Criminal Law Study Guide
LAW
DEPARTMENT
A2
Criminal Law
Study Pack
2010 / 2011
Name
CONTENTS
PAGE
1. Homicide - Murder 3
2. Voluntary Manslaughter 8
3. Involuntary Manslaughter 20
4. Defences: Insanity 29
5. Automatism 32
6. Intoxication 35
7. Self-defence 37
8. Consent 42
9. Critical evaluation of murder and voluntary manslaughter 47
10. Critical evaluation of intoxication 53
11. Critical evaluation of consent 57
10. Reform of non-fatal offences 59
11. Questions 62
12. Notes 72-75
13. Exercises on Actus reus and mens rea of murder 76
14. Defences revision grid 81
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HOMICIDE
This is the killing of a human being. The most serious crime is murder and the difference between it and manslaughter is in the intention of the defendant. Murder is a specific intent crime and manslaughter is a basic intent crime.
MURDER
Murder is a common law crime which means that it is not contained in any Act of Parliament. It is defined as:
‘Where a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, under the Queen’s peace, with malice aforethought.’
Murder carries a mandatory sentence of life imprisonment, which is 15 years.
Sound memory—the person responsible must not be insane.
Age of discretion — a child less than 10 years old is not criminally responsible for his/her actions. Since S.34 of the Crime and Disorder Act of 1998 the presumption of doli incapax has been abolished and consequently any child over 10 years has potentially full legal capacity.
Unlawfully kills — the act must be an unlawful killing. The law recognises that in certain circumstances the killing may be either justified or authorised eg. execution or self defence.
Living human being — a foetus is not deemed in law to be a living human being. However, a murder conviction may be possible if a foetus is injured and, after birth, dies as a result of injuries sustained whilst in the womb. Attorney-General’s Reference (No 3, 1994) 1996.
A defendant cannot be convicted of the murder of someone who is already dead at the time of the attack.
R v Maicherek and Steel 1981
The accused had seriously wounded the victim who was then artificially maintained on a respirator. When it was discovered that irreversible brain damage had occurred the respirator was turned off M was found guilty of murder and his appeal was dismissed when he claimed the doctor had caused death. It was his act which caused death. The court appeared to favour the approach that death occurs when the victim is brain-dead.
Queen’s Peace — killing an enemy during wartime is not murder.
Malice aforethought — since the case of R v Moloney the mens rea of murder is the intention to kill or cause grievous bodily harm.
ACTUS REUS
The actus reus of murder is that the killing is unlawful, causation must be established (A caused B’s death) and the victim must be a human being. (see causation notes from AS).
MENS REA DIAGRAM
MENS REA
The mens rea of murder is malice aforethought which is the intention to kill or cause grievous bodily harm (GBH).
There are two forms of intent:
• Direct intent — this is what D desires, eg. pointing a gun at someone and shooting them because you want to kill them. It was their aim or purpose to kill.
• Indirect or oblique intent — this is not necessarily what D desires but what he foresees will almost certainly happen, eg. D sets fire to a building and killed someone, did he foresee the risk that death might occur?
Four important cases must be looked at.
R v Moloney 1985
A soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he had not aimed the gun at the victim and had, at the time, no idea that firing it would cause injury. The judge directed the jury that intention included both desire and foresight of probable consequences and the defendant was convicted of murder. Held (HL) Appeal allowed, manslaughter substituted.
Lord Bridge did state that it was possible to intend a result which you do not actually want. He gave the example of a man who is trying to escape, who boards a plane to Manchester. Even though he may have no desire to go to Manchester — he may even hate the place — it is clearly where he intends to go. However, the appeal was allowed because foresight of consequences can only be evidence of intention — it is up to the jury to decide.
R v Hancock and Shankland 1986
Two striking miners pushed concrete from a bridge onto a road, killing a taxi driver. They claimed only to intend to block the road or frighten the taxi passenger and not to kill or cause GBH. They were convicted of murder but successfully appealed, a manslaughter conviction was substituted by the Court of Appeal and confirmed by the House of Lords.
The House of Lords looked at risk and probability. A slight risk of death is not enough to infer intention: Lord Scarman stated the greater the probability that death or GBH would occur; the more likely that intention can be inferred, eg. if A cut B’s little finger is would not be very probable that death would occur, therefore A is unlikely to have intention. However, if A stabbed B in the chest, it is much more likely that death would result, therefore it is more likely that A had intention.
In both cases the defendants were convicted by the juries and appealed, first to the Court of Appeal and then to the House of Lords. In each case the House of Lords quashed the convictions for murder and substituted a verdict of manslaughter. The reason being the trial judges had misdirected the jury.
The following case established the Virtual Certainty test which should always be used in indirect intention situations..
R v Nedrick 1986
The defendant set fire to a house, killing a child. He claimed that his intention was to frighten the child’s mother and not to kill or cause GBH. Convicted of murder. Held (CA) Appeal allowed, manslaughter substituted. Where direct intention is not present then the following test should be put to the jury.
A jury should return a verdict of murder only where they find that the defendant foresaw death or serious injury as a virtual certain consequence of his or her voluntary actions.
R v Woolin 1998 (HL)
D shook his 3-month-old son when he choked on his food and then threw him across the room, the child died, D had lied to the ambulance men and the police before admitting what happened. He claimed that he did not want his son to die. He was originally convicted of murder but the House of Lords reduced his conviction to manslaughter. The trial judge had misdirected the jury on the test to infer intention. The case has now confirmed the Nedrick test. It must now always be used when dealing with indirect intent situations.
R v Matthew and Alleyne 2003 (CA)
The defendants appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river. The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential rule should not be treated as if it were a rule of law. A defendant’s foresight of virtually certain death does not automatically require the jury to find that he intended that result: it is merely evidence from which the jury may draw that conclusion.
MURDER / MANSLAUGHTER DIAGRAM
MANSLAUGHTER
Manslaughter is a diverse crime which covers all unlawful homicides which are not murder.
There are two types of manslaughter:
1. Voluntary manslaughter - where there is sufficient mental element (malice aforethought) for a conviction for murder but the defendant successfully pleads one of three defences under the Homicide Act 1957 e.g. provocation.
2. Involuntary manslaughter - where homicide is committed without malice aforethought. There are two types:
(a) Unlawful Act manslaughter
(b) Gross negligent manslaughter
VOLUNTARY MANSLAUGHTER
Voluntary manslaughter covers those killings in which the accused is charged with murder because of the presence of malice aforethought, but where the charge is reduced to manslaughter because the accused successfully raises one of three partial defences under the Homicide Act 1957. The defences of provocation, diminished responsibility and suicide pacts are available only on a charge of murder and if proved will automatically reduce the charge to manslaughter.
PROVOCATION
Section 3 of the Homicide Act 1957 states:
“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 said or by both together) to lose 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”.
It is for the jury to decide whether provocation existed - the judge must ask the jury to consider two questions:
(a) was the defendant actually provoked to lose his self- control (subjective test),
(b) how would the reasonable person have reacted given the same set of circumstances(objective test).
• SIMPLE DEFINITION OF PROVOCATION: The defendant was provoked by something said or done or a combination of both, to have a sudden and temporary loss of self control. The jury must then compare the actions of the defendant with that of the reasonable person. If both tests are proven then the defence will be successful.
(a) Subjective test
Was there loss of self -control?
In order for provocation to be successfully proved the defendant must have been provoked to such an extent that there was loss of self control. This provocation can be caused by something said or done. It is also up to the jury to decide whether provocation occurred.
R v Doughty 1986
D was convicted of the murder of his 17 day old son. He had looked after his wife and baby since the caesarean operation. He killed the baby to stop its crying by placing a cushion on its head and kneeling on it. The trial judge refused to allow the baby’s crying immediately prior to the killing to go to the jury as evidence of provocation. D appealed against conviction. The CA held that the issue of provocation should have been left to the jury to decide and a conviction of manslaughter was substituted.
• If there is a delay between the act of provocation and the reaction, this may be evidence that there was no loss of self control.
R v Ibrams 1981
D was threatened and 5 days later, after planning an attack, killed the victim who had threatened him. Held: the delay negated any loss of self control.
• The question whether D lost self control is up to the jury, not the judge to decide.
R v Baille 1995
D shot drug dealer who had threatened his son and was convicted of murder. He had gone into a rage when he discovered that the dealer had put pressure on his son to buy more drugs. Trial judge said that the delay had negated the loss of self control. Appeal allowed, the question should have been put to the jury.
• The loss of self-control must be due to a loss of temper.
R v Cocker 1989
D suffocated his wife, who was suffering from a painful terminal illness and had repeatedly begged him to end her life. The judge withdrew the issue of provocation from the jury, who then felt they had no alternative but to convict of murder. CA held the judge had acted correctly; D had not lost his temper but succumbed to his wife’s requests.
Cumulative Provocation
Evidence of provocation is not confined to the last act or word before the killing. There may have been previous acts or words which, when added together, cause D to lose self-control. It has been stated that the defence of provocation is based on male ideas of reacting instantly and does not fit with domestic violence cases where women are subjected to abuse over a long period. Helena Kennedy QC has described such women as acting on a slow burning fuse - the women may be reacting to the accumulation of years of abuse. Consequently many women have been convicted of murder.
R v Ahluwalia 1992
D had endured 10 years of violence and humiliation from her husband One night he threatened to kill her the next day. She waited for him to fall asleep and then threw petrol on him and set it alight. She was convicted of murder as her attempt to use the defence of provocation failed - there was no sudden and temporary loss of self control. The CA held that the judges direction on provocation was correct and that it was up to parliament to change the law not the courts on this issue. However, the court felt that the D should have the opportunity to plead diminished responsibility. Appeal allowed, conviction quashed and a retrial ordered. At the retrial a plea of guilty to manslaughter on the basis of diminished responsibility was accepted She was sentenced to 40 months imprisonment which was the period she had already served.
R v Thornton 1995
D was subjected to abuse by her husband, she had threatened to kill him in the past. After fresh provocation she went to kitchen and sharpened a knife and then stabbed him after he said he would kill her when she was asleep She was convicted of murder and her appeal was dismissed. Her years of provocation were ignored at the time she was not suffering a “sudden and temporary loss of self-control”. However, a retrial was ordered on the basis that the abuse had not been taken into consideration and a conviction for manslaughter on the basis of diminished responsibility was substituted.
R v Humphrey 1995
D had a history of requiring psychiatric treatment She moved in with her pimp when she was 16, he mentally, physically and sexually abused her. One evening she feared that he would rape her, she cut her wrists and he taunted her that she had not made a good job, she then stabbed him. She was convicted of murder. Her appeal was allowed in 1995 because of misdirection’s at her trial on the law of provocation. Manslaughter was substituted. The court accepted that the cumulative effects of years of abuse were relevant to provocation.
Induced Provocation
If the defendant induced the provocation in the first place this will not prevent the defence being available.
R v Johnson 1989
J and R had been drinking. J had threatened R and his female companion. A struggle took place where the defendant stabbed and killed R. He appealed against his murder conviction on the ground that the judge should have directed the jury on provocation, the provocation being R’s reaction to J’s aggressive behaviour. Held: Appeal allowed and manslaughter conviction was substituted.
(b) Objective test
Would the reasonable person have reacted in the same way?
The objective test means that the jury must consider whether a reasonable person so provoked would have responded in the way that the accused did.
DPP v Camplin 1978
D was a 15 year old boy who bad been buggered by his victim who had also laughed at him. D lost control, hit victim over the head with a chapatti pan and killed him. On appeal his conviction for murder was quashed. The jury should have been told to assess the impact of the provocation on a reasonable 15 year old boy.
Relevant characteristics
R v Morhall 1995
D was a habitual glue sniffer and killed a man who nagged him about his habit. D was charged with murder and claimed he was provoked. The defence was not allowed as the characteristic that he was a glue sniffer was not taken into consideration. However, the House of Lords ruled against this and allowed the appeal. They stated the characteristic did not have to be one which society approved of. The court stated that the glue sniffing could be taken into consideration when looking at the gravity of the provocation. The test would be – how would the reasonable glue sniffer have reacted given that same set of circumstances.
There have been a number of recent major changes in the law which initially changed the reasonable person test. However, the case of R v Smith 2000 has now been overruled by the case of R v Holly 2005..
R v Smith 2000
Smith suffered from a severe depressive illness and got into an argument with a friend over some tools which had gone missing. He stabbed and killed his friend. Smith pleaded provocation and the trial judge directed the jury that his depression could not be inferred on the reasonable person. CA allowed the appeal and substituted a manslaughter conviction. This was confirmed by the HL. Held: the medical evidence of D’s depression could be relevant to the objective test.
The above case is now considered to be bad law because of the Privy Council decision of R v Holly 2005. The board for that case was made up of 9 Law Lords, 6 of which refused to follow Smith.
Attorney General for Jersey v Holley 2005
A chronic alcoholic killed his girl-friend with an axe while under the influence of alcohol. He pleaded provocation to a charge of murder. There was expert evidence that the defendant was an alcoholic, had a depressive and anxious personality and was dependent on alcohol and female partners. The trial judge in Jersey had told the jury that the fact that a person is drunk or under the influence of alcohol at the time of the killing and as a result he is provoked more easily than if he were sober, was not something to be taken into account. The Court of Appeal held this was a misdirection, as from Smith the alcoholism could be taken into account. The Privy Council stated that Smith (HL) was wrong as it departed from the legislation. They went on to state that the reasonable man test was to be judged by one standard, not a standard which varies from defendant to defendant.
The decision in Holly has been confirmed by the following case:
R v James 2006
Dismissing two conjoined appeals by defendants convicted of murder, the Court of Appeal said it is the decision in Holley rather than Smith that is to be followed as the correct statement of English Law.
The law on provocation following Holley is:
1. When considering whether the defendant was provoked (subjective test) the jury should take into account all the relevant evidence, including evidence of any mental or other abnormality making it more or less likely that D lost his self-control.
2. When considering “whether the provocation was enough to make a reasonable man do as he did”, (objective test) the jury must consider the effect of provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can more appropriately dealt with through a defence of diminished responsibility) or intoxication. The statutory reasonable person has the power of self-control to be expected of an ordinary person of like sex and age. In other respects the reasonable person shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant such as in the case of Morhall.
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DEFENCE OF PROVOCATION DIAGRAM
DIMINISHED RESPONSIBILITY
This defence was introduced as a result of the narrow definition of insanity under the M’Naghten Rules 1843.
Section 2 of the Homicide Act 1957 states:
“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 part to the killing”.
• SIMPLE DEFINITION: Diminished responsibility is where the defendant was suffering from an abnormality of mind, which substantially impaired his mental responsibility.
Not all defendants who successfully plead DR will receive a hospital order under the Mental Health Act 1983. The judge has discretion to award an absolute discharge, probation, suspended sentences etc.
R v Martin 2001 CA
D had been a victim of burglaries in the past and had been dissatisfied with the police response. He owned a pump-action shotgun. In 1999 his house was broken into by three men. D shot one of the intruders, a 16year old boy three times, once in the back. The boy died. Another intruder was seriously injured. D was convicted of murder and causing GBH. On appeal new evidence was introduced that he was suffering from paranoid personality disorder and depression. His conviction was quashed and replaced by a conviction of voluntary manslaughter on the basis of diminished responsibility.
Four elements must be considered under this defence.
1. Abnormality of mind
2. Abnormality arose from certain specified causes;
3. Abnormality was a cause of the defendants act
4. Abnormality substantially impaired mental responsibility
The accused must have been suffering from an abnormality of mind.
This covers all activities of the mind not just the brain.
R v Byrne 1960
D strangled and mutilated the body of a young girl. He claimed that he had suffered with perverted sexual desires from childhood which he found impossible to resist. The trial judge directed that this was irrelevant and he was convicted of murder. CA held that this was wrong and substituted a conviction for manslaughter. CA stated that the defence covered all activities of the mind, including not only the capacity to make rational judgements, but also the ability to exercise willpower.
The abnormality of mind does not have to be connected with madness.
R v Seers 1985
D stabbed his estranged wife, and claimed DR on the grounds of his chronic reactive depression. The trial judge directed that for the defence to be successful, the accused had to be bordering on the insane and therefore D was convicted of murder. CA held this to be a misdirection and manslaughter was substituted.
Cause of the abnormality
D’s abnormality of mind should be caused by one of the following:
(1) arrested or retarded development of mind
Mental deficiency can be an abnormality of mind.
(2) any inherent cause
This includes psychopath, paranoia, epilepsy, depression, pre-menstrual tension.
(3) Induced by disease
This covers mental and physical diseases. Battered Woman Syndrome has been recognised as a psychological condition since Ahluwalia 1993.
(4) Induced by injury
This would include physical blows to the head where someone was left brain damaged.
Alcoholism may injure the brain, causing gross impairment of judgement or causes the drinking to be involuntary. Therefore, a condition such as alcoholism caused by long term drinking might be covered but not an accused who was simply drunk at the time he committed the offence.
R v Tandy 1988
D had been an alcoholic for a number of years. She strangled her 11 year old daughter after she told D, her mother, that her second husband had sexually assaulted her. She was convicted of murder and her appeal was rejected. However, the CA stated that the jurors had to decide whether the first drink of the day was taken voluntarily or involuntarily as a result of the accused’s alcoholism: only if the first drink was involuntary would the defence be available. Tandy had failed to establish this.
R v Wood 2008
D, an excessive drinker, went to V’s flat after consuming large amounts of alcohol during the day. Whilst there, according to D, he had fallen asleep and had then woken up to find V attempting to perform oral sex on him. D repeatedly struck V with a meat cleaver, killing him. Four psychiatrists called to give evidence at his trial all agreed that, at the time of the killing, D was suffering from alcohol dependency syndrome. However, they disagreed about whether D’s brain had been damaged. Those for the Crown said that it had not, whereas those for D said that it had, and thus they drew different conclusions as to diminished responsibility. D was convicted of murder and appealed. The Court of Appeal allowed the appeal. They criticised the trial judges reliance on Tandy that the drinking had to be involuntary and that there was no such thing as an irresistible craving. The Court of Appeal stated that the jury should concentrate on the effect of alcohol consumed as a result of the illness and not on that consumed voluntarily. They would have to consider whether the defendant found the craving for alcohol irresistible in the circumstances.
R v Gittens 1985
D suffered from depression and had been in hospital. During a visit home, he argued with his wife and beat her to death. He also raped and killed his stepdaughter. At the time of the killings he had been drinking alcohol and was also taking drugs for his depression. CA quashed his murder conviction and substituted one of manslaughter because of misdirection to the jury about intoxication. The jury should be told to disregard the effect of the alcohol and drugs, then consider whether D, had he been sober, would have been suffering from abnormality of mind.
The abnormality was a substantial cause of the defendant’s acts
The abnormality of mind must have been a substantial cause of the defendant’s acts of killing. It need not have been the sole cause. Sometimes the defendant’s mental abnormality and drink both play a part in causing the defendant to kill. As long as the abnormality was a substantial cause of the killing, it does not matter that the drink was also a cause of the killing.
R v Dietschmann 2003 HL
D killed his victim in a savage attack. At the time of the killing he was very drunk and was also suffering from an abnormality of mind ( a form of depression following the death of his aunt, with whom he had been in a relationship). House of Lords found that the defence of diminished responsibility could be successful even if the defendant would not have killed if he had been sober. The abnormality of mind could still have been a substantial cause of the killing, which impaired his mental responsibility for what had happened.
Effect of the abnormality of mind
The accused must prove that the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. For example, in R v Byrne it was shown that the urges were more than normal lust and were abnormally strong.
BURDEN OF PROOF
The defence must prove diminished responsibility on a balance of probabilities (which is normally the civil burden of proof), calling evidence from at least two medical experts. D may plead guilty to manslaughter on the grounds of DR. The judge has to decide whether to accept the plea. The judge should only do so where medical evidence is clear.
A plea of guilty to manslaughter was correctly refused in the following case.
R v Ahmed Din 1962
D stabbed his lodger seven times with a hacksaw and then cut off the man’s penis. D pleaded guilty to manslaughter, based on paranoia, but the judge thought that there was insufficient evidence of an abnormality of mind and left the defence to the jury, who found him guilty of murder. His appeal was dismissed,
In practice 80% of all pleas of guilty based on DR are accepted.
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INVOLUNTARY MANSLAUGHTER DIAGRAM
INVOLUNTARY MANSLAUGHTER
CONSTRUCTIVE (UNLAWFUL ACT) MANSLAUGHTER
The actus reus of unlawful act manslaughter must occur through an act not an omission.
Therefore neglecting to do something will not be grounds for unlawful act manslaughter even if the omission is deliberate. The mens rea of unlawful act manslaughter is that of the unlawful act, which will depend on the individual crime.
Three key points must be established:
• The accused committed an unlawful act
• The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm.
• It was the unlawful act of the accused which caused the victim’s death.
1. The accused committed an unlawful act
A civil wrong will be insufficient
R v Franklin 1883
D picked up a box from a refreshment stall and threw it from the pier into the sea, killing a swimmer. Trial judge stated that an unlawful criminal act must be committed, a tort was insufficient. D was found guilty of gross negligence manslaughter.
Rv Lamb 1967
D pointed a gun at his friend as a joke. He did not intend to injure or alarm the friend; they both thought there was no danger in pulling the trigger. However, the friend was killed. D’s conviction was quashed as an assault requires the element of fear of force; this was not present as they both treated it as a joke.
R v Corion-Auguiste 2004
D threw an air bomb firework during the rush hour in an enclosed bus station. Other passengers panicked and rushed for the exits; an elderly lady was knocked over in the rush, struck her head, and died. D was convicted of unlawful act manslaughter.
A flexible approach has been adopted by the courts in identifying the crime.
R v Cato 1976
Two drug addicts injected each other several times during the night with heroin. Each made up his preferred mixture of the powder and water, loaded the syringe and then passed it to his friend to perform the injection. By the morning, they were both extremely ill and Cato’s friend died. Cato was charged with manslaughter. The court accepted that there was no breach of OAPA 1861 or the Misuse of Drugs Act 1971. However, it was agreed that it was so close to the offence of possession that this would be sufficient to establish an unlawful act. The friends consent was no defence. He was convicted of manslaughter.
Rv Dalby 1982
Two drug addicts took drugs together but they injected themselves with drugs that Dalby had obtained on prescription. At first instance Dalby was convicted of manslaughter but on appeal the conviction was quashed as there had been no unlawful act.
R v Rogers 2003
R and T spent the day drinking and then R obtained some heroin and was injected by T then T injected himself while R held the tourniquet. T overdosed and died. R pleaded guilty to manslaughter after the judge ruled that the application of the tourniquet was ‘part and parcel’ of the administration of a noxious substance (S.23 OAPA 1861). He appealed saying that T had broken the chain of Causation when he injected himself. C A distinguished Dias saying that he had played an active part in the injection process.
R v Kennedy (2007)
A man asked the defendant to supply him with heroin; D filled a syringe and gave it to the man, who injected himself and subsequently died. D was convicted of manslaughter and his first two appeals were dismissed in the Court of Appeal. However, the House of Lords allowed the appeal. They stated that a drug dealer is never responsible for the drug user’s death when the drug user is a fully informed and responsible adult who voluntarily chooses to self-administer the drug. They took a very restrictive view and stated that it would only be possible for a drug dealer to be held liable for a death when they have been genuinely involved in the administration of the drug.
Mens rea
The mens rea of unlawful act manslaughter is the mens rea of the crime which has constituted the unlawful act. The mens rea will therefore vary depending on the crime involved e.g. assault, burglary, criminal damage, etc.
2. The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm.
R v Church 1966
C and a woman went to his van for sexual purposes, he was unable to satisfy her and she slapped his face. A fight ensued where the woman was knocked out. C thought that he had killed her and threw her body in a river to hide the evidence. The cause of death was drowning C was convicted of manslaughter as he had acted unlawfully towards the woman in a way that sober and reasonable people would appreciate involved a risk of some harm to the woman.
R v Watson 1989
W burgled the house of a frail 87 year old man, who died of a heart attack as a result. The courts held that the accused’s unlawful act became a dangerous one for the purposes of the Church test as soon as the old man’s frailty and old age would have been obvious to a reasonable observer W’s conviction was quashed because it was not proved that the shock of the burglary caused the heart attack.
• The result of this case is that where there are peculiarities of the victim which make an act dangerous when it might otherwise not be, they will only make the act a dangerous one if they would have been apparent to a reasonable observer.
• In order to be considered “dangerous” in this context, the unlawful act must be sufficient to cause actual physical injury. Emotional or mental shock are not enough on their own, though they will be relevant if they cause physical injury - by bringing on a heart attack, for example.
• Whether an act was dangerous or not should be decided on a reasonable person’s assessment of the facts, and not on what the defendant knew. Therefore, a defendant who makes an unreasonable mistake is not entitled to be judged on the facts as he or she believes them to be.
R v Ball 1989
D had argued with neighbours who came over to his house he loaded a live cartridge into his gun believing it to be blank. As a neighbour was climbing over a wall he shot and killed her. He was convicted of unlawful act manslaughter.
R v Woolley and Campbell 2003
Two women harassed an elderly man in the street, demanding money and threatening to accuse him of rape. The man had a weak heart and was so frightened that he had a heart attack and died. The defendants were charged with manslaughter and the judge told the jury they should convict only if they were satisfied that the defendants harassment was the cause of death, and that a reasonable person would have seen their behaviour as carrying a risk of injury. They were both convicted.
3. It was the unlawful act of the accused which caused the victim’s death.
The unlawful and dangerous act must cause the death. Note that in Kennedy the court did not consider the fact that the victim injected himself to amount to an intervening act that broke the chain of causation.
The act need not be aimed at the victim.
R v Goodfellow 1986
G wanted to move from his council house but could see no prospect of exchanging it he set it on fire, attempting to make it appear that the cause was a petrol bomb. His wife, friend and her child died in the fire. G was convicted of manslaughter and the court held that it was immaterial that the unlawful act was not directed at them as the fire was the cause of their deaths.
R v Carey 2006
Three girls started a fight with a fourth girl who suffered minor bruises. She later ran away but collapsed after running about 100m and died from an inherent heart disease aggravated by the running. The defendants were convicted of unlawful act manslaughter based on the unlawful act of affray. These convictions were quashed on appeal. The girl had not been running to escape from a threat but to get home. The only dangerous act on the victim (a single punch) was not the cause of her death.
R v D 2006
The CPS brought a test prosecution for manslaughter following the suicide of a woman after a lengthy period of domestic abuse. On the evening of the suicide, her husband had struck her on the forehead, causing a cut from the bracelet he was wearing. He was subsequently prosecuted for manslaughter and inflicting GBH under S.20 OAPA 1861. In the crown court the trial judge ruled that the case should not proceed to trial as there was no basis on which a reasonable jury could convict the defendant of either offence. The CPA appealed unsuccessfully and the case did not proceed.
GROSS NEGLIGENCE MANSLAUGHTER
As a result of the case of R v Adomako 1994 reckless manslaughter no longer exists and gross negligence manslaughter has become established.
R v Adomako 1994
An anaesthetist failed to realise that a patient’s oxygen supply had been disconnected as a result of which the patient died. He was convicted of manslaughter and appealed. The House of Lords held that the following had to be proved for gross negligence manslaughter.
• A duty of care
• A breach of that duty causing the victims death and
• The breach was so grossly negligent as to warrant a criminal conviction
R v Watts 1998
D was the mother of a child who had been born with disabilities. D was suspected of causing the child’s death while she was in hospital. The tube from her throat was removed/ dislodged. D was charged with murder but was convicted of manslaughter. D appealed CA allowed the appeal due to the misdirection of the judge. It confirmed that the correct direction was that outlined in Adomako.
DUTY OF CARE
• Lord Mackay stated in the Adomako case that the ordinary principles of the law of negligence can be used in order to establish whether a duty of care is owed. Therefore the rule established in Donoghue v Stevenson 1932 can be used i.e. the neighbour test - reasonable foresight.
• Following Caparo Industries PLC v Dickman 1990 account will sometimes be taken of issues of public policy and whether the imposition of a duty would be just and reasonable. This was followed in:
R v Singh 1999
A tenant was killed by carbon monoxide poisoning from a gas heater and D was convicted of manslaughter. It was stated that is was up to the judge, not the jury, to decide whether a duty of care was owed as this was a question of Law. This was approved of by the CA and HL.
R v Wacker 2003
The Court of Appeal accepted that the ordinary principles of the law of negligence apply, but excluded one specific aspect of these rules as being inappropriate in the criminal law context. D was a lorry driver who had been involved in a criminal conspiracy to bring illegal immigrants into the UK. He was driving a lorry from Holland to the UK. The lorry was airtight, with a vent that could be opened to allow air to enter. 60 Chinese citizens were hidden inside the lorry. D shut the vent for over 5 hours to try and prevent detection during the Channel crossing. When the lorry was searched by customs officials 58 people were found dead due to suffocation. D was convicted of gross negligent manslaughter and appealed. He claimed that one of the ordinary principles of negligence was that a person did not owe a duty of care to another person when they were both carrying out a joint unlawful activity. CA rejected this argument and excluded this principle as being inappropriate in a criminal law context.
R v Khan& Khan 1998
D’s supplied victim with drugs saw her take them and then left her. If they had called a doctor she would have survived. They then returned and disposed of the body. They were convicted of manslaughter and appealed. The appeal was allowed as the judge had misdirected the jury. If the jury had been properly directed the jury could have been convicted of gross negligence manslaughter. Case confirms the authority of Adomako.
BREACH OF DUTY OF CARE WHICH CAUSES DEATH
Two areas need to be considered:
1. The defendant’s conduct must have gone below the standard of care expected of a reasonable and sober person.
2. The rules of causation will need to be applied to decide whether the breach caused death.
THE BREACH WAS SO GROSSLY NEGLIGENT AS TO WARRANT A CRIMINAL CONVICTON.
This amounts to the mens rea.
Lord Mackay approved the following definition in R v Bateman 1925:
“in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to crime against the State and conduct deserving punishment”.
The Court of Appeal gave the following guidance in R v Prentice 1994:
We consider proof of any of the following states of mind in the defendant may properly lead a jury to make a finding of gross negligence:
• Indifference to an obvious risk of injury to health;
• Actual foresight of the risk coupled with a determination nevertheless to run it;
• An appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction;
Recently the CA held that a jury could convict D of gross negligence manslaughter in the absence of any evidence as to his state of mind. They can just look at the conduct of the defendant. This will assist future juries to return verdicts in corporate manslaughter cases.
A-G Reference (No2 of 1999) 2000
Southall train crash killed 7 people. Manslaughter prosecutions were brought against the train company responsible for the passenger train, but the trial judge decided it was a prerequisite for conviction in such a case that a guilty mind be established against an identifiable human being. The manslaughter prosecutions collapsed. However, the CA decided that the trial judge had made a mistake. It is not essential that the jury know what D was thinking at the time of the killing. A jury can convict where they find the conduct has been sufficiently negligent to justify criminal liability.
R v Lidar 1999
CA favoured an approach where gross negligence could be proved either by satisfying an objective or subjective criterion. In this case there had been a dispute between two groups of young men in a pub. In the pub car park the appellant got into the driving seat of his Land Rover and his brother was the passenger in the front seat. The victim lent through the passenger window and a fight started. The appellant drove off with the victim still half in the car. He was then crushed when his feet caught in the rear wheel. The trial judge referred to recklessness in his direction to the jury and the appellant was convicted
On appeal the CA stated that the judge was right to direct the jury as he did i.e. had the driver been reckless - was he aware of the degree of risk of serious injury to the victim and nevertheless chose to ignore it.
NB: The concept of gross negligence appears to have a broad definition based on the above two cases. Gross negligence appears to cover both objective and subjective risk taking, and where an individual’s conduct has fallen below the standards expected of a reasonable person so as to justify criminal liability.
1. Did the defendant appreciate there was a risk- subjective test.
2. Would the reasonable person have appreciated the risk? – objective test. The risk must be of death not just a risk to health, comfort or injury. This point was confirmed in the following case.
R v Misra 2004
A patient died due to the negligence of two doctors and they were both convicted of manslaughter. They appealed stating that the elements of the offence were uncertain. The conviction was upheld on appeal and the court stated that the jury had to decide as a matter of fact whether the Defendants’ negligence amounted to gross negligence. The offence was compatible with human rights; Adomako had clearly laid down the elements of the offence. The test in gross negligence manslaughter involves consideration of the risk of death. It is not sufficient to show a risk of bodily injury or injury to health.
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CRIMINAL LAW DEFENCES
INSANITY DIAGRAM
GENERAL DEFENCES
INSANITY
• Under this defence the accused claims that because of his mental state at the time he committed the offence, he was not truly responsible for his actions.
• The defence bears the burden of proving on the balance of probabilities that the defendant was insane. If the defence is successful the verdict must be “not guilty by reason of insanity”. The prosecution may also raise insanity as an issue.
• In a murder charge case the accused will be committed to a mental hospital where his release can only be secured with the consent of the Home Secretary.
• For other offences the judge has discretion.
Criminal Procedure (insanity and Unfitness to Plead) Act 1991
Where the offence is murder, the court must still make a hospital order; under which the accused can be detained for an indefinite period. For other crimes the court may make:
1. a hospital order and an order restricting discharge either for a specified time or for an indefinite period;
2. a guardianship order under the Mental Health Act 1983;
3. a supervision and treatment order;
4. an order for absolute discharge.
Under theDomestic Violence and Victims Act 2004 the question of fitness to plead is to be left to the judge alone.
The rules on the defence of insanity were laid down in the M’naghten case 1843. D was obsessed with the then Prime Minister, Sir Robert Peel, and tried to kill him. He actually killed Peel’s secretary instead, and was charged with murder. He was found not guilty by reason of insanity. The following rules were established:
The accused must show three things:
• he was suffering from a defect of reason
• caused by a disease of the mind
• so that he did not know the nature and quality of his act or he did not know that what he was doing was wrong in law.
Defect of reason
A defect of reason means being deprived of the power to reason, rather than just failing to use it.
R v Clarke 1972
D was charged with shoplifting and argued that she had been acting absentmindedly because she was suffering from depression. At first instance the court held that this was the defence of insanity. Held: The Court of Appeal allowed the appeal. Whilst depression might amount to a disease of the mind, the defendant was not suffering from a defect of reason because she retained her ordinary powers of reason but momentarily acted as she did by failing to concentrate properly.
It does not matter whether the defect of reason was temporary or permanent e.g when someone is having an epileptic fit. R v Sullivan 1984
Disease of the mind
This is a legal definition and not a medical one and therefore covers states of minds which doctors would not necessarily treat as a disease of the mind. It covers a wide range of situations e.g. arteriosclerosis - Kemp 1957; epilepsy - Sullivan 1984; diabetes - Hennessy 1989; sleepwalking - Burgess 1991.
R v Kemp 1957
D hit his wife with a hammer causing GBH. He was suffering with arteriosclerosis, which caused temporary blackouts. He was devoted to his wife and could not remember picking up the hammer or attacking her. Held: D insane because hardening of the arteries was a disease of the mind. The law does not distinguish between diseases of mental and physical origin.
The courts are now using a distinction between disease of the mind caused by internal and external factors. Caused by internal factor - insanity (insane automatism), external factor e.g. someone is knocked on the head, hypnotised - automatism.
R v Sullivan 1984
D kicked and injured a friend during an epileptic fit and was charged with GBH. House of Lords held that epilepsy was a disease of the mind because during a fit mental faculties could be impaired to the extent of causing a defect of reason.
R v Burgess 1991
D attacked his girlfriend whilst sleepwalking. They had been watching videos and they both fell asleep he hit her over the head with a bottle and the video recorder and then grasped her throat. He then came to his senses and was charged with s.18 GBH. He argued that the appropriate defence was automatism, however the Court of Appeal held that this amounted to insanity because the cause was internal.
R v Quick 1973
The diabetic defendant was a nurse at a psychiatric hospital, who attacked a patient. He claimed that due to hypoglycaemia, brought on by not eating after taking insulin, he had acted without knowing what he was doing. The judge ruled that this was a plea of insanity, upon which Quick changed his plea to guilty. On appeal, it was held that the alleged mental condition was not caused by diabetes, but by the insulin used to treat it, appeal was allowed. (External causes).
R v Hennessy 1989
The accused was a diabetic, charged with taking a vehicle and driving while disqualified. He gave evidence that at the time of the offence, he had failed to take his usual dose of insulin due to stress and depression and as a result was suffering from hyperglycaemia which put him in a state of automatism. After the trial judge directed that this was insanity D changed his plea to guilty. He then appealed. The Court of Appeal dismissed his appeal and held that unlike Quick, it was the disease itself, uncontrolled by insulin, which had produced the malfunctioning of the mind and so constituted insanity. (Internal cause).
Did not know the nature and quality of the act or that what he was doing was wrong.
This basically means that the defendant did not intend to do what he did. For example, the man who cut a woman’s throat thinking that it was a loaf of bread, or the nurse who put a baby on the fire, thinking it was a log of wood. In Kemp he had no real memory of hitting his wife with the hammer.
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AUTOMATISM
This is also known as non-insane automatism, it occurs where a crime is committed by an involuntary act caused by an external factor.
Bratty v A-G of Northern Ireland 1963
Lord Denning said - Automatism means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.
Examples: Severe blows to the head, hypnotism, anaesthetic, swarm of bees.
In some cases the courts have been prepared to rule that a “dissociative state” caused by an extraordinary event may be classed as automatism.
R v T 1990
T pleaded automatism to charges of robbery and ABH. She had been raped three days earlier. A psychiatrist diagnosed that she was suffering post-traumatic stress disorder and had entered a dissociative state. Plea was successful.
Broome v Perkins 1987
D was in a hypoglycaemic state and when driving home hit another car. Afterwards he could remember nothing about the journey. Held: as the accused was able to exercise some voluntary control over his movements he had not been acting in an entirely involuntary manner and therefore was unable to plead automatism.
Attorney-General’s Reference (No.2 of 1992)
D was driving a lorry down a motorway, when he crashed into a car parked on the hard shoulder, killing two people. Evidence showed that D had not fallen asleep at the wheel but was in a trance-like state by the repetitive vision of the long flat motorway, which reduced, but did not eliminate awareness of what he was doing. D was acquitted, but the prosecution raised the case as an issue of law in the Court of Appeal. It was held that this state does not amount to automatism.
Self-induced automatism
The defence may not be available if the automatism was caused by the accused’s own fault e.g. through taking drugs or alcohol. If the automatism is brought about by some other way then it may still be used depending on whether the defendant knew there was a risk.
R v Bailey 1983
D was convicted of wounding with intent. He claimed to have been in a state of automatism caused by hypoglycaemia. He had felt unwell before the attack but had only eaten some sugar.
The Court of Appeal held that self-induced automatism (other than that caused by drink or drugs) can provide a defence if the accused’s conduct does not amount to recklessness. This meant that in this case he would only have a defence if he did not realise that failing to eat would lead him to get into a state where he could attack someone. Appeal was dismissed as he had been reckless.
• Where a defendant takes drugs which normally have a soporific or sedative effect, and then commits a crime involuntarily, the defence may be available if the reaction was unexpected.
R v Hardie 1984
It was held that a person whose condition of automatism was due to taking Valium could rely on the defence, even though the drug had not been prescribed by a doctor. He did not understand the effects of the drug.
DIAGRAM ON INTOXICATION
INTOXICATION
Intoxication can be caused by alcohol or drugs or a combination of the two, the same legal principles apply whichever the cause.
If the defendant did actually have the mens rea of the crime, then intoxication cannot be a defence.
R v Kingston 1994
D was attracted to young boys, but he normally managed to control these tendencies and prevent himself from acting on them. However, his business associates decided to set him up so that he could be blackmailed. D was invited with a l5year old boy to a flat where their drinks were laced with drugs; when they were both intoxicated D indecently assaulted the boy. D admitted that at the time of committing the assault, he intended it, but argued that he would not have committed the offence if he had been sober. The House of Lords held that an intoxicated intent was still an intent and the fact that the intoxication was not voluntary made no difference to that. He had the mens rea and so the intoxication was no defence.
VOLUNTARY INTOXICATION
Generally intoxication will be a defence to crimes of specific intent if the intoxication resulted in a lack of mens rea. If the offence is one of basic intent then intoxication will be no defence.
DPP v Majewski 1977
The accused had spent 24 hours getting drunk and taking drugs and then smashed windows and attacked a police officer. He argued that he had been so intoxicated that he could not remember the incidents at all and therefore could not have formed the mens rea. Held; intoxication was only a defence to crimes of specific intent and since the accused was charged with offences of basic intent, his intoxication gave him no defence. This decision was approved by the House of Lords.
• Offences of specific intent include: Murder, S.18 OAPA 1861, Theft.
• Offences of basic intent include: Involuntary manslaughter, Rape, S.20 OAPA 1861, ABH, Assault.
R v Lipman 1970
D had taken LSD with his girlfriend. Whilst on a trip he attacked the girl, stuffing a sheet in her mouth and killing her. He thought he was being attacked by snakes. He claimed he had no intention of harming the girl and did not know what he was doing. It was accepted that this gave him a defence to murder, as it was a crime of specific intent but was not a defence to manslaughter which is a crime of basic intent. The Court of Appeal rejected his appeal.
If the defendants lack mens rea, criminal liability can still be imposed if they were intoxicated and would have had mens rea if they had been sober.
INVOLUNTARY INTOXICATION
Involuntary intoxication may be a defence to any crime whether of basic or specific intent provided the defendant lacks mens rea. (In Kingston although the intoxication was involuntary D admitted he still had the mens rea).
There are three situations where a defendant will be treated as involuntarily intoxicated.
1. Prescribed drugs - intoxication as a result of taking prescribed drugs will be a defence.
2. Soporific drugs - drugs which make the user sleepy or relaxed will be treated as involuntary intoxication.
R v Hardie 1985
D took Valium which had been prescribed for his girlfriend. He then started a fire in a bedroom while the woman and daughter were in the living room. He was convicted of damaging property with intent to endanger the life of another. On appeal the court stated that this did amount to involuntary intoxication as D had been told that the drug would do him no harm and he did not appreciate the effect it would have on him.
3. Laced drinks - See Kingston above. This may be a defence but there is little authority on it.
R v Allen 1988
D voluntarily drank wine but did not realise that it had a high alcohol content. Held: not knowing the precise strength of the alcohol did not make his intoxication involuntary.
DUTCH COURAGE
If the defendant gets intoxicated in order to acquire the courage to commit the criminal act there will be no defence even to a crime of specific intent.
Attorney-General for Northern Ireland v Gallagher 1963
D bought a knife and drank a bottle of whiskey in order to kill his wife. He got so drunk that he would have been incapable of forming the mens rea for murder. The House of Lords held that in these circumstances intoxication would be no defence.
SELF-DEFENCE AND PREVENTION OF CRIME DIAGRAM
SELF-DEFENCE AND PREVENTION OF CRIME
Self-defence is a complete defence. Where an attack of a violent, unlawful or indecent nature is made, so that the person under attack fears for his life (or another persons) or safety from injury, that person is allowed to protect himself provided he uses no more force than is reasonable in the circumstances.
Self-defence can be used to protect the accused, members of his family, his friends or even a total stranger he sees being unlawfully attacked. In each case, the question is:
“was the force he used reasonable in the circumstances, as he knew them to be, or honestly believed them to be”.
Possibility of retreat
It is good evidence for the accused to show that he retreated as far as was safely possible before using serious force but it is not an essential part of the defence. The reasonableness of the defendant’s actions must be the main consideration in each particular case.
R v McInnes 1971
D stabbed and killed the victim during a fight. He appealed against conviction from murder based on the direction that self-defence is only available if D has done all he reasonably can to retreat before using force. Held: C.A. dismissed appeal. Although the direction was too rigid is had not misled the jury. A failure to retreat is not conclusive, is is simply one factor to take into account in deciding whether or not it was necessary to use force.
Imminent threat
D will only be justified in reacting to a threat which is imminent. This does not mean that the defendant has to wait until he or she is hit.
Attorney-General’s Reference (No.2 of 1983) 1984
D was charged with making petrol bombs. He was acquitted on the basis of self-defence in that he intended to use the bombs to protect his premises from what he feared to be an imminent attack from rioters and looters. Held: C.A. The use of reasonable force covered acts done in anticipation of imminent danger and therefore covered this situation.
Malnik v DPP 1989
D went to visit a man who was believed to have stolen some cars from an acquaintance of the defendant. D took a martial arts weapon to protect himself as the man was known to be violent.
D was arrested whilst approaching the man’s house. Held: The court rejected the argument that carrying the weapon was justified because he was in imminent danger of attack. D had created the dangerous situation by choosing to go to the man’s house.
Mistake
If a defendant makes a mistake which leads him or her to believe there are circumstances which make defensive action necessary, the courts will assess the necessity of the defence on the basis of the facts as the defendant believed them to be, even if the mistake is not a reasonable one to make.
R v Williams (Gladstone) 1987
A man saw a youth rob a woman in the street. He grabbed the youth and a struggle ensued at which point the defendant arrived. He believed that the youth was being attacked by the man and hit him. He was charged with S.47 OAPA 1861 ABH. Held: The facts should be treated as he honestly thought they were and therefore his defence was successful.
If a mistake is induced by intoxication then the mistake has to be ignored in relation to the defence.
R v O’Connor 1991
D got drunk and believed he was about to be attacked and head butted the victim who later died of his injuries. D was convicted of murder and appealed. Held: (C.A) As his mistake was induced by intoxication it could not be taken into account when considering self-defence. (Intoxication was used in order to reduce his conviction from murder to manslaughter).
Reasonable force
What is reasonable force in the circumstances is an objective test.
Palmer v R 1971
D convicted of murder, having shot and killed the victim, in what he claimed to be self-defence.
Held: Appeal dismissed reasonable force must be used.
Cross v Kirkby 2000
The Civil Division of the Court of Appeal stated that a defence could still be available where 25% more force was used that was necessary. Cross had seen the defendant, a farmer, attempting to walk his partner off private land during an anti-hunt demonstration. Cross took a baseball bat from his vehicle and hit the farmer on the hand and arm. The farmer took the bat and hit him back across the head, fracturing his skull and causing permanent damage. In civil proceedings in which Cross sought financial compensation for his injuries, the farmer’s defence of self-defence was allowed.
R v Scarlett 1993
A pub landlord was convicted of constructive manslaughter based on an act of assault. He appealed on the ground that the act causing death was an exercise of reasonable force used to eject a trespasser from the pub. The victim was pushed out through some swing doors which lead onto some stairs. He fell down the stairs and was killed. Held: (CA). Appeal allowed. D could only be convicted if the degree of force used was excessive in the circumstances as he honestly believed them to be.
R v Owino 1995
D was convicted of ABH on his wife. She had suffered injuries to her head and thumb but he claimed, in his defence, that any injuries he caused were the result of reasonable force to stop her assaulting him. He was convicted. His appeal was rejected; the court re-affirmed that the test was an objective one and that Scarlett did not impose a subjective test.
The objective test was confirmed in R v Martin 2001
Farmer was convicted of murder and wounding with intent s.18 OAPA after he shot 2 burglars in his home. He used a pump action shotgun to shoot one of the intruders 3 times, including once in the back. He had gone beyond reasonable force in self defence. However, The Court of Appeal went on to state that the jury could take physical characteristics of the defendant into consideration. In exceptional circumstance they could take into account a psychiatric condition. Held: Martin was not an exceptional case and therefore reasonable force had not been used. However, a plea of diminished responsibility was accepted and his conviction was reduced to manslaughter.
Complete defence
A successful or unsuccessful plea under S.3 or at common law does not mitigate: it is either a complete defence or no defence at all.
R v Clegg 1995
A soldier shot and killed a car passenger and was convicted of murder following an unsuccessful plea of self-defence. In the circumstances the use of lethal force used was excessive and unreasonable. Held: H.L. If the defence succeeds it leads to an acquittal, if it fails it leads to a finding of guilty as charged. Therefore the appeal was dismissed. (There was a lot of controversy regarding this case; the defendant was released after four years even though he was convicted of murder).
Prevention of crime
Under S.3 Criminal Law Act 1967 : “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
In addition a person can use reasonable force to protect his property from attack. However, see R v Martin 2001.
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CRIMINAL LAW DEFENCE OF CONSENT
The least touching of another without his consent can amount to a battery. However, everyday life requires that you consent to others touching you. When you walk down a crowded street you impliedly consent to other pedestrians bumping into you. Also when you go to the dentist or have an operation you consent to contact. In sports such as rugby and football participant’s consent to the amount of violence, which is legally permissible under the rules of the game, but it would be no defence where a team member violently punches another. There can be no consent to a charge of murder. e.g euthanasia.
CONSENT MUST BE REAL
If someone gives their consent it will not always be accepted by the court e.g. if given under duress, where a child gives consent or person is mentally ill.
Burrell v Harmer 1967
D was convicted of ABH after tattooing two boys aged 12 and 13. Held: no consent as the boys did not understand the nature of the act and the pain that was involved.
An honestly held belief that someone is consenting will be a good defence. However, this will not be the case if the mistake is induced by intoxication. R v O’Connor 1991.
A mistake as to certain characteristics of the defendant, which means the victim did not know the quality of the act carried out by the defendant, will prevent the existence of a genuine consent.
R v Tabassum 2000
Three women had agreed to remove their bras to allow the appellant to examine their breasts, because they understood that he was medically qualified and was carrying out the procedure in order to put together a medical data base on the subject. The appellant claimed he was not liable for indecent assault because the women had all consented to the examination. Held: there was consent to the nature of the acts but not the quality, since they were not for medical purposes. Conviction upheld.
INFORMED CONSENT
R v Dica (2004)
A man D knew he was infected with the HIV virus; he persuaded two women to consent to unprotected sex (each on more than one occasion) without telling them of his condition. Women were subsequently diagnosed HIV positive and D was convicted of causing them grievous bodily harm contrary to s.20. The Court of Appeal quashed his conviction and ordered a new trial. After a re-trial his sentence was reduced from 8 years to 4 years.
The Dica case has quashed R v Clarence which is no longer good law. The competing interests in this case was the public policy reasons to prevent the spread of disease compared to the free will to participate in sexual relations.
The effect of this judgement in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.
LIMITATIONS ON CONSENT
There are limits to anyone’s right to consent to the infliction of harm upon themselves. The courts view is that consent is always a good defence to a charge of assault and battery, but not to an offence of ABH or GBH. No one impliedly consents to a risk of ABH when they are out shopping or at a party etc. Certain activities do carry a risk of serious injury, the courts may accept the defence of consent where the following activities are involved: contact games, surgery, lawful chastisement, tattooing, body piercing.
R v Leach 1969
The victim had arranged to be crucified on Hampstead Heath. The defendants at his request nailed him to a wooden cross, piercing his hands with six inch nails. They were found guilty under s.18 OAPA and were not allowed to rely on the victim’s consent as a defence.
Sexual activity
R v Wilson 1997
D branded his wife’s buttocks using a hot blade. She consented to the activity, infact, she originally wanted the mark on her breasts. The matter came to light when her doctor reported the incident to the police. D was convicted of ABH but the Court of Appeal allowed the appeal. What was of particular significance in this case was the act was not for sexual gratification but both parties considered it to be a tattoo.
R v Brown 1993
A private party took place in the home of one of the defendants. The guests were homosexuals who enjoyed sado-masochistic experiences and the party had involved activities such as whipping, caning, branding, applying stinging nettles to the genital area, and inserting sharp objects into the penis. The event took place in private, with the consent of all participants. The men were charged under S.47 and S.20 OAPA 1861. They were convicted and the defence of consent was not allowed.
The significant issue was that the injuries were inflicted for sexual gratification and perhaps that they were homosexuals. What is the difference between the Brown case and the case below?
R v Slingsby 1995
D had penetrated the vagina and rectum of a girl he had met at a night-club with his hand with her consent. She suffered internal cuts caused by a ring on Ds hand. These injuries were neither intended nor foreseen by D. The victim was unaware of how serious these cuts were and she later died of septicaemia. D was charged with unlawful act manslaughter, but was acquitted. The judge held that it was clear that all of D’s acts on the night in question were all consented to by the victim and therefore there was no assault.
Presumably “normal” sexual activity is an activity for which the courts will accept the defence of consent. However, for other sexual activity such as sado-masochism the courts will not accept the defence of consent.
This approach was challenged under the Human Rights Act 1998 and it was held that Public authorities may interfere with the right to respect for private and family life if it is in the interests of national security or public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
R v Emmett 1999
D was convicted of ABH on his girlfriend. The couple enjoyed sado-niasochistic sex. During sex D had placed a plastic bag over her head and tied it tightly around her neck. As a result she nearly lost consciousness, suffered bruising to the neck and ruptured blood vessels in her eyes. He later poured lighter fluid over her breast and ignited it. She went to the doctor and he reported it to the police. The Court of Appeal rejected his appeal against conviction. Consent was not accepted as a defence.
Horseplay
The courts have accepted that horseplay is another area in which consent, even where quite serious injury is caused, may be legally tolerated. Society accepts that community life, such as in the playground, involves risks of deliberate physical contact, but that the criminal law should not get involved. The defence was successfully used in:
R v Jones and others 1986
Boys were injured having been tossed into the air by schoolmates.
R v Aitken and Others 1992
Where serious burns, amounting to GBH were caused to a new RAF officer as part of a bizarre initiation ceremony.
Consent to euthanasia
It is unlawful to do a positive act to assist a person to commit suicide (euthanasia or mercy killing). A distinction needs to be drawn between active euthanasia and passive euthanasia. Passive euthanasia is lawful.
Airedale National Health Service Trust v Bland 1993
It was held that the hospital could legally terminate the treatment which was keeping Tony Bland alive. Switching off the life support machine only constituted an omission to act.
Ms B v An NHS Trust 2002
Ms B was paralysed from the neck down and was dependent on a mechanical ventilator to breathe. She instructed her doctors to switch the machine off – they refused. She went to court for an order telling them to follow her wishes – it was granted and she died shortly afterwards.
Pretty v UK 2002
Diane pretty was terminally ill with motor neurone disease. She was physically incapable of killing herself. She wished instead to commit suicide with help from her husband, so she could die with dignity at a time of her choosing. DPP refused to undertake not to prosecute her husband if he assisted her suicide. The case went up to the European Court of Human Rights and the court accepted that English law did intrude on a person’s private life, but considered that this was allowed under Art.8.
R (on the application of Purdy) v DPP 2008
P suffered from MS and as her condition deteriorated, it would make it increasingly difficult for her to carry out ordinary tasks. There would come a point when her life would become unbearable and she would wish it to end. She would have to travel to Switzerland, needing her husband’s assistance. However, she was aware that he might be prosecuted under the Suicide Act 1961. P argued that the DPP should publish a specific policy on this issue outlining the circumstances in which a prosecution would or would not be brought. Her application failed. However, the DPP afterwards stated that they could not guarantee that a prosecution would or would not occur.
NB: It generally appears that prosecutions are not going ahead on this issue, but the CPS have reserved judgement to deal with individual cases. In the case of James, a rugby player who had been badly injured, whose parents took him to Switzerland, no prosecution took place.
Consent in Sport
R v Barnes (2004)
A footballer was convicted of inflicting grievous bodily harm on another player in the course of a match, and appealed against his conviction. Allowing the appeal, Lord Woolf CJ said it is not generally appropriate to bring criminal proceedings in such cases unless the defendant had gone well beyond what the victim had effectively consented to by taking part in the sport. In highly competitive sports, conduct outside the rules can still be expected to occur in the heat of the moment, and even if this justified a warning or sending off (and even though the defendant might have been reckless) it might still not reach the threshold of criminality.
MURDER CRITICAL EVALUATION
1. The year and a day rule has been abolished by The Law Reform (Year and a Day Rule) Act 1996. If the death is more than 3 years from the attack, the permission of the DPP is required to prosecute.
2. Intention can be inferred using the Nedrick Test -.- this can be very difficult for a jury to cope with.
3. Intention should be limited to direct intent situation only. i.e. it was the defendant’s aim or purpose to cause death.
4. Defendant may be found guilty of murder even though actually intended GBH not murder.
5. No discretion in sentencing — mandatory life sentence imposed. This causes injustice especially where the defence of provocation and self-defence fails. Too rigid and too harsh. The Law Commission has recommended that this should be reconsidered but the Government have refused to do so.
6. Euthanasia/assisted suicide. The Diane Pretty case and Purdy case tested this issue in the courts. In practice individuals are rarely prosecuted. Times survey in 1998 stated that 15% of GPs have helped patients to die. Doctors are in a vulnerable position, they cannot use Diminished Responsibility like relatives can e.g. R v Gray. In the Netherlands it has been legalised.
The Government has chosen not to implement the recommendations of the Law Commission that a tiered system of homicide offences should be introduced. However, it has decided to implement substantially proposals on Diminished Responsibility and make its own on Provocation.
The Law Commission recommended three tiers to the offence of Homicide instead of the current two.
• First degree murder where there is an intention to kill, or an intention to cause serious injury, with awareness that the conduct involved a serious risk of causing death. The mandatory life sentence would apply.
• Second degree murder
a) where there is an intention to cause serious harm (but not kill). This currently falls within the offence of murder. “Serious harm” would be narrowly defined as “harm of such a nature as to endanger life or to cause, or to be likely to cause, permanent or long term damage to a significant aspect of physical integrity or mental functioning.
b) An intention to cause some injury or a fear or risk of injury while being aware of a serious risk of causing death;
c) An intention to kill but the partial defences of provocation or diminished responsibility apply.
The maximum sentence that could be applied would be a discretionary life sentence.
• Manslaughter where the defendant killed and was grossly negligent or the act causing the death was itself criminal and the defendant intended to cause harm but not serious harm, or foresaw a serious risk of causing injury.
DEFENCES
PROVOCATION
1. Only available to a charge of murder.
2. Discriminates against women -. slow burning fuse – Helena Kennedy comments.
3. Jury have difficulty with reasonable person test now only very limited characteristics can be inferred on the reasonable person following Holley.2005
4. Self-induced characteristics (Morhall) may be considered but someone who is known to be short-tempered will not be taken into consideration.
5. Helena Kennedy QC advocates new defence to accommodate women.
6. Holley has now clarified the law on Provocation, but taken it back to the harsher test that was imposed by the legislation.
7. In November 2005 the Sentencing Guidelines Council published new guidelines on sentencing where provocation is used as a defence. The guidelines suggest starting points of 3-12 years imprisonment depending on the degree of provocation. Aggravating and mitigating factors are relevant. The slow burning fuse of a woman in a domestic violence situation was recognised as being relevant in accounting for any delay.
8. In Australia a recent Law Reform Commission has recommended the abolition of Provocation as a defence. However, they do not have a mandatory life sentence attached to a Murder conviction.
The Government have rejected the proposals for reform proposed by the Law Commission. They have proposed the abolition of the common law defence of provocation and the introduction of a limited defence in its place based on the following:
• a loss of self-control triggered by fear of serious violence (this would cover abused women)
• a justifiable sense of being seriously wronged
• or a combination of the two.
Specifically excluded from its scope are situations where D is:
• predominantly responsible by his own criminal conduct for the qualifying trigger (self induced)
• a qualifying trigger which relates to acts of sexual infidelity
• where D as an excuse to use violence, incited the things said or done which allegedly caused him to have a justifiable sense of being seriously wronged.
DIMINISHED RESPONSIBILITY – CRITICAL EVALUATION POINTS
1. Prosecution try to use insanity once Diminished Responsibility is mentioned — stigma and mental hospital may make people plead guilty.
3. Judge may not allow defence to be used eg. Yorkshire Ripper for policy reasons.
4. Covers areas that are not considered to be an abnormality of mind eg epilepsy, depression.
5. Involves difficult concepts for the jury eg intoxication when it can and cannot be taken into consideration.
6. Burden of proof changes to the defence.
The Government has decided to substantially accept the Law Commissions recommendations for reform of this defence and proposes to re-define diminished responsibility as follows:
(1) A person (P) who kills or is a party to the killing of another is not to be convicted of murder if P was suffering from a relevant mental impairment which provides an explanation for P’s acts and omissions in doing or being a party to the killing.
(1A) “Relevant mental impairment” means an abnormality of mental functioning which –
a) arises from a recognised medical condition, and
b) substantially impairs P’s ability to do one or more of the following –
i) to understand the nature of P’s conduct;
ii) to form a rational judgment;
iii) to exercise self-control
(1B) For the purposes of subsection (1), a relevant mental impairment provides an explanation for P’s conduct if it causes, or is a significant contributory factor in causing the person to carry out that conduct.
Significantly the government have not adopted the proposal of the Law Commission which included developmental immaturity in a defendant under the age of 18.
INSANITY CRITICAL EVALUATION
Medical irrelevance – The Royal Commission on Capital Punishment stated the rules were based on obsolete and misleading conception of the nature of insanity. Doctors now recognise that insanity is not just about the loss of reasoning powers but the whole personality. A medically insane person may understand the nature of what they do and understand that it is wrong, but still commit the offence because of the illness.
Burden of proof – The fact that the burden of proof is on the defence goes against the legal principle that the defendant is innocent until proven guilty. There have been a number of recommendations that the burden of proof should be on the prosecution.
Ineffectiveness – The purpose of the test for insanity is to distinguish between the accused that is a danger to society and to themselves. However, it includes those who are diabetic and epileptic.
Sentencing – Even though the sentence for murder is life imprisonment defendants would rather plead guilty rather than face an unlimited time in a mental institution.
Proposals for reform:
• Abolition of the rules
• Create a new defence of mental disorder as recommended by the Butler Committee.
• Extend automatism to include those diseases which can be controlled by drugs, but would not cover those who have been careless in taking their medication.
• Abolish the defence and consider insanity as a mens rea issue. It could then be taken into account as mitigation in sentencing. However, where a defendant has mental health problems there is little to be gained by punishing them.
AUTOMATISM CRITICAL EVALUATION
Irrational distinctions – Distinguishing between internal and external causes has been criticised as leading to absurd and irrational distinctions e.g. Quick and Hennessy cases.
Possibility of wilful action – Criminal law writers Clarkson and Keating 2003, have drawn attention to the fact that some psychiatrists believe that even when unconscious people can act voluntarily. Consequently it is argued that it should not give rise to a complete acquittal.
Reform
• The draft criminal code proposes maintaining the law on automatism as it stands, on the grounds that it is in the public interest. However, it does not protect the public against someone who is prone to recurring states of automatism.
• The distinction between internal and external causes could be abolished. The reform of the defence of insanity bringing it in line with medical opinion would help with this.
INTOXICATION CRITICAL EVALUATION
1. The Current Law: Voluntary Intoxication
The Law Commission Report no 314 on "Intoxication and Criminal Liability" makes the initial observation that the terms "specific intent" and "basic intent" have been interpreted by different judges and writers to mean different things, resulting in great uncertainty.
The common analysis identifies specific intent as requiring a specific fault requirement of intention, and basic intent as all other offences not requiring a specific fault requirement of intention. This presents number of problems: • Basic intent is defined purely negatively, i.e. it is not specific intent. • Basic intent is a misleading term, as no intent is required. For example, gross negligence manslaughter would be a basic intent offence, requiring only the mens rea of negligence, albeit gross. • Specific intent offences do not necessarily require proof of intention. For example, handling stolen good is a specific intent offence, but only requires the knowledge or belief that the goods were stolen. • Conversely, some offences requiring proof of intention. For example, rape requires proof that D intentionally penetrated the vagina, anus or mouth of another person. • Some offences that may be committed with a specific intent, for example assault or battery, are basic intent offences because conviction can be based upon proof of recklessness.
Rationale for the Current Law on Voluntary Intoxication
In 2:14 of the report the Law Commission declares that an offence will be regarded as one of basic intent where "the commission of its external element is the moral equivalent of committing it with the fault required by the definition of the offence, and that D therefore ought to incur criminal liability for the harm or danger caused or created". In other words there is a principle of "moral equivalence" which allows D, because of his voluntary intoxication, to be convicted where he lacked the mens rea normally necessary for the offence. (However, this "moral equivalence" does not exist for specific intent offences such as murder, theft or handling stolen goods).
This approach reflects the current law, but it is criticised by those who believe that D should not be convicted of an offence if he lacks the mens rea for it. These "purists" believe that it is a principle of criminal law that D should not be convicted unless the prosecution has successfully established the required elements of the actus reus and mens rea. However, following Majewski, it is clear that D is liable for any offence of subjective recklessness if her commits the external element (the actus reus) while voluntarily intoxicated. In the words of Lord Elwyn Jones: "If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition."
2. The Current Law: Involuntary Intoxication
Using the "moral equivalence" argument, where D commits the actus reus of an offence but lacks the mens rea because of his intoxication, he will not be liable if his intoxication was involuntary. This applies to offences of basic and specific intent. For example, D's soft drink may be laced with a drug causing him to become intoxicated; eh then throws a brick through a shop window. Clearly he lacks the mens rea for the offence of criminal damage. But, because his intoxication was involuntary, he will not be liable for this basic intent offence. This is also true where the intoxication is self-induced, but morally blameless. For example, is Hardie the defendant took prescription drugs without realising their effect.
3. Law Commission Recommendations
Recommendation 1: the Majewski rule
The Law Commission recommended a general rule that: (1) if D is charged with having committed an offence as a perpetrator; (2) the fault element of the offence is not an integral fault element (for example because it merely requires proof of recklessness); and (3) D was voluntarily intoxicated at the material time; Then, in determining whether or not D is liable for the offence, D should be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.
Recommendation 2: the rule for the integral fault elements
If the subjective fault element in the definition of the offence, as alleged, is one to which the justification of the Majewski rule does not apply, then the prosecution should have to prove that D acted with that relevant state of mind.
Recommendation 3: the integral fault elements
The following subjective fault elements should be excluded from the application of the general rule and should, therefore, always be proved: (1) intention as o a consequence; (2) knowledge as to something; (3) belief as to something (where the belief is equivalent to knowledge as to something); (4) fraud; and (5) dishonesty
Notes
The terms "specific intent" and "basic intent" have been removed. In their place is a list of some subjective fault elements that must always be proved. These are known as "integral" fault elements. These are listed in recommendation 3.
The prosecution will always have to prove these (recommendation 2).
The Majewski role (recommendation 1) would apply to all other states of mind, including subjective recklessness.
Recommendation 10: Involuntary Intoxication
D's state of involuntary intoxication should be taken into consideration in determining whether D acted with the subjective fault required for liability, regardless of the nature of the fault element.
Notes
This simply restates the present common law position. In other words, if D, as a result of his involuntary intoxication, did not form the mens rea for the offence charged, then he will be acquitted regardless of the mens rea required.
Conclusion
These recommendations have the following advantages: (a) they abandon the confusion caused by use of the terms "basic intent" and "specific intent"; (b) they maintain the existing common law balance between two extremes (on the one hand the defence be available for any offence where D lacked mens rea because of his intoxication, whether voluntary or involuntary; on the other hand the defence not be available at all where the defendant was voluntarily intoxicated); (c) they clearly identify which states of mind require proof by the prosecution of mens rea (now known as an integral fault element).
SELF DEFENCE CRITICAL EVALUATION
All or nothing defence – Self defence is a complete defence not a partial defence. This can lead to injustice e.g. R v Clegg where excessive force was used by a soldier in Northern Ireland and he was convicted of murder. His lawyers had argued that if excessive force was used then this should be a partial defence and reduce conviction to manslaughter.
European Convention on Human Rights – The defence can be successful where a defendant honestly, but mistakenly believes that force was necessary. For example the police shot Harry Stanley believing him to be an Irish terrorist with a gun. In fact he was Scottish and had a plastic bag with a table leg in it. It has been argued that this in breach of the European Convention on Human Rights and in these circumstances it should only be a partial defence, reducing a charge of murder down to manslaughter.
Mistake and intoxication – 0’Grady creates an exception to the rule in Williams (Gladstone) in that someone who makes a mistake about the use of self defence because they are drunk, cannot rely on the defence. This conflicts with the general principle in the defence of intoxication. If someone is so drunk that they could not acquire the mens rea then this could be a partial defence if the charge is one of specific intent.
Sexual discrimination – The defence is more likely to succeed for male defendants rather than female ones. The defence has been mainly built up based on male responses to violence. Battered women have had problems with this if they act in anticipation of further violence then the threat is not imminent and if they use a weapon then this may be considered to be excessive force.
Reform
• Increase the rights of home owners – There was great discussion on this revolving around the much publicised case of R v Martin.
• Abolish the rule in O’Grady
• The draft Criminal Code, Law Commission and Criminal Law Revision Committee have all recommended that excessive force should reduce a murder charge to manslaughter.
• Remove the requirement of imminent threat – this would help battered women.
CONSENT CRITICAL EVALUATION
General Issues
(a) Is the basis for allowing/denying consent clear? For example, is it based upon the level of harm caused (Leach)? If so, why allow the defence for boxing where serious injury and death are common, or for serious injuries inflicted in horseplay (Aitken)? Or is it based upon the intention of the parties (contrast Brown where the harm was the purpose of the activities, with Wilson where the harm was incidental)? Or is it based upon the need to protect innocent groups (Burrell and Harmer)? If so, what about very young children (A v UK) where corporal punishment was made illegal.
(b) Does the decision in Brown deprive people of basic liberties (Lord Mustill dissenting: "The state should interfere with the rights of the individual no more than is necessary"?)
(C) Is the basis for judging the validity of consent (identity of the person or nature and/or quality of his act) artificial? How can the defence be available to Richardson, when not to Tabassum or Dica?
Individual Issues
(a) Horseplay: Jones perhaps correctly recognises that boys engage in rough and undisciplined play. But why should Aitken attract the defence? Isn't their activity extremely dangerous?
(b) Lawful chastisement: doesn't the decision in A v UK rightly identify the need to give better protection to the most vulnerable group of people i.e. young children? How can the law in the Children Act be justified?
(c) Boxing: Barnes points out that only behaviour that is "sufficiently grave to be categorized as criminal" should give rise to an action e.g. where serious injury is intended. But isn't that the aim of boxing?
(d) Fighting: however, if boxing should attract the defence of consent, they why does ordinary fighting not attract it?
(e) Tattooing: is the decision in Wilson right? Although the law doesn't want to interfere in activity between a man and his wife, the injuries were serious enough to warrant medical attention.
(f) Valid consent: Is there a clear distinction between Richardson and Dica? And exactly what did the boys not understand in Burrell and Harmer?
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NON-FATAL OFFENCES - OFFENCES AGAINST THE PERSON ACT 1861
Non-fatal Offences Evaluation
1. Strengths of Current Law
Clarification (a) The meaning of assault in S47 OAOA 1861 and in the CJA S40(3) has been consistently interpreted to mean assault and/or battery. (b) Following the HL decision in R v Savage; Parmenter, the mens rea for abh is now clear. (c) The conflict between "inflict" in S20 and "cause" in S18 has eventually been resolved.
Development (a) The offence of battery has developed to include indirect (Haystead) and omissions (Santana-Bermudez). (b) The law for abh has adapted to meet new circumstances e.g. the inclusion of psychological harm in abh (Chan-Fook). (c) Gbh has developed to meet new circumstances e.g. the inclusion of serious psychological harm (Burstow); and serious biological harm (Dica). (d) The actus reus of gbh recognises the age of the victim as a relevant factor (Bollom), and the possible cumulative effect of a series of minor injuries (Brown and Stratton).
2. General Weaknesses
(a) Problems with vocabulary in 1861 Act e.g. whosoever (old-fashioned), occasioning (old-fashioned and simply means causing), grievous (not in general use as an adjective other than in this context), maliciously (not in common use as an adverb, and if it means intentionally or recklessly it is better to use these terms). (b) Meaning of assault is ambiguous: a narrow technical meaning (causing V to apprehend immediate unlawful personal violence), and a broad meaning in S47 i.e. assault and/or battery. The CJA 1988 identifies assault and battery but then refers to "common assault" in S40(3). Why? Presumably it means assault or battery, as in S47. (c) No logic in the numbering of offences in the OAPA. NB OAPA 1861 was a Consolidation Act, bringing together all the offences against the person into a single Act, and no thought was given to the ordering of the clauses. (d) S20 and S18 both contain two separate offences (wounding and gbh): wounding deals with the method of injury, gbh with the extent of the injury – no logical connection between them. Further, wounding can be trivial, yet S20 is a serious offence. (e) Sentencing is illogical for S47 and S20 – same maximum for two very different offences. However, the two offences are seen in quite different lights by the defendants and their advisers; heavier sentences will in practice be given for S20 offences; and judges will take a dimmer view of gbh than abh when considering previous convictions. (f) Uncertain whether consent is a defence to non-fatal offences, or whether it is an element of the offences themselves: even judges seem to disagree. In Brown, Lords Jauncey, Templeman and Lowry seemed to regard it as a defence, but Lords Mustill and Slynn as a factor negativing the actus reus.
3. Weaknesses in Actus reus and mean rea of individual offences
(a) The meaning of "immediate" in assault is vague (see the judgments in Smith and Constanza, especially the formula adopted by Schiemann LJ). Also do the courts confuse "apprehension of immediate personal violence" with "immediate apprehension of personal violence"? e.g. the letters received by V in Ireland will have caused immediate apprehension, but did they cause apprehension of immediate violence? At least arguable. (b) The mens rea for S20 doesn't require intention ore recklessness for the serious harm caused (Mowatt). Is this harsh on D? Ditto S47 (Savage). Look at Savage, however, from the point of view of V. (c) S18 requires intention. This may be direct or oblique/indirect. This is prone to the same problems as with murder i.e. is foresight of the consequences as a virtual certainty intention itself, or merely evidence from which the jury may infer/find intention? (d) "Maliciously" in S18 is redundant with intent to cause gbh, as the necessary mens rea is contained with the ulterior intent. However, it is relevan when the charge is based upon an intention to resist/prevent arrest (Morrison). Is this good drafting? (e) In Morrison a conviction for S18 was based upon the ulterior intent of resisting arrest; only recklessness (maliciously) was required for the injury caused. Is this fair, or would it be better to have a separate offence of causing serious injury when resisting arrest? (f) S20 uses "inflicting" for gbh; S18 used "causing": do they mean the same? Historically, contrast Clarence (inflict needs an assault) and Martin (convicted through no assault). In Wilson 1983 HL decided no assault needed for gbh, confirmed in Burstow 1997, with the HL saying there was "no radical divergence" of meaning between inflict and cause!! Remember the OAPA 1861 was a Consolidation Act, and so consistency not expected.
4. Proposals for Reform
Law Commision Report no 218 proposed 4 new offences: (a) Replace separate offences of assault and battery with a single new offence of assault that includes both elements i.e. the same as adopting the broader definition of assault. (Se 2b above). (b) Replace S47 abh with offence of intentional or reckless injury: Mens rea needed for the injury caused. (See 3b above). (c) Replace S20 with reckless serious injury. Mens rea (recklessness) needed for the serious injury. (See 2a, 2d, 3b and 3f above). (d) Replace S18 with intentional serious injury. Resisting arrest etc disappears. (See 2a, 2d, and 3e above).
Note: "wounding" would be abolished as an offence. Charges involving wounding would be brought under (b), (c) or (d) according to seriousness of the injury and accompanying mens rea.
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SMALL PROBLEM QUESTIONS ON CRIMINAL LAW DEFENCES
(I) Keeley had invited Amy to her party. When Amy arrived Keeley laced Amy’s drink to see how she would react. Infact Amy became ill and decided to drive home; she collided with a car killing the driver. In a dazed state Amy walked home to find a burglar in the house. She chased him around the house and he fell down the cellar stairs and was injured.
Advise Amy.
(2) Carla was in a self-service shop when she began to feel very unwell. She was a diabetic who had taken her insulin as prescribed but had afterwards eaten a lighter breakfast than usual. She put a tin of cat food in her handbag and not into the shopping basket which she was carrying. She saw Tony her neighbour, with whom she was on bad terms, coming towards her. She hit Tony over the head with her umbrella and badly injured hiM
Advice Carla of her criminal liability. What difference if any, would it make to your advice if instead; Carla had failed to take her insulin as usual at breakfast time?
(3) During a charity football match Vinnie Jones tackled David Beckham from behind. Vinnie was sent off and David Beckham's leg was broken. Could Vinnie be charged with a criminal offence?
(4) M had perverted sexual desires and liked to suck women's toes. M asked his girlfriend if he could suck her toes and she agreed. Unfortunately M got carried away and bit deeply into his girlfriend’s toes which required stitches. Has M committed a criminal offence?
(5) Mrs F was in charge of a group of law students on a visit to London. Some students had been drinking secretly and became aggressive An argument ensued between the students and a passing tramp. The tramp started to raise his bottle in order to hit one of the students. Mrs F decided to intervene and kneed the tramp between his legs.
Advise Mrs F as to her criminal liability. Would your answer be any different if the tramp had fallen to the floor and Mrs F started to kick him in the side while he was on the floor?
QUESTION ONE
Amy, who was 16 years old, took her four year old brother Ben to the park. Whilst Ben was playing on the slide, Amy went off into the trees with some friends and smoked some cannabis. When she returned, Ben was complaining that he was cold and wanted to go home. Amy dragged him to the swings and, even though he was crying and trying to get off the swing, pushed him vigorously. Ben fell awkwardly from the swing and cut his face as he slid along the ground. It was later discovered that Ben’s sight was impaired.
Claire, Amy and Ben’s mother, was devastated when she discovered what Amy had done and she began to behave very oddly. She stopped looking after herself properly, lost her temper easily and wandered the streets at all hours of the day and night in a dishevelled state. Whilst walking through the town on one night, she encountered a neighbour, Derek, who made comments about her appearance and suggested that Amy and Ben needed a proper mother. About five minutes later, she saw Derek again. he was waiting to cross a busy road and she ran up behind him and pushed him. Derek stumbled into the road and was killed by a passing car.
(a) Considering any defence(s) which she may raise, discuss Amy’s criminal liability arising out of her treatment of Ben and for the injuries which he suffered. (25 marks)
(b) Considering an defence(s) which she may raise, discuss Claire’s criminal liability for the murder of Derek. (25 marks)
(c) Discuss whether the defences to murder dealt with by the Homicide Act 1957 are in need of some clarification or reform. (25 marks)
QUESTION TWO
Alice mistakenly believed that her friend Briony had been spreading malicious rumours about her. She spent an evening brooding about it and drinking a bottle of wine, at the end of which she wrote a letter to Briony warning her to be on her guard from now on. She then taped a razor blade into the letter, put it in an envelope and posted it. When the letter arrived, it was opened by Briony’s six-year-old son, Chris, who suffered deep cuts to his fingers from the razor blade. Briony subsequently read the letter and became very anxious about her safety.
Briony’s husband, Dave, worked with Alice’s husband, Eddie. Dave confronted Eddie at work about the letter and Chris’s injuries, knocked him to the ground and began to choke him. Eddie managed to get hold of a heavy spanner and hit Dave twice about the body. Whilst Dave was staggering backwards from the blows, Eddie got up and struck him a heavy blow to the head with the spanner. Dave died from his injuries.
(a) Discuss Alice’s criminal liability in connection with the incidents involving Briony and Chris. (Your answer should also discuss any relevant defences.) (25 marks)
(b) Discuss Eddie’s criminal liability for the death of Dave. (Your answer should also discuss any relevant defences.) (25 marks)
(c) How satisfactory is the current law on malice aforethought (the mens rea of murder)? (25 marks)
QUESTION THREE
Geoff had been receiving prolonged treatment for mental illness but was still hearing ‘voices’ and having strange ‘visions’. Whilst sleeping rough, he became friendly with Henry and Ian who invited him back to their flat. There, they engaged in a challenge, holding each other’s hands in turn over an electric cooker hotplate to see who could endure the pain the longest. Henry held Geoff’s hands over the hotplate for a long time, even though he could see that Geoff’s hands were changing colour. As a result, Geoff’s hands were very badly burnt.
During the night, Geoff got up whilst Henry, Ian and Ian’s girlfriend, Janet, were asleep. He plugged in an iron in the belief that it was a radio and left it standing upright on the carpet. When it made no sound, he wandered out of the house, knocking over the iron as he left. The iron set fire to the carpet and Janet was killed when the fire spread to the rest of the house.
(a) Discuss Henry criminal liability for the injury to Geoff’s hands. (Your answer should also discuss any relevant defences.) (25 marks)
(b) Discuss Geoff’s criminal liability for the death of Janet. (Your answer should also discuss any relevant defences.) (25 marks)
(c) What criticisms would you make of the current law on non-fatal offences against the person? (25 marks)
QUESTION FOUR
Adrian and Brian were in a night club, where Adrian took some drugs. Shortly afterwards, Adrian began to act in a strange manner, giggling and stumbling about. When Adrian clumsily spilled a drink over Chris, Brian decided that it was time to get him home. As they left the night club, they were followed by Chris and his friend, Don. Chris challenged Adrian to a fight and Adrian took off his jacket and then immediately lashed out at Chris before Chris was prepared. The blow sent him reeling backwards and he dislocated his knee in a very awkward fall.
Meanwhile, Brian had run off but had been caught by Don in a disused building. Don was holding Brian tightly round the neck and causing him to choke but Brian managed to elbow him twice in the face. Don released his grip, suddenly collapsed, and was sick as he lay on his back, Brian looked at him for a few seconds and then walked away Don was later found to have died by choking on his vomit.
(a) Discuss Adrian’s criminal liability in connection with the injury to Chris. (25 marks)
(b) Discuss Brian’s criminal liability for the involuntary manslaughter of Don. (25 marks)
(c) How satisfactory is the current law on murder? (25 marks)
QUESTION FIVE
From an early age, Eric had been obsessed with the welfare of animals and he had long believed that all pet shop owners were evil. Recently, he had become convinced that the animals in Fred’s pet shop were pleading with him personally to free them from Fred’s cruelty. He sent a number of e-mail messages to Fred, one typical example of which read, “I am watching you every minute. You cannot escape. I can get you any time I like”. Fred was afraid to go out and began to suffer from severe depression.
Late one night, Eric was out walking his dog when Geoff, who knew of Eric’s obsession with animals and had often, taunted him about it, walked past him making gestures as if he were intending to kill and eat the dog. Eric chased Geoff onto a bridge over a dried-up riverbed and forced him to fall some 10 meters to the ground below. Eric then walked off despite the fact that he could see that Geoff had not got up. In fact, Geoff had broken his back and was not discovered until the next morning, by which time he had died from the injuries and the shock that they had caused.
a) Discuss Eric’s criminal liability in convection with the incidents involving Fred. (25 marks)
b) Discuss Eric’s criminal liability for the death of Geoff. (25 marks)
c) Discuss the suggestion that non-fatal offences against the person, is in urgent need of reform. (25 marks)
QUESTION SIX
Emma who was 12 years of age but looked older, paid for her tongue to be pierced and a stud to be inserted by Farah. Emma’s tongue rapidly developed a serious infection which required hospital treatment. The treatment was administered by George, a newly qualified doctor. George misinterpreted Emma’s medical record and gave her an antibiotic drug which her body could not tolerate. This resulted in her death.
During the past few years, Michael had often experienced powerful delusions. When he learned the circumstances of Emma’s death, he immediately became convinced that there was a conspiracy between Farah and the hospital to kill children. He left a number of telephone messages on Farah’s answerphone, in which he called her “scum” and threatened to destroy her business. In consequence, Farah became very depressed. Michael also threw a stone at the windscreen of Farah’s car as she drove past him. Farah lost control of the car and crashed into a wall, causing her to suffer a severe neck injury.
a) Discuss the criminal liability of Farah and George for involuntary manslaughter arising out of Emma’s death. (25 marks)
b) Discuss Michael’s criminal liability arising out of the incidents involving Farah. (25 marks)
c) To what extent are the defences, which relate to the defendants state of mind, in need of reform? (25 marks)
QUESTION SEVEN
Ena who was 65 years old, was returning from shopping as Harry and Javad were skateboarding in the street. Harry deliberately approached Ena very fast from behind, intending suddenly to swerve past her. However, another pedestrian shouted to Ena, “Look out!” Terrified, and without knowing what was happening, Ena stepped backwards and Harry’s elbow caught her in the ribs as he passed. Subsequently, Ena became mildly anxious and depressed. Harry and Javad continued skateboarding, practising tricks involving narrowly missing each other at speed. Harry tried a trick he had never been able to perform before, lost control and smashed into Javad. Javad’s knee was dislocated, requiring painful surgery.
Frank, Ena’s neighbour, suffered from a physical illness which affected his judgment and made him very short-tempered. When he heard about Ena, he was very upset and he began to hate all skateboarders. So, when he saw Luke walking through town with a skateboard, he began shouting at him. Luke laughed and told him not to be such a stupid old man. Frank seized Luke’s skateboard and hit him over the head with it twice with considerable force. Luke died from a brain haemorrhage, made worse by a genetic weakness.
a) Discuss Harry’s criminal liability arising out of the incident with Ena and the injury suffered by Javad. (25 marks)
b) Discuss Frank’s liability for the murder of Luke. (25 marks)
c) In relation to murder (including voluntary manslaughter), consider the suggestion that the current law is unsatisfactory. (25 marks)
QUESTION EIGHT
Mike and Neil went to see Les, who had been drinking heavily. Following some good natured joking about they began to push and wrestle each other. Mike was much weaker than the others and despite protesting suffered a broken wrist when he was wrestled vigorously to the floor by Les. Les then fell asleep, giving Neil the opportunity to shave off Les’s beard, something that he had jokingly threatened to do many times before. When Les woke up, he was very annoyed that he had lost his beard, which he had been growing for a number of years.
Before leaving Les’s house, Neil swallowed some tablets which he found in the bathroom. Subsequently, back in his own flat, he set fire to the carpet (which belonged to the landlord) under the delusion that he was making a cap fire. The fire spread rapidly through the house, trapping Pam in her top floor flat. In an attempt to help her to escape, Raisa, a next door neighbour, put a ladder up to the window. However, Raisa did not lock the sections of the ladder properly and it collapsed when Pam stepped onto it. Pam fell from the ladder and was killed.
a) Discuss the criminal liability of Les arising out of Mike’s injury, and of Neil arising out of shaving off Les’s beard. (25 marks)
b) Discuss the criminal liability of Neil and of Raisa for the involuntary manslaughter of Pam. (25 marks)
c) Select any two aspects of the law on offences against the person which you believe are unsatisfactory. Explain the reasons for your belief. (25 marks)
QUESTION NINE
Andy and Ben drew attention to themselves by their rowdy behaviour in a bar. Colin and his large group of friends moved menacingly towards Andy and Ben, who immediately jumped up and began to look for an escape. To try to gain more time, Andy said loudly to Ben, “Get the gun out”. In fact as both Andy and Ben knew, there was no gun, but Colin and his friends stopped and moved back a little. Andy and Ben then separated as they ran off. As Andy turned a corner at full speed, he found Dora a pedestrian, in his path. Andy barged straight into her and knocked her over. Dora fell heavily, breaking her arm and cutting her legs on a bottle which broke as she fell onto her shopping bag.
Meanwhile, Colin threw a stone at Ben as he chased him, and struck him in the back. Ben stumbled into the road as Elaine was approaching in her car. Elaine was a learner driver being supervised by her friend, Freddy. In a sudden panic in trying to avoid Ben, Elaine pressed the accelerator pedal instead of the brake, and lost control of the car, which crashed into a wall, killing Freddy.
a) Discuss the criminal liability of Andy in connection with the incident in the bar and the injury to Dora. (25 marks)
b) Discuss the criminal liability of Colin and of Elaine for the involuntary manslaughter of Freddy. (25 marks)
c) In relation to non-faltal offences against the person, discuss the suggestion that the current law is satisfactory and is not in need of reform. (25 marks)
NOTES
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TEST YOURSELF
1. Learn the definition of murder 2. Learn the Nedrick test and practice applying it to different situations. 3. What was the point of law that came from R v Matthew and Alleyne?
TEST YOURSELF 1. Write an accurate definition of Provocation from memory. 2. Outline the meaning of the subjective and objective test. 3. What are the points of law from the following cases: • R v Ibrams • R v Cocker • R v Ahluwalia • R v Humphrey • DPP v Camplin • A-G for Jersey v Holley
TEST YOURSELF
1. Learn the definition of diminished responsibility. 2. State three examples of possible causes of abnormality of mind. 3. Who has the burden of proof for diminished responsibility? 4. State the point of law for the following cases: • R v Byrne • R v Gittens • R v Gray
TEST YOURSELF 1. State 3 key issues that need to be proved for unlawful act manslaughter. 2. What is the mens rea for unlawful act manslaughter? 3. Why was there an unlawful act in R v Cato but not R v Dalby? 4. What was the point of law in R v Church and R v Goodfellow? 5. Why was R v Adomako an important decision? 6. State 3 things that need to be proved for gross negligence manslaughter. 7. How will the court decide whether a duty of care is owed? 8. What was the significance of R v Bateman? 9. How will a jury decide whether gross negligence manslaughter has occurred?
Activity – Research the use of intoxication as a defence in Australia
DEPARTMENT
A2
Criminal Law
Study Pack
2010 / 2011
Name
CONTENTS
PAGE
1. Homicide - Murder 3
2. Voluntary Manslaughter 8
3. Involuntary Manslaughter 20
4. Defences: Insanity 29
5. Automatism 32
6. Intoxication 35
7. Self-defence 37
8. Consent 42
9. Critical evaluation of murder and voluntary manslaughter 47
10. Critical evaluation of intoxication 53
11. Critical evaluation of consent 57
10. Reform of non-fatal offences 59
11. Questions 62
12. Notes 72-75
13. Exercises on Actus reus and mens rea of murder 76
14. Defences revision grid 81
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HOMICIDE
This is the killing of a human being. The most serious crime is murder and the difference between it and manslaughter is in the intention of the defendant. Murder is a specific intent crime and manslaughter is a basic intent crime.
MURDER
Murder is a common law crime which means that it is not contained in any Act of Parliament. It is defined as:
‘Where a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, under the Queen’s peace, with malice aforethought.’
Murder carries a mandatory sentence of life imprisonment, which is 15 years.
Sound memory—the person responsible must not be insane.
Age of discretion — a child less than 10 years old is not criminally responsible for his/her actions. Since S.34 of the Crime and Disorder Act of 1998 the presumption of doli incapax has been abolished and consequently any child over 10 years has potentially full legal capacity.
Unlawfully kills — the act must be an unlawful killing. The law recognises that in certain circumstances the killing may be either justified or authorised eg. execution or self defence.
Living human being — a foetus is not deemed in law to be a living human being. However, a murder conviction may be possible if a foetus is injured and, after birth, dies as a result of injuries sustained whilst in the womb. Attorney-General’s Reference (No 3, 1994) 1996.
A defendant cannot be convicted of the murder of someone who is already dead at the time of the attack.
R v Maicherek and Steel 1981
The accused had seriously wounded the victim who was then artificially maintained on a respirator. When it was discovered that irreversible brain damage had occurred the respirator was turned off M was found guilty of murder and his appeal was dismissed when he claimed the doctor had caused death. It was his act which caused death. The court appeared to favour the approach that death occurs when the victim is brain-dead.
Queen’s Peace — killing an enemy during wartime is not murder.
Malice aforethought — since the case of R v Moloney the mens rea of murder is the intention to kill or cause grievous bodily harm.
ACTUS REUS
The actus reus of murder is that the killing is unlawful, causation must be established (A caused B’s death) and the victim must be a human being. (see causation notes from AS).
MENS REA DIAGRAM
MENS REA
The mens rea of murder is malice aforethought which is the intention to kill or cause grievous bodily harm (GBH).
There are two forms of intent:
• Direct intent — this is what D desires, eg. pointing a gun at someone and shooting them because you want to kill them. It was their aim or purpose to kill.
• Indirect or oblique intent — this is not necessarily what D desires but what he foresees will almost certainly happen, eg. D sets fire to a building and killed someone, did he foresee the risk that death might occur?
Four important cases must be looked at.
R v Moloney 1985
A soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he had not aimed the gun at the victim and had, at the time, no idea that firing it would cause injury. The judge directed the jury that intention included both desire and foresight of probable consequences and the defendant was convicted of murder. Held (HL) Appeal allowed, manslaughter substituted.
Lord Bridge did state that it was possible to intend a result which you do not actually want. He gave the example of a man who is trying to escape, who boards a plane to Manchester. Even though he may have no desire to go to Manchester — he may even hate the place — it is clearly where he intends to go. However, the appeal was allowed because foresight of consequences can only be evidence of intention — it is up to the jury to decide.
R v Hancock and Shankland 1986
Two striking miners pushed concrete from a bridge onto a road, killing a taxi driver. They claimed only to intend to block the road or frighten the taxi passenger and not to kill or cause GBH. They were convicted of murder but successfully appealed, a manslaughter conviction was substituted by the Court of Appeal and confirmed by the House of Lords.
The House of Lords looked at risk and probability. A slight risk of death is not enough to infer intention: Lord Scarman stated the greater the probability that death or GBH would occur; the more likely that intention can be inferred, eg. if A cut B’s little finger is would not be very probable that death would occur, therefore A is unlikely to have intention. However, if A stabbed B in the chest, it is much more likely that death would result, therefore it is more likely that A had intention.
In both cases the defendants were convicted by the juries and appealed, first to the Court of Appeal and then to the House of Lords. In each case the House of Lords quashed the convictions for murder and substituted a verdict of manslaughter. The reason being the trial judges had misdirected the jury.
The following case established the Virtual Certainty test which should always be used in indirect intention situations..
R v Nedrick 1986
The defendant set fire to a house, killing a child. He claimed that his intention was to frighten the child’s mother and not to kill or cause GBH. Convicted of murder. Held (CA) Appeal allowed, manslaughter substituted. Where direct intention is not present then the following test should be put to the jury.
A jury should return a verdict of murder only where they find that the defendant foresaw death or serious injury as a virtual certain consequence of his or her voluntary actions.
R v Woolin 1998 (HL)
D shook his 3-month-old son when he choked on his food and then threw him across the room, the child died, D had lied to the ambulance men and the police before admitting what happened. He claimed that he did not want his son to die. He was originally convicted of murder but the House of Lords reduced his conviction to manslaughter. The trial judge had misdirected the jury on the test to infer intention. The case has now confirmed the Nedrick test. It must now always be used when dealing with indirect intent situations.
R v Matthew and Alleyne 2003 (CA)
The defendants appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river. The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential rule should not be treated as if it were a rule of law. A defendant’s foresight of virtually certain death does not automatically require the jury to find that he intended that result: it is merely evidence from which the jury may draw that conclusion.
MURDER / MANSLAUGHTER DIAGRAM
MANSLAUGHTER
Manslaughter is a diverse crime which covers all unlawful homicides which are not murder.
There are two types of manslaughter:
1. Voluntary manslaughter - where there is sufficient mental element (malice aforethought) for a conviction for murder but the defendant successfully pleads one of three defences under the Homicide Act 1957 e.g. provocation.
2. Involuntary manslaughter - where homicide is committed without malice aforethought. There are two types:
(a) Unlawful Act manslaughter
(b) Gross negligent manslaughter
VOLUNTARY MANSLAUGHTER
Voluntary manslaughter covers those killings in which the accused is charged with murder because of the presence of malice aforethought, but where the charge is reduced to manslaughter because the accused successfully raises one of three partial defences under the Homicide Act 1957. The defences of provocation, diminished responsibility and suicide pacts are available only on a charge of murder and if proved will automatically reduce the charge to manslaughter.
PROVOCATION
Section 3 of the Homicide Act 1957 states:
“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 said or by both together) to lose 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”.
It is for the jury to decide whether provocation existed - the judge must ask the jury to consider two questions:
(a) was the defendant actually provoked to lose his self- control (subjective test),
(b) how would the reasonable person have reacted given the same set of circumstances(objective test).
• SIMPLE DEFINITION OF PROVOCATION: The defendant was provoked by something said or done or a combination of both, to have a sudden and temporary loss of self control. The jury must then compare the actions of the defendant with that of the reasonable person. If both tests are proven then the defence will be successful.
(a) Subjective test
Was there loss of self -control?
In order for provocation to be successfully proved the defendant must have been provoked to such an extent that there was loss of self control. This provocation can be caused by something said or done. It is also up to the jury to decide whether provocation occurred.
R v Doughty 1986
D was convicted of the murder of his 17 day old son. He had looked after his wife and baby since the caesarean operation. He killed the baby to stop its crying by placing a cushion on its head and kneeling on it. The trial judge refused to allow the baby’s crying immediately prior to the killing to go to the jury as evidence of provocation. D appealed against conviction. The CA held that the issue of provocation should have been left to the jury to decide and a conviction of manslaughter was substituted.
• If there is a delay between the act of provocation and the reaction, this may be evidence that there was no loss of self control.
R v Ibrams 1981
D was threatened and 5 days later, after planning an attack, killed the victim who had threatened him. Held: the delay negated any loss of self control.
• The question whether D lost self control is up to the jury, not the judge to decide.
R v Baille 1995
D shot drug dealer who had threatened his son and was convicted of murder. He had gone into a rage when he discovered that the dealer had put pressure on his son to buy more drugs. Trial judge said that the delay had negated the loss of self control. Appeal allowed, the question should have been put to the jury.
• The loss of self-control must be due to a loss of temper.
R v Cocker 1989
D suffocated his wife, who was suffering from a painful terminal illness and had repeatedly begged him to end her life. The judge withdrew the issue of provocation from the jury, who then felt they had no alternative but to convict of murder. CA held the judge had acted correctly; D had not lost his temper but succumbed to his wife’s requests.
Cumulative Provocation
Evidence of provocation is not confined to the last act or word before the killing. There may have been previous acts or words which, when added together, cause D to lose self-control. It has been stated that the defence of provocation is based on male ideas of reacting instantly and does not fit with domestic violence cases where women are subjected to abuse over a long period. Helena Kennedy QC has described such women as acting on a slow burning fuse - the women may be reacting to the accumulation of years of abuse. Consequently many women have been convicted of murder.
R v Ahluwalia 1992
D had endured 10 years of violence and humiliation from her husband One night he threatened to kill her the next day. She waited for him to fall asleep and then threw petrol on him and set it alight. She was convicted of murder as her attempt to use the defence of provocation failed - there was no sudden and temporary loss of self control. The CA held that the judges direction on provocation was correct and that it was up to parliament to change the law not the courts on this issue. However, the court felt that the D should have the opportunity to plead diminished responsibility. Appeal allowed, conviction quashed and a retrial ordered. At the retrial a plea of guilty to manslaughter on the basis of diminished responsibility was accepted She was sentenced to 40 months imprisonment which was the period she had already served.
R v Thornton 1995
D was subjected to abuse by her husband, she had threatened to kill him in the past. After fresh provocation she went to kitchen and sharpened a knife and then stabbed him after he said he would kill her when she was asleep She was convicted of murder and her appeal was dismissed. Her years of provocation were ignored at the time she was not suffering a “sudden and temporary loss of self-control”. However, a retrial was ordered on the basis that the abuse had not been taken into consideration and a conviction for manslaughter on the basis of diminished responsibility was substituted.
R v Humphrey 1995
D had a history of requiring psychiatric treatment She moved in with her pimp when she was 16, he mentally, physically and sexually abused her. One evening she feared that he would rape her, she cut her wrists and he taunted her that she had not made a good job, she then stabbed him. She was convicted of murder. Her appeal was allowed in 1995 because of misdirection’s at her trial on the law of provocation. Manslaughter was substituted. The court accepted that the cumulative effects of years of abuse were relevant to provocation.
Induced Provocation
If the defendant induced the provocation in the first place this will not prevent the defence being available.
R v Johnson 1989
J and R had been drinking. J had threatened R and his female companion. A struggle took place where the defendant stabbed and killed R. He appealed against his murder conviction on the ground that the judge should have directed the jury on provocation, the provocation being R’s reaction to J’s aggressive behaviour. Held: Appeal allowed and manslaughter conviction was substituted.
(b) Objective test
Would the reasonable person have reacted in the same way?
The objective test means that the jury must consider whether a reasonable person so provoked would have responded in the way that the accused did.
DPP v Camplin 1978
D was a 15 year old boy who bad been buggered by his victim who had also laughed at him. D lost control, hit victim over the head with a chapatti pan and killed him. On appeal his conviction for murder was quashed. The jury should have been told to assess the impact of the provocation on a reasonable 15 year old boy.
Relevant characteristics
R v Morhall 1995
D was a habitual glue sniffer and killed a man who nagged him about his habit. D was charged with murder and claimed he was provoked. The defence was not allowed as the characteristic that he was a glue sniffer was not taken into consideration. However, the House of Lords ruled against this and allowed the appeal. They stated the characteristic did not have to be one which society approved of. The court stated that the glue sniffing could be taken into consideration when looking at the gravity of the provocation. The test would be – how would the reasonable glue sniffer have reacted given that same set of circumstances.
There have been a number of recent major changes in the law which initially changed the reasonable person test. However, the case of R v Smith 2000 has now been overruled by the case of R v Holly 2005..
R v Smith 2000
Smith suffered from a severe depressive illness and got into an argument with a friend over some tools which had gone missing. He stabbed and killed his friend. Smith pleaded provocation and the trial judge directed the jury that his depression could not be inferred on the reasonable person. CA allowed the appeal and substituted a manslaughter conviction. This was confirmed by the HL. Held: the medical evidence of D’s depression could be relevant to the objective test.
The above case is now considered to be bad law because of the Privy Council decision of R v Holly 2005. The board for that case was made up of 9 Law Lords, 6 of which refused to follow Smith.
Attorney General for Jersey v Holley 2005
A chronic alcoholic killed his girl-friend with an axe while under the influence of alcohol. He pleaded provocation to a charge of murder. There was expert evidence that the defendant was an alcoholic, had a depressive and anxious personality and was dependent on alcohol and female partners. The trial judge in Jersey had told the jury that the fact that a person is drunk or under the influence of alcohol at the time of the killing and as a result he is provoked more easily than if he were sober, was not something to be taken into account. The Court of Appeal held this was a misdirection, as from Smith the alcoholism could be taken into account. The Privy Council stated that Smith (HL) was wrong as it departed from the legislation. They went on to state that the reasonable man test was to be judged by one standard, not a standard which varies from defendant to defendant.
The decision in Holly has been confirmed by the following case:
R v James 2006
Dismissing two conjoined appeals by defendants convicted of murder, the Court of Appeal said it is the decision in Holley rather than Smith that is to be followed as the correct statement of English Law.
The law on provocation following Holley is:
1. When considering whether the defendant was provoked (subjective test) the jury should take into account all the relevant evidence, including evidence of any mental or other abnormality making it more or less likely that D lost his self-control.
2. When considering “whether the provocation was enough to make a reasonable man do as he did”, (objective test) the jury must consider the effect of provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can more appropriately dealt with through a defence of diminished responsibility) or intoxication. The statutory reasonable person has the power of self-control to be expected of an ordinary person of like sex and age. In other respects the reasonable person shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant such as in the case of Morhall.
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DEFENCE OF PROVOCATION DIAGRAM
DIMINISHED RESPONSIBILITY
This defence was introduced as a result of the narrow definition of insanity under the M’Naghten Rules 1843.
Section 2 of the Homicide Act 1957 states:
“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 part to the killing”.
• SIMPLE DEFINITION: Diminished responsibility is where the defendant was suffering from an abnormality of mind, which substantially impaired his mental responsibility.
Not all defendants who successfully plead DR will receive a hospital order under the Mental Health Act 1983. The judge has discretion to award an absolute discharge, probation, suspended sentences etc.
R v Martin 2001 CA
D had been a victim of burglaries in the past and had been dissatisfied with the police response. He owned a pump-action shotgun. In 1999 his house was broken into by three men. D shot one of the intruders, a 16year old boy three times, once in the back. The boy died. Another intruder was seriously injured. D was convicted of murder and causing GBH. On appeal new evidence was introduced that he was suffering from paranoid personality disorder and depression. His conviction was quashed and replaced by a conviction of voluntary manslaughter on the basis of diminished responsibility.
Four elements must be considered under this defence.
1. Abnormality of mind
2. Abnormality arose from certain specified causes;
3. Abnormality was a cause of the defendants act
4. Abnormality substantially impaired mental responsibility
The accused must have been suffering from an abnormality of mind.
This covers all activities of the mind not just the brain.
R v Byrne 1960
D strangled and mutilated the body of a young girl. He claimed that he had suffered with perverted sexual desires from childhood which he found impossible to resist. The trial judge directed that this was irrelevant and he was convicted of murder. CA held that this was wrong and substituted a conviction for manslaughter. CA stated that the defence covered all activities of the mind, including not only the capacity to make rational judgements, but also the ability to exercise willpower.
The abnormality of mind does not have to be connected with madness.
R v Seers 1985
D stabbed his estranged wife, and claimed DR on the grounds of his chronic reactive depression. The trial judge directed that for the defence to be successful, the accused had to be bordering on the insane and therefore D was convicted of murder. CA held this to be a misdirection and manslaughter was substituted.
Cause of the abnormality
D’s abnormality of mind should be caused by one of the following:
(1) arrested or retarded development of mind
Mental deficiency can be an abnormality of mind.
(2) any inherent cause
This includes psychopath, paranoia, epilepsy, depression, pre-menstrual tension.
(3) Induced by disease
This covers mental and physical diseases. Battered Woman Syndrome has been recognised as a psychological condition since Ahluwalia 1993.
(4) Induced by injury
This would include physical blows to the head where someone was left brain damaged.
Alcoholism may injure the brain, causing gross impairment of judgement or causes the drinking to be involuntary. Therefore, a condition such as alcoholism caused by long term drinking might be covered but not an accused who was simply drunk at the time he committed the offence.
R v Tandy 1988
D had been an alcoholic for a number of years. She strangled her 11 year old daughter after she told D, her mother, that her second husband had sexually assaulted her. She was convicted of murder and her appeal was rejected. However, the CA stated that the jurors had to decide whether the first drink of the day was taken voluntarily or involuntarily as a result of the accused’s alcoholism: only if the first drink was involuntary would the defence be available. Tandy had failed to establish this.
R v Wood 2008
D, an excessive drinker, went to V’s flat after consuming large amounts of alcohol during the day. Whilst there, according to D, he had fallen asleep and had then woken up to find V attempting to perform oral sex on him. D repeatedly struck V with a meat cleaver, killing him. Four psychiatrists called to give evidence at his trial all agreed that, at the time of the killing, D was suffering from alcohol dependency syndrome. However, they disagreed about whether D’s brain had been damaged. Those for the Crown said that it had not, whereas those for D said that it had, and thus they drew different conclusions as to diminished responsibility. D was convicted of murder and appealed. The Court of Appeal allowed the appeal. They criticised the trial judges reliance on Tandy that the drinking had to be involuntary and that there was no such thing as an irresistible craving. The Court of Appeal stated that the jury should concentrate on the effect of alcohol consumed as a result of the illness and not on that consumed voluntarily. They would have to consider whether the defendant found the craving for alcohol irresistible in the circumstances.
R v Gittens 1985
D suffered from depression and had been in hospital. During a visit home, he argued with his wife and beat her to death. He also raped and killed his stepdaughter. At the time of the killings he had been drinking alcohol and was also taking drugs for his depression. CA quashed his murder conviction and substituted one of manslaughter because of misdirection to the jury about intoxication. The jury should be told to disregard the effect of the alcohol and drugs, then consider whether D, had he been sober, would have been suffering from abnormality of mind.
The abnormality was a substantial cause of the defendant’s acts
The abnormality of mind must have been a substantial cause of the defendant’s acts of killing. It need not have been the sole cause. Sometimes the defendant’s mental abnormality and drink both play a part in causing the defendant to kill. As long as the abnormality was a substantial cause of the killing, it does not matter that the drink was also a cause of the killing.
R v Dietschmann 2003 HL
D killed his victim in a savage attack. At the time of the killing he was very drunk and was also suffering from an abnormality of mind ( a form of depression following the death of his aunt, with whom he had been in a relationship). House of Lords found that the defence of diminished responsibility could be successful even if the defendant would not have killed if he had been sober. The abnormality of mind could still have been a substantial cause of the killing, which impaired his mental responsibility for what had happened.
Effect of the abnormality of mind
The accused must prove that the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. For example, in R v Byrne it was shown that the urges were more than normal lust and were abnormally strong.
BURDEN OF PROOF
The defence must prove diminished responsibility on a balance of probabilities (which is normally the civil burden of proof), calling evidence from at least two medical experts. D may plead guilty to manslaughter on the grounds of DR. The judge has to decide whether to accept the plea. The judge should only do so where medical evidence is clear.
A plea of guilty to manslaughter was correctly refused in the following case.
R v Ahmed Din 1962
D stabbed his lodger seven times with a hacksaw and then cut off the man’s penis. D pleaded guilty to manslaughter, based on paranoia, but the judge thought that there was insufficient evidence of an abnormality of mind and left the defence to the jury, who found him guilty of murder. His appeal was dismissed,
In practice 80% of all pleas of guilty based on DR are accepted.
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INVOLUNTARY MANSLAUGHTER DIAGRAM
INVOLUNTARY MANSLAUGHTER
CONSTRUCTIVE (UNLAWFUL ACT) MANSLAUGHTER
The actus reus of unlawful act manslaughter must occur through an act not an omission.
Therefore neglecting to do something will not be grounds for unlawful act manslaughter even if the omission is deliberate. The mens rea of unlawful act manslaughter is that of the unlawful act, which will depend on the individual crime.
Three key points must be established:
• The accused committed an unlawful act
• The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm.
• It was the unlawful act of the accused which caused the victim’s death.
1. The accused committed an unlawful act
A civil wrong will be insufficient
R v Franklin 1883
D picked up a box from a refreshment stall and threw it from the pier into the sea, killing a swimmer. Trial judge stated that an unlawful criminal act must be committed, a tort was insufficient. D was found guilty of gross negligence manslaughter.
Rv Lamb 1967
D pointed a gun at his friend as a joke. He did not intend to injure or alarm the friend; they both thought there was no danger in pulling the trigger. However, the friend was killed. D’s conviction was quashed as an assault requires the element of fear of force; this was not present as they both treated it as a joke.
R v Corion-Auguiste 2004
D threw an air bomb firework during the rush hour in an enclosed bus station. Other passengers panicked and rushed for the exits; an elderly lady was knocked over in the rush, struck her head, and died. D was convicted of unlawful act manslaughter.
A flexible approach has been adopted by the courts in identifying the crime.
R v Cato 1976
Two drug addicts injected each other several times during the night with heroin. Each made up his preferred mixture of the powder and water, loaded the syringe and then passed it to his friend to perform the injection. By the morning, they were both extremely ill and Cato’s friend died. Cato was charged with manslaughter. The court accepted that there was no breach of OAPA 1861 or the Misuse of Drugs Act 1971. However, it was agreed that it was so close to the offence of possession that this would be sufficient to establish an unlawful act. The friends consent was no defence. He was convicted of manslaughter.
Rv Dalby 1982
Two drug addicts took drugs together but they injected themselves with drugs that Dalby had obtained on prescription. At first instance Dalby was convicted of manslaughter but on appeal the conviction was quashed as there had been no unlawful act.
R v Rogers 2003
R and T spent the day drinking and then R obtained some heroin and was injected by T then T injected himself while R held the tourniquet. T overdosed and died. R pleaded guilty to manslaughter after the judge ruled that the application of the tourniquet was ‘part and parcel’ of the administration of a noxious substance (S.23 OAPA 1861). He appealed saying that T had broken the chain of Causation when he injected himself. C A distinguished Dias saying that he had played an active part in the injection process.
R v Kennedy (2007)
A man asked the defendant to supply him with heroin; D filled a syringe and gave it to the man, who injected himself and subsequently died. D was convicted of manslaughter and his first two appeals were dismissed in the Court of Appeal. However, the House of Lords allowed the appeal. They stated that a drug dealer is never responsible for the drug user’s death when the drug user is a fully informed and responsible adult who voluntarily chooses to self-administer the drug. They took a very restrictive view and stated that it would only be possible for a drug dealer to be held liable for a death when they have been genuinely involved in the administration of the drug.
Mens rea
The mens rea of unlawful act manslaughter is the mens rea of the crime which has constituted the unlawful act. The mens rea will therefore vary depending on the crime involved e.g. assault, burglary, criminal damage, etc.
2. The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm.
R v Church 1966
C and a woman went to his van for sexual purposes, he was unable to satisfy her and she slapped his face. A fight ensued where the woman was knocked out. C thought that he had killed her and threw her body in a river to hide the evidence. The cause of death was drowning C was convicted of manslaughter as he had acted unlawfully towards the woman in a way that sober and reasonable people would appreciate involved a risk of some harm to the woman.
R v Watson 1989
W burgled the house of a frail 87 year old man, who died of a heart attack as a result. The courts held that the accused’s unlawful act became a dangerous one for the purposes of the Church test as soon as the old man’s frailty and old age would have been obvious to a reasonable observer W’s conviction was quashed because it was not proved that the shock of the burglary caused the heart attack.
• The result of this case is that where there are peculiarities of the victim which make an act dangerous when it might otherwise not be, they will only make the act a dangerous one if they would have been apparent to a reasonable observer.
• In order to be considered “dangerous” in this context, the unlawful act must be sufficient to cause actual physical injury. Emotional or mental shock are not enough on their own, though they will be relevant if they cause physical injury - by bringing on a heart attack, for example.
• Whether an act was dangerous or not should be decided on a reasonable person’s assessment of the facts, and not on what the defendant knew. Therefore, a defendant who makes an unreasonable mistake is not entitled to be judged on the facts as he or she believes them to be.
R v Ball 1989
D had argued with neighbours who came over to his house he loaded a live cartridge into his gun believing it to be blank. As a neighbour was climbing over a wall he shot and killed her. He was convicted of unlawful act manslaughter.
R v Woolley and Campbell 2003
Two women harassed an elderly man in the street, demanding money and threatening to accuse him of rape. The man had a weak heart and was so frightened that he had a heart attack and died. The defendants were charged with manslaughter and the judge told the jury they should convict only if they were satisfied that the defendants harassment was the cause of death, and that a reasonable person would have seen their behaviour as carrying a risk of injury. They were both convicted.
3. It was the unlawful act of the accused which caused the victim’s death.
The unlawful and dangerous act must cause the death. Note that in Kennedy the court did not consider the fact that the victim injected himself to amount to an intervening act that broke the chain of causation.
The act need not be aimed at the victim.
R v Goodfellow 1986
G wanted to move from his council house but could see no prospect of exchanging it he set it on fire, attempting to make it appear that the cause was a petrol bomb. His wife, friend and her child died in the fire. G was convicted of manslaughter and the court held that it was immaterial that the unlawful act was not directed at them as the fire was the cause of their deaths.
R v Carey 2006
Three girls started a fight with a fourth girl who suffered minor bruises. She later ran away but collapsed after running about 100m and died from an inherent heart disease aggravated by the running. The defendants were convicted of unlawful act manslaughter based on the unlawful act of affray. These convictions were quashed on appeal. The girl had not been running to escape from a threat but to get home. The only dangerous act on the victim (a single punch) was not the cause of her death.
R v D 2006
The CPS brought a test prosecution for manslaughter following the suicide of a woman after a lengthy period of domestic abuse. On the evening of the suicide, her husband had struck her on the forehead, causing a cut from the bracelet he was wearing. He was subsequently prosecuted for manslaughter and inflicting GBH under S.20 OAPA 1861. In the crown court the trial judge ruled that the case should not proceed to trial as there was no basis on which a reasonable jury could convict the defendant of either offence. The CPA appealed unsuccessfully and the case did not proceed.
GROSS NEGLIGENCE MANSLAUGHTER
As a result of the case of R v Adomako 1994 reckless manslaughter no longer exists and gross negligence manslaughter has become established.
R v Adomako 1994
An anaesthetist failed to realise that a patient’s oxygen supply had been disconnected as a result of which the patient died. He was convicted of manslaughter and appealed. The House of Lords held that the following had to be proved for gross negligence manslaughter.
• A duty of care
• A breach of that duty causing the victims death and
• The breach was so grossly negligent as to warrant a criminal conviction
R v Watts 1998
D was the mother of a child who had been born with disabilities. D was suspected of causing the child’s death while she was in hospital. The tube from her throat was removed/ dislodged. D was charged with murder but was convicted of manslaughter. D appealed CA allowed the appeal due to the misdirection of the judge. It confirmed that the correct direction was that outlined in Adomako.
DUTY OF CARE
• Lord Mackay stated in the Adomako case that the ordinary principles of the law of negligence can be used in order to establish whether a duty of care is owed. Therefore the rule established in Donoghue v Stevenson 1932 can be used i.e. the neighbour test - reasonable foresight.
• Following Caparo Industries PLC v Dickman 1990 account will sometimes be taken of issues of public policy and whether the imposition of a duty would be just and reasonable. This was followed in:
R v Singh 1999
A tenant was killed by carbon monoxide poisoning from a gas heater and D was convicted of manslaughter. It was stated that is was up to the judge, not the jury, to decide whether a duty of care was owed as this was a question of Law. This was approved of by the CA and HL.
R v Wacker 2003
The Court of Appeal accepted that the ordinary principles of the law of negligence apply, but excluded one specific aspect of these rules as being inappropriate in the criminal law context. D was a lorry driver who had been involved in a criminal conspiracy to bring illegal immigrants into the UK. He was driving a lorry from Holland to the UK. The lorry was airtight, with a vent that could be opened to allow air to enter. 60 Chinese citizens were hidden inside the lorry. D shut the vent for over 5 hours to try and prevent detection during the Channel crossing. When the lorry was searched by customs officials 58 people were found dead due to suffocation. D was convicted of gross negligent manslaughter and appealed. He claimed that one of the ordinary principles of negligence was that a person did not owe a duty of care to another person when they were both carrying out a joint unlawful activity. CA rejected this argument and excluded this principle as being inappropriate in a criminal law context.
R v Khan& Khan 1998
D’s supplied victim with drugs saw her take them and then left her. If they had called a doctor she would have survived. They then returned and disposed of the body. They were convicted of manslaughter and appealed. The appeal was allowed as the judge had misdirected the jury. If the jury had been properly directed the jury could have been convicted of gross negligence manslaughter. Case confirms the authority of Adomako.
BREACH OF DUTY OF CARE WHICH CAUSES DEATH
Two areas need to be considered:
1. The defendant’s conduct must have gone below the standard of care expected of a reasonable and sober person.
2. The rules of causation will need to be applied to decide whether the breach caused death.
THE BREACH WAS SO GROSSLY NEGLIGENT AS TO WARRANT A CRIMINAL CONVICTON.
This amounts to the mens rea.
Lord Mackay approved the following definition in R v Bateman 1925:
“in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to crime against the State and conduct deserving punishment”.
The Court of Appeal gave the following guidance in R v Prentice 1994:
We consider proof of any of the following states of mind in the defendant may properly lead a jury to make a finding of gross negligence:
• Indifference to an obvious risk of injury to health;
• Actual foresight of the risk coupled with a determination nevertheless to run it;
• An appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction;
Recently the CA held that a jury could convict D of gross negligence manslaughter in the absence of any evidence as to his state of mind. They can just look at the conduct of the defendant. This will assist future juries to return verdicts in corporate manslaughter cases.
A-G Reference (No2 of 1999) 2000
Southall train crash killed 7 people. Manslaughter prosecutions were brought against the train company responsible for the passenger train, but the trial judge decided it was a prerequisite for conviction in such a case that a guilty mind be established against an identifiable human being. The manslaughter prosecutions collapsed. However, the CA decided that the trial judge had made a mistake. It is not essential that the jury know what D was thinking at the time of the killing. A jury can convict where they find the conduct has been sufficiently negligent to justify criminal liability.
R v Lidar 1999
CA favoured an approach where gross negligence could be proved either by satisfying an objective or subjective criterion. In this case there had been a dispute between two groups of young men in a pub. In the pub car park the appellant got into the driving seat of his Land Rover and his brother was the passenger in the front seat. The victim lent through the passenger window and a fight started. The appellant drove off with the victim still half in the car. He was then crushed when his feet caught in the rear wheel. The trial judge referred to recklessness in his direction to the jury and the appellant was convicted
On appeal the CA stated that the judge was right to direct the jury as he did i.e. had the driver been reckless - was he aware of the degree of risk of serious injury to the victim and nevertheless chose to ignore it.
NB: The concept of gross negligence appears to have a broad definition based on the above two cases. Gross negligence appears to cover both objective and subjective risk taking, and where an individual’s conduct has fallen below the standards expected of a reasonable person so as to justify criminal liability.
1. Did the defendant appreciate there was a risk- subjective test.
2. Would the reasonable person have appreciated the risk? – objective test. The risk must be of death not just a risk to health, comfort or injury. This point was confirmed in the following case.
R v Misra 2004
A patient died due to the negligence of two doctors and they were both convicted of manslaughter. They appealed stating that the elements of the offence were uncertain. The conviction was upheld on appeal and the court stated that the jury had to decide as a matter of fact whether the Defendants’ negligence amounted to gross negligence. The offence was compatible with human rights; Adomako had clearly laid down the elements of the offence. The test in gross negligence manslaughter involves consideration of the risk of death. It is not sufficient to show a risk of bodily injury or injury to health.
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CRIMINAL LAW DEFENCES
INSANITY DIAGRAM
GENERAL DEFENCES
INSANITY
• Under this defence the accused claims that because of his mental state at the time he committed the offence, he was not truly responsible for his actions.
• The defence bears the burden of proving on the balance of probabilities that the defendant was insane. If the defence is successful the verdict must be “not guilty by reason of insanity”. The prosecution may also raise insanity as an issue.
• In a murder charge case the accused will be committed to a mental hospital where his release can only be secured with the consent of the Home Secretary.
• For other offences the judge has discretion.
Criminal Procedure (insanity and Unfitness to Plead) Act 1991
Where the offence is murder, the court must still make a hospital order; under which the accused can be detained for an indefinite period. For other crimes the court may make:
1. a hospital order and an order restricting discharge either for a specified time or for an indefinite period;
2. a guardianship order under the Mental Health Act 1983;
3. a supervision and treatment order;
4. an order for absolute discharge.
Under theDomestic Violence and Victims Act 2004 the question of fitness to plead is to be left to the judge alone.
The rules on the defence of insanity were laid down in the M’naghten case 1843. D was obsessed with the then Prime Minister, Sir Robert Peel, and tried to kill him. He actually killed Peel’s secretary instead, and was charged with murder. He was found not guilty by reason of insanity. The following rules were established:
The accused must show three things:
• he was suffering from a defect of reason
• caused by a disease of the mind
• so that he did not know the nature and quality of his act or he did not know that what he was doing was wrong in law.
Defect of reason
A defect of reason means being deprived of the power to reason, rather than just failing to use it.
R v Clarke 1972
D was charged with shoplifting and argued that she had been acting absentmindedly because she was suffering from depression. At first instance the court held that this was the defence of insanity. Held: The Court of Appeal allowed the appeal. Whilst depression might amount to a disease of the mind, the defendant was not suffering from a defect of reason because she retained her ordinary powers of reason but momentarily acted as she did by failing to concentrate properly.
It does not matter whether the defect of reason was temporary or permanent e.g when someone is having an epileptic fit. R v Sullivan 1984
Disease of the mind
This is a legal definition and not a medical one and therefore covers states of minds which doctors would not necessarily treat as a disease of the mind. It covers a wide range of situations e.g. arteriosclerosis - Kemp 1957; epilepsy - Sullivan 1984; diabetes - Hennessy 1989; sleepwalking - Burgess 1991.
R v Kemp 1957
D hit his wife with a hammer causing GBH. He was suffering with arteriosclerosis, which caused temporary blackouts. He was devoted to his wife and could not remember picking up the hammer or attacking her. Held: D insane because hardening of the arteries was a disease of the mind. The law does not distinguish between diseases of mental and physical origin.
The courts are now using a distinction between disease of the mind caused by internal and external factors. Caused by internal factor - insanity (insane automatism), external factor e.g. someone is knocked on the head, hypnotised - automatism.
R v Sullivan 1984
D kicked and injured a friend during an epileptic fit and was charged with GBH. House of Lords held that epilepsy was a disease of the mind because during a fit mental faculties could be impaired to the extent of causing a defect of reason.
R v Burgess 1991
D attacked his girlfriend whilst sleepwalking. They had been watching videos and they both fell asleep he hit her over the head with a bottle and the video recorder and then grasped her throat. He then came to his senses and was charged with s.18 GBH. He argued that the appropriate defence was automatism, however the Court of Appeal held that this amounted to insanity because the cause was internal.
R v Quick 1973
The diabetic defendant was a nurse at a psychiatric hospital, who attacked a patient. He claimed that due to hypoglycaemia, brought on by not eating after taking insulin, he had acted without knowing what he was doing. The judge ruled that this was a plea of insanity, upon which Quick changed his plea to guilty. On appeal, it was held that the alleged mental condition was not caused by diabetes, but by the insulin used to treat it, appeal was allowed. (External causes).
R v Hennessy 1989
The accused was a diabetic, charged with taking a vehicle and driving while disqualified. He gave evidence that at the time of the offence, he had failed to take his usual dose of insulin due to stress and depression and as a result was suffering from hyperglycaemia which put him in a state of automatism. After the trial judge directed that this was insanity D changed his plea to guilty. He then appealed. The Court of Appeal dismissed his appeal and held that unlike Quick, it was the disease itself, uncontrolled by insulin, which had produced the malfunctioning of the mind and so constituted insanity. (Internal cause).
Did not know the nature and quality of the act or that what he was doing was wrong.
This basically means that the defendant did not intend to do what he did. For example, the man who cut a woman’s throat thinking that it was a loaf of bread, or the nurse who put a baby on the fire, thinking it was a log of wood. In Kemp he had no real memory of hitting his wife with the hammer.
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AUTOMATISM
This is also known as non-insane automatism, it occurs where a crime is committed by an involuntary act caused by an external factor.
Bratty v A-G of Northern Ireland 1963
Lord Denning said - Automatism means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.
Examples: Severe blows to the head, hypnotism, anaesthetic, swarm of bees.
In some cases the courts have been prepared to rule that a “dissociative state” caused by an extraordinary event may be classed as automatism.
R v T 1990
T pleaded automatism to charges of robbery and ABH. She had been raped three days earlier. A psychiatrist diagnosed that she was suffering post-traumatic stress disorder and had entered a dissociative state. Plea was successful.
Broome v Perkins 1987
D was in a hypoglycaemic state and when driving home hit another car. Afterwards he could remember nothing about the journey. Held: as the accused was able to exercise some voluntary control over his movements he had not been acting in an entirely involuntary manner and therefore was unable to plead automatism.
Attorney-General’s Reference (No.2 of 1992)
D was driving a lorry down a motorway, when he crashed into a car parked on the hard shoulder, killing two people. Evidence showed that D had not fallen asleep at the wheel but was in a trance-like state by the repetitive vision of the long flat motorway, which reduced, but did not eliminate awareness of what he was doing. D was acquitted, but the prosecution raised the case as an issue of law in the Court of Appeal. It was held that this state does not amount to automatism.
Self-induced automatism
The defence may not be available if the automatism was caused by the accused’s own fault e.g. through taking drugs or alcohol. If the automatism is brought about by some other way then it may still be used depending on whether the defendant knew there was a risk.
R v Bailey 1983
D was convicted of wounding with intent. He claimed to have been in a state of automatism caused by hypoglycaemia. He had felt unwell before the attack but had only eaten some sugar.
The Court of Appeal held that self-induced automatism (other than that caused by drink or drugs) can provide a defence if the accused’s conduct does not amount to recklessness. This meant that in this case he would only have a defence if he did not realise that failing to eat would lead him to get into a state where he could attack someone. Appeal was dismissed as he had been reckless.
• Where a defendant takes drugs which normally have a soporific or sedative effect, and then commits a crime involuntarily, the defence may be available if the reaction was unexpected.
R v Hardie 1984
It was held that a person whose condition of automatism was due to taking Valium could rely on the defence, even though the drug had not been prescribed by a doctor. He did not understand the effects of the drug.
DIAGRAM ON INTOXICATION
INTOXICATION
Intoxication can be caused by alcohol or drugs or a combination of the two, the same legal principles apply whichever the cause.
If the defendant did actually have the mens rea of the crime, then intoxication cannot be a defence.
R v Kingston 1994
D was attracted to young boys, but he normally managed to control these tendencies and prevent himself from acting on them. However, his business associates decided to set him up so that he could be blackmailed. D was invited with a l5year old boy to a flat where their drinks were laced with drugs; when they were both intoxicated D indecently assaulted the boy. D admitted that at the time of committing the assault, he intended it, but argued that he would not have committed the offence if he had been sober. The House of Lords held that an intoxicated intent was still an intent and the fact that the intoxication was not voluntary made no difference to that. He had the mens rea and so the intoxication was no defence.
VOLUNTARY INTOXICATION
Generally intoxication will be a defence to crimes of specific intent if the intoxication resulted in a lack of mens rea. If the offence is one of basic intent then intoxication will be no defence.
DPP v Majewski 1977
The accused had spent 24 hours getting drunk and taking drugs and then smashed windows and attacked a police officer. He argued that he had been so intoxicated that he could not remember the incidents at all and therefore could not have formed the mens rea. Held; intoxication was only a defence to crimes of specific intent and since the accused was charged with offences of basic intent, his intoxication gave him no defence. This decision was approved by the House of Lords.
• Offences of specific intent include: Murder, S.18 OAPA 1861, Theft.
• Offences of basic intent include: Involuntary manslaughter, Rape, S.20 OAPA 1861, ABH, Assault.
R v Lipman 1970
D had taken LSD with his girlfriend. Whilst on a trip he attacked the girl, stuffing a sheet in her mouth and killing her. He thought he was being attacked by snakes. He claimed he had no intention of harming the girl and did not know what he was doing. It was accepted that this gave him a defence to murder, as it was a crime of specific intent but was not a defence to manslaughter which is a crime of basic intent. The Court of Appeal rejected his appeal.
If the defendants lack mens rea, criminal liability can still be imposed if they were intoxicated and would have had mens rea if they had been sober.
INVOLUNTARY INTOXICATION
Involuntary intoxication may be a defence to any crime whether of basic or specific intent provided the defendant lacks mens rea. (In Kingston although the intoxication was involuntary D admitted he still had the mens rea).
There are three situations where a defendant will be treated as involuntarily intoxicated.
1. Prescribed drugs - intoxication as a result of taking prescribed drugs will be a defence.
2. Soporific drugs - drugs which make the user sleepy or relaxed will be treated as involuntary intoxication.
R v Hardie 1985
D took Valium which had been prescribed for his girlfriend. He then started a fire in a bedroom while the woman and daughter were in the living room. He was convicted of damaging property with intent to endanger the life of another. On appeal the court stated that this did amount to involuntary intoxication as D had been told that the drug would do him no harm and he did not appreciate the effect it would have on him.
3. Laced drinks - See Kingston above. This may be a defence but there is little authority on it.
R v Allen 1988
D voluntarily drank wine but did not realise that it had a high alcohol content. Held: not knowing the precise strength of the alcohol did not make his intoxication involuntary.
DUTCH COURAGE
If the defendant gets intoxicated in order to acquire the courage to commit the criminal act there will be no defence even to a crime of specific intent.
Attorney-General for Northern Ireland v Gallagher 1963
D bought a knife and drank a bottle of whiskey in order to kill his wife. He got so drunk that he would have been incapable of forming the mens rea for murder. The House of Lords held that in these circumstances intoxication would be no defence.
SELF-DEFENCE AND PREVENTION OF CRIME DIAGRAM
SELF-DEFENCE AND PREVENTION OF CRIME
Self-defence is a complete defence. Where an attack of a violent, unlawful or indecent nature is made, so that the person under attack fears for his life (or another persons) or safety from injury, that person is allowed to protect himself provided he uses no more force than is reasonable in the circumstances.
Self-defence can be used to protect the accused, members of his family, his friends or even a total stranger he sees being unlawfully attacked. In each case, the question is:
“was the force he used reasonable in the circumstances, as he knew them to be, or honestly believed them to be”.
Possibility of retreat
It is good evidence for the accused to show that he retreated as far as was safely possible before using serious force but it is not an essential part of the defence. The reasonableness of the defendant’s actions must be the main consideration in each particular case.
R v McInnes 1971
D stabbed and killed the victim during a fight. He appealed against conviction from murder based on the direction that self-defence is only available if D has done all he reasonably can to retreat before using force. Held: C.A. dismissed appeal. Although the direction was too rigid is had not misled the jury. A failure to retreat is not conclusive, is is simply one factor to take into account in deciding whether or not it was necessary to use force.
Imminent threat
D will only be justified in reacting to a threat which is imminent. This does not mean that the defendant has to wait until he or she is hit.
Attorney-General’s Reference (No.2 of 1983) 1984
D was charged with making petrol bombs. He was acquitted on the basis of self-defence in that he intended to use the bombs to protect his premises from what he feared to be an imminent attack from rioters and looters. Held: C.A. The use of reasonable force covered acts done in anticipation of imminent danger and therefore covered this situation.
Malnik v DPP 1989
D went to visit a man who was believed to have stolen some cars from an acquaintance of the defendant. D took a martial arts weapon to protect himself as the man was known to be violent.
D was arrested whilst approaching the man’s house. Held: The court rejected the argument that carrying the weapon was justified because he was in imminent danger of attack. D had created the dangerous situation by choosing to go to the man’s house.
Mistake
If a defendant makes a mistake which leads him or her to believe there are circumstances which make defensive action necessary, the courts will assess the necessity of the defence on the basis of the facts as the defendant believed them to be, even if the mistake is not a reasonable one to make.
R v Williams (Gladstone) 1987
A man saw a youth rob a woman in the street. He grabbed the youth and a struggle ensued at which point the defendant arrived. He believed that the youth was being attacked by the man and hit him. He was charged with S.47 OAPA 1861 ABH. Held: The facts should be treated as he honestly thought they were and therefore his defence was successful.
If a mistake is induced by intoxication then the mistake has to be ignored in relation to the defence.
R v O’Connor 1991
D got drunk and believed he was about to be attacked and head butted the victim who later died of his injuries. D was convicted of murder and appealed. Held: (C.A) As his mistake was induced by intoxication it could not be taken into account when considering self-defence. (Intoxication was used in order to reduce his conviction from murder to manslaughter).
Reasonable force
What is reasonable force in the circumstances is an objective test.
Palmer v R 1971
D convicted of murder, having shot and killed the victim, in what he claimed to be self-defence.
Held: Appeal dismissed reasonable force must be used.
Cross v Kirkby 2000
The Civil Division of the Court of Appeal stated that a defence could still be available where 25% more force was used that was necessary. Cross had seen the defendant, a farmer, attempting to walk his partner off private land during an anti-hunt demonstration. Cross took a baseball bat from his vehicle and hit the farmer on the hand and arm. The farmer took the bat and hit him back across the head, fracturing his skull and causing permanent damage. In civil proceedings in which Cross sought financial compensation for his injuries, the farmer’s defence of self-defence was allowed.
R v Scarlett 1993
A pub landlord was convicted of constructive manslaughter based on an act of assault. He appealed on the ground that the act causing death was an exercise of reasonable force used to eject a trespasser from the pub. The victim was pushed out through some swing doors which lead onto some stairs. He fell down the stairs and was killed. Held: (CA). Appeal allowed. D could only be convicted if the degree of force used was excessive in the circumstances as he honestly believed them to be.
R v Owino 1995
D was convicted of ABH on his wife. She had suffered injuries to her head and thumb but he claimed, in his defence, that any injuries he caused were the result of reasonable force to stop her assaulting him. He was convicted. His appeal was rejected; the court re-affirmed that the test was an objective one and that Scarlett did not impose a subjective test.
The objective test was confirmed in R v Martin 2001
Farmer was convicted of murder and wounding with intent s.18 OAPA after he shot 2 burglars in his home. He used a pump action shotgun to shoot one of the intruders 3 times, including once in the back. He had gone beyond reasonable force in self defence. However, The Court of Appeal went on to state that the jury could take physical characteristics of the defendant into consideration. In exceptional circumstance they could take into account a psychiatric condition. Held: Martin was not an exceptional case and therefore reasonable force had not been used. However, a plea of diminished responsibility was accepted and his conviction was reduced to manslaughter.
Complete defence
A successful or unsuccessful plea under S.3 or at common law does not mitigate: it is either a complete defence or no defence at all.
R v Clegg 1995
A soldier shot and killed a car passenger and was convicted of murder following an unsuccessful plea of self-defence. In the circumstances the use of lethal force used was excessive and unreasonable. Held: H.L. If the defence succeeds it leads to an acquittal, if it fails it leads to a finding of guilty as charged. Therefore the appeal was dismissed. (There was a lot of controversy regarding this case; the defendant was released after four years even though he was convicted of murder).
Prevention of crime
Under S.3 Criminal Law Act 1967 : “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
In addition a person can use reasonable force to protect his property from attack. However, see R v Martin 2001.
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CRIMINAL LAW DEFENCE OF CONSENT
The least touching of another without his consent can amount to a battery. However, everyday life requires that you consent to others touching you. When you walk down a crowded street you impliedly consent to other pedestrians bumping into you. Also when you go to the dentist or have an operation you consent to contact. In sports such as rugby and football participant’s consent to the amount of violence, which is legally permissible under the rules of the game, but it would be no defence where a team member violently punches another. There can be no consent to a charge of murder. e.g euthanasia.
CONSENT MUST BE REAL
If someone gives their consent it will not always be accepted by the court e.g. if given under duress, where a child gives consent or person is mentally ill.
Burrell v Harmer 1967
D was convicted of ABH after tattooing two boys aged 12 and 13. Held: no consent as the boys did not understand the nature of the act and the pain that was involved.
An honestly held belief that someone is consenting will be a good defence. However, this will not be the case if the mistake is induced by intoxication. R v O’Connor 1991.
A mistake as to certain characteristics of the defendant, which means the victim did not know the quality of the act carried out by the defendant, will prevent the existence of a genuine consent.
R v Tabassum 2000
Three women had agreed to remove their bras to allow the appellant to examine their breasts, because they understood that he was medically qualified and was carrying out the procedure in order to put together a medical data base on the subject. The appellant claimed he was not liable for indecent assault because the women had all consented to the examination. Held: there was consent to the nature of the acts but not the quality, since they were not for medical purposes. Conviction upheld.
INFORMED CONSENT
R v Dica (2004)
A man D knew he was infected with the HIV virus; he persuaded two women to consent to unprotected sex (each on more than one occasion) without telling them of his condition. Women were subsequently diagnosed HIV positive and D was convicted of causing them grievous bodily harm contrary to s.20. The Court of Appeal quashed his conviction and ordered a new trial. After a re-trial his sentence was reduced from 8 years to 4 years.
The Dica case has quashed R v Clarence which is no longer good law. The competing interests in this case was the public policy reasons to prevent the spread of disease compared to the free will to participate in sexual relations.
The effect of this judgement in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.
LIMITATIONS ON CONSENT
There are limits to anyone’s right to consent to the infliction of harm upon themselves. The courts view is that consent is always a good defence to a charge of assault and battery, but not to an offence of ABH or GBH. No one impliedly consents to a risk of ABH when they are out shopping or at a party etc. Certain activities do carry a risk of serious injury, the courts may accept the defence of consent where the following activities are involved: contact games, surgery, lawful chastisement, tattooing, body piercing.
R v Leach 1969
The victim had arranged to be crucified on Hampstead Heath. The defendants at his request nailed him to a wooden cross, piercing his hands with six inch nails. They were found guilty under s.18 OAPA and were not allowed to rely on the victim’s consent as a defence.
Sexual activity
R v Wilson 1997
D branded his wife’s buttocks using a hot blade. She consented to the activity, infact, she originally wanted the mark on her breasts. The matter came to light when her doctor reported the incident to the police. D was convicted of ABH but the Court of Appeal allowed the appeal. What was of particular significance in this case was the act was not for sexual gratification but both parties considered it to be a tattoo.
R v Brown 1993
A private party took place in the home of one of the defendants. The guests were homosexuals who enjoyed sado-masochistic experiences and the party had involved activities such as whipping, caning, branding, applying stinging nettles to the genital area, and inserting sharp objects into the penis. The event took place in private, with the consent of all participants. The men were charged under S.47 and S.20 OAPA 1861. They were convicted and the defence of consent was not allowed.
The significant issue was that the injuries were inflicted for sexual gratification and perhaps that they were homosexuals. What is the difference between the Brown case and the case below?
R v Slingsby 1995
D had penetrated the vagina and rectum of a girl he had met at a night-club with his hand with her consent. She suffered internal cuts caused by a ring on Ds hand. These injuries were neither intended nor foreseen by D. The victim was unaware of how serious these cuts were and she later died of septicaemia. D was charged with unlawful act manslaughter, but was acquitted. The judge held that it was clear that all of D’s acts on the night in question were all consented to by the victim and therefore there was no assault.
Presumably “normal” sexual activity is an activity for which the courts will accept the defence of consent. However, for other sexual activity such as sado-masochism the courts will not accept the defence of consent.
This approach was challenged under the Human Rights Act 1998 and it was held that Public authorities may interfere with the right to respect for private and family life if it is in the interests of national security or public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
R v Emmett 1999
D was convicted of ABH on his girlfriend. The couple enjoyed sado-niasochistic sex. During sex D had placed a plastic bag over her head and tied it tightly around her neck. As a result she nearly lost consciousness, suffered bruising to the neck and ruptured blood vessels in her eyes. He later poured lighter fluid over her breast and ignited it. She went to the doctor and he reported it to the police. The Court of Appeal rejected his appeal against conviction. Consent was not accepted as a defence.
Horseplay
The courts have accepted that horseplay is another area in which consent, even where quite serious injury is caused, may be legally tolerated. Society accepts that community life, such as in the playground, involves risks of deliberate physical contact, but that the criminal law should not get involved. The defence was successfully used in:
R v Jones and others 1986
Boys were injured having been tossed into the air by schoolmates.
R v Aitken and Others 1992
Where serious burns, amounting to GBH were caused to a new RAF officer as part of a bizarre initiation ceremony.
Consent to euthanasia
It is unlawful to do a positive act to assist a person to commit suicide (euthanasia or mercy killing). A distinction needs to be drawn between active euthanasia and passive euthanasia. Passive euthanasia is lawful.
Airedale National Health Service Trust v Bland 1993
It was held that the hospital could legally terminate the treatment which was keeping Tony Bland alive. Switching off the life support machine only constituted an omission to act.
Ms B v An NHS Trust 2002
Ms B was paralysed from the neck down and was dependent on a mechanical ventilator to breathe. She instructed her doctors to switch the machine off – they refused. She went to court for an order telling them to follow her wishes – it was granted and she died shortly afterwards.
Pretty v UK 2002
Diane pretty was terminally ill with motor neurone disease. She was physically incapable of killing herself. She wished instead to commit suicide with help from her husband, so she could die with dignity at a time of her choosing. DPP refused to undertake not to prosecute her husband if he assisted her suicide. The case went up to the European Court of Human Rights and the court accepted that English law did intrude on a person’s private life, but considered that this was allowed under Art.8.
R (on the application of Purdy) v DPP 2008
P suffered from MS and as her condition deteriorated, it would make it increasingly difficult for her to carry out ordinary tasks. There would come a point when her life would become unbearable and she would wish it to end. She would have to travel to Switzerland, needing her husband’s assistance. However, she was aware that he might be prosecuted under the Suicide Act 1961. P argued that the DPP should publish a specific policy on this issue outlining the circumstances in which a prosecution would or would not be brought. Her application failed. However, the DPP afterwards stated that they could not guarantee that a prosecution would or would not occur.
NB: It generally appears that prosecutions are not going ahead on this issue, but the CPS have reserved judgement to deal with individual cases. In the case of James, a rugby player who had been badly injured, whose parents took him to Switzerland, no prosecution took place.
Consent in Sport
R v Barnes (2004)
A footballer was convicted of inflicting grievous bodily harm on another player in the course of a match, and appealed against his conviction. Allowing the appeal, Lord Woolf CJ said it is not generally appropriate to bring criminal proceedings in such cases unless the defendant had gone well beyond what the victim had effectively consented to by taking part in the sport. In highly competitive sports, conduct outside the rules can still be expected to occur in the heat of the moment, and even if this justified a warning or sending off (and even though the defendant might have been reckless) it might still not reach the threshold of criminality.
MURDER CRITICAL EVALUATION
1. The year and a day rule has been abolished by The Law Reform (Year and a Day Rule) Act 1996. If the death is more than 3 years from the attack, the permission of the DPP is required to prosecute.
2. Intention can be inferred using the Nedrick Test -.- this can be very difficult for a jury to cope with.
3. Intention should be limited to direct intent situation only. i.e. it was the defendant’s aim or purpose to cause death.
4. Defendant may be found guilty of murder even though actually intended GBH not murder.
5. No discretion in sentencing — mandatory life sentence imposed. This causes injustice especially where the defence of provocation and self-defence fails. Too rigid and too harsh. The Law Commission has recommended that this should be reconsidered but the Government have refused to do so.
6. Euthanasia/assisted suicide. The Diane Pretty case and Purdy case tested this issue in the courts. In practice individuals are rarely prosecuted. Times survey in 1998 stated that 15% of GPs have helped patients to die. Doctors are in a vulnerable position, they cannot use Diminished Responsibility like relatives can e.g. R v Gray. In the Netherlands it has been legalised.
The Government has chosen not to implement the recommendations of the Law Commission that a tiered system of homicide offences should be introduced. However, it has decided to implement substantially proposals on Diminished Responsibility and make its own on Provocation.
The Law Commission recommended three tiers to the offence of Homicide instead of the current two.
• First degree murder where there is an intention to kill, or an intention to cause serious injury, with awareness that the conduct involved a serious risk of causing death. The mandatory life sentence would apply.
• Second degree murder
a) where there is an intention to cause serious harm (but not kill). This currently falls within the offence of murder. “Serious harm” would be narrowly defined as “harm of such a nature as to endanger life or to cause, or to be likely to cause, permanent or long term damage to a significant aspect of physical integrity or mental functioning.
b) An intention to cause some injury or a fear or risk of injury while being aware of a serious risk of causing death;
c) An intention to kill but the partial defences of provocation or diminished responsibility apply.
The maximum sentence that could be applied would be a discretionary life sentence.
• Manslaughter where the defendant killed and was grossly negligent or the act causing the death was itself criminal and the defendant intended to cause harm but not serious harm, or foresaw a serious risk of causing injury.
DEFENCES
PROVOCATION
1. Only available to a charge of murder.
2. Discriminates against women -. slow burning fuse – Helena Kennedy comments.
3. Jury have difficulty with reasonable person test now only very limited characteristics can be inferred on the reasonable person following Holley.2005
4. Self-induced characteristics (Morhall) may be considered but someone who is known to be short-tempered will not be taken into consideration.
5. Helena Kennedy QC advocates new defence to accommodate women.
6. Holley has now clarified the law on Provocation, but taken it back to the harsher test that was imposed by the legislation.
7. In November 2005 the Sentencing Guidelines Council published new guidelines on sentencing where provocation is used as a defence. The guidelines suggest starting points of 3-12 years imprisonment depending on the degree of provocation. Aggravating and mitigating factors are relevant. The slow burning fuse of a woman in a domestic violence situation was recognised as being relevant in accounting for any delay.
8. In Australia a recent Law Reform Commission has recommended the abolition of Provocation as a defence. However, they do not have a mandatory life sentence attached to a Murder conviction.
The Government have rejected the proposals for reform proposed by the Law Commission. They have proposed the abolition of the common law defence of provocation and the introduction of a limited defence in its place based on the following:
• a loss of self-control triggered by fear of serious violence (this would cover abused women)
• a justifiable sense of being seriously wronged
• or a combination of the two.
Specifically excluded from its scope are situations where D is:
• predominantly responsible by his own criminal conduct for the qualifying trigger (self induced)
• a qualifying trigger which relates to acts of sexual infidelity
• where D as an excuse to use violence, incited the things said or done which allegedly caused him to have a justifiable sense of being seriously wronged.
DIMINISHED RESPONSIBILITY – CRITICAL EVALUATION POINTS
1. Prosecution try to use insanity once Diminished Responsibility is mentioned — stigma and mental hospital may make people plead guilty.
3. Judge may not allow defence to be used eg. Yorkshire Ripper for policy reasons.
4. Covers areas that are not considered to be an abnormality of mind eg epilepsy, depression.
5. Involves difficult concepts for the jury eg intoxication when it can and cannot be taken into consideration.
6. Burden of proof changes to the defence.
The Government has decided to substantially accept the Law Commissions recommendations for reform of this defence and proposes to re-define diminished responsibility as follows:
(1) A person (P) who kills or is a party to the killing of another is not to be convicted of murder if P was suffering from a relevant mental impairment which provides an explanation for P’s acts and omissions in doing or being a party to the killing.
(1A) “Relevant mental impairment” means an abnormality of mental functioning which –
a) arises from a recognised medical condition, and
b) substantially impairs P’s ability to do one or more of the following –
i) to understand the nature of P’s conduct;
ii) to form a rational judgment;
iii) to exercise self-control
(1B) For the purposes of subsection (1), a relevant mental impairment provides an explanation for P’s conduct if it causes, or is a significant contributory factor in causing the person to carry out that conduct.
Significantly the government have not adopted the proposal of the Law Commission which included developmental immaturity in a defendant under the age of 18.
INSANITY CRITICAL EVALUATION
Medical irrelevance – The Royal Commission on Capital Punishment stated the rules were based on obsolete and misleading conception of the nature of insanity. Doctors now recognise that insanity is not just about the loss of reasoning powers but the whole personality. A medically insane person may understand the nature of what they do and understand that it is wrong, but still commit the offence because of the illness.
Burden of proof – The fact that the burden of proof is on the defence goes against the legal principle that the defendant is innocent until proven guilty. There have been a number of recommendations that the burden of proof should be on the prosecution.
Ineffectiveness – The purpose of the test for insanity is to distinguish between the accused that is a danger to society and to themselves. However, it includes those who are diabetic and epileptic.
Sentencing – Even though the sentence for murder is life imprisonment defendants would rather plead guilty rather than face an unlimited time in a mental institution.
Proposals for reform:
• Abolition of the rules
• Create a new defence of mental disorder as recommended by the Butler Committee.
• Extend automatism to include those diseases which can be controlled by drugs, but would not cover those who have been careless in taking their medication.
• Abolish the defence and consider insanity as a mens rea issue. It could then be taken into account as mitigation in sentencing. However, where a defendant has mental health problems there is little to be gained by punishing them.
AUTOMATISM CRITICAL EVALUATION
Irrational distinctions – Distinguishing between internal and external causes has been criticised as leading to absurd and irrational distinctions e.g. Quick and Hennessy cases.
Possibility of wilful action – Criminal law writers Clarkson and Keating 2003, have drawn attention to the fact that some psychiatrists believe that even when unconscious people can act voluntarily. Consequently it is argued that it should not give rise to a complete acquittal.
Reform
• The draft criminal code proposes maintaining the law on automatism as it stands, on the grounds that it is in the public interest. However, it does not protect the public against someone who is prone to recurring states of automatism.
• The distinction between internal and external causes could be abolished. The reform of the defence of insanity bringing it in line with medical opinion would help with this.
INTOXICATION CRITICAL EVALUATION
1. The Current Law: Voluntary Intoxication
The Law Commission Report no 314 on "Intoxication and Criminal Liability" makes the initial observation that the terms "specific intent" and "basic intent" have been interpreted by different judges and writers to mean different things, resulting in great uncertainty.
The common analysis identifies specific intent as requiring a specific fault requirement of intention, and basic intent as all other offences not requiring a specific fault requirement of intention. This presents number of problems: • Basic intent is defined purely negatively, i.e. it is not specific intent. • Basic intent is a misleading term, as no intent is required. For example, gross negligence manslaughter would be a basic intent offence, requiring only the mens rea of negligence, albeit gross. • Specific intent offences do not necessarily require proof of intention. For example, handling stolen good is a specific intent offence, but only requires the knowledge or belief that the goods were stolen. • Conversely, some offences requiring proof of intention. For example, rape requires proof that D intentionally penetrated the vagina, anus or mouth of another person. • Some offences that may be committed with a specific intent, for example assault or battery, are basic intent offences because conviction can be based upon proof of recklessness.
Rationale for the Current Law on Voluntary Intoxication
In 2:14 of the report the Law Commission declares that an offence will be regarded as one of basic intent where "the commission of its external element is the moral equivalent of committing it with the fault required by the definition of the offence, and that D therefore ought to incur criminal liability for the harm or danger caused or created". In other words there is a principle of "moral equivalence" which allows D, because of his voluntary intoxication, to be convicted where he lacked the mens rea normally necessary for the offence. (However, this "moral equivalence" does not exist for specific intent offences such as murder, theft or handling stolen goods).
This approach reflects the current law, but it is criticised by those who believe that D should not be convicted of an offence if he lacks the mens rea for it. These "purists" believe that it is a principle of criminal law that D should not be convicted unless the prosecution has successfully established the required elements of the actus reus and mens rea. However, following Majewski, it is clear that D is liable for any offence of subjective recklessness if her commits the external element (the actus reus) while voluntarily intoxicated. In the words of Lord Elwyn Jones: "If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition."
2. The Current Law: Involuntary Intoxication
Using the "moral equivalence" argument, where D commits the actus reus of an offence but lacks the mens rea because of his intoxication, he will not be liable if his intoxication was involuntary. This applies to offences of basic and specific intent. For example, D's soft drink may be laced with a drug causing him to become intoxicated; eh then throws a brick through a shop window. Clearly he lacks the mens rea for the offence of criminal damage. But, because his intoxication was involuntary, he will not be liable for this basic intent offence. This is also true where the intoxication is self-induced, but morally blameless. For example, is Hardie the defendant took prescription drugs without realising their effect.
3. Law Commission Recommendations
Recommendation 1: the Majewski rule
The Law Commission recommended a general rule that: (1) if D is charged with having committed an offence as a perpetrator; (2) the fault element of the offence is not an integral fault element (for example because it merely requires proof of recklessness); and (3) D was voluntarily intoxicated at the material time; Then, in determining whether or not D is liable for the offence, D should be treated as having been aware at the material time of anything which D would then have been aware of but for the intoxication.
Recommendation 2: the rule for the integral fault elements
If the subjective fault element in the definition of the offence, as alleged, is one to which the justification of the Majewski rule does not apply, then the prosecution should have to prove that D acted with that relevant state of mind.
Recommendation 3: the integral fault elements
The following subjective fault elements should be excluded from the application of the general rule and should, therefore, always be proved: (1) intention as o a consequence; (2) knowledge as to something; (3) belief as to something (where the belief is equivalent to knowledge as to something); (4) fraud; and (5) dishonesty
Notes
The terms "specific intent" and "basic intent" have been removed. In their place is a list of some subjective fault elements that must always be proved. These are known as "integral" fault elements. These are listed in recommendation 3.
The prosecution will always have to prove these (recommendation 2).
The Majewski role (recommendation 1) would apply to all other states of mind, including subjective recklessness.
Recommendation 10: Involuntary Intoxication
D's state of involuntary intoxication should be taken into consideration in determining whether D acted with the subjective fault required for liability, regardless of the nature of the fault element.
Notes
This simply restates the present common law position. In other words, if D, as a result of his involuntary intoxication, did not form the mens rea for the offence charged, then he will be acquitted regardless of the mens rea required.
Conclusion
These recommendations have the following advantages: (a) they abandon the confusion caused by use of the terms "basic intent" and "specific intent"; (b) they maintain the existing common law balance between two extremes (on the one hand the defence be available for any offence where D lacked mens rea because of his intoxication, whether voluntary or involuntary; on the other hand the defence not be available at all where the defendant was voluntarily intoxicated); (c) they clearly identify which states of mind require proof by the prosecution of mens rea (now known as an integral fault element).
SELF DEFENCE CRITICAL EVALUATION
All or nothing defence – Self defence is a complete defence not a partial defence. This can lead to injustice e.g. R v Clegg where excessive force was used by a soldier in Northern Ireland and he was convicted of murder. His lawyers had argued that if excessive force was used then this should be a partial defence and reduce conviction to manslaughter.
European Convention on Human Rights – The defence can be successful where a defendant honestly, but mistakenly believes that force was necessary. For example the police shot Harry Stanley believing him to be an Irish terrorist with a gun. In fact he was Scottish and had a plastic bag with a table leg in it. It has been argued that this in breach of the European Convention on Human Rights and in these circumstances it should only be a partial defence, reducing a charge of murder down to manslaughter.
Mistake and intoxication – 0’Grady creates an exception to the rule in Williams (Gladstone) in that someone who makes a mistake about the use of self defence because they are drunk, cannot rely on the defence. This conflicts with the general principle in the defence of intoxication. If someone is so drunk that they could not acquire the mens rea then this could be a partial defence if the charge is one of specific intent.
Sexual discrimination – The defence is more likely to succeed for male defendants rather than female ones. The defence has been mainly built up based on male responses to violence. Battered women have had problems with this if they act in anticipation of further violence then the threat is not imminent and if they use a weapon then this may be considered to be excessive force.
Reform
• Increase the rights of home owners – There was great discussion on this revolving around the much publicised case of R v Martin.
• Abolish the rule in O’Grady
• The draft Criminal Code, Law Commission and Criminal Law Revision Committee have all recommended that excessive force should reduce a murder charge to manslaughter.
• Remove the requirement of imminent threat – this would help battered women.
CONSENT CRITICAL EVALUATION
General Issues
(a) Is the basis for allowing/denying consent clear? For example, is it based upon the level of harm caused (Leach)? If so, why allow the defence for boxing where serious injury and death are common, or for serious injuries inflicted in horseplay (Aitken)? Or is it based upon the intention of the parties (contrast Brown where the harm was the purpose of the activities, with Wilson where the harm was incidental)? Or is it based upon the need to protect innocent groups (Burrell and Harmer)? If so, what about very young children (A v UK) where corporal punishment was made illegal.
(b) Does the decision in Brown deprive people of basic liberties (Lord Mustill dissenting: "The state should interfere with the rights of the individual no more than is necessary"?)
(C) Is the basis for judging the validity of consent (identity of the person or nature and/or quality of his act) artificial? How can the defence be available to Richardson, when not to Tabassum or Dica?
Individual Issues
(a) Horseplay: Jones perhaps correctly recognises that boys engage in rough and undisciplined play. But why should Aitken attract the defence? Isn't their activity extremely dangerous?
(b) Lawful chastisement: doesn't the decision in A v UK rightly identify the need to give better protection to the most vulnerable group of people i.e. young children? How can the law in the Children Act be justified?
(c) Boxing: Barnes points out that only behaviour that is "sufficiently grave to be categorized as criminal" should give rise to an action e.g. where serious injury is intended. But isn't that the aim of boxing?
(d) Fighting: however, if boxing should attract the defence of consent, they why does ordinary fighting not attract it?
(e) Tattooing: is the decision in Wilson right? Although the law doesn't want to interfere in activity between a man and his wife, the injuries were serious enough to warrant medical attention.
(f) Valid consent: Is there a clear distinction between Richardson and Dica? And exactly what did the boys not understand in Burrell and Harmer?
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NON-FATAL OFFENCES - OFFENCES AGAINST THE PERSON ACT 1861
Non-fatal Offences Evaluation
1. Strengths of Current Law
Clarification (a) The meaning of assault in S47 OAOA 1861 and in the CJA S40(3) has been consistently interpreted to mean assault and/or battery. (b) Following the HL decision in R v Savage; Parmenter, the mens rea for abh is now clear. (c) The conflict between "inflict" in S20 and "cause" in S18 has eventually been resolved.
Development (a) The offence of battery has developed to include indirect (Haystead) and omissions (Santana-Bermudez). (b) The law for abh has adapted to meet new circumstances e.g. the inclusion of psychological harm in abh (Chan-Fook). (c) Gbh has developed to meet new circumstances e.g. the inclusion of serious psychological harm (Burstow); and serious biological harm (Dica). (d) The actus reus of gbh recognises the age of the victim as a relevant factor (Bollom), and the possible cumulative effect of a series of minor injuries (Brown and Stratton).
2. General Weaknesses
(a) Problems with vocabulary in 1861 Act e.g. whosoever (old-fashioned), occasioning (old-fashioned and simply means causing), grievous (not in general use as an adjective other than in this context), maliciously (not in common use as an adverb, and if it means intentionally or recklessly it is better to use these terms). (b) Meaning of assault is ambiguous: a narrow technical meaning (causing V to apprehend immediate unlawful personal violence), and a broad meaning in S47 i.e. assault and/or battery. The CJA 1988 identifies assault and battery but then refers to "common assault" in S40(3). Why? Presumably it means assault or battery, as in S47. (c) No logic in the numbering of offences in the OAPA. NB OAPA 1861 was a Consolidation Act, bringing together all the offences against the person into a single Act, and no thought was given to the ordering of the clauses. (d) S20 and S18 both contain two separate offences (wounding and gbh): wounding deals with the method of injury, gbh with the extent of the injury – no logical connection between them. Further, wounding can be trivial, yet S20 is a serious offence. (e) Sentencing is illogical for S47 and S20 – same maximum for two very different offences. However, the two offences are seen in quite different lights by the defendants and their advisers; heavier sentences will in practice be given for S20 offences; and judges will take a dimmer view of gbh than abh when considering previous convictions. (f) Uncertain whether consent is a defence to non-fatal offences, or whether it is an element of the offences themselves: even judges seem to disagree. In Brown, Lords Jauncey, Templeman and Lowry seemed to regard it as a defence, but Lords Mustill and Slynn as a factor negativing the actus reus.
3. Weaknesses in Actus reus and mean rea of individual offences
(a) The meaning of "immediate" in assault is vague (see the judgments in Smith and Constanza, especially the formula adopted by Schiemann LJ). Also do the courts confuse "apprehension of immediate personal violence" with "immediate apprehension of personal violence"? e.g. the letters received by V in Ireland will have caused immediate apprehension, but did they cause apprehension of immediate violence? At least arguable. (b) The mens rea for S20 doesn't require intention ore recklessness for the serious harm caused (Mowatt). Is this harsh on D? Ditto S47 (Savage). Look at Savage, however, from the point of view of V. (c) S18 requires intention. This may be direct or oblique/indirect. This is prone to the same problems as with murder i.e. is foresight of the consequences as a virtual certainty intention itself, or merely evidence from which the jury may infer/find intention? (d) "Maliciously" in S18 is redundant with intent to cause gbh, as the necessary mens rea is contained with the ulterior intent. However, it is relevan when the charge is based upon an intention to resist/prevent arrest (Morrison). Is this good drafting? (e) In Morrison a conviction for S18 was based upon the ulterior intent of resisting arrest; only recklessness (maliciously) was required for the injury caused. Is this fair, or would it be better to have a separate offence of causing serious injury when resisting arrest? (f) S20 uses "inflicting" for gbh; S18 used "causing": do they mean the same? Historically, contrast Clarence (inflict needs an assault) and Martin (convicted through no assault). In Wilson 1983 HL decided no assault needed for gbh, confirmed in Burstow 1997, with the HL saying there was "no radical divergence" of meaning between inflict and cause!! Remember the OAPA 1861 was a Consolidation Act, and so consistency not expected.
4. Proposals for Reform
Law Commision Report no 218 proposed 4 new offences: (a) Replace separate offences of assault and battery with a single new offence of assault that includes both elements i.e. the same as adopting the broader definition of assault. (Se 2b above). (b) Replace S47 abh with offence of intentional or reckless injury: Mens rea needed for the injury caused. (See 3b above). (c) Replace S20 with reckless serious injury. Mens rea (recklessness) needed for the serious injury. (See 2a, 2d, 3b and 3f above). (d) Replace S18 with intentional serious injury. Resisting arrest etc disappears. (See 2a, 2d, and 3e above).
Note: "wounding" would be abolished as an offence. Charges involving wounding would be brought under (b), (c) or (d) according to seriousness of the injury and accompanying mens rea.
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SMALL PROBLEM QUESTIONS ON CRIMINAL LAW DEFENCES
(I) Keeley had invited Amy to her party. When Amy arrived Keeley laced Amy’s drink to see how she would react. Infact Amy became ill and decided to drive home; she collided with a car killing the driver. In a dazed state Amy walked home to find a burglar in the house. She chased him around the house and he fell down the cellar stairs and was injured.
Advise Amy.
(2) Carla was in a self-service shop when she began to feel very unwell. She was a diabetic who had taken her insulin as prescribed but had afterwards eaten a lighter breakfast than usual. She put a tin of cat food in her handbag and not into the shopping basket which she was carrying. She saw Tony her neighbour, with whom she was on bad terms, coming towards her. She hit Tony over the head with her umbrella and badly injured hiM
Advice Carla of her criminal liability. What difference if any, would it make to your advice if instead; Carla had failed to take her insulin as usual at breakfast time?
(3) During a charity football match Vinnie Jones tackled David Beckham from behind. Vinnie was sent off and David Beckham's leg was broken. Could Vinnie be charged with a criminal offence?
(4) M had perverted sexual desires and liked to suck women's toes. M asked his girlfriend if he could suck her toes and she agreed. Unfortunately M got carried away and bit deeply into his girlfriend’s toes which required stitches. Has M committed a criminal offence?
(5) Mrs F was in charge of a group of law students on a visit to London. Some students had been drinking secretly and became aggressive An argument ensued between the students and a passing tramp. The tramp started to raise his bottle in order to hit one of the students. Mrs F decided to intervene and kneed the tramp between his legs.
Advise Mrs F as to her criminal liability. Would your answer be any different if the tramp had fallen to the floor and Mrs F started to kick him in the side while he was on the floor?
QUESTION ONE
Amy, who was 16 years old, took her four year old brother Ben to the park. Whilst Ben was playing on the slide, Amy went off into the trees with some friends and smoked some cannabis. When she returned, Ben was complaining that he was cold and wanted to go home. Amy dragged him to the swings and, even though he was crying and trying to get off the swing, pushed him vigorously. Ben fell awkwardly from the swing and cut his face as he slid along the ground. It was later discovered that Ben’s sight was impaired.
Claire, Amy and Ben’s mother, was devastated when she discovered what Amy had done and she began to behave very oddly. She stopped looking after herself properly, lost her temper easily and wandered the streets at all hours of the day and night in a dishevelled state. Whilst walking through the town on one night, she encountered a neighbour, Derek, who made comments about her appearance and suggested that Amy and Ben needed a proper mother. About five minutes later, she saw Derek again. he was waiting to cross a busy road and she ran up behind him and pushed him. Derek stumbled into the road and was killed by a passing car.
(a) Considering any defence(s) which she may raise, discuss Amy’s criminal liability arising out of her treatment of Ben and for the injuries which he suffered. (25 marks)
(b) Considering an defence(s) which she may raise, discuss Claire’s criminal liability for the murder of Derek. (25 marks)
(c) Discuss whether the defences to murder dealt with by the Homicide Act 1957 are in need of some clarification or reform. (25 marks)
QUESTION TWO
Alice mistakenly believed that her friend Briony had been spreading malicious rumours about her. She spent an evening brooding about it and drinking a bottle of wine, at the end of which she wrote a letter to Briony warning her to be on her guard from now on. She then taped a razor blade into the letter, put it in an envelope and posted it. When the letter arrived, it was opened by Briony’s six-year-old son, Chris, who suffered deep cuts to his fingers from the razor blade. Briony subsequently read the letter and became very anxious about her safety.
Briony’s husband, Dave, worked with Alice’s husband, Eddie. Dave confronted Eddie at work about the letter and Chris’s injuries, knocked him to the ground and began to choke him. Eddie managed to get hold of a heavy spanner and hit Dave twice about the body. Whilst Dave was staggering backwards from the blows, Eddie got up and struck him a heavy blow to the head with the spanner. Dave died from his injuries.
(a) Discuss Alice’s criminal liability in connection with the incidents involving Briony and Chris. (Your answer should also discuss any relevant defences.) (25 marks)
(b) Discuss Eddie’s criminal liability for the death of Dave. (Your answer should also discuss any relevant defences.) (25 marks)
(c) How satisfactory is the current law on malice aforethought (the mens rea of murder)? (25 marks)
QUESTION THREE
Geoff had been receiving prolonged treatment for mental illness but was still hearing ‘voices’ and having strange ‘visions’. Whilst sleeping rough, he became friendly with Henry and Ian who invited him back to their flat. There, they engaged in a challenge, holding each other’s hands in turn over an electric cooker hotplate to see who could endure the pain the longest. Henry held Geoff’s hands over the hotplate for a long time, even though he could see that Geoff’s hands were changing colour. As a result, Geoff’s hands were very badly burnt.
During the night, Geoff got up whilst Henry, Ian and Ian’s girlfriend, Janet, were asleep. He plugged in an iron in the belief that it was a radio and left it standing upright on the carpet. When it made no sound, he wandered out of the house, knocking over the iron as he left. The iron set fire to the carpet and Janet was killed when the fire spread to the rest of the house.
(a) Discuss Henry criminal liability for the injury to Geoff’s hands. (Your answer should also discuss any relevant defences.) (25 marks)
(b) Discuss Geoff’s criminal liability for the death of Janet. (Your answer should also discuss any relevant defences.) (25 marks)
(c) What criticisms would you make of the current law on non-fatal offences against the person? (25 marks)
QUESTION FOUR
Adrian and Brian were in a night club, where Adrian took some drugs. Shortly afterwards, Adrian began to act in a strange manner, giggling and stumbling about. When Adrian clumsily spilled a drink over Chris, Brian decided that it was time to get him home. As they left the night club, they were followed by Chris and his friend, Don. Chris challenged Adrian to a fight and Adrian took off his jacket and then immediately lashed out at Chris before Chris was prepared. The blow sent him reeling backwards and he dislocated his knee in a very awkward fall.
Meanwhile, Brian had run off but had been caught by Don in a disused building. Don was holding Brian tightly round the neck and causing him to choke but Brian managed to elbow him twice in the face. Don released his grip, suddenly collapsed, and was sick as he lay on his back, Brian looked at him for a few seconds and then walked away Don was later found to have died by choking on his vomit.
(a) Discuss Adrian’s criminal liability in connection with the injury to Chris. (25 marks)
(b) Discuss Brian’s criminal liability for the involuntary manslaughter of Don. (25 marks)
(c) How satisfactory is the current law on murder? (25 marks)
QUESTION FIVE
From an early age, Eric had been obsessed with the welfare of animals and he had long believed that all pet shop owners were evil. Recently, he had become convinced that the animals in Fred’s pet shop were pleading with him personally to free them from Fred’s cruelty. He sent a number of e-mail messages to Fred, one typical example of which read, “I am watching you every minute. You cannot escape. I can get you any time I like”. Fred was afraid to go out and began to suffer from severe depression.
Late one night, Eric was out walking his dog when Geoff, who knew of Eric’s obsession with animals and had often, taunted him about it, walked past him making gestures as if he were intending to kill and eat the dog. Eric chased Geoff onto a bridge over a dried-up riverbed and forced him to fall some 10 meters to the ground below. Eric then walked off despite the fact that he could see that Geoff had not got up. In fact, Geoff had broken his back and was not discovered until the next morning, by which time he had died from the injuries and the shock that they had caused.
a) Discuss Eric’s criminal liability in convection with the incidents involving Fred. (25 marks)
b) Discuss Eric’s criminal liability for the death of Geoff. (25 marks)
c) Discuss the suggestion that non-fatal offences against the person, is in urgent need of reform. (25 marks)
QUESTION SIX
Emma who was 12 years of age but looked older, paid for her tongue to be pierced and a stud to be inserted by Farah. Emma’s tongue rapidly developed a serious infection which required hospital treatment. The treatment was administered by George, a newly qualified doctor. George misinterpreted Emma’s medical record and gave her an antibiotic drug which her body could not tolerate. This resulted in her death.
During the past few years, Michael had often experienced powerful delusions. When he learned the circumstances of Emma’s death, he immediately became convinced that there was a conspiracy between Farah and the hospital to kill children. He left a number of telephone messages on Farah’s answerphone, in which he called her “scum” and threatened to destroy her business. In consequence, Farah became very depressed. Michael also threw a stone at the windscreen of Farah’s car as she drove past him. Farah lost control of the car and crashed into a wall, causing her to suffer a severe neck injury.
a) Discuss the criminal liability of Farah and George for involuntary manslaughter arising out of Emma’s death. (25 marks)
b) Discuss Michael’s criminal liability arising out of the incidents involving Farah. (25 marks)
c) To what extent are the defences, which relate to the defendants state of mind, in need of reform? (25 marks)
QUESTION SEVEN
Ena who was 65 years old, was returning from shopping as Harry and Javad were skateboarding in the street. Harry deliberately approached Ena very fast from behind, intending suddenly to swerve past her. However, another pedestrian shouted to Ena, “Look out!” Terrified, and without knowing what was happening, Ena stepped backwards and Harry’s elbow caught her in the ribs as he passed. Subsequently, Ena became mildly anxious and depressed. Harry and Javad continued skateboarding, practising tricks involving narrowly missing each other at speed. Harry tried a trick he had never been able to perform before, lost control and smashed into Javad. Javad’s knee was dislocated, requiring painful surgery.
Frank, Ena’s neighbour, suffered from a physical illness which affected his judgment and made him very short-tempered. When he heard about Ena, he was very upset and he began to hate all skateboarders. So, when he saw Luke walking through town with a skateboard, he began shouting at him. Luke laughed and told him not to be such a stupid old man. Frank seized Luke’s skateboard and hit him over the head with it twice with considerable force. Luke died from a brain haemorrhage, made worse by a genetic weakness.
a) Discuss Harry’s criminal liability arising out of the incident with Ena and the injury suffered by Javad. (25 marks)
b) Discuss Frank’s liability for the murder of Luke. (25 marks)
c) In relation to murder (including voluntary manslaughter), consider the suggestion that the current law is unsatisfactory. (25 marks)
QUESTION EIGHT
Mike and Neil went to see Les, who had been drinking heavily. Following some good natured joking about they began to push and wrestle each other. Mike was much weaker than the others and despite protesting suffered a broken wrist when he was wrestled vigorously to the floor by Les. Les then fell asleep, giving Neil the opportunity to shave off Les’s beard, something that he had jokingly threatened to do many times before. When Les woke up, he was very annoyed that he had lost his beard, which he had been growing for a number of years.
Before leaving Les’s house, Neil swallowed some tablets which he found in the bathroom. Subsequently, back in his own flat, he set fire to the carpet (which belonged to the landlord) under the delusion that he was making a cap fire. The fire spread rapidly through the house, trapping Pam in her top floor flat. In an attempt to help her to escape, Raisa, a next door neighbour, put a ladder up to the window. However, Raisa did not lock the sections of the ladder properly and it collapsed when Pam stepped onto it. Pam fell from the ladder and was killed.
a) Discuss the criminal liability of Les arising out of Mike’s injury, and of Neil arising out of shaving off Les’s beard. (25 marks)
b) Discuss the criminal liability of Neil and of Raisa for the involuntary manslaughter of Pam. (25 marks)
c) Select any two aspects of the law on offences against the person which you believe are unsatisfactory. Explain the reasons for your belief. (25 marks)
QUESTION NINE
Andy and Ben drew attention to themselves by their rowdy behaviour in a bar. Colin and his large group of friends moved menacingly towards Andy and Ben, who immediately jumped up and began to look for an escape. To try to gain more time, Andy said loudly to Ben, “Get the gun out”. In fact as both Andy and Ben knew, there was no gun, but Colin and his friends stopped and moved back a little. Andy and Ben then separated as they ran off. As Andy turned a corner at full speed, he found Dora a pedestrian, in his path. Andy barged straight into her and knocked her over. Dora fell heavily, breaking her arm and cutting her legs on a bottle which broke as she fell onto her shopping bag.
Meanwhile, Colin threw a stone at Ben as he chased him, and struck him in the back. Ben stumbled into the road as Elaine was approaching in her car. Elaine was a learner driver being supervised by her friend, Freddy. In a sudden panic in trying to avoid Ben, Elaine pressed the accelerator pedal instead of the brake, and lost control of the car, which crashed into a wall, killing Freddy.
a) Discuss the criminal liability of Andy in connection with the incident in the bar and the injury to Dora. (25 marks)
b) Discuss the criminal liability of Colin and of Elaine for the involuntary manslaughter of Freddy. (25 marks)
c) In relation to non-faltal offences against the person, discuss the suggestion that the current law is satisfactory and is not in need of reform. (25 marks)
NOTES
NOTES
NOTES
NOTES
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TEST YOURSELF
1. Learn the definition of murder 2. Learn the Nedrick test and practice applying it to different situations. 3. What was the point of law that came from R v Matthew and Alleyne?
TEST YOURSELF 1. Write an accurate definition of Provocation from memory. 2. Outline the meaning of the subjective and objective test. 3. What are the points of law from the following cases: • R v Ibrams • R v Cocker • R v Ahluwalia • R v Humphrey • DPP v Camplin • A-G for Jersey v Holley
TEST YOURSELF
1. Learn the definition of diminished responsibility. 2. State three examples of possible causes of abnormality of mind. 3. Who has the burden of proof for diminished responsibility? 4. State the point of law for the following cases: • R v Byrne • R v Gittens • R v Gray
TEST YOURSELF 1. State 3 key issues that need to be proved for unlawful act manslaughter. 2. What is the mens rea for unlawful act manslaughter? 3. Why was there an unlawful act in R v Cato but not R v Dalby? 4. What was the point of law in R v Church and R v Goodfellow? 5. Why was R v Adomako an important decision? 6. State 3 things that need to be proved for gross negligence manslaughter. 7. How will the court decide whether a duty of care is owed? 8. What was the significance of R v Bateman? 9. How will a jury decide whether gross negligence manslaughter has occurred?
Activity – Research the use of intoxication as a defence in Australia
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