Criminal Law: Actus Reus

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Actus Reus - The conduct element of the crime - Might be the: behaviour or act of D, particular consequence or result of that behaviour or circumstance in which the act or behaviour took place - Can be an act or omission - Must be committed voluntarily Denial of actus reus: Ds conduct is involuntary o It is the defence of automatism Omissions - Generally no criminal liability for omissions - Law prohibits certain omissions: When offence in question is capable of being committed by omission. E.g Murder by omission (by failing to call for med help) D is under a legal duty to act either at common law or under statute

Liability imposed for some omissions A) Statutory Duty to Act E.g s1 Children & Young Persons Act 1933 o Wilful neglect of child in manner likely to cause unnecessary suffering or injury to health B) Contractual Duty Employment contracts, doctor-patient, child minder - child o R v Pittwood

D was a gatekeeper on a railway line and had duty to keep gate closed. Forgot to close it one day. V was killed by passing train when he went through the gate thinking it was safe. Held, a man can incur liability arising from a contract. D had been employed to keep the gate closed and protect the public.

C) Holding of Public Office R v Dytham o D was in police uniform and was on duty when incident took place. V was ejected from night club and was beaten by a group of men. D did nothing. Held, D deliberately failed to carry out his duties as a police constable by willfully omitting to take any steps to preserve the peace or to protect V. D) Voluntary assumption of responsibility R v Instan o D lived and maintained V (her aunt). Before her death, V was incapacitated due to gangrene in her leg. D bought food but failed to give V any and did not summon medical help for V. o Held, she was under a moral obligation to the deceased from which arose a legal duty towards her, that legal duty D had willfully and deliberately left unperformed. Food was bought using the deceaseds own money for the purpose of the maintenance of herself and the D. It was only through D that V could get food. R v Gibbins & Proctor o V died from starvation, she was kept separate from other children and given no food. G was father and P was step mother. o Held, there was a moral obligation which arose a legal duty. P had take on the role of mother even though not blood relative. Gs duty as Vs father. R v Stone & Dobinson

o V was eccentric and anorexic and locked herself in her room. S & D did attempt to care for V but failed to summon help for V. o Held, there was a legal duty not cos V was Ds sister but cos she lived in their house and they had voluntarily assumed a duty to act by their attempts to care for her. Based on the circumstances, they were obliged either to summon help or else to care for V themselves. Because youre incompetent does not discharge you from your duties. Airedale NHS Trust v Bland o B seriously injured and left in a persistent vegetative state. No hope or recovery at all. Health authority sought a declaration that it would be lawful to discontinue all life sustaining treatment so as to allow B to die peacefully with the least pain. o Held, It would be lawful to discontinue treatment even though there as no consent by B. When one has assumed responsibility for the care of another who cannot look after himself, whether as a medical practitioner or otherwise, that responsibility cannot be lawfully shed unless arrangements for the responsibility to be take over are made. Ceasing treatment VS administering lethal drug to end patients life is different.

E) Creation of Dangerous Situation R v Miller o D fell asleep while holding a lighted cigarette. Woke up to find the bed on fire, left that bed and went to sleep on the one in the next room. o Duty & Responsibility theory: D will be liable if as a result of his actions which create a danger, he falls under a duty to respond by taking reasonable steps to minimize the danger. R v Evans

o D bought heroin and handed some to her half sister V. V self-administered the drug and E noticed that V looked as if she had taken an overdose and decided to spend the night with her. Did not call for medical assistance. o Held, a duty arises when D realizes or ought to have realized the danger. And extension of Miller doctrine. ** Duty to call for medical assistance R v Khan: o D drug dealers supplied a 15-year-old girl with heroin. It became apparent that the girl was in need of medical attention but the defendants left her alone until the next day when they found her dead. They dumped her body on waste ground. o Held: The actus reus of the offence was the omission to summon medical assistance and not the supply of heroin. To say a drug dealer owed a duty of care to a person to whom he supplied heroin would be too wide an extension. The jury should have been directed to decide whether a duty of care was owed by the defendants to the girl, whether there was a breach of that duty and whether that breach constituted gross negligence and was therefore a criminal act.

Voluntary Conduct - When accused has performed actions which he has a sufficient degree of control such that he can fairly be punished for those actions. Inability to exercise this degree of control: state of automatism Bratty v AG for Northern Ireland - D charged with murder, strangled a V with a stocking and claimed that he had a terribly strange feeling a sort of blackness came over him when it happened. - Held, not automatism cos he did not have a complete loss of voluntary control. No consciousness of what he was doing. Hill v Baxter - If a driver knew he is prone to fits and still drives, he will be liable for dangerous driving.

- Man falling asleep in the driving seat. After he has fallen asleep, he is no longer driving but at an earlier time at which he was falling asleep, he failed to perform the drivers elementary and essential duty of keeping himself awake and therefore he was driving dangerously. - Total automatism (no control over his actions and limbs) can be a defence. Partial automatism cannot. AG Ref (no.2 of 1992) - Authority for requirement of a total loss of self control - Death by reckless driving, had been driving for a long time and did not exceed speed limits. - Claimed to be driving without awareness and was in a state of automatism and therefore could not be regarded as driving. - Held, for defence of automatism there must be a total destruction of voluntary control on Ds part. Driving without awareness did not involve total destruction of voluntary control as there is still the ability to steer the vehicle straight and capacity to react to stimuli appearing on the road ahead. Sane or Insane Automatism - If successfully claims that he was in a state of automatism when he committed the crime, he will not be found guilty. If external causes, he will be acquitted. If internal causes, he will be found not guilty by reason of insanity. - Insane automatism: Considered a disease of the mind Internal causes: Brain tumour, mental illnesses, sleepwalking NOT GUILTY BY REASON OF INSANITY Hyperglycaemia o R v Hennessy: Insulin dependent, had not taken insulin and eaten for days. Sought to raise defence of automatism for the crimes he committed during a state of hyperglycaemia. Held, the diabetes was an internal cause and so insane automatism. - Automatism:

External causes: Concussion, administration of an anaesthetic, taking prescribed medication, hypnosis ACQUITTED Hypoglycaemia o R v Quick: Insulin dependent, took insulin and alcohol and ate little food. Assaulted someone. Held, intake of insulin was an external factor and so it was automatism. Not involving any internal causes.

Status offences - External element of offence is satisfied simply by a state of affairs. R v Larsonneur: D permitted to enter UK subject to certain conditions. When Ds leave to remain in the UK was about to come to an end, she went to Ireland. Was deported from Ireland to UK, she ended up on UK soil after the date she was allowed to stay on in the UK. o Held, D was found in UK was therefore deemed to be someone whose landing had been prohibited by the Secretary of State cos she had violated a condition of her passport. Circumstances of how she returned was immaterial. Steps to approach causation 1) Factual causation But For test R v White: Poisoned wine glass found next to mum who died of heart attack. Did she die from heart attack or from poisoned wine? No evidence that she had the wine. o Held, there was no causal link between Ds act of poisoning the wine glass and his mothers death. 2) Legal causation a) Connection need not be direct R v Mitchell: D pushes old man who ends up falling on old woman behind him. Old woman dies.

o Held, although there was no direct contact btwn D and V, she was injured as a direct and immediate result of his act. b) D does not have to start death process, just needs to accelerate it R v Dyson: D subject his 3 month old kid to violence, resulting in a fractured skull. Later, the child suffered from traumatic meningitis and died. o Held, fractured skull would eventually have killed the child and that subsequent acts of violence after that injury would have accelerated the death. c) There may be more than one cause of the harm R v Benge: D responsible for checking if it was safe to repair sections of the railway. Failed to observe proper procedures, workmen were killed by a train. Claimed that train driver was also at fault. o Held, D was a substantial cause. 3) Whether AR is a substantial and operative cause? Substantial cause: More than insignificant contribution Operative cause: Effective in causing specified harm & there is no break in chain of causation R v Kimsey: D was racing Vs car. V crashed due to her loss of control of the car. Claimed that Ds conduct of racing against V had caused her to lose control of the car and led to her death. o Held, although it is not certain that D was the principal or substantial cause of Vs death, there is a causal link between Ds conduct and Vs death. D liable for manslaughter. R v Dear: D stabbed V with Stanley knife and V died. Claimed that V had broken the chain of causation either by re-opening the wounds (suicide) or the wounds had reopened naturally or he failed to stop the bleeding. o Held, it doesnt matter if V behaved negligently or grossly negligent in relation to his wounds. D had severed the artery which caused V to die. Ds conduct was an operative and significant contribution to Vs death.

4) Any intervening events that broke the chain of causation? (a) Naturally occurring subsequent events Break: D leaves injured V exposed to the elements and V is struck by a bolt of thunder. Freak of nature event. No Break: D leaves injured V exposed to the incoming tide or freezing conditions. (b) Third Party Interventions No Break: R v Cheshire: D shot V. V later developed respiratory problems cos of the surgery from the gunshot wound. o Held, even though medical negligence was the immediate cause of Vs death, it did not exclude Ds responsibility. o Negligence was not so independent of Ds acts and in itself so potent in causing death, that Ds acts could be regarded as insignificant. No Break: R v Mellor: D attacked elderly man who died 2 days later. Immediate cuase of death was broncho-pneumonia brought on directly by the injuries. Defence claimed that hospital failed to administer sufficient oxygen in time. o Held, D was a significant cause of death. o Prosecution has to establish that the injuries inflicted by D were a significant cause of death. But they need not establish that any supervening event was not a significant cause of death or that there was no med neg. No Break: R v Pagett: D used V as a shield against the police. Police gunshots hit V instead of D. o Held, usually free deliberate and informed act of a 3rd party will break the chain of causation. However, in this case, the police (3rd parties) acted reasonably in self defence and thus it did not break the chain of causation. (c) Victims actions If Vs act was unreasonable or unforeseeable, it breaks the chain of causation. o R v Roberts: D giving V a lift, threatened and touched her coat. V jumped out of car injuring herself. Held, D is liable for causing ABH as Vs reaction was reasonably foreseeable and did not break the chain of causation.

5)

o R v Williams: D threatened to rob V. V was a hitchhiker and he jumped out of the car and died from his injuries. Held, D not liable for Ds death. V was a hitchhiker and a guy. Jury should bear in mind any particular characteristic of the victim. If Vs act was free and voluntary, it does break the chain of causation. o R v Kennedy: On Vs request, D prepared a syringe of heroin and gave it to V. V self inject and died. Held, where D has been involved in the supply of a Class A drug, which is then freely and voluntarily selfadministered by the person to whom it was supplied to, D has not caused Vs death. Where V is a fully informed and responsible adult. R v Kennedy (No.2): supplier in these situations not guilty of unlawful act manslaughter when V is a fully informed adult making a voluntary decision to inject. Is the harm reasonably foreseeable? Thin skull rule: D must take V as found R v Blaue: D stabbed V several times and V required an immediate blood transfusion. Refused on religious grounds, Jehovahs Witness. V died. If she had the transfusion, she would not have died. Claims that Vs refusal broke the chain of causation. o Held, thin skull rule extends to pre-existing physical conditions and beliefs. Additionally, her refusal did not break the causal link between wounding and death. Thus, D was charged with her death.

Criminal Law: Mens Rea

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Mens Rea - Mental element of a crime - Intention: Direct or Indirect - Recklessness: Subjective or Objective

Intention - Usually associated with the more serious offences, eg Murder - Direct intention: A desire or purpose to achieve the prohibited outcome in a crime Eg. D has resolved to kill V, grabs a gun and shoots at V. It does not matter that he has a poor shot or V is out of range or his chances of killing V are small. It is sufficient that killing is his objective and that he acts in order to achieve that outcome. - Indirect intention: Where D foresees the result but does not necessarily desire it He doesnt act to bring about the particular outcome. He acts for other reasons. However, he knows that the actus reus in question is a virtually certain consequence of his actions. o X puts precious cargo on a plane along with a bomb which will explode when theyre in the air. He intends to claim insurance on his cargo, but does he know that death or GBH is a virtually certain consequence of his actions? R v Woolin - W lost his temper and threw his 3 month old son onto a hard surface, fracturing his skull and died. Held, where D is charged with murder and the simple direction (that is for the jury to decide whether D intended to kill or do serious bodily harm) is not enough, the jury should be directed that they are not entitled to find the necessary intention.. Unless they feel sure that death or serious bodily harm was a virtual certainty as a result of Ds actions and that D appreciated that was the case. To reach this decision is based on consideration of all evidence.

The test for INDIRECT INTENTION - The Woolin test Jury may find a result was intended even when it wasnt Ds purpose to cause it IF o The result is a virtually certain consequence of that act (barring some unforeseen intervention) and o D knows that it is a virtually certain consequence.

Recklessness - To take an unjustifiable risk Justifiability of a risk is assessed objectively. Would a reasonable man regard taking the risk as unjustifiable? - Objective recklessness: R v Caldwell - Subjective recklessness: R v Cunningham & R v G D can only be convicted when the prosecution can prove D foresaw the risk of the prohibited result and nevertheless took the risk. R v Cunningham (1957) *not R v Cunningham 1982! - D stole a gas meter and its contents from a house. Fractured a gas pipe, causing it to leak into the house and V inhaled a considerable quantity of the gas. Held, wherever the word maliciously appears in a statutory crime, the prosecution must prove with that D.. o Intended to do the particular type of harm or, o Foresaw that such harm might be done. o So it was left to the jury to decide whether, even if D did not intend the injury to V, did he foresee that the removal of the gas meter might cause injury to someone, but still removed it? RvG - 2 boys (11 and 12 yrs old) set fire to newspapers behind a shop one night and discarded them on the concrete floor, expecting them to burn out. It was accepted that neither of them appreciated the risk of the fire spreading in the way that it did.

Held, HoL went back to pre-Caldwell position which is Cunningham. Back to the subjective test, Crown has to prove D actually appreciated the unjustified risk he was running.

The test for RECKLESSNESS - The Cunningham test D took an unreasonable risk AND D was aware of the existence of that unreasonable risk

Transferred Malice - When D aims to kill or injure X but accidentally misses and kills or injures V instead. - Law allows the mens rea to transfer to the actus reus against his unintended victim R v Latimer - D went to hit X with her belt but it rebounded and hit V, causing injury. Ds malicious intent against X transferred to V. Attorney General Reference (No.3 of 1994) - However, transfer of malice doctrine does not work on a mother to the unborn child and the unborn child/foetus to the borned child it will become. - D stabbed V1 in the abdomen, knowing that she is pregnant. She later went into labour and gave birth to a premature child who was born alive but later died. Held, mens rea cannot be transferred from mother to the foetus and then from the foetus to the child (when it is borned).

Criminal Law : Complicity

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Complicity - Principal Offender: Person who commits the offence in question - Accomplice: Person who aids, abets, counsels or procures a principal offence. - Aiding, abetting, counseling and procuring a principal offence. Each 4 has to be given its ordinary meaning - Accessories and Abettors Act 1861: s8: Whoever aids, abets, counsels or procures the commission of any indictable offence, shall be tried, indicted and punished as a principal offender. Actus Reus of accessorial liability - A is charged with the same crime as PO but as one who aided, abetted, counseled and procured the commission of the offence. - Aiding, Abetting, Counselling and Procuring. - Presence at crime scene does not make you guilty as a accomplice. Cos there is no duty to intervene and stop crime from taking place. R v Clarkson You will be guilty if you are under a duty to stop the crime from taking place and you do not do so. E.g police officer, father who does nth when someone injures his child You will be guilty if your presence encourages the PO. But only if accomplice is aware that PO is encouraged by his presence. Aiding & Abetting - Aiding: To give help, support or assistance to PO before or during the commission of the offence. No need to show that assistance was essential to commission of crime or that w/o assistance crime could not have taken place. Just show that assistance was of some help to principal in committing the crime Helping PO escape from crime scene =/= aiding and abetting. But agreeing in advance to help PO escape can be counseling, aiding or abetting. Tuck v Robson

A (pub landlord) aided and abetted when he allowed customers to continue drinking alcohol after the licensing hours. R v Clarkson (mere presence case) 2 soldiers came upon the scene of a rape and watched while the offence took continued. They didnt do anything to encourage the Po and did not discourage or stop it. As mere presence at the scene of crime where there was no duty to prevent the crime was not aiding. Held, there has to be evidence of assistance or encouragement and an intention that As act would assist or encourage. R v Bland (mere presence case) The defendant lived with her co-accused, R, in one room of a shared house. R was guilty of possession of drugs. The defendant was also charged with possession of a controlled drug because she was living with R. Held, conviction quashed. There was no evidence of assistance, active or passive. The fact that she and R lived together in the same room was not sufficient evidence from which the jury could draw such an inference. Assistance, though passive, required more than mere knowledge. For example, it required evidence of encouragement or of some element of control, which was entirely lacking in the case. - Abetting: To give encouragement to PO or instigate or incite the commission of the crime at the scene of crime. Wilcox v Jeffery P (American saxophone player) was given permission to land in England on condition that he took no paid or unpaid employment in the UK. A (magazine editor) knew of this condition but still attended Ps concert and published a review of the concert. Held, A had abetted P. Aiding and abetting can be found through the mere encouragement of criminal activity. The encouragement does not have to be directly communicated to the person committing the criminal offence.

State v Tally A knew PO was on way to kill V. A (Tally) ordered telegraph operator to not deliver a telegram that would have warned V. PO killed V. Held, T was liable for aiding and abetting even though X was unaware of Ts help. PO need not be aware of any help received by the accomplice. An aider and abettor does not have to be at the scene of the crime but he must render some assistance in the commission of the crime. - When a shopkeeper is aware of the customers intention to commit the type of offence known and does nothing to stop it, he is liable to aiding and abetting. It is argued that a shopkeeper ought to make small sacrifices in order to help potential victims of crime. The interest of the potential victim over the shopkeepers right to sell his wares. - However, when one returns borrowed goods to the owner, knowing that he will be using it to commit an offence, he will not be liable to aiding and abetting. This is because the owner has a legal claim to recover the goods and the borrower is merely returning it to refrain from dentinue. Counselling & Procuring - Counsel: To advise or solicit and usually done before the crime and the counselor is not present at the scene. No need to prove that counseling caused the offence. - Procure: To cause or to produce by endeavour. R v Calhaem A said to have hired PO to kill V. PO said although A hired him to kill V he had originally resolved to not do so, but at the scene he went berserk and killed V. A was convicted of counseling Vs murder. She had instructed and authorized PO to kill V. PO had acted within that authority.

Held, the offence of counselling a person to commit an offence is made out if it is proved that there was a counselling, that the principal offence was committed by the person counselled and that the person counselled was acting within the scope of his authority and not accidentally when his mind did not go with his actions. It is not necessary to show that the counselling was a substantial cause of the commission of the offence.

AGs Ref (No.1 of 1975) A secretly laced POs drink, knowing that he would be driving home later. This was procuring POs offence of drink driving. Causal connection between As acts and the principal crime. A foresaw the principal crime. Lord Widgery CJ held You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. Mens Rea of accessorial liability - Intention to assist or encourage or bring about the offence (for procuring) - Knowledge as to the essential elements of POs offence Knowing that there is a real possibility that P might commit the crime A must be aware that PO might act with MR when performing the conduct which constitutes the principal offence. Essentially: Ds awareness of the nature and effect of his own actions and awareness of POs intention. When POs offence is one of recklessness, negligence or strict liability, there is still a requirement of intention/knowledge before D can be held liable as an accomplice. If A knows that PO has a weapon then it is presumed that he or she foresees PO will use it or a similar weapon. See R v Powell R v Bryce 1. act assisted later commission of offence 2. act done deliberately realising it was capable of assisting offence 3. dft @ time of act contemplated commission of offence

4. dft when doing teh act intended to assist dft in what he was doing Intentionally assisting PO NCB v Gamble A worked at a weighbridge and weighed Ps lorry. He told P that his lorry was over the regulation weight and P said that he would take the risk. A gave P the receipt for the weighbridge. P was caught and A was charged with aiding and abetting the offence. Held, the crime of aiding and abetting was committed on proof of a positive act of assistance (giving P the ticket) voluntarily done and a knowledge of the circumstances constituting the offence (knowing that the lorry was over regulation weight). Foresight of the commission of the principal offence - Whether D realized as a real possibility that P might commit the principal offence - Prosecution to prove foresight of: that P might commit an offence of the type actually committed R v Bainbridge A supplied P with cutting equipment and he foresaw that P would be doing something illegal with it. It was used to break into a bank. Held, A knew that a crime of the type in question was intended and does an act intending to assist a crime of the type later committed, A may be convicted as an accessory to the crime. that P might commit an offence within a range of limited number of crimes that A contemplated P might commit R v Maxwell A was a member of a terrorist organization. He guided P in his car to a public house where P threw a bomb. Held, A knew he was guiding terrorists, he knew the destination and that weapons were to be used. Derivative liability - As criminal liability depends on proof that the principal crime occurred or at least the AR of the principal offence occurred. If the AR is satisfied, A maybe convicted of aiding abetting etc, even if P is not convicted of the crime.

- It is possible for A to be liable for a different offence from P, provided that it has a shared AR. R v Howe: Lord Mackays example A gave P a gun informing that it is loaded with blanks and to scare V with it. V was killed cos there was ammunition in it and A knew. P will be perpetrator for manslaughter cos he lacked intention to kill or cause GBH. A would nonetheless be guilty of aiding and abetting murder. Thornton v Mitchell P was a bus driver and was charged for driving without due care and attention. P was actually following As (conductor) instructions and he paid attention to it. It was A who was careless in giving him the information. Held, cos P was not driving without due care and attention. A cannot be charged for aiding and abetting the principal crime because P had not committed the principal offence. The actus reus of the crime was not satisfied, therefore A cannot be convicted of aiding and abetting. Cogan v Leek A terrorized his wife V into having sexual intercourse with P. P was acquitted because he lacked the mens rea as he thought the sex was consensual. As conviction was upheld. His liability was derivative not on the guilt of P but on the commission of the actus reus of the principal offence. Accessorial Liability: Omissions - Liability will be imposed where a person is under a duty to act. And where person has power or right to control the actions of another and deliberately refrains from doing so. - There must an act of encouragement and intention to encourage PO. The bare minimum. R v Coney: Mere presence of spectators at an illegal prize fight was thought to be prima facie evidence upon which the jury might find encouragement. Good example is R v Clarkson.

R v Bland: Woman who shared room with a man, who she knew was dealing drugs, was not an accessory unless she assisted or encouraged him to do so. - When there is deliberate omission to fulfill a duty, he is complicit in the offence. E.g When a caretaker doesnt lock the door of a house where he works, so as to allow another to commit burglary. There is a clear duty and a failure to uphold the duty. Rubie v Faulkner: Driving instructor failed to intervene to prevent a L driver from doing a dangerous manoeuvre. There is an implicit legal duty on the instructor to take reasonable steps to ensure the L driver drives safely and carefully. Sometimes there might be a legal power that can give rise to liability. o Tuck v Robson: Pub landlord has the legal power to require customers to leave at closing time. o Failure to exercise this power can result in that person being held liable as an accomplice. - The principles are not applicable for domestic related issues. Unlike pub owners, who must comply with the terms of their licence, householders are not an embodiment of the law and it would be inappropriate to expect them to police their home as if they were an embodiment of the law. Joint Venture - Where D and PO agree to commit an offence And PO commits an offence not envisaged by D o A more serious offence o Same offence with different result o Lesser offence - By agreeing a common purpose with A, B has associated himself with the joint enterprise. Giving support to and showing solidarity with A. B can thus be liable for a crime that he didnt intend or endorse. His liability is based on recklessness (taking an unjustifiable risk). - AR: Agreement to commit the crime together and being party to a joint enterprise at the time the principal commits the offence.

- MR: Foresaw that PO might commit the offence or an offence of a similar kind. If parties know that PO has a weapon, it is presumed that they foresee PO will use it. R v Reardon: D gave PO a knife knowing the was going to stab a man to death. PO went on to stab 2 men. o Held, PO had used the knife in a way foreseen by the accomplice, although he stabbed 2 ppl instead of 1. This departure from what was foreseen by accomplice was not sufficiently serious to render the acts outside the scope of the joint enterprise. R v Rafferty: D foresaw PO would hit the V. But they drowned him instead. o Held, it was fundamentally different from what D had foreseen PO to do (hitting). D not accomplice to killing. o Compare it with R v Rahman R v Hyde - Realisation that PO may kill or cause serious injury was enough to supply the mens rea for the accessory even though accessory didnt agree to such conduct being used. R v Powell - It is the act of the PO that is to be foreseen not the consequence of the act. - It is enough for D to foresee that PO might go on to commit the crime. No need to show that D forsee PO will commit the crime. - Accomplice participation encouraged and possibly made the offence more likely to happen. Public policy concerns if accomplices can escape liability for a consequence contemplated but not agreed to. A) Different, more serious offence - A deliberately deviates from the common purpose. Chan Wing Siu

Ds gone to commit robbery with knives. V was killed by a knife, others argued that agreement was to commit robbery. Knives were to frighten not to cause death or injury. Held, knowledge that PO carried a knife was strong evidence that its use as contemplated. When a man lends himself to a criminal enterprise where dangerous weapons are used, in the event that they are used by his partner with an intent sufficient for murder, he will be liable for the crime too. He cannot claim that the use of the weapon was unlikely. Davies v DPP If D didnt know that PO was carrying a weapon, it would seem that he would not be complicit in a crime involving use of that weapon. R v Powell 3 men went to drug dealers house to buy drugs. Dealer shot dead and it was contended that the others knew of the existence of a gun amongst them. Held, where A contemplates that PO might kill with intent to do so or to cause gbh, A may be convicted as secondary party to murder. Must be aware that there is an intention by PO to kill or cause gbh. Must have intention. Contemplating that such a consequence will happen (w/o intention) does not count. Weapons (relevant only when A did not intend for PO to kill): o If A knew PO had weapon with him, A is deemed to foresee that PO will use that weapon. Eg if it was known that the gun will be used to kneecap V but PO shoot somewhere else, A will still be convicted. o If A knew PO had weapon with him, but PO used a weapon of a similar kind then A is still liable. Eg Jack knew George had a gun, but George used a knife ti kill. Jack will be liable as accomplice. Eg Jack knew George had a post but he used a knife to kill. Jack not liable as accomplice. Ultimately up to jury to determine which weapons are fatal and which arent.

o But, there is no need to rely on weapons rule where accomplice intended the principle to kill. A will be guilty of murder. R v Rahman Gang fight with blunt instruments. Vs death caused by deep stab wound. D claimed to be unaware that anyone had a knife and that anyone would kill with intent. Held, actual offenders intention to kill or cause gbh need not be known by other parties to the joint enterprise. Where A realizes that PO might kill or cause gbh and yet A still participates in the joint venture, this equates to a sufficient mental element for A to be guilty of murder. If PO had the intention to kill. o But if PO used a weapon that A didnt knw about and it is a more lethal weapon which A didnt contemplate PO might be carrying, POs act will be regarded as fundamentally different from anything foreseen by A. o Thus, becoming part of a JV and being aware that others might cause gbh is enough to convict D of murder. R v Gilmour D getaway driver for petrol bomb attack. He believed the bomb to be smaller, to only cause pty damage and frighten occupiers. Turns out it was larger and destructive. Held, insufficient evidence that D was aware that the bomb was large. Conviction for aiding and abetting murder quashed. But conviction for aiding and abetting manslaughter was upheld. He did the act that had been contemplated. B) Same offence, different result - A and PO agree that PO will assault V. V unexpectedly dies as a result of the assault. Both A and PO can be held liable for manslaughter. - PO and A agree to kill X and PO shoots at X but bullet misses and kills Y. PO and A will be liable for murder. Cos it is the act A foresaw and assisted and agreed to.

- What happens if PO deviates from the agreed course of conduct? R v Saunders & Archer: D advised PO to kill wife with poisoned apple. Wife gives child the apple who later died from it. o Held, D not accomplice due to POs deliberate change of plan. His change of plan was when he allowed the child to eat the apple when he ought to have intervened. POs action was a voluntary intervening act which negated Ds complicity. D got off scot free. o Had the child been given the apple when PO not around, D will be held liable for complicity. Same offence but different result. R v English: D and PO attacked police officer with wooden posts. PO produced a knife and stabbed V. D claimed he didnt knw PO had a knife. o Held, D did not foresee PO using a knife to stab V. The use of the knife was fundamentally different from what they jointly agreed and contemplated. It is outside the scope of their joint enterprise. Thus, he is not guilty of murder or manslaughter. He will only be guilty if the use of the weapon was just as dangerous as what was contemplated. Something as dangerous as a wooden club but not more dangerous than it. o But if D continues with the attack even though PO unexpectedly produces a weapon or uses it in a different way (which was outside the scope of their agreement), he will be complicit in the attack. How to approach this area (from R v Rahman): o What was the act that caused Vs death? o Did D realize that one of the attackers might do this act? Yes: Guilty of murder No: next question o What act did D realize that one of the attackers might do to inflict serious injury? o Is this act fundamentally different to POs act that actually caused Vs death? Yes: Not guilty of murder No: Guilty of murder

R v Yemoh: Someone in the gang stabbed V. Claimed that some of them were aware that a member was in possession of a Stanley knife. Evidence was that a longer knife was used. o Held, Stanley knife was not fundamentally different from longer knife. The infliction of death or gbh by a Stanley knife or longer knife is not enough to establish a fundamental difference. R v Gamble: A envisaged PO to use a gun to kneecap V. But PO slit Vs throat with a knife. o Held, weapon used was of comparable dangerousness but the way it was used was fundamentally different from that which was envisaged. Thus, A not liable for complicity.

C) Different, less serious offence - When PO is convicted of a lesser offence, D can be liable as an accomplice to a more serious offence. R v Howe: Where D aids or counsels PO to commit a particular offence, but PO deviates and commits a lesser offence, D can be convicted as an accomplice of a more serious offence. Doctrine of innocent agency - An adult orders a child (under age of criminal responsibility) to commit an offence. Child is deemed innocent in law. Adult commits the crime through the innocent agency of the child. R v Michael: o D wanted to kill her baby. She gave the nurse poison, telling her it is medicine to administer to the baby. Nurse decided not to and left it on the shelf, child took the poison and administered it to the baby. Baby killed. Held, child and nurse are innocent agents. Defences A) Withdrawal - Accomplice must not only make a clear statement of withdrawal and communicate this to the principal, he must also take steps to prevent its commission.

R v Rook: A and B hired to kill V. Everything was planned out but A did not appear on the appointed day. Killing went ahead. A claimed that he never intended to kill the wife, only wanted to take the money and run. Held, his absence that day could not amount to unequivocal communication of his withdrawal. He made it clear to himself that he didnt want to be there, but he did not make it clear to the others. R v Becerra & Cooper: B gave C a knife as he acted as a lookout while B burgled the house. V appeared and B said come on, lets go and exited. C fatally stabbed V. Held, B liable as accomplice to Cs crime. V had disturbed the course of the burglary and so danger to V was imminent, something vastly more effective than saying those words was required. Effective withdrawal would be D physically restraining PO or informing potential victim of the planned offence. R v Mitchell & King: In the event of spontaneous violence, walking away from a fight is sufficient withdrawal. But not sufficient for preplanned violence. R v OFlaherty: V attacked by a group. He escaped and some of the group pursued him and attacked him again. V was killed. D claimed that while they involved in the first attack, he should not be responsible for the killing as he was not involved in the second attack. B) Tyrell Principle - Where a statute is enacted for the protection of a particular class of persons a member of that class who is a victim of the offence may not be prosecuted as an accomplice to that offence. R v Tyrell: The girl was not guilty of inciting the man to have under-age sex with her, since the girl could not herself be guilty of the full offence. C) Crime Prevention R v Clarke: D joined other burglars after the offence had been planned. He did so as to assist the police.

The effect of loss of control on accessories - Person who lost his self control can no longer be said to be acting in consort with others. R v McKechnie: PO provoked into killing V. o Held, those with him could not be accessories. - Loss of control is a defence to an accessory charged with murder. R v Marks If Greg is insulted by Tim and asks Pete to kill Tim, Greg can rely on defence of loss of control in response to a charge of counseling murder.

Criminal Law: Inchoate Offences 16:16:00

02/04/2012

Inchoate Offences - When D has taken steps towards the commission of an offence but who have not yet committed it. Attempts D gone beyond mere prep and taken steps towards carrying out a complete crime Offences under Serious Crime Act 2007 encouraging or assisting a person to commit an offence Conspiracies agreeing with others to commit an offence Attempt - s1(1) Criminal Attempts Act 1981 - AR: D has done an act which more than merely preparatory to the commission of the offence R v Campbell: Gun and demand note outside post office but change mind =/= attempt. Less than mere preparation to the commission of the offence. R v Jones: The defendant's actions in obtaining, shortening and loading the gun, and in putting on his disguise and going to the school could only be regarded as preparatory acts. o But once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder. - MR: An intention to commit the full offence Intent to be given same meaning as in common law (Woolin) Conditional intent: an intent to commit a crime only in certain circumstances. - Attempting the impossible: s1(2) Criminal Attempts Act 1981 The facts are taken to be the facts as D believed them. o R v Shivpuri: He thought he was smuggling illegal drugs, but actually it was harmless vegetable matter. Held, attempt to smuggle drugs. Offences under Serious Crime Act 2007 - Intentionally encouraging or assisting an offence s44

- Encouraging or assisting an offence believing it will be committed

s45 - Encouraging or assisting offences believing one or more will be committed s46 - Defence of acting reasonably s50 AR: Act capable of encouraging/assisting the offence MR: S44: o Intention to encourage or assist in the commission of the offence Foresaw or intend that P will have the MR for the offence Foresaw or intend that any circumstances which are elements of AR of the offence that is assisted or encouraged will be present. S45: o Belief that the act will be of assistance or encouragement and that the offence will be committed. (offence may occur is not enough) o No need to show that D wants offence to be committed. o Must be belief. Suspicion or fear is not enough. S46: o Believe that his act will be of assistance or encouragement to the commission of one of the offences.

Conspiracy - An agrmnt by 2 or more ppl to engage in a course of conduct which amounts to a criminal offence. - Statutory conspiracy - Common law conspiracy (no need to know) Statutory conspiracy - s1 Criminal Law Act 1977

- The offence is complete even if the parties do not carry out their agreement. - AR: Agreement to carry out a crime Just need a clear agreement to commit an offence. No need to have specific details of which house to burgle etc. - MR: Intention to be party to the agreement and intention that the offence be carried out by the parties Both parties must have the necessary MR.

Criminal Law: Non-fatal Offences 16:16:00

NON-FATAL OFFENCES

02/04/2012

- Person shouldnt be touched against his/her wish. St Georges Healthcare NHS Trust v S o Woman in late stages of labour advised to have Caesarean section operation cos her life and childs were in danger. Refused. Hospital obtained a court order allowing them to do so and they did it against her will. o Held, court order shouldnt have been granted. Her right to bodily integrity was held to be preciously guarded by the law. As long as she is competent, it had to be respected by doctors.

ASSAULT - s39 Criminal Justice Act 1988: fine and/or imprisonment not more than 6 months - AR: causing V to apprehend imminent unlawful force - MR: Intending or was reckless that V would apprehend imminent unlawful force - Words alone can constitute assault R v Ireland o Silent phone calls. o Held, words can constitute an assault. Silent phone calls too. But must have apprehension of an imminent attack. Apprehension of force Ireland v Burstow o If no apprehension, no assault. Definition of imminent next week does not make the cut. within a minute or two Lord Steyn in R v Ireland No intention to carry out the threat does not matter

Logdon v DPP o D showed V a gun and said he wld keep victim hostage. Fake gun. o Held, even though gun was fake, conviction upheld. Cos he created fear of violence in victim. No intention to carry out the threat and incapability to do so does not provide a defence. Conditional threats =/= assault Unless you retract that insult I will punch you. Cos V had the power to avoid the violence by acting as requested. Word that negate a threat Tuberville v Savage o If it were not assize time, I would not take such language. While holding a sword. o Held, no assault. Assault requires a positive act. Fagan v Metropolitan Police Commissioner: o Assault requires proof of a positive act and cannot be committed merely by an omission. Must be unlawful force. Self-defence = lawful.

BATTERY - AR: touch or apply force to V A battery is the actual infliction of unlawful force on another person Collins v Wilcock - MR: intended or was reckless as to touching or applying force to V - Does not need to harm V. Touching can constitute a battery Collins v Wilcock - Battery can be carried out by omission Fagan v Metropolitan Police Commissioner: o Placing the car on policemans foot and not removing it, D was continually committing a battery. Omission is failure to remove the car.

DPP v Santa-Bermudaz: o D was asked by police officer who was planning to search his clothing whether he had any sharp objects. He said he didnt. Office put her hand in the pocket she was cut by a needle. Held, where someone by act or word creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materializes, there is an evidential basis for the actus reus of an assault occasioning ABH. Does not require direct application of force. As long as something touches the victim. Haystead v Chief Constable of Derbyshire o D struck woman who was holding baby and she dropped the baby. o Held, he had caused unlawful force to be applied to the baby when the baby hit the floor. Everyday touchings cannot amount to battery Collins v Wilcock: o Implied consent to physical contact when entering crowded places or attending events where touching is common. o Necessity. Everyday touchings are an essential part of life.

ASSAULT OCCASIONING ACTUAL BODILY HARM (S47 OAPA) - s47 Offences Against The Person Act 1861 - Like assault and battery combined. - ABH: Any hurt or injury calculated to interfere with the health or comfort of V so long as it is not merely transient or trifling R v Donovan & R v Chan Fook (for psychological harm) - AR: an assault or battery which causes the victim to suffer actual bodily harm - MR: intend or be reckless as to the assault or battery. No need to show that D intended or foresaw ABH. - 3 elements of s47: (i) Show that there was an assault. AR and MR of assault & battery must be shown. (ii) V must suffer ABH. ABH = level of harm > mere touching/battery.

(iii)

i. No need to show pain. Cut of ponytail is ABH, DPP v Smith (2006). ii. Psych injuries that are medically recognized = ABH. Must show that ABH was occasioned by the common assault or battery of D. i. Occasioned = caused ii. R v Roberts: D made indecent proposals to V and she was so frightened she jumped outta the car and suffered ABH.

MALICIOUS WOUNDING (S20 OAPA) - s20 Offences Against The Person Act 1861 - AR: unlawfully wound V or inflict GBH to V C v Eisenhower: Wound = break in the continuity of the whole of the skin, so both layers. Therefore, a scratch may draw blood but may not be deep enough for a wound if it only affects the outer layer of the skin. Breaking of an inner membrane which is analogous to skin may constitute a wound. Injury to the inside of a mouth is a wound. o R v Waltham: Policeman kicked in the genitals and the lining membrane of the urethra ruptured, leading to bleeding. Held, a continuation of external skin and so there was a wound. Laceration defined as a deep cut/tear of the flesh - MR: D foresaw that V might suffer some harm. Not necessary to show that D intended or foresaw GBH. It is just enough to prove that D believed he might cause V some kind of harm. R v Savage: Threw beer glass contents over V and the glass slipped out of her hand and cut V. Appeal against s20 conviction dismissed. R v Parmenter: Caused injuries to his baby son while playing with him in a vigorous way. Said he didnt realize that it would cause injury. Appeal against s20 conviction allowed. - GBH: really serious bodily harm; consider the totality of the injuries inflicted. Definition of GBH: R v Saunders & DPP v Smith (1960)

o R v Saunders: D approached a stranger who was sitting along the roadside and asked him whats the problem. When stranger said there was no problem, D said he would give him one and punched him in the face. V suffered a broken nose. Held, broken nose is GBH. The origin of the phrase "really serious injury" was DPP v Smith [1961]: " "Bodily harm" needs no explanation. Grievous means no more and no less than really serious.". A broken nose on any view was serious bodily harm, The word really does not add anything to "serious" but emphasises to the jury that the harm caused must be - actually or really - serious. o DPP v Smith (1960): D was trying to escape from police in a car. PC jumped onto cars bonnet, D swerved from left to right till PC was thrown off and killed. Held, grievous means no more and no less than really serious. o R v Bollom: Held, in assessing whether the injuries were really serious, impact of them must be taken into account. Injury to adult may be serious injury to baby. o R v Chan-Fook: GBH can include very serious psych harm. But they must be more than serious distress or upset. And must be a serious identifiable clinical condition. (Hobhouse LJ) o According to CPS Charging Standards, GBH is: Substantial loss of blood, in need of transfusion Incapacity Permanent disability or permanent loss of sensory function Permanent, visible disfigurement Fractured skull Broken bones jaw, cheekbone, ribs and limbs - Infliction of GBH: Inflict = cause

WOUNDING WITH INTENT (S18 OAPA) - s18 Offences Against The Person Act 1861

- AR: unlawfully wound V or cause GBH Wound: an injury that breaks both the outer and inner skin C v Eisenhower GBH: serious harm - MR: (i) either D intended to cause GBH OR D intended to resist or prevent the lawful arrest, (ii) that he knew that GBH was a virtually certain consequence of his act - Quite similar to s20 except for 1 key difference: Must have proof of intention in s18/wounding with intent, while recklessness is enough for s20 (no need intention). And that the GBH was intended. - 4 ways to commit s18 offence: Wounding with intent to cause GBH Wounding when resisting arrest and having foresight of some harm occurring Causing GBH with intent to cause GBH Causing GBH when resisting arrest and having foresight of some harm occurring Consent vs ABH (s47 OAPA) or GBH (s20 OAPA) - Consent is only valid when the harm falls short of ABH R v Brown: Ds were a group of sado-masochists who willingly and enthusiastically participated in the commission of acts of violence against each other for sexual pleasure. o Held, it is not in the public interest that a person should wound or cause ABH to another for no good reason. o In the absence of no good reason, the victims consent afforded no defence to a charge under s20 or s47 OAPA. o Sado-masochists desires =/= good reason

Criminal Law: Rape

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RAPE - s1 of Sexual Offences Act 2003 - AR: D penetrate vagina, anus or mouth of V with his penis and V did not consent to the penetration. - MR: D intended to penetrate the vagina, anus or mouth of V with his penis AND did not reasonably believe that the victim consented to the penetration. AR: Penetration - Woman cannot commit rape cos penetration must be done with a penis. If woman forces man to engage in sex, it will be sexual assault or sex w/o consent. - After the case of R v R, husband can rape wife. - Boy, above the age of criminal responsibility (10yo and above), can be guilty of rape. - Man or woman can be victims of rape. Includes transsexuals with surgically created sexual organs. - s79(2) of Sexual Offences Act 2003: Penetration is a continuing act from entry to withdrawal. So if consent after initial penetration is withdrawn and D (being aware of the withdrawal of consent) does not withdraw his penis within a reasonable time, it can be rape. AR: Consent - Apply s76, then s75 and s74 (if necessary) - Definition of consent: s74 Sexual Offences Act 2003 o A person consents if he agrees by choice, and has the freedom and capacity to make that choice. Very vague terms btw So even if V said yes, but it is not a result of a free choice then it will not count as consent! - Consent and intoxicated victim R v Bree:

o After presentation of evidence at trial, it was found that V had been conscious and capable of consenting, despite high level of intoxication. But she did not consent to sexual intercourse. Held, on proper construction of s74: If through drink or any other reason, V temporarily loses her capacity to choose whether to have sex, she is not consenting. If V had voluntarily consumed substantial amount of alcohol and still had the capacity to choose whether to have sex and agreed to do so, she is held to have consented. Drunken consent = consent. R v H: o V, 16 years old, drank a litre of vodka and became separated from her friends after an argument. Cannot remember what she said to the man cos she was drunk but confirmed in her evidence that she didnt want to have sex. Crown Court judge: accepted that there was insufficient evidence to ascertain if V lacked capacity to consent (cos v could not confirm if she said yes to sex) o Court of Appeal held that there was sufficient evidence of rape. V had told the man to get off during sex. The fact that C didnt say no at the moment of initial penetration was not fatal to the prosecution case.

- Positive consent required. R v Lartner: o V was aslp throughout the act and had not actively opposed or resisted the act. She had not positively consented to it and so AR of rape was made. Held, rape. R v McFall: o V had been kidnapped by accused, who then said he wanted to have sex with her. V was so terrified he would kill he that she pretended to consent to it.

Held, although she appeared to an onlooker to have consented, AR of rape was established cos it was clear that V (in her mind) did not consent.

- Capacity to consent. Children: If child has sufficient maturity and understanding she may be competent to consent. o Even if there has been consent from a child < 13 yr old, there will be a charge of section 5. Mental illness or learning difficulties: s3 of Mental Capacity Act 2005 definition of an incompetent adult Others who lack capacity: Drunk victims R v Bree

- Consent provided through fear = consent negated R v Olugboja: D did not utter any threat, V had regarded his conduct as threatening and so had sex with him. o Her consent was provided through fear and that is not genuine consent. - Consent provided in exchange for some benefit =/= genuine consent R v Kirk: An offer to have sexual intercourse in exchange for some benefit will be regarded as such that there is no genuine consent. - Mistaken consent. A person other than D deceived the victim as to the nature of the act. (i) Conclusive presumptions of there being no consent: s76 SOA 2003 - s76 of Sexual Offences Act 2003 - Consent is conclusively presumed to be absent No consent la! There will be a conclusive presumption that there was no consent: o (i) When D intentionally deceived V as to nature/purpose of the act OR

o (ii) When D intentionally induced V to consent to the relevant act by impersonating someone known personally to C - When it is shown that D intentionally deceived C, he will be guilty of rape. And there is no way he can rebut the presumption. - Both AR and MR are proved when the presumption is applied. (a) Deception as to the nature of the purpose of the act - There must be deception. CP only applies when V is mistaken as to the nature of the act because of Ds deception. - There must be deception as to the nature or purpose of the act. (Contrast Williams with Jheeta!!) R v Williams [Got conclusive presumption] o Singing teacher (D) persuaded his pupil (C) to agree to let him do sth that wld improve her breathing. She was unaware that in fact he was engaging in sexual intercourse with her. The act that she had consented to was different in nature from the act the defendant did. Held, rape. Consent had been obtained by fraud and consent is conclusively presumed to be absent cos there was deception as to nature of the purpose of the act. R v Jheeta [No conclusive presumption] o D sent anonymous threat text msgs to C. C consulted D and he suggested he contact the police. He then sent her text messages purporting to be from the police and the messages told her to keep having sexual relations with D. C said she had sex with D on about 50 occasions, only because of the police advice. D admitted that he realized that V had not been consenting to sex with him and had sex because of his deceptions. Held, C was not deceived as to the nature or purpose of the act but deceived as to the situation in which she found herself. His lies didnt conclusively prove the lack of consent (s76).

Ds admission that sex took place when C was not truly consenting (s74), meant that the appeal against conviction is dismissed and that he had committed rape.

R v Devonald o D posed on internet as a woman and persuaded V to masturbate on the webcam. Later he put the film online. Prosecution argued that V had been deceived as to the nature or purpose of the act, there was no consent. Held, C was deceived as to the purpose of the act of masturbation. Courts accept that the motivation of one of the parties may affect the nature of the act. R v Linekar o D promised to pay prostitute 25 if she had sex with him but he never intended to keep the promise. P was deceived by Ds intentions but not deceived about the nature or purpose of the act. Held, no rape. Courts interpret s76 in a narrow way so that it applies where V is deceived into thinking that the act is not sexual intercourse but a diff kind of activity.

- The deception must be intentional as stated in the statute! intentionally deceived - Non disclosure of sexual disease Will not invalidate consent given for sex (that is free from STD) o R v EB EB had sexual intercourse with the claimant. EB was HIV positive and failed to disclose this to the complainant. The question for the Court of Appeal was whether the apparent consent given by the complainant was ineffective as a result of EB's failure to disclose his status. Held, no rape. The act remains a consensual act.

(b) Cases of impersonation - There must be impersonation. R v Elbekkay: o D entered Vs bedroom and V assumed it was her bf and consented to sex. D realized his mistake but still had sex with her. Presumption did not apply here cos D did not impersonate the bf, he had said nth to suggest he was the bf. But still guilty of rape cos under s74 (the general meaning of consent) the victim did not consent. - Impersonation must be of a person known personally to the C. Applies when D impersonates Vs husband partner or friend. But will not apply when it is a favourite film star or when he claims he is rich or is a doctor. - When there is no deception or when the mistake is as to the identity of a person not known to the victim, there is no consent. Only identity. Attribute does not fall under it. o R v Richardson D purported to be a legit dentist when in fact she had been struck off the register of dentists. Patients were not mistaken as to her identity, but mistaken as to her attributes (i.e a registered dentist). Therefore, there was consent to the dentistry work. (ii) Evidential Presumptions of there being no consent: s75 SOA 2003 - s75 Sexual Offences Act 2003 - There will be an evidential presumption that there was no consent when it is found that D knew one of the following circumstances existed: (a) Any person was using violence against C. Immediate violence. (b) Any person caused C to fear that violence will be used. Immediate violence. o (a) & (b) The threats of violence/use of violence can be by a 3rd party or directed to a 3rd party

(c) Unlawful detention of C o Hostage situations and kidnapping etc. (d) C was asleep or unconscious at the time of the act (e) Cs phy disability prevented C from communicating to D his consent o (d) & (e) C is unable to communicate consent and so D should not have been able to reasonably believe in consent. Defence: D can say that usually V will agree to the circumstances in (d), i.e she usually agrees to having sex when shes unconscious or asleep. (f) Any person administered or caused C to take substance. W/o Cs consent. Substance capable of causing C to be stupefied or overpowered. Dont need to show that the substance has that actual effect.

- If any of the circumstances existed, based on the evidence, it is presumed that AR and MR are established as D is taken to not have reasonably believed that C consented. The presumption operates against D until he raises sufficient credible evidence that he had a reasonable belief that C consented, i.e rebutting the presumption. When presumption is rebutted by D, prosecution must prove absence of consent as defined in s74 and that AR and MR for rape existed, so as to persuade jury to convict D of rape. MR: Intent to penetrate - MR: An intent to penetrate and D does not reasonably believe that V consents MR: No reasonable belief in consent - Does not reasonably believe that V consents: When V is asleep, or V is deceived, or impersonation,

- Before SOA 2003, D can be acquitted if he genuinely believed that C was consenting, despite how unreasonable the belief might be. DPP v Morgan: V husband told some men that they should have sex with his wife and that she might appear to resist, but only to heighten her sexual enjoyment. The circumstances were such that the wife had made it quite clear she was not consenting and she sustained physical injuries requiring hospital treatment. Held, the Ds belief in V consenting must be genuine and honest. There was no requirement that the belief was reasonable. The convictions were upheld, however, as the House of Lords was of the opinion that no jury properly directed would have considered the belief of the defendants in the circumstances as genuine. - With SOA 2003, see s1(2): For a belief to be reasonable, it is to be determined whether D took any steps to ascertain if V consents.

Criminal Law: Intoxication

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Intoxication - Relevance of intoxication in Criminal Law: D can seek to rely on intoxication as evidence that he lacked mens rea for some crimes Intoxication is never a full defence. You will only be acquitted because of a lack of MR (invol intox and lack MR). Or you will be acquitted of an offence which requires intention (vol intox and lack MR) -> but you will be charged with a lesser offence that requires recklessness as MR.

- R v Kingston: Boy was drugged and fell asleep on a bed. Ended up being photographed in compromising positions with D. D claims he had been drugged by third party (involuntary intoxication) and the drugs caused him to lose his inhibitions and commit the offence. Had he not been drugged, he would not have acted as he did. Held, appeal allowed. Cos D lacked the necessary MR. However, if D has the necessary MR for an offence when AR occured, the fact the he only committed it cos he was involuntarily intoxicated provides no defence. How to use intoxication in questions: - Was MR satisfied? Yes. o He will be guilty of the offence if he is vol or invol intox. No. o Was he vol or invol intox? Invol intox: he will be acquitted cos he lacked the MR. Vol intox: he will be deemed reckless. Will be acquitted of the offence that is intent for MR. May be charged with a lesser offence that does not require intent for MR. Involuntary intoxication - D involuntarily intoxicated can intro evidence of their intoxication to persuade the jury that they lacked the MR of the crime. However, if jury finds that they had the MR, they will be guilty.

- Forced to drink alcohol or take drugs against his will = involuntarily intoxicated Voluntary intoxication - D voluntarily intoxicated can intro evidence of their intoxication to prove that they lacked the MR in crimes of SPECIFIC INTENT and are therefore not guilty. - For crimes of basic intent, the fact they were intoxicated when they committed it will provide the evidence that they had the necessary MR. - Legal substances: If D is taking a lawful substance, he is voluntarily intoxicated if he is aware that the substance wld have this effect on him. D would be voluntarily intoxicated if he took medicine prescribed by doctor in a way not prescribed. - Alcohol and illegal drugs: R v Allen: D drank his friends home made wine and thought it had a little alcohol in it. Actually, it had a high level of alcohol. Held, voluntary intoxication. - Basic and specific intent Basic: Crimes where MR element can be satisfied by recklessness o R v Heard: D was drunk and exposed and rubbed his penis against the thigh of a police officer. Claims that he lacks the intentional requirement of basic intent under sexual assault s3(1). Held, a drunk intent is still an intent. Sexual touching must be intentional but voluntary intoxication cannot be relied upon as negating the necessary intention. Appeal dismissed. Although sexual assault requires intentional touching, it is a BASIC INTENT offence. Specific: Intention as MR element (intention is a higher standard than recklessness)

- D who is voluntarily or involuntarily intoxicated but has the MR required for the offence is guilty. True for all crimes

Drunken intent is still intent. Drunken recklessness is still recklessness. - D who is involuntarily intoxicated and lacks the MR for the offence must be acquitted. LACKS MR. Acquitted because lack of MR, not cos of intoxication. - D voluntarily intoxicated and lacks MR for the offence, D is reckless. Will be acquitted of an offence requiring intention. And may be convicted of a lesser offence which requires recklessness. - If D has taken drink for the purpose of giving herself the courage to commit the crime, she is still guilty, even if she lacks MR. AG of Northern Ireland v Gallagher Cannot rely on self-induced drunkenness as a defence to a murder charge

Criminal Law: Theft

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Theft - 5 elements of theft: AR: o (i) appropriation of o (ii) property o (iii) belonging to another MR: o (iv) dishonesty and o (v) with an intention permanently to deprive

Appropriation - Defined in s3 of TA 1968 - (i) Assumption of any of the owners rights When D has done something that an owner has the right to do. E.g offering it for sale, destroying it o Therefore, when in a supermarket, taking an item of the shelf with intention to steal it is already appropriation. Theft occurs there and then. Not when you run out of the store without paying. R v Morris: o Switching of price tags in supermarket to pay a lesser price. o Held, switching labels is an assumption of the supermarkets rights. - (ii) Vs consent for Ds appropriation is irrelevant Touching of a piece of property is an appropriation whether victim consented, requested or objected to the act. R v Lawerence: o Tourist volunteered his wallet for cabdriver to take his fare cos he not familiar with . Cabdriver took more than he should have. o Held, there is dishonest appropriation of tourists money even when he has consented to the appropriation.

R v Gomez: o Assistant manager aided and abetted theft by obtaining authorization from manager to accept 2 stolen cheques for the stores goods. Claimed that the express authorization from manager to allow the transfer of goods with the stolen cheques is not a dishonest appropriation. o Held, express authorization from manager is irrelevant. It is still dishonest appropriation even if consent is obtained by deception. R v Hinks: o Man with low IQ gives D as gift. Claimed that there cannot be theft if the transfer of money was a valid gift. o Held, a person can appropriate property belonging to another when that person has made an indefeasible gift of that property. Gomez principle applies to indefeasible title to property where it was acquired by menas of taking a gift from a person who was easily influenced. Therefore, there was appropriation.

Property - Defined in s4 of TA 1968 - What is defined as property: Money (coins, banknotes) All other everyday tangible pty Things in action (bank balance or a debt) o Pty that can only be enforced by bringing a legal action Other intangible pty (patent, copyright) Illegal items can be property and subject to theft o E.g Heroin in R v Smith - What is not defined as property: Secrets/ confidential information: o Oxford v Moss: Copied exam paper and returned it. Held, confidential info cannot be stolen. Electricity: o Low v Blease:

D made a phone call while trespassing property. Phone call = electricity. If phone call was theft of electricity, he is a burglar But he wasnt a burglar cos electricity =/= pty

Belonging to another - Defined in s5 of TA 1968 Belonging to a person having possession or control over it Belonging to a person having proprietary interest or right - Theft of property which owner is unaware of its existence R v Woodman: o Leftover scrap metal at disused English China Clays factory. ECC didnt know it was there. D took it. o Held, theft. Although, ECC didnt know of its existence, the fact that they have prima facie control of it meant that D had stolen their pty. Control of the factory site by excluding others from it = prima facie control of the articles - Possession or control of articles You can steal from yourself if the property is in someone elses lawful possession R v Turner (No.2): o D left car at garage. Car repaired and left along the road. D wanted to avoid payment and so took it away. Issue here is about stealing from yourself, not about the default on payment part. Held, garage was in lawful possession of the car at the point in time. Thus, theft. - s5(3) TA 1968 Property doesnt belong to a person if o (i) he is obligated to deal with the property in a particular way o (ii) And that obligation is legal Davidge v Bunnett: o Vs gave D money to pay for gas bill. She used it for her own purposes.

Held, theft. Cos D was trustee of the money raised and was under legal obligation to retain money in the bank account used to pay the bills. By moving the money to his own account, it was still the Vs money going into his account which he later used for his own purposes. - s5(4) TA 1968 If D got the property by anothers mistake and has obligation to restore it and doesnt, theft. AG Ref (No.1 of 1983): o D overpaid by 74. o Held, theft. There was legal obligation upon her to restore the 74 when she found out about it. Not returning = dishonesty & intention to permanently deprive employer of the money.

Dishonesty - Defined in s2 of TA 1968 - Dishonesty element is determined by jury - s2(1) TA 1968: Not theft when there is an honest and genuine belief that.. He has the right to deprive the other of the property He would have the others consent if the other knew about the circumstances He cannot find the person to whom the property belongs, after taking reasonable steps to locate. - s2(2) TA 1968: Appropriation may be dishonest even though he is willing to pay for it. Question for jury to decide on. - If s2(1) TA 1968 not met, jury will consider common law Ghosh test for dishonesty. R v Feeley: o D managed a Ladbrokes branch. Head office issued a circular banning the borrowing of money from company tills. D took 30 from the safe claiming that he was able to repay and that the managers owed him this in pay too.

Held, jury to apply current standards of ordinary decent people to determine if appropriation was dishonest.

R v Ghosh: o D, a doctor, claimed fees for carrying out operations which were performed by another surgeon or the operaton had been carried out under the NHS. Held, the test for dishonesty is Ordinary standards of reasonable and honest ppl, if they will think that the act is dishonest If jury finds him dishonest, jury must consider whether D must have realized that what he was doing was (by those standards) dishonest. - In conclusion, the test for dishonesty: Consider s2(1) of TA 1968. If D does not fall under that those circumstances, go to Ghosh test. Intention permanently to deprive - Defined in s6 TA 1968 Must intend to permanently deprive victim of the item You just need to deprive victim of the item, dont need to intend to acquire it. So you can throw someones item out of the train window and that is theft. Backed up by s1(2) TA 1968. Replacing the taken goods is a question for jury to decide if D was dishonest. Eg taking banknotes from safe, but intending to replace it with the same amount (but obviously with different set of notes). o R v Velumyl: The defendant had taken money from his employer's safe and claimed that he intended to pay it back after the weekend. Held, he had not intended to return the exact coins and notes, and that therefore he was properly convicted of theft. o However, the fact that D intended to replace the item will be taken into account when deciding if he was dishonest. - Conditional intention to deprive R v Easom: D picked up a handbag in a cinema, looked through it and decided there was nothing worth stealing.

o Held, acquitted on the basis that he could not be said to intend permanently to deprive the victim of her handbag and its items. He only intended to deprive her of items that were of value, which he did not find. Returning property in an impoverished state If D took victims season ticket for his local football team and returned it once the season was over, the ticket is useless when returned and so it is equivalent to it being permanently taken. DPP v SJ, PI, RC: D took Vs headphones and broke them and returned them. o Held, Property had lost its practical usefulness and so D convicted of theft. R v Lloyd: Mere borrowing is not enough to constitute the necessary guilty mind unless the intention is to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone. Risking others property If D gambled Vs pty or invest it in a risky investment, D will be treated as intending to deprive the victim of it. R v Fernandes: D, a solicitor transferred money from his clients account to a higher yielding account in an attempt to cover his personal debts. He was convicted of theft. o Held: The critical notion was whether a defendant intended to treat the thing as his own to dispose of regardless of the others rights. Section 6 could apply to a person in possession or control of anothers property who, dishonestly and for his own purpose, dealt with that property in such a manner that he knew he was risking its loss. In the present case there was an alleged dishonest disposal of someone elses money on an obviously insecure investment.

Criminal Law: Defences

02/04/2012 16:16:00

Duress - 2 type: Duress by threats: Where someone has forced to break the law under a direct threat of death/serious injury to themselves/someone else Duress of circumstances: Circumstances threaten death/serious injury unless a crime is committed - A defence to all crimes except murder, attempted murder and certain forms of treason. Duress is not a defence for murder: o R v Howe: The overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility. - Test for duress: Graham test (i) Was D impelled to act as he did because, as a result of what he reasonably believed X had said or done, he had good cause to fear that if he didnt do so X would kill or cause him serious physical injury? (subjective test) (ii) The sober person of reasonable firmness, sharing relevant characteristics of D would have acted in the same way (objective test) Graham test limb 1 Part 1: Impelled to act - D must truly have no freedom of choice in what he was doing. Voluntary association with a known criminal organization or gang shows that D is responsible for creating a situation in which he is at risk of being subjected to coercion. o R v Sharp: D was bagman for post office robberies. Panicked when he saw guns were going to be used but continued cos of threats to his life.

Held, voluntary membership of a criminal organization or gang rules out duress as defence. o R v Shepherd: D was a member of a gang of shoplifters. He and his family had been threatened with violence when he tried to give up. Held, not guilty. While a person who joins a paramilitary organisation or a gang of armed robbers must expect to be threatened if their nerve fails them, the same is not necessarily true of every criminal enterprise. Depends on nature of organization and Ds knowledge of it. If he was unaware of any propensity to violence, defence may be available to him. Defence maybe available where the gang is non-violent. o R v Z: D convicted of aggravated burglary, claimed he was coerced into it. Held, defence of duress is excluded when as a result of the accuseds voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. Part 2: Reasonably believed - Must have reasonable belief that there was a threat R v Safi: o D hijacked an aeroplane, imprisoned crew and passengers, possessed a firearm with intent, and possessed explosives. They were escaping from the Taliban. Held, not guilty. Just need to show that there is reasonable belief that there was a threat. Dont need to prove that the threat was sufficient.

So, if a defendant committed a crime because a gun was pointed at him, the defence would succeed if the gun was not loaded and therefore there was no threat in fact.

Part 3: Killed/caused serious personal injury (i) Threats must be of death or serious physical injury - R v Baker and Wilkins: C.A emphazied that only a threat of death or physical injury will suffice. - Threats to pty, reputation or minor injury will not work. R v Valderrama Vega: o D convicted for being part of a drug scheme. Claimed he was under duress for threats of death to him and his family, threats to expose his homosexual inclinations and financial difficulties. Held, he can still rely on duress as along as the threats of death or serious injury were a substantial reason for him committing the crime. (ii) Threats must be made against D, or someone for whom he reasonably regards himself as responsible for - A vague threat to the public will not suffice R v Shayler: o D a former MI5 officer disclosed information and sought to rely on the defence of necessity (or duress of circumstances) and claimed his disclosures had been necessary to ensure that certain malpractices were to be e ended. Held, guilty. - Threat to close friends or a child that he is taking care for, yes. (iii) Must be an imminent threat - R v Abdul-Hussain: D's were Shia Muslims living in Sudan who feared being sent back to Iraq and certain execution. They hijacked a plane equipped with plastic knives and imitation hand grenades, forced it to fly to Britain where they surrendered after 8 hours.

o Held, imminent peril of death or serious injury to the defendant or his dependants had to operate on the mind of the defendant at the time he committed the act so as to overbear his will. (iv) Threat must be specific - Crime that D commits under duress has to be the one he has been threatened into committing. R v Cole: o D charged with robbing 2 building societies. Held, D cannot rely on duress by threats since the moneylenders had not stipulated that he commit robbery to meet their demands. Graham test limb 2 - Reasonable person (i) Which characteristics can be taken into account? o R v Bowen: Low IQ not relevant, but post traumatic stress disorder is. His low IQ did not make him any less courageous or less able to withstand threats. o R v Flatt: The characteristic must not be self-induced, e.g intoxication. (ii) For what purposes are characteristics relevant? o The characteristics will affect: Level of firmness expected Ability of D to escape from the threat (physical disability) Affect the gravity of the threat (pregnancy) Examples: age, sex (controversial), pregnancy, serious physical disability and recognized mental illness DPP v Mullally: D acquitted of driving under the influence of excess alcohol. DPP appealed. Held, appeal allowed.

Court had to decide whether D driven to act as she had done cos of genuine fear of death/serious injury; and whether sober person of reasonable firmness sharing Ds characteristics. - D must take any reasonable opportunity to escape from the threat E.g police protection R v Heath: o D was threatened with violence unless he helped transport drugs in a few days time. Held, he could not rely on duress as a defence cos he could have escaped from the threat by seeking assistance from the police or moving to his relatives place in Scotland.

Duress of circumstances - Graham test - Applies to all crimes except murder, attempted murder and some forms of treason - E.g Being faced with the threat of death which D avoids by driving through a red light would fall under the defence of duress of circumstances. - Need imminent threat of death/physical injury R v Quayle: o Legal defences of duress by threats and necessity by circumstances should be confined to cases where there is an imminent danger of physical injury. Mance LJ - Defence will not be available once the threat has ceased CPS v Brown: o D drove over the drink drive limit whilst escaping from three men who phoned to say they were on their way to his house and were 'going to get him'. D drove to his grandmother's house about seven miles away. He claimed the defence of duress of circumstances. Held, although the defence had been available to the defendant when he first drove away, once he had realised that he was not being followed by the three males, he should not have continued driving. The case would be remitted with a direction to convict.

- Circumstances must be external R v Rodger and Rose: o Ds charged with offences connected with escaping from prison. They said they face the threat of death suicide. Held, for the defence to apply, the "circumstances" had to be external to the actual offender. Suicide was an internal threat Private and Public Defences - Issues in both are whether the force was necessary and whether force was reasonable. - Private Def: Physical defence of oneself or ones pty or person or of another against unlawful physical violence. Criminal Justice and Immigration Act 2008 provides some clarification on reasonable force Common law 2 part test: o (i) Was it necessary for D to use force because of an imminent threat of unjustified harm posed by the victim? And o (ii) Was the force used reasonable in the circumstances as the D honestly believed them to be? - Public Def: Prevention of crime S3(1) Criminal Law Act 1967

the pty

Imminent threat - Anticipated attack must be an imminent threat AG Ref (No.2 of 1983): o D made some petrol bombs (explosives other than for a lawful purpose) in order to defend himself. Rioters had attacked his shop and he feared further attacks. Held, the petrol bombs were lawful objects as long as the threat remained. When the threat has passed, it will cease to be a lawful object. Shows that imminent thret can be interpreted in a wide sense. R v Fegan:

o Possession of firearm for the purpose of protecting possessor may be possession for a lawful object even though possession was unlawful (cos it is without a licence) - D is under no duty to retreat R v Bird: o Ex bf pushed D against the wall and she pushed his face. She forgot she was holding a glass. V lost an eye. Held, conviction quashed. It was unnecessary to show an unwillingness to fight. There were circumstances where D might reasonably react immediately w/o first retreating. - D is not under a duty to avoid an area where he knws he could be attacked R v Field: o D was told to go home cos there was a group who wanted to fight with him. But he continued to stay out. - D can be justified in using a pre-emptive strike against his potential assailant R v Beckford: o Lord Griffiths: A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot. Circumstances may justify a pre-emptive strike. What if D initiates the confrontation, he may still be able to rely on self defence. o R v Rashford: You can go find V to exact revenge. But when Vs response is so out of proportion to your own action that you fear immediate danger, you may be able to rely on self defence. It all depends on the circumstances. Unjustified harm - DPP v Bayer: D must be acting to ward off an unlawful or criminal act. It can be physical harm to oneself or another, or prevention of other crimes. - Ds mistake as to the need for force R v Gladstone Williams:

o D saw a boys arm being twisted by another man. He thought the boy was being tortured and punched the man. Actually, the boy was stealing a ladys handbag and the man had caught him. Held, the use of force could be justified cos D had an honest belief in using it. He genuinely believed that he was preventing an unlawful assault. It did not matter whether there were reasonable grounds for it or not. D must be judged according to his mistaken view of the facts. Up to jury to decide. S76 Criminal Justice and Immigration Act 2008 o S76(3) CJIA 2008 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 o S76(4) CJIA 2008 If D claims to have held a particular belief as to the existence of the circumstances The reasonableness of that belief depends whether D genuinely held it If D did genuinely held it, he is entitled to rely on it for the degree of force used. Does not matter whether it was a mistake or if the mistake was a reasonable one to have made. D is intoxicated Intoxication may be a defence for specific intent. But not a defence for basic intent for sure. If D made a mistake about the need for force cos he was voluntary intoxicated, self defence will not be open to him R v OGrady o S76(5) CJIA 2008: D cannot rely on an intoxicated mistake which is voluntarily induced. o Thus, if D is sober and makes a mistake as to the need to defend himself, he is entitled to use force/self defence as would be reasonable in the circumstances as he honestly believed them to exist. If he is drunk and makes a mistake as to the need to defende himself, and that mistake is due to his intoxication, he cannot rely on self-defence.

Force used must be reasonable in the circumstances as D honestly believed them to be - Objective test: whether the force used is reasonable is to be judged objectively - Subjective test: The circumstances in which D honestly believed them to be is judged subjectively - R v Scarlett: Accused should not be found guilty merely cos he intentionally or recklessly used force which they consider to be excessive. o They cannot convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be, and provided he believed the circumstances called for the degree of force used, he is not to be convicted even if his belief was unreasonable. - Thus, A jury must decide whether D honestly believed that the circumstances were such as required him to use force to defend himself from an attack/threatened attack D must be judged in accordance with his honest belief, even though that belief may be mistaken, but the jury has then to decide whether the force used was reasonable in the circumstances as he believed them to be. - Physical characteristics of D will not usually be taken into account in relation to self defence. It is the situation in which D is in that is important and not the scientific jargon which is most appropriate to describe his mental state. Lord Woolf in R v Martin - s76 CJIA 2008 clarification on reasonable force Murder & excessive force - If D is entitled to use some force, but goes beyond what is reasonable in the circumstances, as he believes them to be, self defence does not remain open to him. - R v Clegg:

A soldier on duty who kills a person with the requisite intention for murder, but who would be entitled to rely on self defence but for the use of excessive force, is guilty of murder or manslaughter. o He cannot be charged with manslaughter instead cos it is a decision for the legislature and not the judiciary. To hold that it is manslaughter when he had the requisite intention for murder is the creation of a entirely new law.

Self defence vs Article 2 of ECHR - Art 2 of ECHR: Everyones right to life shall be protected by law. Deprivation of life will not contravene Art 2 if it is a result of force which is no more than absolutely necessary, in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained or an action lawfully taken for the purpose of quelling a riot. Defences - NECESSITY See lecture notes!