaviour; on the one hand making allowances for human nature and the power of the
emotions but, on the other hand, not allowing someone to rely upon his own violent
disposition.’ No criteria were suggested for identifying which characteristics cannot be taken into
account by the jury.
CASE BOOK ACTIVITY
Does this mean that if D had a volatile and explosive personality, this would be given
to the reasonable person? Was anything left of the objective test by the Morgan Smith
decision?
For the answer to this see Weller [2003] EWCA Crim 815 CA in the discussion of the
objective test in Criminal Law - The Fundamentals.

2009 Criminal Law
• • • •
The law according to Luc has prevailed.
Read Attorney General for Jersey v Holley [2005] UKPC 23, [2005] 3 WLR 29 in Text
and Materials and the commentary that follows the case.
What is the decision of the Privy Council in this case?
What is the status of the House of Lords’ judgment in Smith (Morgan) now?
When Holley was first reported, academic debate centered around the authority of the decision.
The Privy Council was, on the whole, praised for its decisive stance against Smith (Morgan) and
in favour of the preferred Luc, but as the Privy Council’s decisions are not binding, the strength
of the decision in the court hierarchy was in doubt. On the other hand, nine members of the
House of Lords presided in Holley; the decision could not have more authority of terms of
judicial seniority.
The status of the decision in Holley was queried in R v Mohammed (Faqir) [2005] EWCA Crim
1880 where Scott Baker LJ at the Court of Appeal said:
“Although Holley is a decision of the Privy Council, and Morgan Smith a decision of the
House of Lords, neither side [in the case] has suggested that the law of England and
Wales is other than set out in the majority opinion given by Lord Nicholls in Holley and we
have no difficulty in proceeding on that basis.”
A five-strong Court of Appeal went further in James[2006] EWCA Crim 14 holding that, because
in Holley all nine members of the Privy Council were Lords of Appeal in Ordinary, six of whom
agreed (and those six constituted half of the Law Lords at the time) and all nine agreed that the
decision had definitively clarified the law (notwithstanding the dissents on what the law should
be), the inferior courts were bound to prefer that Privy Council decision over an earlier
conflicting decision of the House of Lords. In effect, Holley has overruled Smith (Morgan).
6.1.2 OTHER FACTORS
TEXT BOOK ACTIVITY
If you have not done so already please read the discussion of the objective test in
Criminal Law - The Fundamentals.

2009 Criminal Law
• • • •
History and circumstances
To appreciate the gravity of provocative conduct, you must view it in its context. A relatively
innocuous remark or action may take on an entirely different colour according to whether it is
viewed in isolation or in context. Thus ‘last straw’ provocations can revive past provocations. An
example is provided by Horrex [1999] Crim LR 500, CA where the provocation (violence and
threats by the victim against G) had to be viewed in the light of D’s very close relationship to G
whom he regarded as a mother figure. That was central to judging the seriousness of the
provocation on him and whether his loss of self-control ought in fairness to be excused.
Must the retaliation be reasonably proportionate to the provocation?
ACTIVITY
Can anyone, even a reasonable person, who has lost their self-control, keep their
retaliation proportionate to the gravity of the provocation?
It is now clear that s. 3, in leaving the reasonable man issue entirely to the jury, has relegated
this invariable legal rule into becoming simply one factor which the jury must take into account
in deciding if the reasonable man would have done as D did (see Brown [1972] 2 All ER 1328,
CA and DPP v Camplin). This is hardly a surprising development given that s. 3 expressly states
that provocation can be by words alone. If the provocation is simply words of abuse, then any
killing in response to those words is seriously disproportionate to the provocation. Nonetheless,
a seriously disproportionate retaliation will clearly make it more difficult for the jury to say that
a reasonable man would have done as D did.
Self-induced provocation
The Court of Appeal in the subsequent case of Johnson [1989] 2 All ER 839 held that the fact
that the provocation was self-induced could not prevent the issue being left with the jury and
was simply one factor for the jury to consider in deciding whether a reasonable man would have
done as D did.
ACTIVITY
Now please return to the activity at the beginning of the provocation discussion to
ensure you can answer the questions set out by reference to the relevant legal
principles.

2009 Criminal Law
• • • •
6.1.3 SUICIDE PACTS
Please read the relevant section in your textbook. Suicide pacts are not examinable.
7. INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter is confined to unlawful homicides which are committed without

malice aforethought. In Andrews v DPP [1937] AC 576 the dilemma was described by Lord
Atkin (at p. 581):
. . . of all crimes manslaughter appears to afford most difficulties of definition, for it concerns
homicide in so many and so varying conditions . . . the law . . . recognises murder on the
one hand based mainly, though not exclusively, on an intention to kill, and manslaughter on
the other hand, based mainly, though not exclusively, on the absence of intent to kill, but
with the presence of an element of unlawfulness which is the elusive factor.
There are probably three circumstances where the element of unlawfulness is present:
(a) killing by gross negligence;
(b) unlawful act manslaughter (constructive manslaughter)
(c) killing with subjective recklessness
7.1 KILLING BY GROSS NEGLIGENCE
For this form of manslaughter the law seems to require gross negligence on the part of D as to
death or (possibly) grievous bodily harm for a conviction, i.e. D had failed to guard against a
very obvious risk of death or GBH. In Bateman (1925) 19 Cr App R 8 Lord Hewart made the
famous statement that criminal ‘negligence of the accused went beyond a mere matter of
compensation between subjects, and showed such a disregard for the life and safety of others
as to amount to a crime against the state, and conduct deserving punishment’.
7.1.1 The Present Law
ACTIVITY
Read the extract from Adomako in Text and Materials and identify the requirements
laid down for gross negligence manslaughter.
a)
b)
c)

2009 Criminal Law
• • • •
To put these principles into context please read Criminal Law – The Fundamentals ‘the current
law’ and complete the following chart.
Adomako
Prentice and Sullman

[1993] 4 All ER 935
Holloway
(a) Duty of care
ACTIVITY
How does the court decide whether a duty of care is owed by D to P? You should have
gleaned this from your reading of Adomako.
The law of torts determines if a duty is owed to the victim. A test based on tortious duty in
relation to positive acts, in practice, adds nothing to the basic requirement of gross negligence
because, in tort (but not in criminal law), the duty to take care to avoid injury by a positive act
to anyone in the vicinity is so wide-ranging.

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
In Wacker [2003] Crim LR 108 how did the D try to defend a charge of gross
negligent manslaughter?
Who decides whether a duty of care is owed to the victim, the judge or the jury?
For the answers to these questions please see Criminal Law – The Fundamentals ‘D
owed V a duty of care’ continuing on to read ‘The breach involves a risk of death’
(b) Breach causes death
The causation requirement is straightforward and dealt with in accordance with principles
explained at chapter two.
(c) Grossly negligent breach
The central issue is (unsurprisingly) whether D’s conduct is bad enough to be designated
grossly negligent. This is an objective test since D’s conduct is to be judged against an
external standard. An integral question that has not been adequately answered by the courts is
the meaning of gross negligence. Turning to Adomako for their Lordships’ view of the meaning
of ‘gross negligence’, we find remarkably little of substance. Whether D is grossly negligent:
will depend on the seriousness of the breach . . . in all the circumstances in which the
defendant was placed when it occurred . . . The jury will have to consider whether the extent
to which the defendant’s conduct departed from the proper standard of care incumbent upon
him . . . was such that it should be judged criminal . . . This is necessarily a question of
degree and an attempt to specify that degree more closely is . . . likely to achieve only a
spurious precision. The essence of the matter, which is supremely a jury question, is
whether, having regard to the risk of death involved, the conduct of the defendant was so
bad in all the circumstances as to amount in their judgment to a criminal act or omission.
In R v Misra [2004] EWCA Crim 2375, two doctors were convicted of manslaughter by gross
negligence after their patient died from toxic shock syndrome, which could have been treated
with a dose of antibiotics. The Court of Appeal confirmed that the risk to which the victim must
be exposed is a risk of death and nothing less.

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
Can D’s state of mind be taken into account when this objective assessment is
being made?
For the answer to this question please read the remainder of the discussion of
gross negligence manslaughter in Criminal Law – The Fundamentals.
Conclusion
Ultimately, the test for gross negligence is an elastic standard which is not capable of exact
definition because of the vast range of fact situations with which it has to deal. However, this
does not justify the almost complete absence of guidance on the meaning of gross negligence in
Adomako and you should spend some time considering the challenges made to the doctrine set
out in your textbook.
7.2 UNLAWFUL ACT MANSLAUGHTER
TEXT BOOK ACTIVITY
Read the extract from the case of DPP v Newbury [1976] 2 All ER 365, HL in Text and
Materials.
State the elements of the offence of manslaughter when committed by an unlawful

act.
a)
b)
c)
d)
If you cannot answer this question please refer to Criminal Law – The Fundamentals
‘Constructive manslaughter’

2009 Criminal Law
• • • •
(a) Intentionally doing an act
It is most important to realise that ‘intentionally’ refers to the doing of the act, not to the
harmful consequences which flow from the act. As such, it really adds nothing to the notion of
doing an act since the very notion of acting implies that the movements are deliberate.
ACTIVITY
What was the intentional act performed by the D’s in Newbury?
By stating that an act must be performed which manner of committing the actus
reus is excluded from unlawful act manslaughter?
Intentional omissions are excluded from the definition (see Lowe). This has been a contentious
point - can you see any moral distinction between these types of conduct – is it any worse to kill
a child by striking it (a positive act) than by starving it (an omission)?
(b) The act is unlawful
The intention act which forms the basis for this form of manslaughter must be, in and of itself,
unlawful. It is irrelevant whether or not D realised that his intentional act was unlawful.
Ignorance of the law is no excuse.
TEXT BOOK ACTIVITY
Case law has established two restrictions to unlawful act manslaughter by way of
the unlawful element? What are these restrictions?
For the answer to this question see Criminal Law - The Fundamentals ‘The act is
unlawful’ paying particular attention to the cases of Franklin (1883) 15 Cox CC
163 and Andrews v DPP [1937] 2 All ER 552, HL.

2009 Criminal Law
• • • •
Examples of unlawful acts
The unlawful act is commonly an assault or a battery; however liability may be founded upon
any criminal offence, for example.
• Criminal damage - DPP v Newbury (although the court failed to articulate this)
• Administering a noxious thing - Cato [1976] 1 All ER 260.
• Arson - Goodfellow (1986) 83 Cr App R 23, CA.
• Unlawful injection of the prescription drug - Andrews [2003] Crim LR 477.
In order to be an unlawful act, both the actus reus and any necessary mens rea must be
present otherwise the act would not be unlawful. This is well illustrated by the case of Lamb
[1967] 2 All ER 1282, CA , the facts of which you should be familiar with from your earlier
reading. Here, although D performed the actus reus of battery when the bullet struck the
victim, it was not the offence of battery because he did not intend to apply force to the victim
nor did he realise, because of his stupid mistake, that he might apply force to the victim.
ACTIVITY
Why was there no physical assault?
Could D be convicted of manslaughter under the other head?
In R. v D [2006] 2 Cr. App. R. 24, the defendant was acquitted of constructive manslaughter on
the basis that the prosecution could not prove that D had satisfied both the actus reus and
mens rea of the base crime. It was the prosecution case that D had caused his wife to commit
suicide through years of domestic abuse. However, the prosecution was unable to prove that he
had inflicted a recognised psychiatric illness. The Court of Appeal agreed that the Crown was
under an obligation to show that D had maliciously inflicted a recognised (and serious)
psychiatric illness or injury, which led to the victim's death. In principle, the Court accepted that
it is possible to be convicted of manslaughter by causing another to take their own life,
dependent on proof of the actus reus and mens rea of an unlawful act.
(c) The act is dangerous
Only acts which are dangerous in the sense of being likely to cause harm to another person
count as unlawful acts for this purpose.

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Read the extract from Church [1965] 2 All ER 72, CA Text and Materials and state
whether dangerousness is tested subjectively or objectively.
It is integral to understand that this is an objective test. If you did not identify this, it worth
going back to Chapter 3 and reviewing the difference between subjective and objective in the
context of recklessness. By this stage of your course, you should be finding the difference easy
to identify.
When we are dealing with the reasonable person one question that arises is the knowledge
given to that reasonable person.
TEXT BOOK ACTIVITY
Text Book Activity
Please read Criminal Law – The Fundamentals ‘The act is dangerous’ (you may find it
useful to supplement your knowledge with the commentary following Newbury in
Text and Materials) and complete the following grid with the legal principles
established in these three key cases.
Dawson (1985) 81 Cr
App R 150
Watson [1989] 2 All ER

865, CA
Ball [1989] Crim LR

730, CA

2009 Criminal Law
• • • •
(d) The act causes death
Whether the unlawful act caused the death is determined in accordance with normal principles
of causation as previously discussed.
There is no requirement in recent case law that the death should be due to the element of
unlawfulness in D’s act as opposed to the act itself.
ACTIVITY
Suppose D knocks down and kills a pedestrian by careless driving. Would this be
unlawful act manslaughter?
Suppose D is at the time, as he well knows, uninsured or disqualified from driving

under the points system. Would this be unlawful act manslaughter?
In the first case, although the act is objectively ‘dangerous’, causes death and is criminal
(driving without due care and attention), it would not be ‘unlawful’ for the purposes of the
doctrine. It would fall within the ‘negligence’ exception in Andrews v DPP. Unless the
carelessness was so extreme as to amount to gross negligence under the other head of
involuntary manslaughter, it would not be manslaughter on that account. In the second
situation, D intentionally commits the offence of driving whilst uninsured (or disqualified). The
act is dangerous and, if the element of dangerousness does not have to be causally linked with
the unlawfulness, D would satisfy the requirements and be convicted, even if his driving was
exemplary! This possibility helps to illustrate the potential for absurdity in the current rules and
suggests that some limitation along these lines ought to be articulated.
OTHER ISSUES
Killing by supplying drugs
It is all too common for a drug user, or addict, to die from taking illegal drugs. The question
that the court has had real difficulty in dealing with is whether the person who supplied the
drugs (i) committed an unlawful act in the act of supply and (ii) whether the supply caused the
death of the victim.
TEXT BOOK ACTIVITY
Please read the discussion of manslaughter by supplying drugs in Criminal Law –

The Fundamentals – paying particular attention to the completed drug case grid.

2009 Criminal Law
• • • •
The leading case is now Kennedy [2007] UKHL 38 where D prepared the syringe for V and V
self-injected. The following question was certified for the House of Lords;
‘When is it appropriate to find someone guilty of manslaughter where that person has been
involved in the supply of a class A controlled drug, which is then freely and voluntarily self-
administered by the person to whom it was supplied, and the administration of the drug then
causes his death?’
Their Lordships answered ‘In the case of a fully-informed and responsible adult, never’. This
decision hopefully clarifies an area of the law that has previously been riddled with
inconsistency.
Must the act be directed at another?
Although Dalby [1982] 1 All ER 916 invented an extra requirement that the unlawful act must
be ‘directed at another’ DPP v Newbury never mentioned this. It was not therefore a surprise
when the Court of Appeal in Goodfellow (1986) 83 Cr App R 23 and Attorney-General’s
Reference (No. 3 of 1994) rejected the requirement.
ACTIVITY
To consolidate your knowledge of involuntary manslaughter please complete the

table at the end of this chapter – you may find it useful to attempt this as a
revision exercise.
7.3 RECKLESS MANSLAUGHTER
ACTIVITY
Does Adomako mean that there is now no such thing as reckless manslaughter?
Although it is not discussed in Adomako, it is likely that a form of manslaughter based on

subjective recklessness survives. You may recall that Stone and Dobinson held that
subjective recklessness as to ordinary injury (i.e. not death or even serious injury) was
sufficient for manslaughter. Adomako expressly approved Stone in its use and definition of
‘reckless’.

2009 Criminal Law
• • • •
ACTIVITY
Since the decision in Moloney the mens rea for murder does not include foresight
by D that death or serious harm is likely. Mrs Hyam, who set fire to a house
killing two child occupants, might not be guilty of murder (although a finding of
intention is possible – see Woollin). In that case, she should obviously be guilty
of manslaughter.
On what basis?
Do you think it would be accurate to regard it as the same as gross negligence

manslaughter?
It is obvious that there should be a form of homicide where D is subjectively recklessness to

catch these ‘nearly murder’ cases. Most commentators would, however, prefer to limit this to
subjective awareness of the risk of death or, at most, the risk of serious harm. Please see
Lidar (1999) 4 Archbold News 3, for the current test for reckless manslaughter.
The Law Commission considers that reckless manslaughter is no longer be required as a

separate fault element as the remaining killings which currently fall under the umbrella of
reckless manslaughter would fall within gross negligence manslaughter; if D realises there is a
risk of death but unjustifiably carries on with his conduct that is gross negligence. In the view of
the Law Commission, therefore, cases such as Lidar would, in future, be prosecuted under gross
negligence manslaughter (above).
8. CRITIQUE OF INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter has attracted a great deal of criticism. You will find a number of
references for further reading at the end of the homicide chapter in your textbook. You may
also find it valuable to read the extract from C.M.V. Clarkson’s article “Context and Culpability in
Involuntary Manslaughter; Principle or Instinct” in the Text and Materials.
9. REFORM
All forms of manslaughter discussed here have been subject to suggestions for reform found in
a number of documents, including the Law Commission Report ‘Partial Defences to Murder’ (Law
Com No 290, 2004) and the 2006 report, ‘Murder, Manslaughter and Infanticide’(Law Com No
304, 2006). The result has been a proposed ladder of offences detailed at the beginning of the
homicide chapter in your textbook.

2009 Criminal Law
• • • •
Study Checklist
• define the basic actus reus ingredients of homicide
• distinguish between murder, voluntary manslaughter and involuntary manslaughter;
• analyse the requirements for the defences of provocation and diminished responsibility;
• describe the rules governing gross negligence manslaughter;
• identify the offence of subjective reckless manslaughter;
• identify the principles governing unlawful act manslaughter;
• comment on the shortcomings of these offences and comment upon proposals for the
reform of the homicide laws.

2009 Criminal Law
• • • •
Offence Elements Cases and Commentary
Unlawful Act Intentional act

manslaughter
Which is unlawful
Which is dangerous
Which causes death
Gross Duty of care

negligence
manslaughter
Breach involves a
risk of death
Causes death
“So bad it is a crime”

2009
• • • •
Criminal Law
2010 SECONDARY PARTICIPATION IN CRIME
• Secondary participation in crime
1. OBJECTIVES
• Identify the perpetrator(s) of a crime and any secondary participants in it;
• Define what conduct amounts to secondary participation in crime;
• Analyse the mens rea required of an accessory and distinguish this from the mens rea
required of the perpetrator;
• Describe the rules applicable to joint enterprise.
• This study guide.
• McAlhone and Huxley-Binns, Criminal Law – The Fundamentals, 2007, Sweet and
Maxwell, Chapter Eleven.
• Clarkson and Keating, Criminal Law – Text and Materials, 6th Edition, 2007, Sweet
and Maxwell, Chapter Six.
Students commonly find this a difficult area of the law, primarily due to a lack of clarity in
the legal principles. Consequently it is integral you perform the directed reading and
activities within the chapter to fully understand this topic.
3. INTRODUCTION
The first issue you must understand in your study of accessorial liability is the terminology
you will find in this chapter. Firstly, a person who performs the actus reus of a crime is
known as the perpetrator or the principal of that crime. If the actus reus is performed by
more than one person jointly, then they will be joint principals. Secondly, perpetrators of
crimes often have accomplices who assist or encourage them in the commission of the
crime and these are known as accessories to the crime or secondary parties to it and are
‘liable to be tried . . . and punished as a principal offender’.
2009 Nottingham Law School Page 105

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
Please read the introduction and discussion of ‘Distinguishing accessories from

principles’ in Criminal Law – The Fundamentals.
Innocent agent
The perpetrator is then the person who physically performs the actus reus and is its most
immediate causer. However, exceptionally, D may be regarded as the perpetrator even
though the actus reus was performed by another. This arises where D uses an ‘innocent
agent’ to perform the actus reus for him.
ACTIVITY
Can you think of a situation where the actus reus of an offence is performed by an
innocent agent?
Please read the discussion of innocent agents in Criminal Law – The

Fundamentals.
4. ACCESSORIES
Section 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act
1977, provides:
Whosoever shall aid, abet, counsel or procure the commission of any indictable offence .
. . shall be liable to be tried, indicted and punished as a principal offender.
Section 44 of the Magistrates’ Courts Act 1980 contains a similar provision in relation to
summary offences.

2009 Criminal Law
• • • •
4.1 Actus Reus
ACTIVITY
Read the case of Attorney-General’s Reference (No. 1 of 1975) [1975] 2 All ER

684, CA in Text and Materials.
(a) What was the charge?
(b) How did Lord Widgery CJ describe the fours terms aid, abet, counsel and
procure?
(c) One word is especially different to the other three. Which one? Why?
ACTIVITY
Please read Criminal Law – The Fundamentals ‘Who is an accessory’ and complete
the following grid.
Brief Case Consensus? Causation?

definition Examples Yes/No Yes/No
Aid
Abett
Counsel
Procure

2009 Criminal Law
• • • •
What constitutes ‘assistance or encouragement’?
As you will have discovered, apart from the special case of ‘procuring’, A must have given
assistance or encouragement in order to be convicted as accessory to a crime. Assistance or
encouragement may occur in any number of ways, For example
• Driving the perpetrator to the scene of the crime - DPP for Northern Ireland v Lynch
[1975] 1 All ER 913
• Holding a woman down whilst she is raped - Clarkson [1971] 3 All ER 344, C-MAC
• Cheering and clapping an unlawful concert - Wilcox v Jeffrey [1951] 1 All ER 464, DC
• Opening a bank account to enable the perpetrator to pay in forged cheques -

Thambiah v R [1965] 3 All ER 661, PC.
• Supplying equipment or information for use in the commission of a crime - NCB v

Gamble [1958] 3 All ER 203, DC.
Presence
A question which has exercised the courts several times is whether mere presence at the
commission of the offence without more constitutes assistance or encouragement.
ACTIVITY
In the film The Accused, starring Jodie Foster, a woman was held down and raped
in a café full of people. A number of people watched these events, some clapping
and cheering. Anyone holding a woman down would aid and abet the rape, but
would the spectators?
Please read Criminal Law – The Fundamentals ‘Actus reus of Secondary Liability’
for the answer to this question.
It is clear that a mere accidental spectator of the commission of an offence will not without
more be an accomplice. If he does an act of positive assistance or encouragement (such as
the clapping and cheering of the spectators), then the spectator can be convicted as an
accessory, even though his initial presence was entirely accidental. If the accused was
present pursuant to a prior agreement that the offence be committed, there is no doubt that
his mere presence would constitute encouragement without the necessity for the
prosecution to prove that he did anything further (Smith v Reynolds [1986] Crim LR 559,
DC).

2009 Criminal Law
• • • •
ACTIVITY
Is actual encouragement all that the prosecution needs to prove to win its case?
Even if the presence is construed as being an actual encouragement, this will only establish
the actus reus. In addition, mens rea is required. In this context, that means that the
prosecution must prove that A intended to encourage the perpetrator to commit the crime.
This was stressed in Clarkson where it was noted that even if presence did in fact encourage
the perpetrator, the accused might not realise he was giving encouragement, nor intend to
do so. The reason why the conviction of the spectator at the illegal prize fight was quashed
in Coney was that the Appeal Court thought that the trial judge’s direction could have been
understood to mean that his voluntary and deliberate presence was conclusive evidence of
such intention. It could have been somebody who was totally opposed to prize fighting.
Allan shows that a totally passive spectator at an affray who does not, by this presence,
intend to encourage the participants, cannot be convicted simply because he secretly
intended to join in the fight if the side he favoured needed help.
The principal offence
Subject to exceptions, since the accessory’s liability is derivative flowing from the liability of
the perpetrator, it is essential to prove that the principal offence that D is charged with
aiding, abetting, etc. was actually committed (see Thornton v Mitchell [1940] 1 All ER 339,
DC.)
What are the exceptions to the rule requiring proof of the actual commission of the offence
alleged to have been aided and abetted?
• Where the perpetrator and the accomplice are liable but for different crimes
This situation can arise where different offences share the same actus reus, e.g. murder and
manslaughter or ss. 18 and 20 of the Offences Against the Person Act 1861. According to
some authorities, it is possible for the perpetrator to be convicted of murder and the
accessory of aiding and abetting only manslaughter and vice versa, depending on whether
they have an intention to kill the victim. Lord Mackay in Howe [1987] 1 AC 417, HL gave
the following example: A gives D a gun informing him that it is loaded with blanks and
telling him to go and scare X by firing it. The ammunition is in fact live, as A well knows,
and X is killed. Even if D is convicted as perpetrator only of manslaughter because he lacks
any intention to kill or cause grievous bodily harm, four Law Lords agreed with the Court of
Appeal that A would nonetheless be guilty of aiding and abetting murder. Conversely, the
perpetrator of the offence could be guilty of murder and the accessory of manslaughter if it
was the accessory who thought that the ammunition was blank and the perpetrator who
knew that it was live.
In the case of murder and manslaughter, it is possible that even though both the
perpetrator and accessory have the mens rea for murder, one of them may have the
defence of provocation or diminished responsibility reducing their crime to manslaughter. It
would appear that the other party, whether perpetrator or accessory, would nonetheless be
guilty of murder. This is expressly provided for in the case of diminished responsibility by s.
2(4) of the Homicide Act 1957 and the implication of Howe is that the position would be the
same in respect of provocation.

2009 Criminal Law
• • • •
• Perpetrator not liable because he has a defence
In this situation, the perpetrator causes the actus reus of the offence and has the mens rea
but is not guilty because of the existence of some defence. Can the accomplice be guilty of
aiding and abetting the offence, even though the perpetrator does not, because of the
defence, commit it?
ACTIVITY
Read the extract from Bourne (1952) 36 Cr App R 125, CCA in Text and Materials.
Do you agree with the Lord Chief Justice that Mrs Bourne ‘committed the crime’
but is ‘excused punishment’ by virtue of duress?
• Perpetrator not liable because he lacks the mens rea
Here the perpetrator performs the actus reus of the crime but does not possess the
appropriate mens rea so that he commits no offence for example in Millward [1994] Crim LR
527 although the principle was acquitted due to lack of mens rea D was liable as the actus
reus has been committed.
ACTIVITY
Read the extract from Cogan and Leak [1975] 2 All ER 1059, CA in Text and
Materials and the commentary that follows the case.
a) Did A aid or abet, counsel or procure?
b) Why was D acquitted?
c) Does D’s acquittal effect A’s liability?
d) Is the Court of Appeal correct that A could have been charged as principal? It is
worth thinking about this question!
Suppose A had been female! Section 1(1) of the Sexual Offences Act 1956 provided that
only a man can commit rape as principal (though obviously a woman can be an accessory
as held in DPP v K and B, e.g. if she holds the victim down). The better view is that innocent
agency has no application in rape.
4.2 Mens rea
The mens rea needed for accessorial liability is uniquely complex in having a dual focus. Not
only is there the usual requirement to establish fault in respect of the accessory’s own acts
including the circumstances surrounding them but also his awareness of the intentions of

2009 Criminal Law
• • • •
the perpetrator. Where the assistance occurs beforehand, there is always an element of
unpredictability in what the perpetrator is going to do.
Isolating these two elements, we can summarise the essential requirements: A must
(a) intentionally do the acts of assistance or encouragement done, realising they are
capable of assisting or encouraging the perpetrator to do what constitutes the crime; and
(b) knowledge of the essential matters of the principle offence.
If A is charged with procuring, then it is submitted that he must also intend, by his acts, to
bring about the commission of the crime.
(a) Intention to do acts of assistance/encouragement
This first element of the mens rea does not require that it is the accessory’s purpose that
the crime be committed, just that he intentionally does acts which he knows to be
capable of assisting/encouraging the perpetrator to commit the crime. According
to Bryce [2004] EWCA Crim 1231, it requires “intentional assistance in the sense of an
intention to assist (and not to hinder or obstruct) the perpetrator in acts which the
accessory knows are steps taken by the perpetrator towards the commission of the
offence.”
The accessory therefore need only do acts that he knows to be capable of assisting or
encouraging the perpetrator to commit the crime. What this means is that ‘intention’ turns
out to be in essence subjective recklessness because it is enough that A realises that his
conduct does, will or might well assist or encourage the perpetrator.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals’ from ‘Mens Rea of Secondary
Liability to ‘The knowledge required of an accessory’.
(b) Knowledge of the principal offence
From your reading you will have noticed that this aspect is less than clearly defined. It is
worth adhering to the sub-categories expressed in your textbook and this is the approach
that will be adopted in the following discussion.
Knowledge of the essential matters
What do we mean by knowledge? To be an accessory A must ‘know the essential matters

which constitute that offence. He need not actually know that an offence has been
committed, because he may not know that the facts constitute an offence and ignorance of
the law is not a defence’ (Lord Goddard CJ in Johnson v Youden [1950] 1 All ER 300, DC).
The ‘essential matters’ referred to mean all the circumstances required by the actus reus
of the offence, any consequences necessary for the actus reus and any mens rea or fault
element required by the perpetrator to commit the offence.

2009 Criminal Law
• • • •
The accessory must know that there is a significant risk or, possibly a likelihood, that
(a) D is going to do the acts constituting the crime and

(b) all the ingredients (‘the essential matters’) of the crime will be present.
Knowledge of the essential matter merely means that the accessory must forsee as a real
possibility that the principle might commit the principle offence.
ACTIVITY
Suppose A supplied a gun to D knowing that it would be used in an armed robbery.

If D shoots someone dead in the course of the robbery, what would the
prosecution need to prove in order to make (a) D guilty of murder and (b) A guilty
as an accessory to murder?
If subjective recklessness suffices to fix liability on the accessory, it creates the unusual
situation that his mens rea may be less than that required for the perpetrator. In the above
example the accessory would be guilty of murder if (a) the perpetrator shot the victim with
the intention of killing or causing grievous bodily harm and (b) the accessory realised when
supplying the gun that there was a significant risk that the perpetrator might use it to
deliberately (i.e. with the mens rea for murder) kill someone in the course of the robbery.
Of course, the actual perpetrator can only be convicted of murder if he intended to kill or
cause grievous bodily harm. It would not be enough that he realised there was a significant
risk of killing, e.g. from a ricochet of a bullet fired to frighten (see Reardon [1999] Crim LR
392, CA).
Must A’s knowledge extend to knowing the exact offence which P is to commit?
The law does not require knowledge of the precise details of the particular crime to be
committed. If A supplies the perpetrator with a jemmy, asking no questions but realising
that it is likely to be used for some criminal purpose, it would not be fair to convict A of
aiding and abetting murder if the perpetrator used the jemmy to attack and deliberately kill
someone. It could not be said that A intentionally aided D to commit that crime.
According to Bainbridge [1959] 3 All ER 200, CCA it is sufficient to prove that A knew the
‘type of crime’ to be committed. If the perpetrator uses a jemmy supplied by A to break into
a house, will A be guilty of aiding and abetting the burglary if the perpetrator intended to
inflict GBH on someone in the house when A believed that he intended to steal from the
house to be broken into?

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Read the extract from DPP v Maxwell [1978] 3 All ER 1140 in Text and Materials.
• Did the House of Lords approve the Bainbridge principle?
• Did the House depart from it in any way?
• How would you formulate the principles applicable after DPP v Maxwell?
It will be evident that problems under this head tend to arise when the defendant’s
assistance or encouragement occurs prior to the commission of the offence since, if it is
given at the time the offence is being committed, A will be well aware of the precise offence
being committed. However, a similar problem can arise where the parties embark on a joint
unlawful enterprise and one of the parties departs from the joint enterprise agreed and
perpetrates a further crime. The question then is whether A would be liable as an accessory
for that further crime?
ACTIVITY
At this point you might find it useful to draw out a revision grid of the mens rea
requirements under s. 8, for example:
Case example(s) Commentary
Intention to do acts of
assistance/encouragement;
A realises his act might
assist
Knowledge of the essential

matters of the principal
offence
Knowledge of the type of

crime

2009 Criminal Law
• • • •
5. JOINT UNLAWFUL ENTERPRISE
In many cases, two or more people will embark on a joint enterprise to commit a crime
which they have planned and agreed beforehand. The essential ingredient of joint enterprise
is a shared common purpose – ‘a shared common intention . . . each has the same
intention as the other and each knows that the other intends the same thing’ – Petters and
Parfitt [1995] Crim LR 501, CA (our emphasis). The rule is that each party is liable for
whatever crimes the others commit which come within the scope of the common purpose
or design. Thus, if D1 and D2 commit a robbery at a petrol station, with D3 remaining in a
car as a get-away driver, all will be liable for the acts expressly or impliedly agreed upon by
all parties as part and parcel of the common design.
There is some debate about whether this area of law is a distinct form of liability. The better
view, however, seems to be that it is a (perhaps illegitimate) extension of the standard law
on aiding, abetting, counseling and procuring – in the words of Professor Smith ‘a bastard
appendage’ to it ((1994) 144 NLJ 679, 682). It is, however, common ground that joint
enterprise does import special rules which relax the normal requirements for accessorial
liability. The precise extent to which they differ has never been properly analysed by the
courts and is rather uncertain.
Issues arise when one defendant goes further than the agreed common design. What, in
that case, is the liability of the other participants? For the answer to this question we need
to examine the forms of departure that may take place during these joint enterprises.
Accidental departure
It is possible for parties who are endeavouring to carry out the common purpose, to go
beyond it accidentally. The rule is that if D’s acts are within the scope of the enterprise so
that A is responsible for them, A is also responsible for any unforeseen consequences of
those acts to the same extent as D (Baldessare (1930) 22 Cr App R 70, CCA).
It will be seen that this accidental departure principle forms an exception to the general rule
in Bainbridge that, to be convicted, the accessory must know the type of crime to be
committed.
Deliberate Departure
ACTIVITY
Imagine that you agree to break into a warehouse with Bonnie and Clyde. When
leaving the warehouse, you are challenged by a security guard. Bonnie pulls out a
gun and deliberately shoots the guard dead. Should you be guilty of murder if you:
(a) had no idea B and C were carrying weapons;
(b) knew B and C were carrying weapons;
(c) knew B and C were carrying weapons but they had agreed they would be
used only to frighten;
(d) knew B and C were violent people who had used guns to murder people
before but you did not know whether they were carrying guns on this
occasion?

2009 Criminal Law
• • • •
You will find the answers to this below.
An example of a deliberate departure is provided by Davies v DPP [1954] 1 All ER 507, HL.
A was a willing participant in a pre-arranged gang fight on Clapham Common which ended
with one of the rival gang being stabbed to death. It was held that A was not an accomplice
to manslaughter because he did not know that the perpetrator was carrying a knife and the
scope of the joint enterprise was limited to assaulting with fists. However, suppose that A
had known that the perpetrator was carrying a knife. Clearly, if A had tacitly agreed to the
use of the knife if necessary, then its use would be part of the common purpose and A
would be liable to the same extent as the perpetrator. Such tacit agreement would normally
be inferred from proof that A knew that the knife was being carried. Use of the knife would
not be a departure from the common purpose.
Foresight of possible departure
Furthermore, it appears from the House of Lords’ decision in Powell; English [1997] 4 All ER
545 that, even if A does not agree, tacitly or otherwise, to the use of the knife, where ‘one
party foresees that in the course of the enterprise the other party may carry out, with the
requisite mens rea, an act constituting another crime, the former is liable for that crime
if committed by the latter in the course of the enterprise’.
TEXT BOOK ACTIVITY
This is a complicated area of law and it is worth you finding time to read the case
of Powell; English [1997] 4 All ER 545 in Text and Materials and the commentary
that follows it. You need to focus in particular on what falls within and what falls
outside the common purpose.
Please also read ‘Liability for unintended consequences’ points (a) to (c) in
Firstly, if A goes along with the joint enterprise realising that D may intentionally kill in the
course of the enterprise, A will be liable for murder if D does so kill (or attempted murder if
D tries but fails to kill – O’Brien [1995] 2 Cr App R 649, CA). A is an accessory and satisfies
both the actus reus and mens rea, because he ‘has in those circumstances lent himself to
the enterprise and by so doing he has given assistance and encouragement to the
perpetrator in carrying out an enterprise which [A] realises may involve murder’ (Hyde
[1990] 3 All ER 892, CA).
According to Powell, A need only foresee the crime as a ‘possible incident of the joint
venture, unless the risk was so remote that the jury take the view that the secondary party
genuinely dismissed it as altogether negligible’. As we saw at above, this principle may also
apply to non-joint enterprise accessories (Reardon).
Please note that a ‘normal’ accessory under section 8 above must be proved to have
assisted or encouraged the particular crime charged (murder, in our example). However, a
joint enterprise accessory’s assistance or encouragement of the enterprise itself suffices,
and this may be a common law rule or an aspect of section 8 itself (which it is has not been
made clear by the judiciary). There is no need to show an accessory to a common purpose
did any specific acts of assistance or encouragement for the crime committed in the course
of the enterprise which departs from its common purpose. Essentially, given the appropriate
2009 Criminal Law
• • • •
foresight, his assistance or encouragement of the crime within the common purpose counts
as assistance or encouragement of the crime outside it.
It follows that, on the current law, the situations in our last activity would be resolved as
follows:
(a) Not guilty. The shooting was outside the common purpose and not contemplated.
(b) Guilty. The court would infer your tacit agreement to the use of weapons unless there
is evidence to the contrary. Therefore the shooting to kill or cause GBH was within the
common purpose. Even if there is evidence to the contrary, you would be liable if you
realised B or C might deliberately shoot to kill or cause GBH.
(c) Guilty, if you realised that there was a real risk that B or C might deliberately shoot to
kill or cause GBH, notwithstanding that the shooting was outside the common purpose.
(d) Guilty, if you realised that there was a significant risk that B or C would murder with a
deadly weapon, if challenged in the course of the break-in.
Foresight and murder
ACTIVITY
But if A is guilty of murder because he realises D might, if necessary, intentionally

kill during the course of a break-in, does that not contradict the assertion in
Moloney and Hancock that intention to kill or cause GBH alone suffices for murder?
Can it be right that a lesser mens rea is required for the accessory than for the
perpetrator?
Please refer to Powell; English [1997] for the answer to this question.
Unforeseen ‘fundamentally different’ acts
ACTIVITY
In English, it was assumed that A did not know D had a knife so that he did not
foresee that D would stab the policeman. Should A be liable for murder because he
realised that the policeman might be intentionally killed or intentionally seriously
injured by the beating with the posts?
Please read ‘Liability for unintended consequences’ point (d) in Criminal Law – The
Fundamentals.

2009 Criminal Law
• • • •
A will be responsible for D’s act even if he does not foresee it as potentially lethal and the
fact that he realises it will be done with the mens rea for murder – intention to do GBH –
will make him a party to murder if death does result, whether the death is foreseen or not.
If A is responsible for the act, he is also responsible for any of its consequences even if
unforeseen and unintended by D.
In English the policeman actually died from D’s stabbing with intent to kill or cause GBH.
This act was not contemplated as a possibility by A who did not know of the knife. The
House of Lords held that A needed to have at least foreseen an act of the type which
caused the death and ‘in the present case the use of a knife was fundamentally different to
the use of a post’ (cf. Gamble [1989] NI 268).
The Powell; English principle applies not only to pre-planned crimes but also to a
spontaneous attack by an irrational group of individuals all intent on doing serious harm to
the victim. If death is actually caused by an act fundamentally different to any
contemplated by the alleged accessories, they cannot be liable for murder even though they
were intent, by a ‘fundamentally different’ method, on causing GBH themselves.
The Court of Appeal has now provided some useful guidance for juries in the recent case of
Rahman and others [2007] EWCA Crim 342. In determining the "fundamentally different"
test in a case where the victim died during the course of an unlawful group attack the jury
should ask themselves;
(a) were the members of the jury sure that the defendants intended that one of the
attackers would kill the victim intending to kill him or that they realised that one of
the attackers might kill him with intent. If they were sure, a murder verdict would be
appropriate. If they were not sure,
(b) were they sure that the defendants realised either that one of the attackers
might kill with intent to cause really serious bodily harm, or that really serious bodily
harm would be caused, with or without intent? If they were sure,
(c) what was the act which caused the death, and
(d) did the defendant realise that one of the group might perform that act? If so, a
murder verdict would be appropriate. If not,
(e) what acts was the jury sure that the defendant realised that one of the attackers
might do to cause the victim really serious harm, and
(f) was the jury sure that those acts were not of a fundamentally different nature to
the act which caused the death? If so, a verdict of murder would be appropriate.
Please note the emphasis the court has placed here upon foresight of the act or of an act
not of a fundamentally different nature.
Use of a different weapon
It should not affect A’s liability that he contemplated an attack with one weapon where the
actual attack was with a weapon ‘different to, but as dangerous as’, the contemplated
weapon, e.g. a knife instead of the contemplated gun or vice versa. A post is clearly not as
dangerous as a knife!
In Uddin [1998] 2 All ER 744, the Court of Appeal did not rule that unforeseen use of a knife
in a combined attack was ‘fundamentally different’ from the use of clubs and kicks but only
that the issue should have been left to the jury for decision. Greatrex [1999] 1 Cr App R
126, CA took a similar line on the question of whether the use of a bar or spanner during a
concerted attack was ‘fundamentally different’ to the use of kicks with shod feet.

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
To consolidate your understanding so far, read the extract from the case of
Greatrex [1999] 1 Cr App R 126, CA and the commentary that follows upon the
Attorney-General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882 in Text and
Materials. In Attorney-General’s Reference
a) What did H foresee?
b) What did H not foresee?
c) What would H have needed to foresee to be guilty of murder?
d) What would H have needed to foresee to be guilty of manslaughter?
Liability for lesser offence?
Logically, if D’s act is fundamentally different from any act foreseen by A, it is outside the
scope of the joint enterprise and A cannot be in any way responsible for the act or its
consequences. The House clearly endorsed this principle in holding that English was not
guilty of either murder or manslaughter and it was applied subsequently by the Court of
Appeal in Uddin.
That is the position where the act causing death is quite different from any act envisaged by
A whether because, say, a surprise weapon is used or a known weapon is used in an
entirely different way (e.g. the kneecapping example). But there is another situation
unresolved by English.
ACTIVITY
Suppose that A, a bookmaker, employs D to rough up P to encourage P to pay A a

gambling debt. He stresses that D must not hurt him badly since this is more in
the way of a warning. Contrary to instructions, D savagely attacks P and
intentionally causes him serious injury. D is convicted of causing GBH with intent
to cause GBH contrary to s. 18 of the OAPA 1861.
• Would A be guilty of the s. 18 offence?
• If not, would he be guilty of maliciously inflicting GBH contrary to s. 20 of the

OAPA 1861?

2009 Criminal Law
• • • •
This factual situation is similar in principle to that in Wan and Chan [1995] Crim LR 296, CA.
Clearly, D’s attack is a deliberate departure from the joint enterprise and not part of the
common design. Nonetheless, if A contemplated that there was a real risk that D might
intentionally cause GBH, he would be liable for the s. 18 offence under Powell. If he was
not aware of this then, in strict theory, he should not be liable for any lesser offence even if
he contemplated that such lesser offence might be committed by the perpetrator (Wan and
Chan; Dunbar [1988] Crim LR 693, CA). The reason is that the nature of the attack (beating
with intent to cause GBH) was unauthorised and unforeseen and, as it was a deliberate
departure from the plan, A is totally absolved from responsibility for such acts and their
consequences. A is not, on this view, an accessory to any offence because no criminal acts
contemplated by A were performed by the perpetrator. He could be convicted of conspiracy
to commit an assault occasioning actual bodily harm (which was what was agreed to be
done) and inciting such an offence.
In Stewart and Schofield [1995] 3 All ER 159, the joint enterprise was to rob P at his shop.
D went armed with a scaffolding pole and A1 with a knife. A2 kept watch outside the shop.
P was beaten to death with the pole. D pleaded guilty to robbery and murder. A1 and A2
were acquitted of murder but convicted of manslaughter. A1 and A2 appealed contending
that D’s beating with murderous intent was neither part of the agreed common design nor
contemplated by A1 and A2 as a possible departure from it. The court dismissed the appeal
holding that, even though the jury’s verdict that A1 and A2 were not guilty of murder meant
that the jury accepted that A1 and A2 did not contemplate killing by D with the mens rea for
murder, this did not compel the court to find that D had acted outside ‘the course of’ the
joint enterprise (by which the court presumably means outside ‘the scope of’ the joint
enterprise). It was apparently up to the jury to decide this as a question of fact. Once it
decided that D’s acts were still within the ‘course’ (scope?) of the enterprise, A1 and A2
would be responsible for those acts and their consequences. However, since they lacked any
intent to kill or cause GBH and did not contemplate that D would have any such intent, they
could only be convicted of manslaughter.
The case is in conflict with Wan and Chan and a number of other cases. However, there is
another line of cases, including Reid (1975) 62 Cr App R 109, CA, which supports it.
Does Powell; English help to resolve the conflict? Surprisingly neither Wan nor Stewart was
referred to in Powell. It appears from Powell that to take an act outside the scope of the
enterprise and thus absolve A from any responsibility for it, it has to be both
uncontemplated itself by A and fundamentally different from any other act that A has
contemplated.
CASE BOOK ACTIVITY
Read Gilmour [2000] 2 Cr App R 407 and the commentary that follows in Text and
Materials.
What did A foresee D might do?
What did A foresee D might be thinking when D did what A foresaw?
What was A’s liability?

2009 Criminal Law
• • • •
Essentially if the act committed by D is that envisaged by A, A will be guilty as accessory ‘of
the degree of offence appropriate to the intent with which he [A] so acted.’ Without giving
any examples, the Court thought it ‘conceivable . . . that in some cases the nature of the
principal’s mens rea may change the nature of the act committed by him and take it outside
the type of act contemplated by the accessory.’ In that case A would not be responsible for
the act at all and so could not be guilty of a lesser offence. Presumably it will be left to the
jury in each individual case to decide whether it is or is not an act of the nature
contemplated.
6. WITHDRAWAL FROM PARTICIPATION
An accomplice can avoid liability for an offence which he has assisted or encouraged by
making an effective withdrawal from participation before the offence is committed.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘Withdrawal of participation by

an accessory’ and complete the following grid.
You may find it useful to supplement your reading with the extract and
commentary upon Beccera (1975) 62 Cr. App. R. 21 in Text and Materials.
Case Example Brief facts Legal principle(s)
Rook [1993] 2 All ER

955, CA
O’Flaherty [2004] 2 Cr.

App. R. 20.
Grundy; Whitefield
(1983) 79 Cr App R 36
Robinson [2000] 5
Archbold News 2.
Beccera (1975) 62 Cr.

App. R. 212.

2009 Criminal Law
• • • •
ACTIVITY
What do you think an accessory would have to do in order effectively to withdraw

from the offence?
Should it be possible to withdraw, if the accessory has already given whatever

assistance he planned?
To what extent should an accessory have to take active steps to prevent the crime
which he has assisted in order to withdraw from it?
7. REFORM
TEXT BOOK ACTIVITY
Please read the passage detailing suggested reform in Criminal Law – The
Fundamentals

2009
• • • •
Criminal Law
2010 OFFENCES AGAINST PROPERTY I - THEFT
• Theft
1. OBJECTIVES
At the end of this study guide you should be able to:
• Define and analyse the basic ingredients of theft;

• Explain how each element interrelates with each other;
• Identify whether theft is committed in a given fact situation;
• Critically comment on the breadth of the offence.
Maxwell, Chapter Seven.
and Maxwell, Chapter Nine.
3. INTRODUCTION
Many people have a basic, and accurate, sense of what theft is. Examples of the most
common forms of theft include shop-lifting or, picking someone’s pocket.
The offence of theft exists in order to criminalise certain infringements of the civil law of
property (and contract and restitution). However, as we shall see, more recent cases
(notably those of the House of Lords) have taken an expansive, non-technical view of the
elements of the actus reus in theft (see e.g. Gomez and Hinks below), and this
‘simplification’ has created acute tension between the criminal law and the civil law.
The offence is denied in s. 1 of the Theft Act 1968.
Section 1 provides:
A person is guilty of theft if he dishonestly appropriates property belonging to

another with the intention of permanently depriving the other of it.

2009 Criminal Law
• • • •
ACTIVITY
(a) Identify the five elements of theft.
(b) Identify the actus reus elements (there are 3).
(c) Identify the mens rea elements (there are 2).
The five concepts used in the definition in section 1 are elaborated upon in the succeeding
sections (sections 2–6).
The following table will assist:
Actus Mens
Reus Rea
Appropriation Section 3
Property Section 4
Belonging to another Section 5
Dishonestly Section
2
Intention permanently to deprive Section
6
I’m afraid this is deceptively simple. Section 1 is not difficult to learn, and expanding on the
5 elements by referring to the relevant expanding provision (sections 2-6) is a simple
matter, but whilst some of the succeeding sections so give a more or less full definition of
the relevant element, others do not. Some basic concepts (especially those relating to mens
rea) remain largely undefined by the statute, allowing the courts a good deal of
interpretative freedom.
The consequence of some of this case law has been to put too much weight on the issue of
dishonesty. As we shall see in a later unit of study, this element of theft is vague and
uncertain, and is ill-equipped to bear the full force of law thrust on it.
Although for the purposes of study we have to break down the definition of theft into its five
constituent elements, you should always bear in mind that in a practical situation they are
very much interrelated, and all elements must come together at a particular moment in
time to constitute theft. Keep an eye on this requirement (that all 5 elements must coincide
in time). Attention to detail and a logical approach to consideration of each element are key
in this regard if you are to reach the correct conclusion on the facts of any case.

2009 Criminal Law
• • • •
4. THE ACTUS REUS OF THEFT
4.1 Appropriation
Most people agree that the natural meaning of ‘appropriates’ conveys the idea of treating
something as your own when it is not. Examples include putting items on shelves in a shop
into your own pocket. D is asserting some sort of right to property which is inconsistent with
the owner’s rights. At least for a time, D is exercising dominion over the property and
treating himself as the owner. D is in some way laying claim to the property.
However, the legal meaning is different. It is far wider than the general perception because
of the way the courts have interpreted the relevant section of the Theft Act 1968.
Section 3(1) states
Any assumption by a person of the rights of an owner amounts to an appropriation,

and this includes, where he has come by the property (innocently or not) without
stealing it, any later assumption of a right to it by keeping or dealing with it as
owner.
We will take the first phrase of s. 3(1) first, and consider the second part later.
any assumption of the rights of an owner amounts to an appropriation . . .
ACTIVITY
Is it an appropriation to assume all or any of the rights of the owner?
The key case here is Morris [1983] 3 All ER 288. As we shall see, this is a House
of Lords’ case. The House decided TWO things:
1. It is an appropriation to assume ANY ONE of the rights of the owner. This is still good
law.
And
2. That an appropriation can only take place where D exercises an unauthorised right over
property. There is therefore no appropriation is you do something you are allowed to do.
THIS IS NO LONGER GOOD LAW. We come back to why later.
Back to the assumption of the owner’s right(s): this raises the question of what are the
owner’s ‘rights’. The short answer is that anything that can be done with the property is a
right of the owner in this context. It is the owner who has the right to sell property, hire it
out, give it away, lend it, mortgage it, damage it, destroy it or throw it away. Equally, it is
the owner’s right to use it as he sees fit – for example, if it is a book, he can read it, write in
the margin, decorate the cover, store it in a drawer, put it on a bookshelf or use it as a
doorstop.
The assumption of just ONE of these myriad rights is enough in the eyes of the House of
Lords, even though s. 3(1) talks of ‘any’ assumption of ‘the rights of an owner’. This would
suggest that an assumption of the owner’s rights in general as a bundle should be required
rather than just any single right. Nonetheless, the House of Lords has spoken and we must
accept that the latter is the position. Thus, a person who switches or interferes with price
labels on goods in a supermarket thereby appropriates (even if he does nothing else with
2009 Criminal Law
• • • •
the goods) because only the owner has the right to price the goods, a right which the label-
switcher has assumed.
Consent and appropriation
Prior to the Theft Act 1968, the old definition of theft (larceny) required the taking to be
‘without the consent of the owner’ and therefore a taking with consent could not be theft.
However, this express ingredient was omitted from the new definition of theft in the TA
1968.
What do we mean by consent in this context? We mean doing something we are expressly
or impliedly given permission to do.
ACTIVITY
Do you think a shopper who took a packet of smoked salmon from a supermarket
shelf and put it into the trolley provided would appropriate the salmon?
Would your answer differ if the shopper had a secret dishonest intention to
transfer the salmon to his bag and not to pay for it?
In Morris, the House of Lords took the view that

“an element of adverse interference with or usurpation of some right of the owner” was
essential for there to be an appropriation. For this reason, therefore, a shopper would not
appropriate when he took goods from the supermarket shelf and put them in the wire
basket because, since he would be doing precisely what the owner impliedly invited him to
do, there would be no ‘adverse interference’ with the goods. Far from ‘usurping’ the owner’s
rights, the shopper would be recognising them by taking the goods to the cash desk in the
wire basket.
The House of Lords in Gomez [1993] AC 442 held that this aspect of Morris was obiter and
also inconsistent with the earlier decision in Lawrence v MPC [1971] 2 All ER 1253, HL. It
therefore disapproved Morris and held that adverse interference or usurpation was not
necessary and a shopper would assume a right of the owner and therefore would
appropriate as soon as he took the article from the shelf. This would be as true of an
honest shopper who intended to pay as of an intending shoplifter.
This illustrates the important point that there is nothing inherently wrong with
‘appropriating’ property. Appropriation is a neutral concept. Only ‘dishonest’
appropriations could constitute the offence of theft. The word used is ‘appropriates’ not
‘misappropriates’.
You will need to have a good understanding of the three House of Lords’ cases mentioned
above. After the Textbook and Casebook activities below, you will find it useful to refresh
your memory of the discussion above by completing the table here:

2009 Criminal Law
• • • •
Case Brief facts Legal Principle(s)

Lawrence v
MPC [1971] 2
All ER 1253
Morris [1983]
3 All ER 288
Gomez [1993]
AC 442
CASE BOOK ACTIVITY
Please read the extracts from the cases of Gomez and Hinks [2000] 4 All ER 833
in Text and Materials.
Would there be an appropriation where D makes a gift of property to A?
In Hinks the trial judge ruled that an acquisition by way of a fully valid gift could still be an
appropriation and, if dishonest, theft. The Court of Appeal agreed and dismissed D’s appeal
against conviction.
By a majority of 4 - 1 (on this point), the House of Lords held that the Gomez principle was
not confined to cases where the transaction was vitiated in some way so that receipt of an
indefeasible gift (and presumably receipt of property under a fully valid contract) could be
an appropriation even though P has no right to resume or recover any proprietary right or
interest in the property. Whether it would be theft, would turn on the jury’s view of whether
D acted dishonestly.
Virtually any acquisition of property now satisfies the actus reus of theft and virtually
everything turns on dishonesty. This further extension of Gomez is unfortunate and deeply
ironic in that the purpose of the law of theft is to protect property rights conferred by the
civil law. Yet here the criminal law is allowed to ride roughshod over civil property rights.
The civil law says that D is the sole owner of the property and can defeat any legal claim to
it, even from the victim, and yet his acquisition of it, if designated dishonest by the court, is
theft.

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
For a discussion of the difficulties caused by the ruling in Gomez and Hinks
please read extracts by Glazebrook and Shute and Horder that follow the case
of Hinks in the Text and Materials.
Appropriation without physical interference
Can property be appropriated without any physical interference? The case of Pitham and
Hehl (1976) 65 Cr App R 45, CA suggests that it can.
P was sent to prison leaving his house unoccupied. D introduced a prospective buyer to the
house and invited him to buy P’s furniture. The Court of Appeal held that D appropriated as
soon as he invited the buyer to purchase. Some authors view this as rather suspect because
the ‘buyer’ knew they were not D’s goods to sell so, as both knew, they were arranging
together to steal the furniture, rather than D at that stage assuming the owner’s rights to it.
TEXT BOOK ACTIVITY
Read ‘Appropriation’ in Criminal Law – The Fundamentals, up to (but not

including) “Later assumption of a right”.
1. Make notes on the cases mentioned above.
2. Consider whether it really matters that ‘appropriates’ should be given such a

wide meaning.
Later assumption of rights
As promised above, we return now to the second phrase of s. 3(1)

and this includes, where he has come by the property (innocently or not) without
stealing it, any later assumption of a right to it by keeping or dealing with it as
owner.
Please note that this part of s. 3(1) provides expressly for the case where D initially gets the
property ‘without stealing it’ – which may be entirely ‘innocently’ or it may involve some
tortious or other civil liability without being criminal. ‘Any later assumption of a right to it by
keeping or dealing with it as owner’ amounts to an appropriation.

2009 Criminal Law
• • • •
ACTIVITY
Write down two examples of a situation where you receive property without
stealing it but later steal it by keeping or dealing with it as owner.
Examples you might have chosen include:
(a) where the victim lends you property and later on you dishonestly decide to keep it or
sell it, e.g. a book;
(b) similarly if you borrow property without the owner’s consent intending to return the
property. Although this would be wrongful in civil law terms, it would not be theft
initially because you would lack the necessary intention permanently to deprive. A later
decision to dishonestly keep it would constitute theft;
(c) if you find property believing the owner cannot be found by taking reasonable steps, you
would not be dishonest (s. 2(1)(c) of the TA 1968). However, if you become aware of
the owner’s identity, it would be theft dishonestly to keep the property.
The forms of appropriation we have considered hitherto all envisage some positive act on
the part of D. By contrast it appears that D, without performing any act, can ‘keep’ property
‘as owner’ by a mere mental decision not to return it. In other words an omission to return
the property is ‘keeping it as owner’ and therefore ‘a later assumption’ of the owner’s rights.
Is appropriation instantaneous or continuing?
In Atakpu [1994] Crim LR 693, the defendants hired cars in Belgium and Germany using
false passports and driving licences. They then drove them to England intending to sell
them to unsuspecting buyers. They were arrested whilst still within the hiring period and
charged with conspiracy to steal. The court’s jurisdiction for conspiracy at that time
depended on the plan involving the commission of a theft in England. Applying Gomez, the
court held that the cars were appropriated as soon as they were hired, it being irrelevant
that the owner consented to them being driven off by the accused. The theft therefore
occurred abroad. This leads us conveniently to the next question on appropriation.
Could it be said that the appropriation abroad by the defendants continued whilst they
drove the cars to and within England? If so, they would commit theft in England. The Court
of Appeal held that no theft was committed in England but, at the same time, supported the
idea that appropriation could be regarded as continuing to a limited extent. As a matter of
policy, the court would prefer to leave it for the common sense of the jury to decide that the
appropriation can continue for as long as the thief can sensibly be regarded as in the act of
stealing or, in more understandable words, so long as he is ‘on the job . . .’. This seems a
sensible and pragmatic compromise which views stealing as a process continuing whilst D is
still ‘on the job’, e.g. ransacking a house. On any view, the process of stealing in Atakpu
had come to an end when the defendants got clear of the hiring premises and long before
they reached England.
The ‘continuing appropriation’ theory does not stop D being guilty of theft immediately he
commits the first act of dishonest appropriation. A burglar will steal jewels as soon as he
takes them from the drawer and puts them in his pocket. The ‘continuing appropriation’
theory would simply say that he continues to steal them until the ‘job’ ends, presumably
when he quits the house. As we shall see later, the implications of this are more important
2009 Criminal Law
• • • •
for the offences of robbery and aggravated burglary than theft, see e.g. Hale (1978) 68 Cr
App R 415, CA
TEXT BOOK ACTIVITY
Now continue your reading of Criminal Law – The Fundamentals from “Later
assumption of a right”, but NOT starting the next element (property) yet
Does Claire appropriate, and if so, when?
Claire, a shopper, was in a supermarket. As she was loading the conveyor belt
with the items from her trolley, she failed to notice a toothbrush and she left the
store without paying for it. Outside in the car park, she realised she had not paid
for the toothbrush, but decided to keep it anyway.

2009 Criminal Law
• • • •
ACTIVITY
Now would be a good time to check that you can
Define appropriation by reference both to section 3(1) of the Theft Act 1968 and
case law.
Illustrate that appropriation is a neutral term and the owner’s consent is

irrelevant to appropriation.
Explain the consequences for the mens rea of theft by defining the actus reus in
neutral terms.
Criticise the breadth of the term appropriation by citing judges and academics
commentators.
Do you know and understand the facts and law of the following cases?
Yes No; I must go

back and make
additional
notes…
Lawrence v MPC [1971] 2 All ER

1253
Morris [1983] 3 All ER 288
Gomez [1993] AC 442
Hinks [2000] 4 All ER 833
Pitham and Hehl (1976) 65 Cr App R

45
Atakpu [1994] Crim LR 693

2009 Criminal Law
• • • •
4.2 Property
Only ‘property’ is capable of being stolen. But what constitutes ‘property’ for this purpose?
Section 4(1) does not give a comprehensive definition of ‘property’ but indicates that a wide
variety of things can be stolen:
(1) ‘Property’ includes money and all other property, real or personal, including things in
action and other intangible property.
Please see Text and Materials for the full statutory definition of property.
Money
In this context, money means only physically identifiable notes and coins including foreign
currency. Therefore there can be no theft of money unless some particular notes and coins
are appropriated. In particular, ‘money’ does not embrace purely paper transactions
involving e.g. cheques and transfers between bank accounts.
Real property
This means land and things attached to land such as buildings and fixtures forming part of
buildings, e.g. central heating systems or built-in kitchen units. As we shall see shortly, the
remaining subsections in s. 4 cut down dramatically the scope for stealing real property.
Personal property
This covers any item with a physical existence apart from land and includes all the most
common items stolen such as videos, cars, cigarettes and works of art. Money itself is also
an example of personal property.
ACTIVITY
Personal property also includes property without any tangible physical existence.
Write down two examples of such intangible property.
Things in action
Things in action (also called choses in action – from the French word for ‘thing’) are
personal rights of property which can only be enforced by legal action because they do not
have any physical entity which can be physically possessed. The classic example is a debt
which is simply a right to sue for money owed. Other common examples include the rights
of beneficiaries under a trust, copyright, trademarks, and shares in a company.
If you have a bank account with a credit balance, your bank (the debtor) owes you (the
creditor) a debt for the amount of the balance. If D dishonestly takes one of your cheques
and pays it into his own account, he will steal a debt owed by your bank to you for the sum
which is transferred from your account to his. However, he will not have stolen the cheque,
nor any money – no actual notes and coins were appropriated in this purely paper
transaction. On the other hand, if he had gone to your bank and obtained cash for the
cheque, then he would have stolen two things – the debt from you and the actual coins and
notes handed to him from the bank (Kohn (1979) 69 Cr App R 395 ). The same analysis
2009 Criminal Law
• • • •
would hold good if your account were overdrawn and you had a contractual right given by
the bank to overdraw. However, it is clear from Navvabi [1986] 3 All ER 102, CA, that
where D, knowing that his own account is overdrawn, uses his cheque card so that the bank
is obliged to meet cheques drawn by him, he does not steal from the bank. The reason is
that, prior to the bank meeting the cheque on presentation by the third party, no debt was
owed by the bank to anyone and therefore D has not appropriated any existing thing in
action. This was a case where D dishonestly drew a cheque on his own account, but the
same reasoning would apply if he dishonestly used someone else’s cheque to draw on their
account in excess of any credit balance and authorised overdraft (Kohn).
Other intangible property
All things in action constitute intangible property but not all intangible property constitutes
things in action. Section 30 of the Patents Act 1977 declares that a patent or application for
a patent is not a thing in action but it is personal property and so covered by ‘other
intangible property’. In Attorney-General for Hong Kong v Nai Keung [1987] 1 WLR 1339,
PC it was held that export quotas granted to companies which could be sold to other
companies were capable of being stolen. It was illegal to export textiles from Hong Kong
except in accordance with the quotas granted. Companies which were unable to use their
full quotas were allowed to sell them to others. The case held that an unauthorised sale by a
dishonest director at a gross undervalue to another company in which he had an interest
could be theft.
One general area which has hitherto been held to be outside the scope of this provision is
information. Suppose your lecturer carelessly left a copy of your summer examination paper
just near a photocopier you happened to be using. Would you steal anything if you
photocopied the question paper and replaced it where you found it? You would not steal the
question paper itself because you had no intention permanently to deprive the owner of it.
In Oxford v Moss (1978) 68 Cr App R 183 the Divisional Court held that the confidential
information contained on a university’s exam paper was not property capable of being
stolen. Presumably the same would apply to trade secrets obtained by industrial espionage
and information held on computer. (Of course, there is an array of special offences created
by the Computer Misuse Act 1990 to deal with unauthorised access to and interference with
computerised information.)
It was held in Low v Blease (1975) 119 SJ 695 that electricity is not property for the
purposes of theft and this is no doubt why s. 13 of the TA 1968 creates a special offence of
dishonestly abstracting electricity. Both gas and water constitute personal property and can
be stolen.
Limitations on stealing land
We saw that the general definition of property in s. 4(1) includes real property. This would
suggest that land can be stolen just like any other property. A glance at s. 4(2) will reveal
that this is very far from being the case. In fact, s. 4(2) provides that land or things forming
part of it and severed from it cannot be stolen except in the three situations defined in the
subsection. Thus, D does not steal his neighbour’s land where he dishonestly extends his
boundary fence to take in some of the neighbour’s garden.

2009 Criminal Law
• • • •
ACTIVITY
• Who can steal land under s. 4(2)(a)?

• How can they steal it?
Section 4(3) creates an exception to the rule in s. 4(2)(b) whereby it cannot be an offence
to pick mushrooms or any fungi growing wild on any land unless it is done ‘for reward or for
sale or for other commercial purpose’. Similarly, it cannot be an offence to pick ‘flowers,
fruit or foliage from a plant growing wild on any land’ unless done ‘for reward or for sale or
for other commercial purpose’. It would seem that the term ‘picking from a plant’ would not
cover uprooting a plant nor indiscriminate lopping of branches. Those actions would fall
within s. 4(2)(b). Other actions caught by s. 4(2)(b) would be stripping lead from a church
roof, cutting down a tree, digging up a rose bush or removing a window frame from a
building.
Section 4(2)(c) applies only to those in possession under a tenancy. Because he is in

possession of the land, a tenant cannot come within s. 4(2)(b) so that he cannot commit
theft by digging up plants or chopping down trees. However, under s. 4(2)(c) he can
commit theft if he ‘appropriates the whole or part of any fixture or structure let to be used
with the land’. Things growing on the land or occurring naturally, such as gypsum or gravel,
are neither structures nor fixtures. ‘Structure’ could include a building, garage, shed or wall
whereas ‘fixture’ could include built-in furniture, plumbing, sanitary fittings and central
heating installations.
Wild creatures
Section 4(4) is straightforward. Untamed wild creatures not ordinarily kept in captivity
cannot be stolen unless they have been reduced into another’s possession or are in the
course of being so reduced. The same rule applies to the carcasses of such creatures. If
possession is lost or abandoned, the creature cannot then be stolen.
4.3 Belonging to another
Only property which ‘belongs to another’ at the moment of dishonest appropriation can be
stolen. You may be tempted to think that property belongs exclusively to its owner but this
is very far from being the case. The law of theft is designed to protect the rights of the
owner of property but it also protects those with a lesser interest in it. Thus, if you pay to
hire a car for one week, the property can be stolen from you as well as the car hire firm
which owns it.
‘Belonging to another’ is comprehensively defined by s. 5 of the TA 1968:
Property shall be regarded as belonging to any person having possession or control of it,
or having in it any proprietary right or interest (not being an equitable interest arising
only from an agreement to transfer or grant an interest).
It is clear from this basic definition that the legal meaning of ‘belonging to another’ is far
wider than the everyday meaning of the phrase.

2009 Criminal Law
• • • •
Ownership, possession or control
Here we are addressing s.5(1) which allows property to be stolen from an individual who
has possession and control of the property.
TEXT BOOK ACTIVITY
Please read Criminal law – The Fundamentals ‘a) Ownership, possession or

control’ and make notes on the following cases.
Case Brief facts Legal Principles
Turner (No. 2)
[1971] 2 All ER
441, CA
Meredith [1973]
Crim. L.R 253
Woodman [1974]
Q.B 754.
Proprietary right or interest
Section 5 also extends property rights to those who have a proprietary interest. While,
clearly an owner of property has a proprietary right or interest in it there are a number of
lesser proprietary rights and interests falling short of full ownership. All of these lesser
interests are protected by the law of theft. Property may be jointly owned by more than one
person, for example, partners, in which case it is possible for one joint owner to steal from
the other (Bonner [1970] 2 All ER 97, CA). If, as an impecunious student, you deposit your
Rolex watch with a pawnbroker as security for a loan, the pawnbroker will acquire a
proprietary right or interest in the watch (known technically as a lien) because he has a
right to retain possession of the watch until the loan is repaid.
Abandoned property
Property can become ownerless if abandoned by its owner. However, this is unlikely to
happen very often. You might have thought that the most obvious case was where D throws
his property into the dustbin for collection by the local authority. In Williams v Phillips
(1957) 41 Cr App R 5 it was held that the property in a dustbin is not abandoned by the
householder but remains in his ownership until collected, at which point ownership transfers
to the local authority. If rubbish is dishonestly taken and sold by dustmen, they would be

2009 Criminal Law
• • • •
guilty of theft. It should also be emphasised that losing something is not the same as
abandoning it. If you leave your umbrella on a train, you may give up hope of getting it
back but that does not mean that you relinquish the ownership of it. Abandonment would
seem to involve a deliberate decision to relinquish ownership and one could argue that the
owners of lost golf balls do not therefore abandon them. Since putting things in your dustbin
does not suffice, it would appear that the owner would have to do something such as
dumping the property by the roadside in order to abandon it.
Transactions transferring ownership
Since D must ‘dishonestly appropriate property belonging to another’, it is plain that the
time for deciding if property ‘belongs to another’ is the moment of the dishonest
appropriation (Lawrence). In most theft cases, this will present no problem because it will
be clear that the property belonged to the victim at the outset and continued to belong to
the victim throughout, so that at whatever time D dishonestly appropriated it, the property
‘belonged to another’. However, in some situations, even though D is acting dishonestly,
there may be a transaction involving the property, by virtue of which D ends up becoming
the owner of that property under the civil law. We have already come across this situation
in Gomez and other cases in our discussion of appropriation. If, in the course of the
transaction, D becomes the sole owner of the property which has ceased to ‘belong to
another’, it becomes crucial to identify whether the dishonest appropriation occurred before
or after the property ceased to ‘belong to another’. Unfortunately, this was an issue which
the House of Lords in Gomez completely ignored even though it was most relevant to a
proper disposal of the case.
ACTIVITY
Suppose that D drove into a self-service petrol station, filled up his car with petrol
and dishonestly drove off without paying. On these facts, it is not clear whether D
is or is not guilty of stealing the petrol. What is the crucial issue upon which his
liability for theft would turn?
For the answer to this question please read point d) ‘Cases where ownership has
already passed when the defendant forms the mens rea’ in Criminal Law – The
Fundamentals.
The petrol station transaction
1. 2. 3.
D drives in (P owns, D fills up (appropriation D drives off without

possesses and controls of petrol) and ownership, paying
petrol) possession and control (appropriation of petrol
in petrol transfers to but D now exclusively
him at the same moment owns, possesss and
of delivery controls petrol)

2009 Criminal Law
• • • •
The crucial issue is whether D’s first dishonest appropriation came only after the
ownership transferred to him. The rule is that if D formed his dishonest intention not to pay
only after the transfer of ownership, it is not theft. (There is, in fact, a special offence in s. 3
of the TA 1978 which caters for this situation – dishonestly making off without payment. If
D dishonestly appropriates before any transfer of ownership, there is no problem. However,
in our situation, if D never at any time intended to pay, his dishonest appropriation (filling
up) seems to occur at the very moment of the transfer of ownership. Where the dishonest
appropriation and the passing of ownership are coincident, there is a dishonest
appropriation of property belonging to another. This is the implication of Lawrence, Gomez
and Hinks.
There are some special situations defined in s. 5(3) and (4) where, even though D becomes
the sole owner of the property in question, it is artificially deemed still to belong to another
for the purposes of theft. Let us now examine these situations.
Belonging to another – special cases
It cannot be stressed too strongly that it is only necessary to invoke s. 5(2)–(4) in cases
where the property does not ‘belong to another’ within the general definition in s. 5(1).
Obligation to retain and deal in a particular way (s. 5(3))
TEXT BOOK ACTIVITY
Please read point e) ‘Special cases where property would otherwise belong to
the defendant at the time of dishonest appropriation’ point (i) and answer the
following questions.
What does section 5(3) provide?
Why is this section necessary?
Must there be a moral or a legal obligation to retail and deal with the property?
How does this section operate when money is handed over to those collecting
for charity?
In Wain [1995] 2 Cr App R 660, the Court of Appeal, disapproving Lewis v Lethbridge
[1987] Crim LR 59, DC, held that monies collected on behalf of a charity would fall within
s.5(3). D ran discos in aid of a ‘Telethon’ charity event organised by Yorkshire Television.
He paid the proceeds into a bank account he had opened for the purpose but subsequently
dishonestly transferred them to his personal account for his own use. He received the
money (the original notes and coins) ‘on account of the charity’, the credit balance in the
special account represented ‘the proceeds’ of this money and D was ‘under an obligation’ to
the charity ‘to retain and deal with the proceeds in a particular way’(i.e. pay it to the
charity). The credit balance in the special account was therefore to ‘be regarded as
belonging to’ the charity by virtue of s.5(3).

2009 Criminal Law
• • • •
In Dyke and Munro [2002] 1 Cr App R 404 CA, the defendants were the trustees of a charity
and therefore became the legal owners of monies donated to the charity by members of the
public in street collections conducted by innocent volunteers. The monies never reached the
charity’s bank account, having allegedly been misappropriated by the trustee defendants.
The prosecution alleged that these monies belonged to the donating members of the public
but the Court rejected that view, observing that the monies ceased to belong to them the
moment they put them in the charity’s tin, at which point the ownership transferred to the
defendant trustees. Consequently the monies did not, as alleged in the charge, belong to
the donating members of the public at the time of the trustees’ later appropriations, so that
their convictions were quashed. However, had the prosecution alleged theft from the
beneficiaries of the charity, the charge would have succeeded because the trustees held the
monies on trust for those beneficiaries. The latter would therefore have an equitable
‘proprietary right or interest’ under s.5(1). Alternatively s.5(3) would apply because the
trustees received the monies ‘on account of’ the beneficiaries and were ‘under an obligation
to retain and deal with that property in a particular way’ (i.e. to apply it for the benefit of
the beneficiaries).
Getting property by mistake (s. 5(4))
Please continue your reading of this section with point (ii) ‘Property got by
another’s mistake’
The two essential features of the section are (a) D must get the property by mistake and
(b) he must be under ‘an obligation to make restoration’. The provision was prompted by a
desire to catch a person who dishonestly kept an overpayment of wages.
ACTIVITY
Suppose D’s employer miscalculates the wage due to D and puts too much in his
wage packet. He hands the wage packet to D. When D opens the packet at home,
he realises for the first time that he has been paid too much. He dishonestly
decides to keep the excess and say nothing.
• Explain with reasons when D dishonestly appropriates the excess money.
• At this point does the excess money ‘belong to another’ under s. 5(1)?
This situation might not constitute theft without the help of s. 5(4) because the civil law rule
is that the ownership in money would transfer on delivery, i.e. when the wage packet was
handed over. At this moment, the employer would cease to have any proprietary right or
interest in the money long before there is any question of dishonesty on the part of D. This
is when s. 5(4) would come into play. D received the extra money by the employer’s
mistake and, under the law of restitution, D would be under a legal obligation to repay the
extra amount mistakenly overpaid. Thus the extra money would, by virtue of s. 5(4), still be
deemed to belong to the employer, notwithstanding that the entire ownership in it had been
transferred to D. Even though D has become the owner of the extra notes and coins, it
appears that a dishonest decision to keep it does amount to a dishonest appropriation (see
our discussion of appropriation above).

2009 Criminal Law
• • • •
Of course, the traditional method of paying wages in cash has now been superseded for
many employees by a direct transfer from the employer’s bank account to that of the
employee.
ACTIVITY
Suppose your employer credits your bank account with £100 more than was due.
When you discover the error, you dishonestly fail to return the money.
• Have you stolen any money?
• What ‘property’ has been stolen?
Since the transfer between banks is purely a paper transaction, no money (notes and coins)
physically changes hands. We therefore have to look for some other ‘property’ which is
appropriated. The obvious answer is the debt representing the extra amount credited to D’s
account, which D’s bank now owes to D. This was gained by the employer’s mistake and D
is under an obligation to restore the ‘value’ of this debt, which therefore, to the extent of
the overpayment, is deemed to belong to the employer. These were the facts of Attorney-
General’s Reference (No. 1 of 1983) [1984] 3 All ER 369 where the Court of Appeal applied
the above reasoning. Exactly the same view was taken in Ngan [1998] 1 Cr App R 331, CA,
where the bank itself mistakenly credited D’s account with the proceeds of cheques meant
for X’s account.
Having established that D got the property by mistake, s. 5(4) can only operate if he is
thereby under an obligation to restore in whole or in part the property or its proceeds or
its value. Obligation here means a legal obligation. In Gilks [1972] 3 All ER 280, CA ethnic
confusion prompted a bookmaker to pay D winnings on a race won by ‘Fighting Taffy’ when
D had actually backed ‘Fighting Scot’. D realised the mistake when he was paid but refused
to repay. D certainly got the money by mistake but he was not under any legal obligation to
repay because it was a gambling debt which the law treats as unenforceable. Section 5(4)
was therefore inapplicable. (Rather suspectly the court held that the ownership of the notes
and coins did not pass to D on delivery and therefore still belonged to the bookmaker under
s. 5(1).)
ACTIVITY
In light of Gomez, would it make any difference to D’s conviction in Gilks if the
correct view that D did become the owner of the notes and coins handed over,
prevailed?
In the mistaken overpayment cases, the law of restitution imposes an obligation to restore
not the property (i.e. the actual notes and coins handed over) but its ‘value’ (i.e. the
equivalent ‘money’). In the voidable contract cases, it can be argued that no obligation
arises unless and until the contract is avoided (by its rescission) by P. However, if the
contract is successfully rescinded, under civil law the ownership would in any case revert to

2009 Criminal Law
• • • •
P who would then have a proprietary right or interest in it under s. 5(1). There would once
again be no need for s. 5(4).
In answer to our Activity, it would seem that D dishonestly appropriated the money when
he took delivery of it because he realised the mistake at that point. The case is the same as
the delivery of the money to the dishonest taxi-driver in Lawrence.
Cheques, banks and loose talk about money
Before we leave the actus reus of theft, it is appropriate to say a little more about a
problem we touched upon when we discussed the meaning of ‘property’. Strictly speaking
‘money’ means only physical notes and coins. In many cases P’s ‘money’ is taken in a purely
paper transaction through the banking system. This can be done by issuing cheques, using
cheque and debit cards or by causing a transfer between accounts in some other way, e.g.
electronically through the ‘CHAPS’ transfer system (see Preddy [1996] 3 All ER 735, HL).
ACTIVITY
If D dishonestly borrows P’s debit card and uses it to pay a £40 bill before
returning it to P with the result that P’s bank account is debited with £40, what
property has D stolen?
You should not have had too much difficulty in deciding that no notes or coins (‘money’ in
the strict sense) were stolen. The card itself was not stolen because there was no intention
to permanently deprive P of the card. The property which has been stolen is a thing in
action – the debt of £40 owed by P’s bank to P. You should always bear in mind that the
only person who has money in the bank is the bank. The customer’s ‘money’ does not exist
– it is merely a contractual right to be paid by the bank in accordance with the terms and
conditions of the account.
Suppose my salary is paid directly into my bank account each month, we might say that my
wages are ‘transferred’ from the Wages account of Nottingham Trent University into my
account.
We tend to think of the transaction as something resembling the figure below.

2009 Criminal Law
• • • •
Salary transfers
The amount
representing my
wages
This amount is
NTU’s wages account ‘transferred’ each
month – my wages
The existing credit in

my account
However, that is not, according to the House of Lords, what happens. Rather, we can
represent the transaction as follows:
Salary ‘transfers’ under Preddy
The amount
representing my This balance is
wages deleted
My wages
NTU’s wages account This new balance
is created in my
account
The existing credit in

my account
According to the House of Lords in the leading case of Preddy, the credit balance in
Nottingham Trent University’s is extinguished and a new credit balance is created in my
account; this is my salary.
You should be able to see that there was property involved in this transaction, but that
property did not belong to another. If property does not belong to another, there is no theft.

2009 Criminal Law
• • • •
ACTIVITY
If you write out a cheque in my favour and give it to me, to whom does it belong?
The answer is that the cheque belongs to me – the payee.
Would the cheque itself also be stolen if D was dishonest at the outset? According to
Mitchell [1993] Crim LR 788, CA it would and, indeed, it would also be obtained by
deception contrary to s. 15 [note that the s. 15 offence has been abolished by the Fraud Act
2006]. There are, however, considerable difficulties standing in the way of such a conclusion
and Mitchell was regarded in this respect as wrongly decided by the House of Lords in
Preddy [1996] 3 All ER 481. The most significant difficulty is that the cheque as a thing in
action (the right to sue for the amount of the cheque) never belongs to anyone but D. It
only becomes a thing in action when it is drawn in favour of D and issued to him. From the
moment of issue it belongs only to D. He was the only person who ever had the right to sue
on it.
On the other hand the cheque form (the piece of paper) does ‘belong to another’ and D will
dishonestly appropriate it under Gomez when he receives it. Unfortunately, other problems
arise in relation to whether D intends permanently to deprive P of the cheque form, which
we can postpone until later.
5. MENS REA
At the time he appropriates the property belonging to another, D must (a) be acting
dishonestly and (b) have the intention permanently to deprive P of that property.
5.1 Dishonesty
CASE BOOK ACTIVITY
Read s. 2 of the TA 1968 in Text and Materials.
• Does this define what is and what is not dishonest?
• If D’s state of mind falls outside the provisions in s. 2(1), does that mean that
he is dishonest?
Dishonesty is a peculiarly difficult concept to define and Parliament was unable to produce a
suitable definition in the TA 1968. You should have realised that s. 2(1) does not tell us
positively what is dishonest. Rather it gives three instances where, come what may, D is
definitely not dishonest. The basic definition has to be gleaned from the case law, and is
vague and uncertain. It follows that the first port of call for any defence counsel wishing to
dispute dishonesty will be s. 2(1), for he knows that if D comes within any of its provisions,
an acquittal for lack of dishonesty is certain. Only if s. 2(1) is or might be inapplicable

2009 Criminal Law
• • • •
would he have to worry about the general rules on dishonesty in the case law. Let us
therefore begin with s. 2(1).
Section 2(1)
D is not dishonest if he believes one of the three things set out in s. 2(1)(a), (b) or (c). In
each case D’s belief need not be based on reasonable grounds. No matter how stupid or
ridiculous his mistake, if his belief is genuine he cannot be dishonest (Holden [1991] Crim
LR 480, CA; Small (1988) 86 Cr App R 170, CA).
ACTIVITY
Suppose your milkman has forgotten to deliver the milk. Your neighbour has left
for work and you take one of the bottles on his doorstep believing your neighbour
will not mind provided you pay for it as you intend. In fact, your neighbour is
furious when he comes home for lunch and finds himself short of milk. Are you
dishonest?
Text Book Activity
Please continue your reading of Text and Materials up to (but not including) R v
Feely and supplement your reading with the discussion of ‘Dishonesty Section
2(1)’ in Criminal Law – The Fundamentals and complete the following chart.
Section 2(1) Case example(s) Comments
Belief in a
legal right
Belief in
consent
Belief the
property is
lost

2009 Criminal Law
• • • •
ACTIVITY
Suppose D finds a ring in the street and, believing that the owner would not be
traceable, keeps it. Three days later, as a result of overhearing a chance
conversation in a pub, she discovers the identity of its owner but decides to keep
it. Would D commit theft?
Even if D is not dishonest when she initially appropriates because she holds the relevant
belief, she will still commit theft if she later discovers the true owner and dishonestly
decides to keep the property.
Willingness to pay
Section 2(2) provides that D may be dishonest ‘notwithstanding that he is willing to pay for
the property’. Consequently a defendant who takes property an owner may not wish to sell
and leaves the purchase price may be found dishonest.
Dishonesty outside s. 2(1)
As we noted above, the function of the concept of dishonesty is to set the standards to
reflect the values implicit in society’s notion of the sanctity of property. Whose standards
are to be used?
CASE BOOK ACTIVITY
Please read Feely [1973] 1 All ER 341, CA and the commentary that follows the
case in Text and Materials. The decision in Feely, although still good law, has
attracted considerable criticism from leading academics. Can you think why?
CASE BOOK ACTIVITY
Read the leading case of Ghosh [1982] 1 QB 1053 in Text and Materials. Did the
Court of Appeal adopt:
(a) an objective test, or
(b) a subjective test, or
(c) a test involving an element of each?

2009 Criminal Law
• • • •
The Court of Appeal in Ghosh steered a middle course in establishing a test which, although
fundamentally subjective, did take into account objective matters. The court put forward a
two-stage test:
(a) the jury must decide, in the light of the defendant’s actions, intentions and beliefs,
whether he was dishonest, judged by ‘the ordinary standards of reasonable and
honest people’;
(b) if he was dishonest by those standards, the jury must decide whether D himself
realised that his conduct was by those standards dishonest. ‘It is dishonest for D
to act in a way which he knows ordinary people consider to be dishonest, even if he
asserts or genuinely believes that he is morally justified in acting as he did’. In other
words, D is judged not by his own standards of honesty and morality but by his
understanding of the standards of ordinary people.
ACTIVITY
Can you be dishonest if, in civil law, you acquires unchallengeable ownership of
the property by virtue of a contract you have has made? For the answer to this
question think back to the discussion of property transactions when we addressed
appropriation.
The case of Hinks appears to establish that a person who acquires indefeasible ownership by
virtue of a valid contractual or gift transaction does appropriate property belonging to
another. But can such a person, even if his actions are morally dubious, be dishonest in
doing what, according to the civil law, he has a perfectly legal right to do? Clearly Hinks
admits that very possibility and, given that dishonesty is currently regarded as a question of
fact for the jury, it is impossible to predict the outcome in individual cases.
It is curious that the general definition of dishonesty has yet to be considered by the House
of Lords, and such a consideration could bring radical changes to the current position.
Indeed such changes may be necessary on the ground that the current formulation fails the
‘certainty’ test prescribed by the European Court of Human Rights (see Hashman and
Harrup v UK [2000] Crim LR 185, ECHR and commentary thereon). The present rules afford
too little guidance on what is and what is not theft.
However the Crown Court in Pattni and ors. [2001] Crim LR 570 rejected a claim that the
vagueness of the Ghosh test for dishonesty contravened Art. 7 of the European Convention.
It remains to be seen whether the Appeal Courts will take the same view.
TEXT BOOK ACTIVITY
To consolidate your knowledge please finish reading the discussion of

dishonesty in Criminal Law - The Fundamentals.

2009 Criminal Law
• • • •
5.2 Intention to permanently deprive
CASE BOOK ACTIVITY
Please read s.6 and the commentary that follows in Text and Materials
Please note that section 6 of the TA 1968 simply deems there to be an intention
permanently to deprive in certain situations where there would otherwise not be an
intention permanently to deprive. The phrase should be given its ordinary, everyday
meaning and only if you decide that there is no intention permanently to deprive on this
basis, do you need to consider the extended meanings in s. 6.
We should also stress that what is needed is an intention permanently to deprive at the
moment of dishonest appropriation. There is no need to prove any actual permanent
deprivation.
ACTIVITY
Suppose X hires a car from Y for one week. If D dishonestly takes the car from X,
intending to keep it for two weeks, does he commit theft?
You will recall the wide definition of ‘belonging to another’ which means that people with
relatively limited interests in property can be stolen from. In such cases the intention
permanently to deprive means simply an intention to deprive P of his entire interest in the
property. Therefore, in our example D would intend permanently to deprive X but not Y. He
would be guilty of theft from X but not from Y.
Dishonest borrowing
The requirement of an intention permanently to deprive means that in general it is not theft
to borrow someone’s property, albeit dishonestly but there is an exception contained in s. 6
which we shall be examining shortly.

2009 Criminal Law
• • • •
ACTIVITY
• Suppose you borrowed money from your employer’s till in order to back a
horse which was a ‘dead cert’. You intended to repay the money the next day.
Did you have an intention permanently to deprive your employer of his
property?
• Suppose you had run out of milk for your shredded wheat. If you borrowed a
pint of milk from your neighbour’s doorstep intending to replace it with another
pint when you had been to the shops, would you have an intention permanently
to deprive your neighbour of his property?
In everyday language, we often talk about ‘borrowing’ money from another, and you might
be tempted to conclude that in such a case D would not have an intention permanently to
deprive. However, this overlooks the fact that the law regards each individual coin and note
as a distinct piece of property.
When we talk of intention permanently to deprive we mean of the actual property taken
and, in the case of money, this means the actual notes and coins originally taken. It follows
that D will have the necessary intention where he ‘borrows’ P’s money unless he intends to
return the exact same notes and coins first taken (Velumyl [1989] Crim LR 29, CA). The
fact that D intends to return equivalent notes and coins is relevant to the issue of whether
D is dishonest, but it does not prevent the necessary intention permanently to deprive.
Similarly, an intention to return an equivalent pint of milk does not negate the intention D
had permanently to deprive of the pint of milk originally taken.
Section 6
This section is badly drafted and, in the words of JR Spencer, ‘sprouts obscurities at every
phrase’ ([1977] Crim LR 653).
There are two key points; first, s. 6 is only relevant if D does not ‘mean’ (i.e. intend) P ‘to
lose the thing itself’ (i.e. the property appropriated).
Secondly, s. 6(1) ought to have ended at the semi-colon after ‘other’s rights’. The
remainder of that subsection should then have become s. 6(2)(a) and s. 6(2) should then
be s. 6(2)(b), because both are simply giving instances of conduct which could (in the first
case) and would (in the second case) amount to treating ‘the thing as his own to dispose of
regardless of the other’s rights’. It is the intention to do this which must be proved in order
to trigger the operation of s. 6, which will then deem D to have an intention permanently to
deprive which he has not actually got! This view was endorsed by the Court of Appeal in
Fernandes [1996] 1 Cr App R 175, CA.

2009 Criminal Law
• • • •
Treating as one’s own to dispose of
TEXT BOOK ACTIVITY
Please read the introduction to an intention to permanently deprive in Criminal

Law – The Fundamentals and point (a).
What then does the concept of ‘treating as one’s own to dispose of regardless of
the owner’s rights’ embrace?
The first point is that it is not enough for D to intend to treat the thing as his own simply by
using the property regardless of the owner’s rights. The section requires an intention to
treat it as his own ‘to dispose of’. Our starting point is Cahill [1993] Crim LR 141, CA
where the words ‘to dispose of’ were held to mean more than ‘merely to use the thing as
one’s own’. They suggested that D must intend ‘to get rid of; to get done with; to . . . sell’
the property.
ACTIVITY
How did DPP v Lavender [1994] Crim LR 297 construe the phrase ‘to dispose
of’?
How did the court in Marshall [1998] 2 Cr App R 282, CA construe ‘to dispose of’
and ‘to treat the thing as his own’?
What does the Marshall mean for those who pass on unexpired parking tickets
to new arrivals?
The remainder of s. 6(1) and the whole of s. 6(2) give specific instances of where D would
be ‘treating the property as his own to dispose of regardless of the owner’s rights’. Let us
consider them.
Borrowing or lending equivalent to outright taking
A borrowing or lending of the property may amount to treating it as one’s own, etc. but
‘only if’ it ‘is for a period and in circumstances making it equivalent to an outright taking or
disposal’.

2009 Criminal Law
• • • •
ACTIVITY
Suppose D dishonestly takes your railway season ticket which has one month to
expiry. Would D commit theft if he intended to return it to you (a) the next day or
(b) two days before expiry or (c) the day after expiry?
Please read point (b) in Criminal Law - The Fundamentals.
The leading case on this provision is undoubtedly Lloyd where a borrowing or lending would
only be ‘equivalent to an outright taking or disposal’ if D’s intention was to return the
property ‘in such a changed state that it can truly be said that all its goodness or virtue has
gone’. When the films were returned they could still be shown as before and therefore
retained their ‘virtue’. The fact that their exclusivity had been lost to the official distributors
through the pirating did not deprive them of all their virtue.
On the other hand, an intention to return a season ticket only when it expires would suffice.
If the Lloyd test were applied literally, an intention to return the season ticket at any time
before expiry would not be good enough because some virtue would remain. However, if the
virtue remaining is insignificant in relation to the virtue lost, it is possible that the courts
might leave it as a question of fact for the jury, enabling it to stretch it and regard it as
‘equivalent to an outright taking’. Another possible solution to the problem would be to
allege that D had stolen not the ticket but the chose(s) in action represented by it. P has a
contractual right to travel with the ticket and this contractual right (chose in action) to
travel is intended to be lost to P permanently for the time D intends to retain the ticket.
ACTIVITY
Do you steal money if you borrow it from a friend, without their consent, when
you intend to repay it?
Parting with property under a condition as to its return (s. 6(2))
D treats the property as his own, etc. if he parts with it ‘under a condition as to its return
which he may not be able to perform’. This provision is intended to catch the case where D
without authorisation uses P’s property as security for a loan, e.g. from a pawnbroker. D
may not be able to pay back the loan when the time comes, even though when he first
takes P’s property, he does intend to return it. It does not matter that D may be in
possession of P’s property quite lawfully, e.g. he may have hired it from P, at the time he
uses it as security.
If D knows he may not be able to redeem the property, it does not seem to matter that he
thinks it is very likely that he will be able to redeem it. If he is certain that he will be able
to redeem it but, objectively, there is a clear risk that he may not be able to do so, the
terms of s. 6(2) suggest that he would still be caught – but the matter has yet to be
decided.

2009 Criminal Law
• • • •
It is arguable that s. 6(2) is in fact unnecessary since the situations it covers come within
the general provision in s. 6(1). If D pawns the property, he is intending to treat it as his
own to dispose of regardless of the owner’s rights. We can now leave s. 6 to consider one
final matter.
Conditional intention to deprive
ACTIVITY
Suppose D dishonestly picks up a handbag. On searching through it he discovers

nothing he regards as worth taking because it contains only a few tissues and
some cosmetics. He replaces the bag intact.
Has D stolen anything? If so, what?
Has he committed any other offence? If so, what?
For the answer to this question please complete your reading of the theft chapter
in Criminal Law - The Fundamentals.

2009 Criminal Law
• • • •
You may find it useful to complete the following chart for revision purposes.
Theft Act Legal principles Cases Comments Critique

element
Appropriation
Section 3
Property
Section 4
Belonging to
another
Section 5
Dishonestly
Section 2
Intention
permanently
to deprive
Section 6

2009
• • • •
Criminal Law
2010 OFFENCES AGAINST PROPERTY II – FRAUD AND
CRIMINAL DAMAGE
• Fraud and Criminal damage
1. OBJECTIVES
• Outline the old offences of obtaining by deception under the Theft Acts 1968 and 1978,
and offer evaluative comment as to why these offences have been abolished;
• Describe in detail the new offence of fraud under the Fraud Act 2006, and the new
offence to parallel theft, of dishonestly obtaining services, also under the Fraud Act
2006;
• Identify which of the offences apply in any given fact situation;
• Briefly describe criminal damage.
In this chapter, we study two offences in detail. These are the crimes of fraud and of
dishonestly obtaining services under the Fraud Act 2006. We also briefly examine criminal
damage.

Maxwell, Chapter Eight and Chapter Nine.
and Maxwell, Chapter Nine.
3. THE DECEPTION OFFENCES PRIOR TO THE FRAUD ACT 2006
Before 2006, there was no such thing as an offence of ‘fraud’. Instead there were a number
of crimes under common law and the Theft Acts 1968 and 1978 which involved deception or
conspiracy to defraud.

2009 Criminal Law
• • • •
2010 OFFENCES AGAINST PROPERTY II – FRAUD AND CRIMINAL

DAMAGE
3.1 The Theft Acts 1968 and 1978
The offences involving deception under the two Theft Acts were very specific and resulted in
complicated case law. There were eight main offences involving deception under the Theft
Acts:
Section 15 of the Theft Act 1968
This section covered the offence of dishonestly obtaining property by deception with the
intention permanently to deprive the other of it.
Section 15A of the Theft Act 1968
This section was inserted into the 1968 Act by the Theft (Amendment) Act 1996 to cover
the offence of obtaining a money transfer by dishonest deception. Section 15A undid as
much of the damage caused by the House of Lords’ decision in Preddy [1996] 3 All ER 735,
HL. as possible and made it an offence dishonestly to obtain for oneself or another a money
transfer by any deception. A money transfer occurred when one account was credited with a
sum of money and another debited with a sum of money and either the credit resulted from
the debit or the debit resulted from the credit.
This section provided that obtaining a ‘pecuniary advantage’ by dishonest deception was an
offence. Basically a pecuniary advantage was not any financial or monetary advantage, but
was exhaustively defined in s. 16(2) as borrowing by way of overdraft, taking out any policy
of insurance or annuity contract (or obtaining an improvement of the terms of the same),
being given the opportunity to earn remuneration or greater remuneration in a job, or to
win money by betting.
Section 20(2) of the Theft Act 1968
This made it an offence dishonestly to procure the execution of a valuable security by

deception. It was a useful offence for the situation in which D obtained a cheque (a valuable
security under s. 20(3)) by deception and paid it into his own account to ‘steal’ the funds.
As we saw at 7.5.4. above, once the cheque is made out to D, it is not property belonging
to another, and, because the cheque makes its way back to the issuer’s account, there is no
intention permanently to deprive for the purposes of theft.
Under s. 1 of the TA 1978 it was an offence dishonestly to obtain services by deception.
ACTIVITY
Write down two examples where D obtains ‘services’ without obtaining ‘property’.

2009 Criminal Law
• • • •

DAMAGE
Examples would include obtaining a taxi ride, a haircut, a massage, a house survey, or a
repair of your property when you have no intention of paying; or obtaining a university
education by falsely claiming to have entrance qualifications. Sofroniou [2003] EWCA 3681
holds that the provision of banking or credit card services and the operation of a bank or
credit card account can constitute ‘services’.
Section 1(2) provided an exhaustive definition of what constitutes ‘services’:
It is an obtaining of services where the other is induced to confer a benefit by doing

some act, or causing or permitting some act to be done, on the understanding that the
benefit has been or will be paid for.
This provision excluded ‘gratuitous’ services. If no payment was envisaged D did not obtain
‘services’ under s. 1. If D deceived his neighbour into mowing his lawn by falsely pretending
to have injured his leg, there was no ‘services’ because there was no understanding that the
neighbour would be paid. If on the other hand, in the same situation, D agreed to pay the
neighbour £5 (and indeed did so), D would have obtained ‘services’ because there was an
expectation of payment. D would then commit the offence because, although the deception
usually related to the matter of payment, there was no necessity for this and the lie about
his injured leg sufficed.
There were three crimes of dishonestly obtaining the ‘evasion of a liability’ by deception
contrary to s. 2 of the TA 1978.
Under s. 2(1)(a), it was an offence for D to secure the remission in whole or in part of any
existing liability to pay. A common example was where D incurred a liability to pay then
practised a deception which caused V, the creditor, to cancel the liability in whole it or in
part. Under s. 2(1)(b), it was an offence for D to induce V to wait for or forgo payment on
an existing liability. This crime was aimed at the stalling debtor who used a deception to get
V to postpone payment or write off the debt. Section 2(1)(c) was a very widely drafted
section which covered existing and future liabilities. For example, it was a crime under s.
2(1)(c) for D to deceive V to give him a free haircut by saying he, D, was a student when he
was not.
3.2 The common elements of the deception offences under the Theft Acts 1968
and 1978
All eight of the Theft Act crimes above could be committed only where;
• there was a deception,
• the deception caused the obtaining of the relevant thing under each section, and
• it was done ‘dishonestly’.
Each of these elements will be analysed in order to provide a glimpse into why the crimes
have been abolished.
Deception
Liability under the Theft Acts hinged on whether the thing obtained was obtained by a
deception. One would therefore have thought that the definition of deception would be
complete and accurate. One would be disappointed.

2009 Criminal Law
• • • •

DAMAGE
Section 15(4) TA 1968 defined deception:

For the purposes of this section ‘deception’ means any deception (whether deliberate
or reckless) by words or conduct as to fact or as to law, including a deception as to
the present intentions of the person using the deception or any other person.
The essence of deception under the Acts was that there had to be;
• an intentional or reckless false representation,
• either expressly (e.g. by spoken words or letter)
• or impliedly (i.e. through conduct or even silence), and
• V was conned or taken in by the falsity.
There are many situations where D implies that something is so, simply by his conduct or
behaviour. Thus, when we book into a hotel, we impliedly represent that we intend to pay
for the room (Harris (1975) 62 Cr App R 28); similarly when we order a meal in a
restaurant.
TEXT BOOK ACTIVITY
Please read ‘The common elements of the deception offences’ in Criminal Law –
The Fundamentals.
Can you provide some examples of how an intentional or false representation can
be made?
Let’s look at some of the forms of deception that have been exercised in the leading cases.
Deception by cheque
Where D pays for goods or services by cheque with a cheque guarantee card, there is a
representation that “the state of facts existing at the date of delivery of the cheque is such
that in the ordinary course the cheque will, on presentation for payment on or after the date
specified in the cheque, be met” (Gilmartin [1983] 1 All ER 829, CA) and that D has the
authority of the bank to use the guarantee card (MPC v Charles). If either representation is
false, say because the bank has told D not to issue any cheques, or to return the cheque
card to the bank for destruction, there is a deception. The same is true for the use of credit
cards (Lambie [1981] 2 All ER 776).
Deception by Ommission
Firth was a consultant and was found to have deceived a hospital by failing to declare that
certain of his patients were private patients, intending to avoid payment of fees due to the
hospital. His omission to inform when under a duty to do so apparently sufficed as ‘conduct’.
The outcomes in these cases have not been changed by the Fraud Act 2006. Difficulties
arose, however, where the ‘victim’ was not in fact conned, or deceived, even though D did
practice a deception.

2009 Criminal Law
• • • •

DAMAGE
Cheque guarantee cards
ACTIVITY
From your reading what was the false representation D was making to the casino
manager in MPC v Charles [1977] A.C. 177?
Did this false representation deceive the manager and cause him to hand over the
chips?
D, having been instructed by his bank not to draw any more cheques on his hopelessly
overdrawn account and to return his cheque guarantee card, bought gaming chips at a
casino using cheques backed by the cheque card. The evidence of the manager in Charles
was that D’s credit-worthiness was irrelevant to him as long as he did not know that D had
no authority to use the card. He went ahead with the transaction because he knew the bank
would be paid and not because he relied on D’s false representation that he had authority to
use the card. Nonetheless, the fiction was applied; given the false representation by D’s
conduct, it was enough that (a) the victim remained ignorant of the truth because D did not
reveal it and (b) it was thought that the victim would not have gone ahead, had he known
the truth.
The same reasoning was applied in relation to the unauthorised use of a credit card by the
credit card holder in Lambie [1981] 2 All ER 776, HL.
A limitation under the Theft Act
A further issue with the offences under the Theft Acts was that, the deception had to be
effective against another human being. A machine could not therefore be deceived. There
are thousands of internet transactions every hour and many of these transactions do not
involve human input at one end. If property was obtained, D might have committed a theft,
but where services were obtained, or a liability was evaded, D escaped liability.
Dishonesty
This has been considered at the previous chapter and it is worth noting that s. 2 Theft Act
1968 never applied to the deception crimes, the only test being that from Ghosh [1982] 2
All ER 689.
4. THE FRAUD ACT 2006
The eight offences discussed above have been abolished.

2009 Criminal Law
• • • •

DAMAGE
CASE BOOK ACTIVITY
Please read ‘B. The law prior to the Fraud Act 2006’, the commentary from the
Criminal Law Revision Committee’, the ‘Law Commission Report’ and point ‘C. The
Fraud Act 2006’ in Text and Materials for an introduction to the new offences.
Why were the old offences no longer fit for purpose?
How many new offence(s) are there and how can the offence(s) be committed?
What new test replaces the previous concept of deception?
There is now one offence of fraud with three ways of committing it. These are by false
representation, by failing to disclose information and abuse of position. The concept of
deception is replaced with a new element, that of false representation. Under s. 2, this
representation must be made knowing it is or might be untrue, dishonestly (the Ghosh test
survives the enactment of these new crimes) and must be made with a view to produce a
gain to D or another or loss or the risk of loss to the victim. Actual gain or loss is not,
however, needed. It is likely that the removal of the requirement to prove that a deception
has operated on a human being’s mind (i.e. cons the V) would mean that the new crimes
encompass fraud on a machine, but in the event of doubt, s 2(5) specifically provides that
the offence may be completed against a machine.
A false representation may be express or implied, but because there is no need to prove
that the false representation caused the obtaining of property (money transfer, etc.), the
‘deception fiction’ is repealed. As stated in the Explanatory Notes to the Act at para 15, ‘It is
immaterial whether the merchant accepting the card for payment is deceived by the
representation.’
The surgeon in Firth would continue to be guilty under the new crime, possibly by way of an
implied false representation under s. 2 (by silence), but more certainly under s. 3 which
more obviously encompasses his conduct (he dishonestly failed to disclose that his clients
were private rather than NHS and he was under a legal duty to do so, and he intended by
that failure to profit from it). However, it is at least arguable that his conduct might also be
covered by s.4 if it was found that it was his professional duty to protect the financial
interests of the hospital.
The final example also covers conduct prohibited by s. 4. Section 4 deals with abuse of a
position and is designed to cover fraudsters such as bankers and solicitors who are under a
fiduciary duty to another and fail to perform that duty, dishonestly, with a view to gain or
cause loss.
It can be an inchoate crime.

2009 Criminal Law
• • • •

DAMAGE
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘The Fraud Act 2006’ and ‘Fraud’
for an introduction to and an examination of the new offences.
Dishonestly obtaining services
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals, the above titled section.
In what way is this similar to the old offence of obtaining services by

deception?
How is it different?
Please see the grid in your textbook and on the following page for a summary of the
differences between the old and the new offences.

2009 Criminal Law
• • • •

DAMAGE
Section 1 Theft Act 1978 Section 11 Fraud Act 2006

Deception No requirement of a deception. This
means it is possible to commit the new
offence though a machine, such as
downloading software or giving false
credit card details to an automated
booking system for a concert, or train
journey.
Obtains Obtains
Services (defined as where another is ‘Services’ are not specifically defined,

induced to confer a benefit by doing but are stated under sub-s. (a) to be
some act, or causing or permitting made available on the basis that
some act to be done, on the payment has been, is being or will be
understanding that the benefit has made for or in respect of them.
been or will be paid for) References to conferring a benefit are
abolished
Dishonestly Yes - any dishonest act (it is not

possible to commit this offence by
omission alone)
D could commit this offence even Intention to avoid (full) payment

where he paid in full or intended to do
so. The Law Commission cites the
example of where a parent lies about
the religion of their child to secure a
place at a fee-paying religious school,
always intending to pay the fees in full.
The Law Commission concluded such a
defendant should not be regarded as
guilty in such circumstances. Note that
where there is a false representation
and D intends not to pay (make a gain,
cause a loss), a charge under section 2
or section 11 might be brought.
5. MAKING OFF WITHOUT PAYMENT
Section 3 of the Theft Act 1978 has not been repealed by the Fraud Act 2006.
Under s. 3 of the TA 1978, ‘a person who, knowing that payment on the spot for any goods
supplied or service done is required or expected from him, dishonestly makes off without
having paid as required or expected and with intent to avoid payment of the amount due
shall be guilty of an offence’.
The offence is aimed at situations where D tries dishonestly to avoid payment of what is due
in circumstances liable to make him difficult to trace. Examples are: running out of a
restaurant without paying for a meal; driving off from a self-service petrol station without
paying for the petrol; or leaving a hotel without paying for the stay.

2009 Criminal Law
• • • •

DAMAGE
ACTIVITY
Would the person we discussed above, who dishonestly drives from a self-service
petrol station without paying for the petrol he has taken, commit theft or only the
making off offence?
The answer depends on the facts. If D is dishonest at the time he fills up, he dishonestly
appropriates the petrol belonging then to the garage and commits theft (Gomez). If he
decides not to pay only after he has filled up, his dishonest appropriation would come at a
time when the ownership had transferred to him and would not be of petrol ‘belonging to
another’. There would be no theft of the petrol (Edwards v Ddin) only making off contrary to
s. 3 of the 1978 Act.
Actus reus
D must (a) make off from the spot where payment is required or expected (b) without
having paid as required or expected (c) for goods supplied or service done.
‘Makes off ’
The main question at issue is whether ‘makes off’ means simply departing from the spot or
whether it connotes ‘decamping’ or ‘disappearing: leaving in a way that makes it difficult for
the debtor to be traced’.
There does not appear to be any need for haste or stealth (running out at top speed or
sneaking out when the waiter has left the room). According to Brooks and Brooks (1982) 76
Cr App R 66, in a rare biblical reference, making off ‘may be an exercise accompanied by
the sound of trumpets or a silent stealing away after the folding of tents’.
‘The spot’
D can only ‘make off’ when he leaves ‘the spot’ where ‘payment is required or expected’. In
McDavitt [1981] Crim LR 843 the ‘spot’ was P’s restaurant, so that when D made his way to
the door intending to leave without paying for his meal but did not actually go through the
door, he only attempted to ‘make off’. This suggests that the ‘spot’ will generally be the
premises as a whole rather than, say, the cash point for payment. Of course, there may be
no ‘premises’ involved. In the case of a taxi ride, the ‘spot’ will normally be at the agreed
destination but, if D refuses to pay at that point and the taxi driver sets off for a police
station, D commits the offence if he gets out and runs off on route (Aziz [1993] Crim LR
708, CA).
Without having paid as required or expected
P must require payment on the spot. If the victim has agreed to postpone payment, even as
a result of being duped by D’s dishonest deception, he no longer requires or expects
payment ‘on the spot’. D cannot therefore commit the offence when he leaves without
paying (Vincent [2001] Crim LR 488, CA). In addition the ‘on the spot’ payment must in fact
be legally due. In Troughton v Metropolitan Police [1987] Crim LR 138, DC, D, who had had
a lot to drink, took a taxi home to Highbury. The driver had difficulty getting the precise
address and D accused him of deliberately going a long way round. The driver then drove to
a police station. The court held that no payment was due because the driver had broken the

2009 Criminal Law
• • • •

DAMAGE
contract by not carrying D to the agreed destination. There could therefore be no question
of a s. 3 conviction.
Goods supplied or service done
The offence requires goods actually to be supplied or the service actually to be done. Goods
will be supplied only where they come into D’s hands with the express or implied consent of
the ‘supplier’. Similarly, ‘service done’ means a service given at the express or implied
invitation of P, e.g. knowing provision of a hotel room for D, giving D a taxi ride.
Mens rea
D must (a) act dishonestly (b) know that payment on the spot is required or expected from
him and (c) intend to avoid payment of the amount due.
D need only be dishonest at the time of ‘making off’. If he believed that payment was not
due because, for example, the food supplied in the restaurant was inedible, he would not be
dishonest.
D must know payment on the spot is required. If D believes that the goods were offered on
credit and that he would be invoiced for them or that someone else has paid or has agreed
to pay for them, he would not be guilty.
According to the House of Lords in Allen [1985] 2 All ER 641 intent to avoid payment means
an intent never to pay. At the time of the making off, D must intend to make permanent
default.
6. CRIMINAL DAMAGE
TEXT BOOK ACTIVITY
Please read the offences create by the Criminal Damage Act in Criminal Law –
The Fundamentals.
6.1 Basic criminal damage
Actus reus
The actus reus comprises four elements: (a) destroys or damages (b) any property (c)
belonging to another (d) without lawful excuse.
(a) Destroys or damages
‘Destroy’ admits of no half-measures and according to Barnet London Borough Council v

Eastern Electricity Board [1973] 2 All ER 319, DC it requires ‘at least elements of finality
and totality . . . and must . . . go further than merely material change’.
‘Damage’ is a much more fluid concept and is dependent on the circumstances. It does not
matter whether it is temporary or permanent. It involves some physical harm to or
impairment of the value or utility of the property.

2009 Criminal Law
• • • •

DAMAGE
TEXT BOOK ACTIVITY
Please continue your reading of Criminal Law- The Fundamentals at point a)

‘Damage’ and answer the following questions.
What may be taken into consideration when deciding whether property has
been damaged?
Please give some examples of how property may be deemed damaged when the
damage may be easily remedied.
How does the nature of the property effect the estimation of damage?
(b) Property
Property is defined at section 10 of the Act.
TEXT BOOK ACTIVITY
Please read the discussion of property in Criminal Law – The Fundamentals.
What ‘items’ are included within the definition of property?
What ‘items’ are excluded?
(c) Belonging to another
As with theft, property may be construed as belonging to another when that person has
possession or control, a propriety right or interest or a charge upon it.
Mens rea
D must either intend to destroy or damage property belonging to another or be reckless

thereto. Intention bears its usual meaning and applies to the ‘belonging to another’
requirement as well as the causing of the damage. In other words, D must aim to damage
the property knowing or believing that the property belonged to another. Thus, in Smith
[1974] 1 All ER 632 the Court of Appeal held that D’s mistaken belief that boarding and
wiring which he had himself installed as a tenant of P’s premises, meant that he did not
have the mens rea for s. 1(1). He had made a mistake as to the civil law of property
because the boarding damaged became the landlord’s property once it was affixed to the
property.
There is no need to prove intention where the alternative mens rea of recklessness is
charged, as will almost invariably be the case.

2009 Criminal Law
• • • •

DAMAGE
ACTIVITY
What does ‘reckless’ mean?
If you cannot remember please re-read the discussion of recklessness with

reference to the case of G [2003] UKHL 50.
(d) Without lawful excuse
This is addressed at the end of the discussion.
6.2 Aggravated criminal damage
Section 1(2) of the Criminal Damage Act 1971 provides:
(2) A person who without lawful excuse destroys or damages any property, whether
belonging to himself or another–
(a) intending to destroy or damage any property or being reckless as to whether any
property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being
reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
The offence is punishable by up to life imprisonment (s. 4).
ACTIVITY
What are the two main differences between this offence and basic criminal
damage under s. 1(1)?
The present offence is essentially s. 1(1) criminal damage plus. The one ingredient of simple
criminal damage which is missing from s. 1(2) is the need for the property to belong to
another. The s. 1(2) offence can be committed equally by the destruction or damaging of
D’s own property because of the risk to life aspect.
ACTIVITY
Does s. 1(2) require proof that someone’s life was in fact endangered by D’s acts
of damage or destruction?

2009 Criminal Law
• • • •

DAMAGE
Mens rea
The major distinction between the two offences lies in the enhanced mens rea requirement
for s. 1(2). Not only must the mens rea for basic criminal damage be proved – intention or
recklessness as to damaging the property – but also the further intention or recklessness in
respect of endangering life by the damage. It is no part of the actus reus that life should
actually be endangered by the damage. It is purely a mens rea requirement. If D intended it
or was reckless as to it, it is irrelevant that, as it turned out, the actual damage did not
endanger life.This is fairly obvious because otherwise D might escape liability where he sets
fire to a house thinking that it is occupied when it is not.
The offence definition gives intention and recklessness as alternatives both in respect of the
actus reus – the damaging of property – and the endangerment of life, which is not part of
the actus reus. It is open to the prosecution to frame the charge using any combination of
these states, but prudence would dictate that all of them are charged in the alternative, i.e.
D intended or was reckless as to damaging the property and intended or was reckless as to
thereby endangering another’s life.
6.3 Arson
Section 1(3) provides:
An offence committed under this section by destroying or damaging property by fire shall be
charged as arson.
It follows that any offence under s. 1(1) or s. 1(2) where the damage is caused by fire
constitutes arson and must be charged expressly as arson (Booth [1999] Crim LR 144, CA).
Arson carries a maximum sentence of life imprisonment even if D commits only basic
criminal damage without any intention or recklessness as to the endangering of life (s. 4).
Apart from the extra ‘by fire’ requirement, the ingredients are exactly the same as for the
relevant offence under s. 1(1) or (2). Indeed, several of the cases we have already
discussed are arson cases. It would appear that the mens rea is slightly more precise in that
D would have to intend to damage by fire or be reckless thereto.
ACTIVITY
If D falls asleep whilst smoking in bed and accidentally sets fire to his mattress
and upon discovering the smouldering mattress, does nothing and goes out, does
he commit arson? (see the case of Miller discussed at chapter 2)
If D knew there were other occupants in the house, would he also commit an
offence under s. 1(2)?
The principle from Miller would apply to convict D under s. 1(2) provided, as seems to be
the case, that he was reckless as to the endangering of another’s life by the fire damage
when he did nothing and walked out.

2009 Criminal Law
• • • •

DAMAGE
Without lawful excuse
Let’s return to the essential element of ‘without a lawful excuse’.
Firstly, there are many instances where D would have a lawful excuse for damaging P’s
property. For example, police executing a lawful search warrant may have to smash down a
door to gain entry. Equally, it might be said that D would have a lawful excuse if he can use
any of the normal defences to criminal liability, such as self-defence or duress. Thus, if D
throws P’s china ornament at P in reasonable self-defence, the damage would be with lawful
excuse.
In addition to such undefined ‘lawful excuses’ which are to be gleaned from the general law,
s. 5 expressly adds two more which might not otherwise amount to ‘lawful excuse’. This
extended meaning of ‘lawful excuse’ does not apply to the aggravated offence under s. 1(2)
because that involves the risk of endangerment of life.
TEXT BOOK ACTIVITY
Read s. 5(1)–(3) in Criminal Law - The Fundamentals.
Identify what constitutes the ‘lawful excuse’ in each case.
Indicate what, if anything, they have in common.
Does any relevant belief have to be reasonable?
Belief in consent
Section 5(2)(a) provides D need only ‘believe’ that the owner has or would have consented
to the destruction or damage with full knowledge of the circumstances. It is not necessary
to show that the owner has in fact or would in fact have consented (although, as a matter of
evidence, this will help to give credence to D’s claim to have held the belief). Thus, it does
not matter whether D was correct in his belief or mistaken. If mistaken, it is immaterial
whether the mistake was reasonable or unreasonable because s. 5(3) expressly provides
that the belief does not have to be ‘justified’ as long as it is ‘honestly held’.
If D has the relevant belief, he has a ‘lawful excuse’ even though he is damaging the
property for a dishonest purpose. In Denton [1982] 1 All ER 65, CA, D set fire to his
employer’s mill because his employer had asked him to do so to enable him to make a
fraudulent insurance claim. Because he believed (correctly) that the owner had consented to
the damage, he had a lawful excuse under s. 5(2)(a) and the prosecution could not
therefore prove an essential ingredient of the crime. Both D and the owner could have been
convicted of conspiracy to defraud.
This section also allows for an exception to the intoxication rules we address at the following
chapter, as an unreasonable mistaken belief even if due to voluntary intoxication still
provides a ‘lawful excuse’. In Jaggard v Dickinson [1980] 3 All ER 716, D lived in a house
belonging to P. D came home drunk one night and went to the wrong house by mistake.
Finding it locked, she broke windows to get in. The court held that she had a ‘lawful excuse’
because she genuinely believed (a) that P was ‘entitled to consent’ to the damage (because

2009 Criminal Law
• • • •

DAMAGE
of her mistake that it was P’s house) and (b) that P would have consented to her damaging
the house to get in, had she known of the circumstances. Section 5(2)(a) did not exclude
beliefs due to intoxication from its scope and the court refused to read in a general implied
restriction from the general law on intoxication. It may be worth referring back to this point
after your reading of intoxication.
Protection of other property
Essentially, s. 5(2)(b) exempts D in a very particular type of necessity situation in which a

much more lenient test of necessity is prescribed than applies in the general defence of
necessity (or duress of circumstances) or even self-defence. The three requirements are (a)
D damages the property ‘in order to protect property belonging to himself or another’ (Hunt
(1977) 66 Cr App R 105 CA, Hill (1988) 89 Cr App R 74, CA) (b) believing that it is ‘in
immediate need of protection’ (Johnson v DPP [1994] Crim LR 673, DC) and (c) believing
that ‘the means of protection adopted or proposed to be adopted were or would be
reasonable having regard to all the circumstances’.
ACTIVITY
Please consolidate your knowledge of criminal damage by reading the

discussion of the offence in Criminal Law – The Fundamentals.
On your syllabus criminal damage becomes an important offence when the defences are
considered, as it can be expressed as either a basic intent offence or a specific intent
offence. You may then need to return to this section to refresh your understanding when
you address defences, specifically the defence of intoxication and the Caldwell case.

2009
• • • •
Criminal Law
2010 GENERAL DEFENCES
• General defences
1. OBJECTIVES
• Define the requirements for the defence of insanity with particular reference to the
concept of ‘disease of mind’ and identify the shortcomings of the legal definition of
insanity;
• Explain the meaning of automatism and the difference between insane and non-
insane automatism;
• Distinguish between offences of specific intent and offences of basic intent;
• Define self-induced automatism and state how it affects criminal liability;
• State the basic rules governing the effect of voluntary intoxication and involuntary
intoxication;
• Appreciate the significance of the relationship between mistake and mens rea;
• Explain when mistake needs to be reasonable to affect liability;
• State the basic conditions for the applicability of the statutory and common law
defences of self-defence and prevention of crime and explain the concept of
‘reasonable force’;
• Analyse how mistake affects self-defence;
• Distinguish between traditional duress by threats, necessity and duress of

circumstances;
• Describe the conditions required for a successful defence of duress (a) by threats
and (b) of circumstances.
Maxwell, Chapter Twelve and Chapter Thirteen..
and Maxwell, Chapter Three.

2009 Criminal Law
• • • •
3. INTRODUCTION AND OVERVIEW OF GENERAL DEFENCES
The defences we address here form a motley collection that cover vastly different
circumstances and operate in quite disparate ways. Attempts to group them into themes
have been numerous but always flawed in some way or other. For example, although
usually regarded as defences, automatism, intoxication and mistake are not truly defences
at all. Rather they amount to a claim by the accused that the prosecution is unable to prove
the ingredients (usually the necessary mens rea) i.e., the positive fault elements of the
crime charged.
A common way of categorising defences is into those which are elements of the offence, and
those which are either justificatory or excusatory. The distinction between justificatory and
excusatory defences, in very basic terms, is that a defence which is justificatory is one
where D’s conduct is approved by society in general, but an excusatory defence is one
without such approval, but where punishment is not considered to be appropriate.
Let’s move on to look at these defences.
4. AGE AND CRIMINAL RESPONSIBILITY
The law continues to recognise that children’s immaturity may impair their understanding of
right and wrong so that it would be unjust to hold them criminally responsible in the same
way as an adult. Thus the age of 10 years is set below which no criminal responsibility can
attach.
The law conclusively presumes that children under 10 years of age are incapable of
committing a crime and, therefore, whatever they have done, it is impossible to convict
them of any crime (s. 50 of the Children and Young Persons Act 1933, as amended).
Until 1998, there was a rebuttable presumption that children of 10 years and over but
under the age of 14 were incapable of committing any crime (‘doli incapax’). The
presumption could be rebutted only by proof that the child understood that his act was
seriously wrong (the act - not the consequences of that act). This provided an addition
hurdle for the prosecution as they had to prove not only that D performed the actus reus of
the crime charged with any requisite mens rea but also that he appreciated that his conduct
was seriously wrong. The legislature abolished this presumption by way of s.34 of the
Crime and Disorder Act 1998. Thus children over the age of 10 are considered doli capax
and treated in exactly the same way as adults in terms of criminal liability.
5. INSANITY
Here we will be dealing with the question of whether D was insane at the time of the
commission of the alleged crime. However, insanity whilst the accused is in detention for
the alleged crime or at the time of the trial can also affect his liability and result in the trial
not being held because D is unfit to stand trial. Since these issues are concerned with
procedure rather than the substantive law, they are outside the scope of this text.
The utility of the defence
While the media may find insanity pleas attractive the coverage the defence receives has
been misleading. In reality it has not been a popular defence due to difficulty in successfully
pleading the defence and the sentencing provision attached to a finding of ‘not guilty by
reason of insanity’. Prior to 1991 on reaching such a verdict the court had to order the
accused to be detained indefinitely in a secure mental hospital. The Criminal Procedure
(Insanity) and Unfitness to Plead Act 1991 Act now gives the judge a more realistic range of
sentencing options; ranging from an absolute discharge, a guardianship order or a
supervision and treatment order but still extending to include compulsory, indefinite
2009 Criminal Law
• • • •
detention in a secure mental hospital. However, under the Domestic Violence, Crime and
Victims Act 2004, the court may only impose such an indefinite period of detention (even
for murder) if there is medical evidence which justifies detention in hospital i.e. evidence
that the defendant suffers from a mental disorder which requires specialist treatment.
Despite these recent sentencing reforms, an acquittal on grounds of automatism (which we
will go on to address) is still preferable to a finding of not guilty by reason of insanity.
The other major change made by the 1991 Act is to prohibit a finding of insanity unless
supported by the written or oral testimony of at least two registered medical practitioners,
of whom at least one is approved by the Home Secretary as having special experience in
the field of mental disorder (s. 1).
Does the defence negate the actus reus or mens rea of the offence?
For a verdict of insanity to be possible, the prosecution must establish that D ‘did the act or
made the omission charged’ i.e. performed the actus reus of the offence alleged (s.2(1) of
the Trial of Lunatics Act 1883 as amended). Failure to prove the actus reus would mean a
complete acquittal. However, there is no need to prove the mens rea for the offence
charged (Attorney-General’s Reference (No 3 of 1998) [1999] 3 All ER 40, CA approved by
the House of Lords in Antoine [2000] 2 All ER 208). It is evident that an insane person may
or may not have the mens rea for the crime charged. Once insanity is accepted, the mens
rea for the offence charged ceases to be relevant.
The overlap between insanity and diminished responsibility
Diminished responsibility is often referred to as ‘partial insanity’. Many of the states of mind
we discussed under diminished responsibility could also fall under insanity. However please
remember that diminished responsibility is ONLY a defence to murder; insanity is a general
defence.
The introduction of the defence of diminished responsibility to the crime of murder in 1957,
with its vastly more attractive sentencing options, had a dramatic effect in reducing the
number of insanity pleas. We should point out that, if the defendant pleads diminished
responsibility, it is open to the prosecution to allege that the defendant was legally insane.
The same is true where the defendant alleges that he was in a state of automatism when he
committed the alleged crime.
CASE BOOK ACTIVITY
Please read the introduction to insanity and the commentary by Abraham

Goldstein in Criminal Law - Text and Materials.
5.1 How do we define legal insanity?
Please note that the legal notion of insanity does not correspond with the medical
notion of insanity. Legal insanity is a great deal narrower than medical insanity because if
D understands one of two simple things – (a) the physical nature of his action and its
consequences or (b) that it is against the law, he cannot be found insane, no matter how
‘mad’ doctors would regard him. As one physician pointed out in 1843 ‘He [the defendant]

2009 Criminal Law
• • • •
may consider himself the King of England, a tub of butter or a pane of glass and be viewed
responsible for his conduct’.
On the other hand, the legal notion of ‘disease of mind’ is far wider than psychiatrists would
accept, as we shall go on to address.
ACTIVITY
Read the very brief extract from M’Naghten’s Case in Text and Materials.
What are the elements of the defence?
Insanity is a common law defence and the basic definition is still that laid down in the
M‘Naghten Rules. D must prove on the balance of probabilities that he was suffering from a
defect of reason arising from a disease of the mind with the result that either he did not
know the nature and quality of his act, or he did not realise that his actions were wrong.
There are four elements here and each of them needs further explanation.
(a) Disease of the mind
The courts have taken a wide view of what constitutes a disease of the mind and their
major policy concern has been to ensure that people who have shown themselves to be
dangerous to the public should be detained until the authorities are satisfied that the
public’s safety is not in jeopardy. It is likely therefore that any internal bodily disorder which
affects the functioning of the brain and has resulted in violence which might recur will be
held to be a disease of the mind (see Lord Denning in Bratty v Attorney-General for
Northern Ireland [1963] AC 386, HL), although the absence of a danger of recurrence does
not preclude a finding of ‘disease of mind’ (Burgess).
ACTIVITY
How can a disease that occurs outside the brain amount to a disease of the mind?
If you cannot answer this question please refer to the commentary following the
extract from M’Naghten’s Case.
Read the extract from Lord Diplock’s speech in Sullivan [1983] 2 All ER 673, HL in
Text and Materials. What is the definition of:
(a) mind, and

(b) disease of mind?

2009 Criminal Law
• • • •
You will see that the distinction between an internal and an external cause of the disease is
vital to the decision on whether or not D has a disease of mind. What this means is that the
availability of the defence is dependent upon its cause as well as its effect.
For example, in Quick, the defendant nurse was convicted of assault occasioning actual
bodily harm on a patient. He had claimed the defence of non-insane automatism on the
basis that, at the time of the alleged assault, he was suffering from hypoglycaemia and was
not aware of what he was doing. Hypoglycaemia is a deficiency of blood-sugar caused by
the use of insulin prescribed by the defendant’s doctor to counteract the diabetes from
which he suffered. The defendant had withdrawn his defence and changed his plea to guilty
when the trial judge ruled that his defence amounted to insanity. The Court of Appeal
quashed the conviction on the ground that the defendant’s condition was caused by an
external factor, i.e. the injection of insulin, which did not constitute a disease of the mind.
This condition was only transitory in the sense that it would not recur unless the external
stimulus was reintroduced.
Ironically, a diabetic may act unconsciously in a similar fashion through failing to take
insulin. This can lead to a condition known as hyperglycaemia caused by an excess of blood-
sugar and in this case the courts would regard the condition as constituting insanity. This
was confirmed recently by the Court of Appeal in Hennessy [1989] 2 All ER 9.
CASE BOOK ACTIVITY
Please read R v Burgess [1991] 2 All ER 769, CA and the commentary that follows
in Text and Materials and answer the following questions.
• What is the factor which led the Court of Appeal in Hennessy to distinguish
Quick?
• Do you think it makes sense to classify Hennessy as insane and Quick as not?
• How would you class someone who was violent whilst sleep-walking?
As we have stated, the distinction between an internal and an external cause of the disease
is vital to the decision on whether or not D has a disease of mind.
ACTIVITY
Write down any examples you can think of which would constitute external factors
negating a ‘disease of the mind’.

2009 Criminal Law
• • • •
You might have suggested a blow on the head causing temporary concussion, anaesthetics,
drugs such as LSD, alcohol or hypnotic influences (see T [1990] Crim LR 256 for a more
controversial example.)
Where a dissociative state is caused by a ‘psychological blow’ resulting from ‘the ordinary
stresses and disappointments of life’ (as opposed to the event in T), it cannot be said to be
due to an external factor. The real cause is D’s own abnormal ‘psychological or emotional
make-up’ and this is an internal factor constituting ‘disease of mind’.
The Court of Appeal in Quick said that the external factor must be of transitory effect to
avoid a finding of insanity.
ACTIVITY
Can you say what is the significance of the requirement that the effect be
‘transitory’?
Let us consider a case where D is concussed by a blow on the head. This would be an
external factor and if D commits the alleged crime whilst so concussed, this would be non-
insane automatism. However, if the blow on the head had caused permanent brain damage
so that D might have further attacks spontaneously without the re-introduction of any
external stimulus, what started out as an external factor, would have become an internal
bodily disorder and would constitute a disease of the mind and therefore insanity.
(b) Defect of reason
ACTIVITY
From your reading of the commentary upon Burgess how impaired must a
defendants reasoning be for an insanity plea to succeed? Please pay particular
attention to the case of Clarke [1972] 1 All E.R. 219.
(c) Not knowing the nature and quality or not knowing his act was wrong.
If D is suffering from a defect of reason due to a disease of the mind, he will be insane if
either he did not know the nature and quality of his act or if he did know this, he did not
know it was wrong.

2009 Criminal Law
• • • •
TEXT BOOK ACTIVITY
Please read points c) ands d) in Criminal Law The Fundamentals and answer the
following questions
How has the word wrong been interpreted?
Can you suggest a broader meaning for ‘wrong’ which may be more appropriate
for someone suffering from a disease of the mind?
As you have read ‘wrong’ has been given a very narrow interpretation. Even if the accused,
because of his disease of the mind, is convinced of the moral correctness of his actions, if
he knows that what he is doing is against the law, he would not be legally insane. This can
work particularly harshly and exclude from the defence people who, on any common sense
view, are mad. For example, where D believes he is acting on the instructions of God the
uncompromising response of Stephen J in the nineteenth century was that in such a case,
he would certainly hang a defendant who killed under orders from God, unless he received
an order from God not to (The Guardian, 25 March 1982).
The current attitude of the courts would not be dissimilar, as is illustrated by the Court of
Appeal’s decision in Bell [1984] 3 All ER 842. The defendant was convicted of reckless
driving, having used his van as a battering ram to drive through the entrance gates of a
Butlins Holiday Camp. He told the police, ‘It was like a secret society in there. I wanted to
do my bit against it’. The Court of Appeal in dismissing his appeal held that the fact that he
believed himself to be driven by God did not provide any excuse; he knew what he was
doing and he knew it was against the law. His perception that he was morally right was
irrelevant.
5.2 Burden of proof
ACTIVITY
Who proves insanity? Tick the statement which is correct:
The prosecution must prove D is sane
The defence must prove D is insane
For the answer to this question and in order to consolidate your knowledge of this
defence please read Criminal Law - The Fundamentals ‘Insanity’.

2009 Criminal Law
• • • •
5.3 Reform
It will be evident that the present definition of insanity is out of touch with modern thinking
on mental disorder and has attracted constant criticism.
CASE BOOK ACTIVITY
Please read point c) Proposals for reform and point d) Should the insanity
defence be retained? In Criminal Law - Text and Materials and makes notes
supporting and critiquing the defence of insanity.
5.4 Final Point
Students commonly become confused with the overlap between the defences of insanity
and automatism (discussed below). A couple of problems arise; firstly, different textbooks
use differing terminologies for these defences. Many refer to insanity as ‘insane automatism’
and automatism as ‘sane automatism’, please be aware that ‘insane automatism’ is the
same defence as insanity, it is merely an alternative term. Secondly both defences (usually)
allow a defence for a defendant who is acting unconsciously – the important difference is
that insanity arises from an internal cause and automatism from an external cause.

2009 Criminal Law
• • • •
Insanity flow chart
Did D lack the capacity to

reason normally (i.e. have a
defect of reason)?
Yes
No
Was this due to a
D is not
disease of mind?
insane
Yes
No Did D appreciate the physical
nature and quality of his act?
D is not
insane
Yes
No Did D realise his act was
legally wrong?
D is insane
Yes
No D is not insane
D is insane

2009 Criminal Law
• • • •
6. AUTOMATISM
In the introduction to actus reus you may remember we discussed that the actus reus of an
offence must be performed by the muscles of the D while under the control of the conscious
mind. The defence of automatism operates where; a) the defendant is acting unconsciously
(i.e. the prosecution is unable to prove D’s muscles are under the control of his conscious
mind) and b) such arises from an external cause.
(a) Total loss of control
For the defence of automatism to be successful the act must be done by D’s muscles but
they are not, at the time, under the control or direction of his conscious mind, examples of
which include;
• Concussion
• Hypoglycaemic coma (Quick [1973] 3 All ER 347, CA)
• Blackouts (Kemp [1957] 1 QB 399; Sullivan [1983] 2 All ER 673, HL).
• Sleep-walking or during nightmares (Bratty v Attorney-General for Northern Ireland;
Lillienfield, The Times, 17 October 1985).
• Attack by a swarm of bees (Hill v Baxter [1958] 1 QB 277).
• Sudden brake failure (Burns v Bidder [1966] 3 All ER 29).
In Broome v Perkins [1987] Crim LR 272 the Divisional Court stressed that to succeed with
automatism, D had to have lost all control and the plea would fail if he retained what it
termed ‘partial control’. This decision was relied on and endorsed by the Court of Appeal in
Attorney-General’s Reference (No. 2 of 1992) [1993] 4 All ER 683 where D drove his lorry
into a broken down vehicle on the motorway hard shoulder. He claimed automatism through
a condition known as ‘driving without awareness’. However, because D retained some,
albeit impaired or reduced, control and there had not been total destruction of voluntary
control, his plea of automatism was rejected.
ACTIVITY
• There are other cases where D would be regarded as an automaton even

though he is fully conscious. Can you write down an example?
• If D shoots someone, do you think he would be an automaton in either of the

following situations:
– D, is acting under an irresistible impulse as a result of a psychopathic
disorder.
– X is holding a loaded gun to D’s head threatening to kill D unless D shoots
the victim?
Apart from cases where D is unconscious, automatism includes reflex actions or spasmodic
or convulsive acts (Bratty v Attorney-General for Northern Ireland). The term ‘automatism’
certainly does not cover cases where D acts under an ‘irresistible impulse’ (e.g. as a result
of a psychopathic disorder) or duress, although these may constitute other defences.

2009 Criminal Law
• • • •
Aside from ‘automatic’ actions, where D’s muscles, albeit without direction of the conscious
mind, are causing the actions, D’s ‘acts’ will be classed as involuntary in only very limited
circumstances. For example, if D is holding a knife and is held by a more powerful man who
forces D to stab the victim, D would be acquitted of any offence. Or (according to Bell
[1984] 3 All ER 842) where a motorist is suddenly deprived of control over his vehicle by a
sudden blowout or unforeseen brake failure.
However, there is no room here for a wider concept of moral involuntariness – that would
open the door to all sorts of considerations of the individual’s background and motivation,
and the social context of his actions, which the law’s generally uncompromising emphasis
on individual responsibility seeks to avoid.
(b) External Cause
ACTIVITY
Do you remember from our discussion on insanity when automatism will be

classed as insane automatism (insanity)?
For automatism to succeed the cause of the total loss of control must be external, be it the
taking of non-dangerous drugs (such as Valium) or the result of a knock on the head.
Once these two elements have been established the next question that should always be
asked is whether the offence committed is one of specific or basic intent as automatism is
always a defence to crimes requiring proof of ‘specific intent’ for a conviction. For
all other offences (known as basic intent offences) the defence could well be lost if the
automatism was ‘self-induced’.
6.1 How does the defence operate?
Crimes of specific intent
As automatism is always a defence to crimes requiring proof of ‘specific intent’ the crucial
question to be answered, therefore, is what constitutes an offence of specific intent. As we
shall see, this question is also critical in considering the defence of intoxication and most of
the textbooks discuss it under that head.
We have then 2 terms to decipher: specific intent and basic intent. To do so, you must
acknowledge first that the distinction between specific and basic intent is judge-made; it
lacks logic, there is inconsistency, but it is a useful means to an end.
Our starting point is the definition given by Lord Simon in DPP v Morgan [1975] 2 All ER 347
who defined a specific intent crime as one where the mens rea ‘goes beyond the
contemplation of the actus reus’ whereas the mens rea of a basic intent crime ‘corresponds
exactly’ to the actus reus of the crime.

2009 Criminal Law
• • • •
ACTIVITY
Using Lord Simon’s definitions in Morgan, tick those of the following crimes which
would be specific intent crimes:
• battery
• s. 18 of the Offences Against the Person Act 1861;
• murder.
The actus reus of battery is an application of unlawful force to the victim. The mens rea is
intention or subjective recklessness as to the application of such force. It is therefore a
basic intent crime. On the other hand, s. 18 of the Offences Against the Person Act 1861 is
a crime of specific intent because not only must D have mens rea in relation to the actus
reus of the ‘wounding’ but he also needs a further or ulterior intention to do grievous bodily
harm. The mens rea goes beyond what is needed for the actus reus.
The difficulty with this definition is that it does not accord with the case law. For example,
murder has been held time and again to be an offence of specific intent. Yet the mens rea
needed – an intention to kill – ‘corresponds exactly’ with the actus reus – killing. A similar
argument may be applied to a s. 18 of the OAPA 1861 charge based on ‘causing grievous
bodily harm with intent to do grievous bodily harm’.
TEXT BOOK ACTIVITY
Please read the commentary upon specific and basic intent in Text and Materials
(located at point E. voluntary intoxication).
How did Lord Simon modify his stance in DPP v Majewski [1976] 2 All ER 142, HL?
Returning to the defence of automatism, please remind yourself of why is it

important to assess whether an offence is one of specific or basic intent? If you
cannot answer this question please return to the beginning of the ‘specific intent’
passage in the guidance text.
Crimes of basic intent
If the offence committed is one of basic intent D has a complete defence if the automatism
was not self induced (i.e. where D crashed his car after being knocked unconscious by a
stone thrown through the window whilst he was driving or taking non-dangerous drugs in
accordance with medical advice.) If automatism was self induced the rules are more
complicated and mean that D may often be convicted even though he was in a state of non-
insane automatism.

2009 Criminal Law
• • • •
Crimes of basic intent and self-induced automatism
A distinction that must be made in cases of self-induced automatism is whether the state
was brought on by dangerous or non-dangerous drugs. A ‘dangerous’ drug is one commonly
perceived to be ‘liable to cause unpredictability or aggressiveness’ such as LSD, Ecstasy and
crack (Hardie [1984] 3 All ER 848, CA). If the state is caused by a dangerous drug the rules
you must turn to are those governing intoxication (below). The intoxication rules do not
apply to non-dangerous drugs such as sedative-type, tranquillising drugs (in Hardie, Valium
in Bailey [1983] 1 WLR 760, Insulin), if the state of automatism is caused by a non-
dangerous drugs the rules outlined in Bailey are applicable.
TEXT BOOK ACTIVITY
Read the discussion regarding self-induced automatism in Criminal Law – The

Fundamentals.
Is the defence of automatism available if D voluntarily ingests a dangerous drug?

If no, what other defence may be available?
Can self induced automatism be a defence to a specific intent offence?
For crimes of basic intent, in the leading case of Bailey [1983] 1 WLR 760 what did
the court hold had to be foreseen by D for the defence to fail? This principle is
VERY important please make a note of it below.
Finally, it should be noted that sometimes an offence may be committed before the onset of
automatism. For example, a defendant who falls asleep whilst driving will have committed
the offence of careless driving prior to falling asleep because he would be negligent in not
stopping to drive when he felt tired before he nodded off (Kay v Butterworth (1947) 173 LT
191; Moses v Winder [1980] Crim LR 232). The prosecution can prove the actus reus and
the necessary fault element without recourse to what happened whilst D was in the
automatic state.
6.2 Reform
TEXT BOOK ACTIVITY
Please read the discussion of reform in Criminal Law – The Fundamentals.

2009 Criminal Law
• • • •
Flow chart on automatism
When you are addressing the defence of automatism don’t forget to define
automatism first; but then use the flowchart to find the effect of the defence according to
the charge:
Is the automatism due to disease of

mind?
Yes. Therefore insane automatism. D No. Therefore non-insane

is not guilty by reason of insanity. automatism. Is it a crime of specific
intent?
Yes. D is not guilty because he lacks No. Is the automatism self-induced?

the specific intent.
Yes. Is it due to voluntary intoxication

No. by alcohol or a ‘dangerous’ drug?
D is not guilty.
No. (E.g. non-dangerous drug.) Was

D aware that his action might make
Yes. D is guilty of the basic him ‘aggressive, unpredictable or
intent crime. uncontrolled’?
Yes. D is guilty of the basic No.

intent crime. D is not guilty of the crime.

2009 Criminal Law
• • • •
7. INTOXICATION
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals from the ‘Introduction’ to voluntary
intoxication up to (but not including) ‘Distinguishing specific intent crimes from
those of basic intent’ and ensure you understand;
What we mean by voluntary intoxication.
The limited circumstances in which voluntary intoxication may be a defence.
The importance of addressing whether the offence charged is one of basic or

specific intent.
The policy justifications for the rules expressed in DPP v Majewski [1976] 2 All ER
142, HL.
Before we move onto to the rules governing intoxication lets readdress how we distinguish a
specific intent offence from a basic intent offence.
ACTIVITY
Please read R v Caldwell [1982] A.C 341 and R v Heard [2007] EWCA Crim 125 to
refresh your knowledge of the distinction between specific and basic intent
offences.
In summary, the hallmark of a specific intent crime is that it ‘requires proof of a purposive
element’ (Lord Simon in DPP v Majewski). This seems to mean an offence where intention
and intention alone suffices for a conviction. The House of Lords in Caldwell [1981] 1 All ER
961 was certainly of the view that Majewski decided that self-induced intoxication can
never be a defence to a crime which, as charged, is satisfied by proof of mere recklessness
(whether subjective or objective), or less.
This rule in Caldwell has curious consequences. Under s. 1(2) of the Criminal Damage Act
1971 it is an offence intentionally or recklessly to damage or destroy property with intent to
endanger life or being reckless thereto. Before Caldwell, this was universally regarded as a
crime of specific intent because mens rea was required as to a matter going beyond the
actus reus – what Lord Simon defined as ‘ulterior intent’. It contrasted with ordinary
criminal damage under s. 1(1) which required only mens rea in relation to the actus reus,
namely intentionally or recklessly damaging another’s property.

2009 Criminal Law
• • • •
ACTIVITY
Since Caldwell, why is how the prosecution frames its charges so crucial?
According to Caldwell, whether voluntary intoxication is available as a defence to a charge

under s. 1(2) depends not on whether the offence is one of specific or basic intent but on
how the prosecution frames its charge. If it charges D with intentionally damaging
property with intent to endanger life, then the defence of intoxication is potentially
available. On the other hand if the charge is framed in terms of the alternative mens rea,
namely, recklessly damaging property being reckless as to the endangering of life, then
self-induced intoxication cannot be a defence.
ACTIVITY
By this point you will understand that not only is it integral to distinguish a
specific intent offence from a basic intent offence but that the courts have
struggled to give clear meaning to these terms. Before we move onto the
intoxication rules please ensure you understand how these terms have been
defined in the following cases;
DPP v Morgan [1975] 2 All ER 347
DPP v Majewski [1976] 2 All ER 142, HL
R v Caldwell [1982] A.C 341
R v Heard [2007] EWCA Crim 125
7.1 The rule for voluntary intoxication and specific intent crimes
As we have seen whenever the intoxication actually prevents D having the mens rea
necessary for the specific intent crime, D must be acquitted of that crime. You should be
aware that the intoxication does not have to render D incapable of forming the necessary
mens rea. The question is simply: has he or has he not formed that mens rea (Pordage
[1975] Crim LR 575; Sheehan [1975] 1 WLR 739, CA). We should emphasise that if D does
in fact have the necessary mens rea, his intoxication will be irrelevant to liability. The fact
that he would not have committed the crime had he been sober has no effect on liability.

2009 Criminal Law
• • • •
One exception to the first mentioned rule is the so-called ‘Dutch courage’ situation. Here, if
D forms the necessary intention before he gets himself intoxicated, using the intoxicant to
give himself Dutch courage, he will be guilty of the offence if he performs the actus reus,
notwithstanding that at the moment of such performance he did not have the appropriate
mens rea because of the intoxication (Attorney-General for Northern Ireland v Gallagher
[1963] AC 349, HL).
Offences which the courts have decided are specific intent offences include murder, s. 18 of
the OAPA 1861, attempt, theft, robbery and burglary. We noted above that with the
offences of violence, there are less serious, basic intent crimes, i.e manslaughter, s. 20 of
the OAPA 1861 or s. 47 of that Act, waiting as a safety net to catch people acquitted of a
specific intent charge. However, the same is not true of the property offences where there
may be no lesser offence available if D is acquitted of the specific intent offence.
ACTIVITY
D is charged with murder and his defence is voluntary intoxication. Remind

yourself of the rules which apply.
The first thing to notice is that D has been charged with a crime of specific intent. The
second thing you will have to find out is whether D formed mens rea or not. If he did, he is
guilty. If he did not, he is not guilty of murder, but will be convicted of manslaughter.
7.2 The rule for basic intent crimes
Voluntary intoxication is no defence to a crime of basic intent even if it prevents D having

the mens rea as long as D would have had the requisite mens rea (foresight) had he been
sober. According to Majewski, there is ‘a substantive rule of law that in crimes of basic
intent the factor of intoxication is irrelevant’. This means that where D claims that he did
not have the necessary mens rea for the offence due to intoxication, the law says that no
such mens rea need be proved. Therefore, it is positively detrimental to D to claim the
defence of intoxication in a crime of basic intent because it immediately relieves the
prosecution of the necessity to prove that D had the mens rea normally required. No mens
rea need be proved where its absence is due to D’s intoxication.
ACTIVITY
What does s. 8 Criminal Justice Act 1967 provide?
Can you explain the apparent conflict between the Majewski rules on basic intent
crimes and s. 8?
Can you reconcile the conflict?

2009 Criminal Law
• • • •
You may remember that s. 8 states that wherever it is necessary to prove intention or
foresight on the part of D, the court must satisfy itself that D actually had the prescribed
intention or foresight by looking at ‘all the evidence’ which, since it is not excluded by the
section, presumably includes evidence of intoxication. It would appear, therefore, that if the
offence requires proof of some intention or foresight on the part of D and he has not got it
because of intoxication, s. 8 should ensure his acquittal of the offence (irrespective of
whether the offence is specific intent or basic intent.) However, s. 8 is only a rule of
evidence and instructs the court how intention or foresight must be proved if and when
the substantive definition of the offence requires it. If, therefore, the offence does not
require proof of any intention or foresight, then s. 8 has no application – it never comes into
play. In order to square this circle and to avoid the application of s. 8, the House of Lords in
Majewski has, in effect, redefined at a stroke all basic intent offences so as not to require
proof of any intention or foresight where its absence is due to D’s intoxication, even though,
whenever D is not intoxicated, intention or foresight is required! Judicial sleight of hand!
CASE BOOK ACTIVITY
Please read Criminal Law – Text and Materials R v Fotheringham (1989)

Cr.App.R.206 and the commentary that follows for a discussion of the
justifications underpinning the principle that voluntary intoxication is no defence
to a crime of basic intent.
7.3 Intoxication and defences
The issue of intoxication here arises in relation to defences where D, due to his intoxicated
state, makes a mistake about the situation, which if true would give him a defence to the
crime.
a) Justificatory defences
Actions performed in self-defence or in the prevention of crime are justified as long as only
reasonable and necessary force is used. If D mistakenly believes he is being attacked or is
preventing a crime, it does not matter that his mistake is unreasonable. His mistake
prevents him from forming the necessary intention to apply unlawful force (Williams
(1984) 78 Cr App R 276, CA; Beckford v R [1988] AC 130, PC).
If that mistake is a drunken mistake, D would still lack the mens rea required for the crime
and one would expect the normal principles governing voluntary intoxication to apply.
CASE BOOK ACTIVITY
Please read O’Grady [1987] 3 All ER 411 and the commentary that follows in
Criminal Law – Text and Materials.

2009 Criminal Law
• • • •
It would appear that even if the offence charged is a specific intent offence like murder or s.
18, the drunken mistake has no effect on liability. Despite its inconsistency with general
principle, O’Grady was followed by the Court of Appeal in O’Connor [1991] Crim LR 135.
However, in both cases these statements appear to have been made obiter and it was
always open to a future Court of Appeal to reassert the Majewski principle. This was
hopefully to be expected, because it certainly appeared that Lord Lane CJ in O’Grady
ignored the decisions in Kimber and Williams that the term ‘unlawful’ is a definitional
element of the offence. He ‘moved from the definitional analysis to the defence analysis’
enabling him to disregard the relevance of whether the crime was one of specific or basic
intent.
ACTIVITY
Please complete your reading of intoxication in your textbook and using your
textbook and the Text and Materials please complete the following chart
Case Basic facts Legal Does this conflict with the

Principles Majewski principle?
O’Grady
[1987] 3 All
ER 411
O’Connor
[1991] Crim
LR 135
Richardson
and Irwin
[1999] 1 Cr
App R 392,
CA
Hatton
[2005] EWCA
Crim 2951

2009 Criminal Law
• • • •
b) Excusatory defences
This will be addressed under the relevant sections; namely duress and provocation.
(c) Intoxicated mistake which provides a lawful excuse under the Criminal
Damage Act 1971
TEXT BOOK ACTIVITY
Please remind yourself of this principle by reading the above titled section in
Criminal Law – The Fundamentals, paying particular attention to the case of
Jaggard v Dickinson [1980] 3 All E.R. 716.
7.4 Involuntary intoxication
ACTIVITY
From your reading so far, what do you understand by the term involuntary
intoxication?
The most obvious example is where D is unknowingly drugged or has his drinks spiked.
However, it is also regarded as including some instances of self-administered drugs,
namely, where drugs are taken strictly in accordance with medical advice. If the stated dose
is exceeded or mixed with other drugs and/or alcohol against medical advice, the
intoxication will be regarded as voluntary. According to Allen [1988] Crim LR 698, CA the
intoxication is not involuntary where D knows he is drinking alcohol but mistakes its
strength.
If D is involuntarily intoxicated, he has a defence to any crime including those of basic

intent, whenever his intoxication negatives the mens rea (Majewski). However, what if the
involuntary intoxication does not prevent D having the mens rea for the crime charged?

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Read the case of Kingston [1994] 3 All ER 353 in Text and Materials and the
commentary that follows.
On what ground(s) did the Court of Appeal allow Kingston’s appeal? Be specific
please.
Why and how was the decision of the Court of Appeal so heavily criticised? (Your
answer should refer to both the academic criticisms and those made at the
House).
What is the ratio decidendi of the case?
The House rejected the argument that there was or should be created a new defence
excusing liability for ‘crimes’ committed whilst involuntarily intoxicated. The House’s firm
view was that there was no distinct defence of involuntary intoxication. In terms of criminal
liability, involuntary intoxication had to be ignored unless it prevented D forming the
required mens rea, or brought on a state of insanity or automatism at the time of the
prohibited acts. It was certainly insufficient that it merely loosened or destroyed D’s
inhibitions causing him to commit the offence.
7.5 Reform
The Law Commission has published a comprehensive document addressing the defence of
intoxication (Intoxication and Criminal Liability LAW COM 314 Jan 2009). In this document
the Commission address issues we have raised in this chapter, namely the difficulties in
labelling an offence one of basic or specific intention and the consequent lack of clarity in
the law. You may find the report useful for revision purposes.
8. MISTAKE
You will find that there are a number of activities and case book/text book reading exercises
in this section. Mistake is a topic which has always confused students of the criminal law
and this is due, in no small measure, to the fact that the courts have struggled to establish
and apply consistent principles. Consequently it is integral that you perform all the directed
reading and attempt all the activities to fully understand this topic.
TEXT BOOK ACTIVITY
Please read the Introduction to mistake in Criminal Law - The Fundamentals.
Will a mistake as to the criminal law excuse the defendant?

2009 Criminal Law
• • • •
8.1 Mistakes which negate the mens rea
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘Mistakes which negate the mens
rea’ and complete the following chart.
Mistakes Basic Case examples and dicta

which negate principle
the mens rea
Mistake as to
the Civil Law
Mistake of
Fact
Ignorance or mistake as to the law is generally no defence, except where the mistake is as
to the civil law and it prevents D having the mens rea necessary for the crime
(Smith [1974] 1 All ER 632, CA).

2009 Criminal Law
• • • •
8.2 Mistakes which do not negate the mens rea
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals and ‘Mistakes which do not
negate the mens rea’
These forms of mistake can be addressed under two broad categories;
a) Irrelevant mistakes
The House of Lords’ decision in Forbes (Giles) [2001] UKHL 40 provides a recent example of
a mistake which does not negate the mens rea and is therefore immaterial. D was convicted
of being “knowingly concerned” in the fraudulent evasion of the prohibition on the
importation of prohibited goods contrary to s.170(2) of the Customs and Excise
Management Act 1979. It was held that, as long as D knew or believed he was importing
‘prohibited goods’, it was irrelevant that he did not appreciate their precise nature, in this
case child pornography. The mens rea of the offence required only that D should know or
believe that the goods being imported were prohibited, not what category of prohibited
goods they fell into. Hence a mistake that the videos, though obscene, featured adults
rather than children would not negate this mens rea because obscene adult pornography is
a ‘prohibited’ good. On the other hand, if D had mistakenly thought that the videos
contained adults only and were merely indecent and not obscene, his mens rea would have
been negatived because non-obscene, adult (as opposed to child) videos are not ‘prohibited
goods’ under the legislation.
b) Mistake as to a defence
In the context of mistake, the law states that the excusatory (for example duress) defences
will be permitted only where the accused’s belief in the existence of the excusing
circumstances was reasonable. In contrast, for justificatory defences (for example self
defence) the law states that if he honestly believed the circumstances were such that the
law would entitle him to do as he did, the accused will not be guilty even if his belief was
unreasonable.
8.3 Mistake as to the need to act in self defence
We will address self defence below and it may be worth returning to this section to
reappraise these principles once you have completed your reading on self defence.
TEXT BOOK ACTIVITY
Firstly please read the above titled section in Criminal Law – The Fundamentals

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Read the case of Williams (Gladstone) (1984) 78 Cr App R 276 in Text and
Materials ((this extract is located in the chapter ‘Relationship of Mens Rea to Actus
Reus’)
Summarise the Court of Appeal’s reasoning on how mistaken self-defence or

prevention of crime affects liability.
Williams was endorsed by the Privy Council in Beckford v R [1987] 3 All ER 425 so that an
honest belief that D was using reasonable and necessary force in the prevention of crime or
self-defence means that D lacks the necessary intention to apply unlawful force and
therefore cannot be guilty of the offence. The prosecution would have failed to prove the
necessary mens rea. If you have failed to grasp the principle from Williams you may find it
useful to read the extract from Beckford in your Text and Materials.
8.4 Mistaken belief in consent
TEXT BOOK ACTIVITY
Please read the above titled section in Criminal Law – The Fundamentals and
set out, in your own words, how a mistake as to consent operates.
A the ‘victim’s’ consent may prevent liability for an intentional application of force by D as
we could say that D does not satisfy the actus reus and mens rea of the crime (intentional
application of unlawful force) because the victim’s consent renders the force applied
lawful.
This was the approach taken by the Court of Appeal in Kimber so that consent in battery
was a definitional element of the crime, although doubt was cast on this by Brown #9who
approached consent as a defence). A similar line to Kimber has been taken where D has
mistakenly believed he was acting in self-defence or the prevention of crime (Williams;
Beckford v R). Thus, in both consent and self-defence/prevention of crime cases,
the mistake does not have to be reasonable.
A final note on mistake and ‘defences’
Please ensure you distinguish ‘justificatory defences’ comprising ‘definitional elements’ of

the crime, e.g. self-defence (Beckford; Williams) and consent (Kimber) from ‘excusatory’
defences e.g. duress (Graham). For a justificatory ‘defence’ the mistake need not be
reasonable. For other defences the mistake as to circumstances must be reasonable and
be such that, if true, would establish the defence, e.g. amount to duress.

2009 Criminal Law
• • • •
8.5 Crimes of negligence
Let us suppose that the offence charged requires a fault element only of negligence in
relation to that part of the actus reus about which the mistake has been made.
ACTIVITY
Would the mistake be a ‘defence’? Would it matter whether it was reasonable or

unreasonable?
To answer this question we can look at the old case of Tolson (1889) 23 QBD 168 which
involved a prosecution for bigamy. Bigamy is committed by anyone who, whilst already
married, ‘marries again’. In this case D ‘married’ again believing incorrectly that her
husband had been lost at sea and that she was therefore free to marry. The court held that
an honest belief that D was free to marry was insufficient to negative liability. Only if the
belief was also based on reasonable grounds would the defendant escape conviction.
At first sight this seems to contradict the principle laid down in DPP v Morgan and yet it was
approved by the House of Lords in that case. The explanation is that, in the eyes of both
courts, the prosecution does not need to prove any mens rea (in the strict sense) on the
part of D in relation to the fact that he is already married at the time of the second
ceremony, in order to secure a conviction for bigamy. The only intention required on the
part of D for the offence is an intention to go through the second ceremony. A mistake that
he is free to marry at this time can have no bearing on that intention. However, by allowing
a reasonable mistake defence, the courts are in effect incorporating a lesser fault element
into the crime of bigamy, namely, negligence as to whether D is already married. Clearly, if
D makes an unreasonable mistake about this fact, he makes a negligent mistake and, by
definition, the prosecution will have established negligence as to the fact that D is already
married (See also Gould [1968] 1 All ER 849, CA). If this mistake is reasonable he cannot
by definition be negligent, so that the necessary fault element is missing.
8.6 Crimes of strict liability
Sometimes the courts will hold that an offence requires no fault element at all, not even
negligence, in relation to one or more elements of the actus reus. Such offences are known
as strict liability offences, to which not even a reasonable mistake will be a defence. The
classic example is Prince [1874–80] All ER Rep 881 involving the offence of abduction now
governed by s. 20 of the Sexual Offences Act 1956. D took an unmarried girl under 16 out
of the possession of her parents without their consent. He claimed that he believed she was
over 16. The court held that the prosecution merely had to prove that she was in fact under
16. D did not have to know she was under 16 or realise she might be under 16 or even be
negligent as to the fact that she was under 16. Even if D made the most reasonable mistake
in the world about her age, it would not prevent a conviction because no fault needed to be
proved in relation to that element of the actus reus. It was a strict liability offence.
In other words, the effect of the mistake in question depends on whether it prevents D
having a fault element laid down by the definition of the crime charged. Although the House
did not formally overrule Prince and other sexual offence decisions applying strict liability to
the age factor, the correctness of their decision to impose strict liability is thrown into doubt
by B v DPP [2000] 1 All ER 833, HL and also K [2001] Crim LR 993 HL (see below).
2009 Criminal Law
• • • •
Although the Court of Appeal in K [2001] Crim LR 134 took a similar view of the crime of
indecent assault under s. 14 of the Sexual Offences Act 1956, their view was overturned by
the House of Lords ([2001] UKHL 41) which described Prince as “discredited”. Section 14(2)
provides that a girl under 16 cannot legally consent so as to negate the assault element. It
was held that the offence required full mens rea in respect of this age factor so that even an
unreasonable mistake that the girl was 16 or over would prevent liability. (The Sexual
Offences Act 2003 reverses both B v DPP (s. 10) and K (s. 3) in respect of the specific
offences in issue, but that does not affect the general principle they enunciate).
9. SELF-DEFENCE, PREVENTION OF CRIME AND DEFENCE OF PROPERTY
Although it is common to refer to self-defence and prevention of crime as ‘defences’, they

form part of the ‘definitional elements’ of crimes of violence. The force must be ‘unlawful’
and if D uses reasonable force in self-defence, he does not apply ‘unlawful’ force and
therefore the actus reus is not established. It follows that it is for the prosecution to
disprove self-defence etc. where D adduces credible evidence of it, because ‘unlawfulness’ is
one of the elements defining the offence (Beckford v R (below); Anderson [1995] Crim LR
430, CA). It is important for you to bear this in mind throughout this section even though,
for ease of explanation, we often refer to them as ‘defences’.
The essence of this ‘defence’ is that in some circumstances D is justified in using violence to
meet unjustified aggression against an interest which the law deems worthy of protection.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘Sources of Law’ and answer the
following questions.
Please explain the two separate defences.
Can you think of a situation where the statutory ‘prevention of crime’ defence in s.
3 would not apply, but the common law defence of self-defence would?
Theoretically, the statutory defence is wider in that the crimes you would be entitled to use
reasonable force to prevent are not limited to crimes of violence, as appeared to be the case
under the common law defence. Thus, you might be entitled to use reasonable force to
prevent someone from indecently exposing himself.
ACTIVITY
Does this mean that you can use force to prevent any crime?

2009 Criminal Law
• • • •
No matter how trivial the offence, theoretically you are entitled to use reasonable force to
prevent it, although it is open to the court to find that, in the circumstances, the offence is
so trivial that no force would be reasonable to prevent it.
The law regarding self defence has recently been clarified by the Criminal Justice and
Immigration Act 2008 s.76.
(1) This section applies where in proceedings for an offence—

(a) an issue arises as to whether a person charged with the offence (“D”) is entitled
to rely on a defence within subsection (2), and
(b) the question arises whether the degree of force used by D against a person (“V”)
was reasonable in the circumstances.
(2) The defences are—

(a) the common law defence of self-defence; and
(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or
section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of
force in prevention of crime or making arrest).
(3) The question whether the degree of force used by D was reasonable in the
circumstances is to be decided by reference to the circumstances as D believed them
to be, and subsections (4) to (8) also apply in connection with deciding that
question.
(4) If D claims to have held a particular belief as regards the existence of any
circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether
D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the
purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief
attributable to intoxication that was voluntarily induced.
(6) The degree of force used by D is not to be regarded as having been reasonable in
the circumstances as D believed them to be if it was disproportionate in those
circumstances.
(7) In deciding the question mentioned in subsection (3) the following considerations
are to be taken into account (so far as relevant in the circumstances of the case)—
(a) that a person acting for a legitimate purpose may not be able to weigh to a
nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person honestly and
instinctively thought was necessary for a legitimate purpose constitutes strong
evidence that only reasonable action was taken by that person for that purpose.
(8) Subsection (7) is not to be read as preventing other matters from being taken
into account where they are relevant to deciding the question mentioned in
subsection (3).
(9) This section is intended to clarify the operation of the existing defences
mentioned in subsection (2).

2009 Criminal Law
• • • •
(10) In this section—

(a) “legitimate purpose” means—
(i) the purpose of self-defence under the common law, or
(ii) the prevention of crime or effecting or assisting in the lawful arrest of
persons mentioned in the provisions referred to in subsection (2)(b);
(b) references to self-defence include acting in defence of another person; and
(c) references to the degree of force used are to the type and amount of force used.
This essentially codifies the current common law position and the statutory provision under
the 1967 Act (however we need clarification through case law). Please be aware that the
principles that govern the operation of the defence are still those common law principles we
will discuss below.
9.1 What is reasonable force?
The concept ‘reasonable force’ embraces two ideas; necessity and proportionality. Necessity
means that the force used was necessary - in the sense that lesser violence would not have
been adequate to defend oneself or prevent the crime. Proportionality means that it was
reasonable to use that necessary force in the sense that it was not disproportionate to the
mischief sought to be avoided.
ACTIVITY
Do you think reasonableness of force is tested subjectively or objectively? Write

down your answer. Give reasons if you can.
How carefully must someone seeking to use self defence weigh his defensive
action (see Lord Morris in Palmer v R [1971] AC 814 PC in Criminal Law - The
Fundamentals ‘Reasonable force’ for the answer to this question)
Please be VERY clear - what amounts to reasonable force is a question of fact for the jury
and as such the test is objective and depends on the jury’s view of whether a reasonable
person would have used such force in the circumstances as perceived by the accused
(Williams [1987] 3 All ER 411, CA).
If D simply believes that he is entitled to use more force than the law permits this is
regarded as a mistake as to the criminal law and, as such, should not provide a defence. It
is for the law, in the shape of the jury, to prescribe the standard of reasonable force, and if
D gets it wrong and acts excessively, he is rightly convicted.
Although the test is objective – the court lays down the external standard of what amounts
to reasonable force in the given situation – it is given a subjective twist by ruling that the
defender’s belief that it was necessary is ‘most potent evidence’ that it was reasonable. It is
almost as if the reasonableness of the force goes to establishing that D acted in genuine
self-defence.
However, in judging whether the force used by D was reasonable, D must be

judged on the facts as he saw them. Thus, if D was mistaken in believing that P was
attacking him or committing a crime, then the jury must assume that P was attacking D or
committing a crime, and decide whether D used only reasonable force in those imagined
circumstances. It is clear from Williams [1987] 3 All ER 411, CA and Beckford v R that D’s
mistake need only be an honest one and it does not matter whether it is reasonable or
unreasonable.
2009 Criminal Law
• • • •
The same is true of any other mistake about the factual circumstances, e.g. D imagined the
attack was more severe than it was (as where D believed P to have a gun, when in fact it
was a water pistol).
In short D must use (objectively) reasonable force in the circumstances as he (subjectively)

saw them.
ACTIVITY
What about where D’s mistake as to the need for self defence is an intoxicated
one? Will an intoxicated mistake as to fact, i.e. that D believes he is under
attack, be taken into consideration?
If you cannot answer this question please refer back to intoxication and
mistake, specifically the O’Grady case.
CASE BOOK ACTIVITY
Although we therefore judge D on the facts as he saw them does this extend to
his assessment of what those facts mean in terms of the degree of danger
created?
For the answer to this question please read the brief extract from Martin
(Anthony) [2002] Crim LR 136 CA and the commentary that follows in Text and
Materials (in the self defense section of the text.)
9.2 Other matters
Pre-emptive strike and imminent attack
ACTIVITY
Do you think someone who fails to retreat and stands his ground should be
disqualified from using the defence? What about someone who makes a pre-
emptive strike, fearing an imminent attack?

2009 Criminal Law
• • • •
There used to be a rule at common law that, unless the defendant had retreated as far as
he possibly could he was not entitled to use any force. This rule no longer holds, although
the courts will normally expect a defendant to indicate his willingness to ‘temporise and
disengage’ (Julien [1969] 2 All ER 856). However, everything depends on whether the
defendant acted reasonably in standing his ground (Bird [1985] 2 All ER 513, CA). Indeed,
some cases have accepted that it may be reasonable for D to make a pre-emptive strike to
prevent an attack which he apprehends is about to be made (Attorney-General’s Reference
(No. 2 of 1983) [1984] 1 All ER 988, CA; Beckford v R [1987] 3 All ER 425, PC).
ACTIVITY
Does this mean a battered wife who has reached the end of her tether can choose
her moment to despatch her tormentor, knowing that this is the only way to
prevent inevitable, further, violent attacks on her?
Self-defence (although embracing pre-emptive strikes), currently requires apprehension of

an imminent attack (Attorney-General’s Reference (No. 2 of 1983) [1984] 1 All ER 988,
CA).
Just as an actual pre-emptive strike can be rendered lawful so also can acts carried out in
preparation for defensive action, provided the attack apprehended is imminent and D
believes that the means he intends to use are ‘no more than reasonably necessary to meet
the force . . .’ (Attorney-General’s Reference (No. 2 of 1983) – shopkeeper’s possession of
petrol bombs during Toxteth riots).
Defence of property
The same basic principles apply where D is defending his own or another’s property.
ACTIVITY
Does this mean that a householder can kill a burglar in defence of his property?
It seems clear that, in modern times, the amount of force which will be permitted as
reasonable must surely be less where the motive is defence of property as opposed to
defence of person.

2009 Criminal Law
• • • •
In a recent civil case, Revill v Newbery [1996] 1 All ER 291, CA, an old-age pensioner was
ordered to pay damages for injuries caused to someone breaking into his allotment shed.
Fed up with repeated break-ins to his shed and vandalism to his allotment, D had spent the
night in the shed armed with a shotgun. When he heard the men outside trying to get in, he
fired through a hole in the door seriously injuring P. Despite D arguing that he feared for his
safety as well as his property, the High Court and subsequently the Court of Appeal held the
force to be out of all proportion to the threat. Public and newspaper outrage followed and D
was showered with public donations to a fund set up by the local mayor! In general,
however, the courts would be keen to discourage this kind of vigilantism. The notorious
conviction of Tony Martin for the murder of a teenage burglar (later reduced to
manslaughter) provides another example though it must be said the victim was shot in the
back whilst trying to get out of the farmhouse.
9.3 The effect of the defence
If the defence succeeds, whether common law or statutory, D’s conduct is regarded as
lawful and he is completely acquitted. It can be a defence to any crime including murder.
ACTIVITY
Read the case of Clegg [1995] 1 All ER 334 in Text and Materials
Can self-defence be successful if D uses excessive force?
If the charge is murder, do you think the use of excessive force should or could
reduce the charge to manslaughter?
9.4 The European Convention on Human Rights
TEXT/CASE BOOK ACTIVITY
Please read the above titled section in Criminal Law - The Fundamentals and ‘C.
The Permitted Response’ in Text and Materials.
Does the English law regarding self defence contravene Article 2(1)?
9.5 Reform
We have already seen clarification of the law through the 2008 Act. Any further change to
the law governing self-defence would have to take into account the conflict between the
English law and Article 2, considered above.

2009 Criminal Law
• • • •
10. DURESS
ACTIVITY
What if someone threatens to kill you or a member of your family unless you
commit a particular crime, say armed robbery?
What if a homeless person in danger of freezing to death one night breaks the lock
on an empty house to sleep overnight?
Can a surgeon operate on an unconscious patient without the patient’s consent?
Can someone with a rare blood group have blood extracted forcibly if this is the
only way of saving a patient’s life?
There are no answers, but if you take a moment to consider whether you think a D
should be afforded a defence in any/all of these situations, you will be able
quickly to grasp the issues at the heart of this chapter.
Duress allows a defence (subject a great number of very strict rules) for one compelled to
act under a threat of death or serious personal violence. This defence is then a concession
to human weakness; it recognizes that although, when committing the offence your limbs
are under your physical control your will has been overborne.
The source of the compulsion may originate from a human coercer (in the case of
traditional duress, also known as duress by threats) or by the situation (in the case of
duress of circumstances or necessity).
Aside from the difference in the source of the fear, the conditions for a successful plea are
the same for each type of the defence. The case law which follows can be from either type
of the defence to illustrate its operation.

2009 Criminal Law
• • • •
CASE BOOK ACTIVITY
Please read the introduction to Duress and Necessity (at point ‘V’), the case of
R v Shayler [2001] W.L.R. 2206 CA and the commentary upon the case in Text
and Materials and answer the following questions.
Can you define duress in general terms?
Which two defences are similar to duress by threats?
How may we distinguish these defences from duress by threats?
Now please read up to (but not including) ‘Parameters of the defence’.
Why do we allow a defence of duress by threats?
10.1 What constitutes duress?
The test for duress is analogous to the test used in the defence of provocation, in that there
are both subjective and objective elements to satisfy.
What kind of detailed direction to the jury should the judge give when explaining the test to
be applied? He should ask:
(a) was D or may he have been impelled to act as he did because, as a result of what he
reasonably believed the threatener had said or done, he (D) had good cause to fear
that if he did not so act, the threatener would kill him or cause him serious physical
injury; and
(b) if so, has the prosecution made the jury sure that a sober person of reasonable
firmness, sharing the characteristics of D, would not have responded to whatever he
reasonably believed the threatener said or did by taking part in the crime?

2009 Criminal Law
• • • •
ACTIVITY
Is the first limb of this test an entirely subjective test? What objective elements
does it contain?
If you cannot answer this question please refer to ‘The objective elements’ point
a) in Criminal Law – The Fundamentals.
(a) The first limb – the subjective (objective) test
The first limb (a) requires that D feels he has no other practical choice than to commit the
‘crime’.
Although the first limb of this test is termed a subjective test in that it depends on
establishing that D committed the crime because he actually feared death or serious
injury, it does contain objective elements. D must have good cause to fear that the
threatener is serious in making the threats and intends to carry them out. If he mistakes or
misunderstands what the threatener has said or done, D will be judged on the facts as he
believed them to be only if his belief was reasonable. This means that D may not be
judged on what he actually believed was being threatened and/or what he actually feared
would be the result of ignoring the threat. This is likely to be so where he is extremely
anxious, stupid and/or gullible.
Provided D’s belief that there is a threat is reasonable, there does not in fact have to be
such a threat (Safi [2003] Crim LR 721).
(b) The second limb – The objective limb
The second limb (b) is the objective yardstick or control against which D’s conduct is to be
judged. The test (influenced by Camplin in provocation – and by way of which it may be
easier to remember!) is whether a person of average firmness or resistance to threats, but
having D’s age and sex, and sharing any characteristics of D which would affect
the gravity of the threat to him, would have reacted by committing the crime
perpetrated by D.
According to the Court of Appeal, ‘a person of reasonable firmness is an average member of

the public; not a hero necessarily, not a coward, just an average person’. As in provocation,
there may be difficulties over what characteristics of D can and cannot be given to the
hypothetical person of ‘reasonable firmness’.

2009 Criminal Law
• • • •
ACTIVITY
What characteristics can we give to the person of reasonable firmness? Please

read point (b) Steadfastness and R v Bowen [1996] 2 Cr App R 157 in Text and
Materials and ‘The person of reasonable firmness’ in Criminal Law – The
Fundamentals and complete the following chart.
Would this
Characteristic characteristic Case Comments/justification
be attributed authority
to the
reasonable
person?
Age
Sex
Low I.Q
Pregnancy
Physical
Disability
Battered
person
syndrome
Drug/alcohol
addiction
Timidity or
vulnerability

2009 Criminal Law
• • • •
10.2 Other matters
Nature of the threats
TEXT BOOK ACTIVITY
Please read the above titled section in Criminal Law - The Fundamentals.
As you have read it is now settled that the only threats capable of constituting duress are
threats of death or serious injury (Hudson and Taylor [1971] 2 QB 202; DPP v Lynch [1975]
AC 653). It follows that a threat of non-serious injury or a threat to reveal D’s
homosexuality (Valderrama-Vega [1985] Crim LR 220) or threats to burn down D’s home or
business premises or to ruin him financially could not found a successful plea of duress,
even if the crime committed in response to those threats is relatively trivial. On the other
hand, according to Valderrama-Vega, if there is a variety of threats including threats of
death or serious injury, it is permissible to take into account the cumulative effect of all
these threats, not just the threats of death or serious harm, provided that D would not
have committed the offence but for the threats of death or serious harm.
Against whom must the threat be directed?
We have established that threats to kill or seriously injure the defendant will suffice, but
suppose the threat is against someone other than the defendant.
ACTIVITY
Do you think duress should be limited to threats of harm to D himself or extended

to threats of harm to any third party or perhaps a limited class of third parties?
In Hasan, Lord Bingham directed that the threat must be directed against (or, it is
submitted, the circumstances must produce fear for) D or his immediate family, or
someone close to him, or if not, to a person for whose safety D would reasonably regard
himself as responsible.

2009 Criminal Law
• • • •
Threat must be immediate
ACTIVITY
Please read ‘Immediate or imminent?’ in Criminal Law – The Fundamentals and

point v. ‘Imminency of threat’ in Text and Materials and complete the following
chart.
Case Brief facts Legal Comments

principle
Hudson and
Taylor [1971]
2 All ER 244,
CA.
Abdul-
Hussain et al.
[1999] Crim
LR 570
Hasan [2005]
UKHL 22
Opportunity to escape the threats (evasive action)
The defence of duress will fail if D fails to take advantage of a reasonable opportunity to
escape from the dilemma posed by the threats, Hudson and Taylor [1971] 2 All ER 244, CA.

2009 Criminal Law
• • • •
ACTIVITY
From your reading of the case of Hudson and Taylor [1971] 2 QB 202 if you had
been on the jury, and had been directed properly, would you have convicted the
defendants of perjury?
Please note the principle in Hudson has now been significantly limited by Hasan (above)
where Lord Bingham stated ‘… I can understand that the Court of Appeal had sympathy with
the predicament of the young appellants but I cannot, consistently with principle, accept
that a witness testifying in the Crown Court at Manchester has no opportunity to avoid
complying with a threat incapable of execution then or there.’
Voluntary association with violent criminals
Hasan has also significantly limited the availability of the defence to defendants who
voluntarily associate with criminals.
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘voluntary association with

violent criminals’.
Do you now lose the defence only if you know you may be the subject of
compulsion, or is the law wider than this?
10.3 To which crimes is duress a defence?
CASE BOOK ACTIVITY
Please read the case extracts within ‘ix. Crimes to which duress is a defence’ in
Text and Materials paying particular attention to Howe [1987] 1 AC 417.
Although you may expect duress, as a general defence, to be available as a defence to all
crimes, this is not so. Most importantly, the House of Lords, after some vacillation, has
decided that it can never be a defence to the crime of murder (Howe). No matter how dire
the threats against D, the law will not excuse his killing of an innocent person. After all, the
threatener may not actually carry out his death threat if D refuses to kill the innocent
person, whereas if he succumbs to the threats, then the death of the innocent party is a
certainty, assuming D succeeds in his objective.
2009 Criminal Law
• • • •
10.4 Proposals for reform
TEXT BOOK ACTIVITY
Please complete the reading of the duress section in Criminal Law - The
Fundamentals

2009 Criminal Law
• • • •
Duress by threats flow chart
Is D charged with murder or attempted murder?
Yes No
Duress fails Were the threats of death or serious
injury?
Yes
No Were they aimed at compelling D to
Duress fails commit a particular crime (or
perhaps type of crime)?
Yes
No- Duress fails (but Was D impelled to commit the crime
may be duress of because he feared with good cause
Circumstances that otherwise the threats would be
carried out?
Yes
No Would a sober person of reasonable
Duress fails firmness have responded to the
threats by committing the crime?
No Yes
Duress fails Did D fail to take advantage of a
reasonable opportunity to escape
the threats?
Yes No
Duress fails Did D voluntarily associate with the
people exerting the threats when they
knew (or should have known) their
propensity to violence?
Yes No
Duress fails Duress
succeeds

2009 Criminal Law
• • • •
11. DURESS OF CIRCUMSTANCES
CASE BOOK ACTIVITY
Please read point ‘C. Duress of circumstances in Text and Materials including
the cases and commentary for R v Martin (1989) 88 Cr App R 343 and Pommell
[1995] 2 Cr App R 607.
Surprisingly duress of circumstances was accidentally invented by the Court of Appeal in

Willer (1986) 83 Cr App R 225, when it quashed D’s conviction on a procedural irregularity,
but in circumstances which could be viewed as being duress, without a human coercer.
The case was quickly approved in Conway [1989] QB 290 where D was charged with
reckless driving. D’s passenger, T, had previously been the target of an attack with a
shotgun. When two plainclothes police officers approached D's car, he feared that T was
about to be shot at again. D drove off, and he admitted at trial his driving had been
reckless, but he claimed he only discovered that the chasers were police officers after T had
been dropped off and the officers caught up with him. Allowing his appeal against
conviction, the Court of Appeal recognised the existence of the defence where a person felt
constrained to act as he did to avoid death or serious bodily harm to himself or another,
and a reasonable man would have driven as D did in the circumstances.
The application of duress of circumstances to non-road traffic crimes was confirmed in

Pommell [1995] 2 Cr App R 607, where the Court of Appeal saw no reason to limit the
defence to road traffic offences.
Even though the defence of duress is now well established, each type is very limited and
difficult to plead successfully. The two limbed test provides a significant hurdle, particularly
in light of the objective elements within the subjective limb and the impact of Hasan.
However the courts believe this is the correct position as according to Lord Simon in DPP for
Northern Ireland v Lynch [1975] AC 653, “your Lordships should hesitate long lest you may
be inscribing a charter for terrorists, gang-leaders and kidnappers.” Consequently, although
the burden of proof rests on the prosecution, there are so many requirements in the
defence that it is exceedingly difficult to plead.
12. NECESSITY
In essence the defence of necessity arises when D is forced commit a criminal act to avert a
greater evil. However this defence is far from settled, largely due to its rejection in Dudley
and Stephens (1884) 14 QBD 273.

2009 Criminal Law
• • • •
TEXT/CASE BOOK ACTIVITY
Please read the introduction to necessity in Criminal Law - The Fundamentals

and the ‘Distinction between necessity and duress of circumstances’ in Text and
Materials.
What are the integral differences between the two defences?
12.1 Medical necessity
Although a general defence of necessity is in doubt necessity has been readily recognized as
a defence in the medical field.
While consent for medical intervention can of course render intervention lawful, the defence
of necessity allows such treatment without consent where the patient is incapable of making
a decision whether through illness or accident (e.g. he is unconscious) or mental incapacity.
In F v West Berkshire Health Authority, the House of Lords granted a declaration that a
sterilisation operation on a sexually active mental patient who, having a mental age of five,
was incapable of consenting, was lawful because pregnancy was likely to be disastrous for
her psychiatric health.
In Gillick v West Norfolk Area Health Authority [1985] 3 All ER 402, a majority of the House
of Lords, without expressly referring to necessity, held that a doctor providing
contraceptives to a girl under 16 and thereby knowingly encouraging sexual intercourse
with a girl under 16, would not be guilty of aiding and abetting the offence if he believed the
provision of contraceptives to be necessary for her physical, mental or emotional well-being.
Similarly, in the Bournewood NHS Trust case, doctors who detained and treated a mental
patient incapable of consenting would have the defence of necessity rendering their actions
lawful provided they were necessary to avert danger or potential danger to the patient or
others (Lord Goff) or to promote the best interests of the patient (Lord Steyn). It therefore
appears well established that necessity defends doctors against battery etc. on their
patients provided only that their actions would be seen by reasonable people and doctors as
necessary in the best interests of the patient.
12.2 Non-medical situations
Outside the medical arena, there is not much authority for the existence of a general
defence of necessity going beyond the duress of circumstances defence. In Altham [2006]
EWCA Crim 7, the Court of Appeal held that a person who used cannabis for pain relief and
who was charged with possessing a controlled drug could not raise a defence of necessity by
relying on article 3 of the European Convention on Human Rights (inhuman or degrading
treatment or punishment). A similar argument had been rejected based on article 8 (private
life) in Quayle [2005] EWCA Crim 1415.

2009 Criminal Law
• • • •
12.3 Necessity and murder
CASE BOOK ACTIVITY
Read the extract from the famous case of Dudley and Stephens (1884) 14 QBD
273 in Text and Materials. Do you think this is a case of necessity, duress of
circumstances, or neither?
Some academics argue this was not a case of necessity at all because the choice as to
victim was made by the sailors rather than as a matter of necessity (it did not matter which
of the 4 died to save the others), it was not at all certain that the others would have died
had the boy not been killed (even though it was probable) and unlike the conjoined twins
case, below, the cabin boy was not by his conduct directly or indirectly bringing the others
near death.
12.4 Should the defence be recognised?
TEXT BOOK ACTIVITY
Please read Criminal Law – The Fundamentals ‘Necessity and murder’.
Does Re A (Children) [2001] 2 WLR 480 mean we now have a defence of

necessity for murder?
How can the two cases be distinguished?
(We strongly recommend you review your knowledge of this topic by reading
Re. A and the commentary that follows in Text and Materials.)
TEXT BOOK ACTIVITY
Please read the above titled section in Criminal Law - The Fundamentals and
make notes supporting and critiquing the defence of necessity.

2009 Criminal Law
• • • •
13. CONCLUSION TO DEFENCES
You will have noticed significant overlap between the defences we have addressed in this
chapter. Please remember in certain circumstances defendants will have more than one
defence open to them. For example, a defendant who is suffering from an internal disease
that affects their mental state may argue insanity but may alternatively have the defence of
automatism if they have taken medication for that condition (and if the offence is murder
diminished responsibility may also be available). The crux will be whether the mental state
has arisen from the internal or external ‘cause’. Likewise a defendant may defend himself
from a perceived attack while intoxicated, raising the defences of intoxication and
intoxicated mistake as to self defence. A defendant who steals a car to escape his attackers
conceivably has a defence of duress and necessity (although necessity is unlikely). Please
note this is not an exhaustive list of the overlap between the defences; the defences
available will depend upon the facts of an individual case. However, this overlap is well
worth considering as many students settle upon one ‘obvious’ defence and fail to consider
the valid alternatives.

NTU - Criminal Law Guidance Text 2009-2010

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

NTU - Criminal Law Guidance Text 2009-2010

Hochgeladen von

Copyright:

Verfügbare Formate

Distance Learning Materials

By the end of this study guide you should be able to:

• Understand what we mean by ‘a crime’ and how offences are classified.

1. This study Guide

3.1 What is a crime?

© 2009 Nottingham Law School Page 1

CASE BOOK ACTIVITY

3.2 Classification of offences

© 2009 Nottingham Law School Page 2

TEXT BOOK ACTIVITY

It is a fundamental principle of English law, reinforced by Article 6(2) of the European

© 2009 Nottingham Law School Page 3

CASE BOOK ACTIVITY

What were the facts of the case?

What is the ‘golden thread’ referred to by Lord Sankey?

What exceptions to the ‘golden thread’ were recognised by Lord Sankey?

TEXT BOOK ACTIVITY

Which two defences impose a reverse burden of proof?

5.1 Proof of specific issues

© 2009 Nottingham Law School Page 4

5.2 Reverse proof burdens

6. REFORM OF THE CRIMINAL LAW

6.1 The Law Commission

© 2009 Nottingham Law School Page 5

6.2 The Human Rights Act

Please check you can now

• Understand what we mean by ‘a crime’ and how offences are classified.

© 2009 Nottingham Law School Page 6

By the end of this study guide you should be able to:

1. This study guide

(a) D caused the prohibited conduct (actus reus);

All ingredients must be present to establish criminal liability.

© 2009 Nottingham Law School Page 7

2010 ACTUS REUS

TEXT BOOK ACTIVITY

© 2009 Nottingham Law School Page 8

2010 ACTUS REUS

• Is this a conduct crime or a result crime?

3.1 Voluntary Conduct

© 2009 Nottingham Law School Page 9

2010 ACTUS REUS

a) suffering a blow to the head

CASE BOOK ACTIVITY

Can you think of a crime based upon an omission to do something?

Should there be a general duty to act?

© 2009 Nottingham Law School Page 10

2010 ACTUS REUS

4.1 When Will Liability for Omissions Arise?

4.2 Imposing a Duty to Act

4.2.1 SPECIFIC STATUTORY PROVISION

4.2.2 COMMON LAW DUTY

© 2009 Nottingham Law School Page 11

2010 ACTUS REUS

TEXT BOOK ACTIVITY

© 2009 Nottingham Law School Page 12

2010 ACTUS REUS

• Blood or other close relationship

CASE BOOK ACTIVITY

2010 ACTUS REUS

TEXT BOOK ACTIVITY

Please read Criminal Law – The Fundamentals ‘Assumption of responsibility’ paying

• Where D creates a dangerous situation