CRIMINAL Flashcards
(177 cards)
1
Q
Can a court look at case law prior to a particular statute
with respect to The Attempts and Criminal Attempts Act 1981?
⇒ other statutes?
A
No
Campbell [1991] Crim L R 268 and Gullefer [1990] 3 All ER 882 (see later)
The court held that the judge should not refer to the previous law, they should use the terms contained in the Act.
2
Q
Greyhound track. Dog going to lose. Jumped on track with intention of stopping race =› voiding race =› reclaim bet. Race not stopped.
Attempt to steal money?
A
GULLEFER 1990 3 ALL ER 882
Gullefer (not Gullver) was convicted but appeal + ie =› Attmept (-)
on grounds of acts did not go beyond mere preparation. He would still have had to go to bookmakers, demand his money, etc..
3
Q
D found examining the lock of a barn. D’s car also found nearby, containing metal-cutting equipment. D charged with attempted burglary, and convicted at Crown Court. CA said what and case?
A
R v Tosti & White (check)
Ds attempted to burgle a barn. At around midnight, they were disturbed while examining the padlock on the barn doors when they realised that they were being watched. They ran off to their cars which were parked in a nearby lay-by;
HELD
acts were more than merely preparatory (guilty of attempted burglary).
4
Q
D found in boys toilet of school with various kidnapping paraphernalia. D charged and convicted of attempted false imprisonment. Appeal?
A
Geddes (1996) Crim LR 894
D was caught in a lavatory block of a school with a large knife, lengths of rope and masking tape. It was clear that D was laying in wait to falsely imprison (kidnap) any schoolboy who happened along. However, he had not confronted a pupil.
Held:
Attempt (-)
Had not moved from planning to execution of the plan. He had not confronted a pupil
D must have “actually tried to commit the offence”
D’s actions at these stages may not yet be sufficiently proximate to completion of principal offence
May incentivise police malpractice (HORDER Principles of CrimLaw 8th)
Note: the accused would now be guilty of a substantive offence under the
Sexual Offences Act 2003 (trespass with intent to commit sexual offences)
5
Q
Assault and Sexual Offences Act 2003.
D approaching 6yo asking if he wanted to watch pornography on his laptop in office.
D charged with attempt?
A
Attempt (-)
K 2009 EWCA Crim 1931
Ds acts were not beyond mere preparation
D ha not yet led child to laptop
BUT charged with substantial offence of
SOA 2013, s12
CF
Geddes
school caretaker with kidnapping equipment again attempt (-) but covered by a sexual offences act
6
Q
Example of attempt beyond very close to point of no return ie crossing the Rubicon from 1990
A
Jones [1990] 3 All ER 886 attempt +
D, with intent to murder his rival in love, bought a shotgun and sawed off the barrel. He disguised himself and lay in wait for P outside P’s daughter’s school. After P’s daughter had walked off, D jumped into the car rear seat, pointed the shotgun at P and said “you’re not going to like this”.
⇒did NOT have his finger over the trigger or shoot at P.
⇒P managed to grab the gun and escape.
Held:
This was an attempt since more than mere preparation
Once he had embarked on the commission, he had gone beyond merely preparatory
Pneumonic
Minder series ended in 1990. Taffy Jones in case wanting shoot Terry McCann finger of trigger attempt obvious
7
Q
Acting suspiciously outside post office with imitation firearm and threatening note. Attempt?
A
NO.
On appeal attempted robbery (-)
R v Campbell [1991] Crim LR 268 (CA).
Had been convicted for attempted robbery
Robbery complete when theft complete ONLY once got money from till == proximity in time not given here! Hence quashed
Facts
C was acting suspiciously near a post office. He wore a crash helmet, gloves, and had sun-glasses on, when arrested in front of the post office, was found to have an imitation firearm, and a threatening note in his pocket. He admitted that he had intended to use the note to frighten the person behind the post office counter, but maintained that he had changed his mind and was arrested before he could return to his motor cycle to leave.
Pneumonic
Surprise to see the wierd Sol Campbell hanging outside PO.
8
Q
Define inchoate offence
A
Just begun, undeveloped.
D has made some progress towards a harmful end foreseeing or intending harm to come about.
9
Q
Can a crime though impossible still be an attempt?
A
Yes
Shrivpuri 1987 AC 1
Guilty of ATTEMPTED import of controlled substances
Here drugs were not drugs ie crime was impossible
D was detained whilst in the possession of a case that he believed contained either heroin or cannabis, but in fact contained nothing of the sort. He was charged with attempting to commit the statutory offence of knowingly being concerned in dealing with a drug whose importation was prohibited (smuggling drugs). He could not be guilty of the full offence as there was no actus reus for the prohibited offence of dealing with drugs – he was dealing with a legal substance! He was found guilty of attempt and appealed
Held:
The House of Lords dismissed the appeal.
D couldn’t actually commit the full offence as the case did not contain drugs 1(2). However under 1(3) if the facts were as he believed them to be he would have intended to commit the offence. He had also done acts which were more than merely preparatory and so had completed the AR. His conviction for the attempt offence was safe.
10
Q
What is the balance that needs to be drawn with respect to inchoate offences?
A
Fairness to D versus Protection of Public
11
Q
If D succeeds in committing principle offence, still liable for an earlier attempt?
A
Technically (+)
==> an attempt has an essential element of failure
BUT“inappropriate to charge both” ie attemtp subsumed within the completed offence at common law
Webley v Buxton 1977 QB
The greater includes the less
12
Q
What is S. 1(1) Criminal Attempts Act 1981 == CAA 1981
A
1(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
13
Q
What about Attempt by Omission?
A
Generally not as s.1.(1) speaks about “a person doing an act”
BUT Court may decide for example Mother starving child with intent to kill child under attempted murder
14
Q
What offences are NOT covered by attempts?
A
Summary offences
AND some expcetions, eg
involuntary manslaughter (would be attempted murder)
15
Q
What is the Last Act Test in terms of pre-1981 attempts?
A
Beyond point of no return, the crossing of the Rubicon (Roman soldiers)
16
Q
Sawn off shot gun case attempt?
A
Jones 1990 91 Cr App
D got into back seat of car with V pointed sawn off shotgun, D, with intent to murder his rival in love, bought a shotgun and sawed off the barrel. He disguised himself and lay in wait for P outside P’s daughter’s school. After P’s daughter had walked off, D jumped into the car rear seat, pointed the shotgun at P and said “you’re not going to like this”. He did not have his finger over the trigger or shoot at P. P managed to grab the gun and escape.
Held: Attempt(+)
Beyond mere preparation
Once he had embarked on the commission, he had gone beyond merely preparatory
17
Q
Rape and Attempt.
Where the appellant had convinced the complainant that she was going to be raped and had overcome her resistance, there was ample evidence to justify the conclusion that he had taken steps beyond the merely preparatory stage and was guilty of attempted rape.Appeal against conviction, with leave of the single judge, on 2 October 2002 at the Central Criminal Court of attempted rape for which the appellant (‘D’) was sentenced to an extended sentence of eight years’ imprisonment. The complainant (‘C’) gave evidence as follows: (i) she had a conversation with D while waiting at a bus stop; (ii) when C moved away from D, he went towards her and put his arms around her; (iii) when C walked away, D followed her and told her he wanted to have sexual intercourse with her; (iv) D told C that it was dark and that no one would hear if he took her into a dark road; (v) D said that he would rape C; (vi) C ran away screaming, but D ran after her and pulled her backwards by her hair, held her in an arm lock and covered her mouth; (vii) D then dragged C to another bus stop; (viii) C thought that rape was inevitable and said that D could do what he liked as long as he did not hurt her; and (ix) a police car arrived, and D stepped out into the road.
D charged with attempted rape?
A
Dagnall 2003 EWCA Crim
attempted rape (+) and conviction upheld on appeal
Attempted rape at stage of physical confrontation with woman. NB far removed from penile penetration of Vs vagina, anus or mouth.
HELD: (1) The most important aspect was that by the end of the incident C was convinced that she was going to be raped. (2) The evidence was amply sufficient to justify the conclusion that D had gone beyond the merely preparatory stage. In what he did, D had virtually succeeded, and had overcome C’s resistance. The arrival of the police car prevented the ultimate offence from taking place. (3) The jury’s verdict was safe.Appeal dismissed.
18
Q
What does the CAA Criminal Attempts Act say about factually impossible acts?
A
S.1(2)
A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
S.1(3)
In any case where:
(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would
be so regarded, then for the purposes of subsection (l) above, he shall be regarded as having had intent to commit that offence.
19
Q
What about legally impossible acts like adultery?
A
No liability,
as confirmed in Taaffe 1983
Here D attempted to import foreign currency believing it was a crime (incorrectly) no liability for attempt.
20
Q
- Pre 1981!*
- D wired up a soap dish in bathroom to give wife an elector shock. D charged with attempted murder. Appeal?*
A
Whybrow 1951
C-Ct Guilty of attempted murder and upheld by CA.
BUT
judges direction of jury that MR for attempted murder is same as murder was wrong. DIrection should not have included intention to cause GBH.
MR for attempted murder is =› kill V as GBH not sufficient intention because would not complete EVERY ELEMENT OF AR
Why Brow? Technicality?
21
Q
Required MR of Attempted Criminal Damage?
A
Principal offence requires at least recklessnss as to damage BUT attempts requires D to intend to complete every element of AR of Principal Offence =› intention to cause damage.
Analogy
ABH No MR!
MR for Attempted ABH:
Intention to cause ABH
Attempts always needs intention to complete the principal offence
22
Q
Name a case for demonstrating
Conditional Intention leads to Attempt (+)
A
AGs References No’s 1 and 2 of 1979
A conditional intention to steal === an attempt to steal.
HERE D was only going to steal if he found any items of value.
⇒ still intends to steal even if items are unspecified (conditional upon finding them)
⇒ Applies for theft at least
23
Q
D rummaged through a women’s handbag in a theatre and finding nothing worth taking, out it back. Attempted Theft?
A
Easom 1971 2 QB 315
D not attempting to steal == permanently deprive D of bad or contents on indictment. D was attempting to steal unspecific items of value he did not find.
Attempt (-)
BUT
Had indictment put “steal contents of handbag” ==› even tho factually impossible ==› attempt still permissible here attempt (+)
Plainly Easom looking for money => handbag was in effect empty
Easy Andy epsom sex cinema
24
Q
Khan and attempted rape?
A
Khan 1990
CCt said MR for attempted rape same as rape. Guilty even tho no penetration
BUT assuming attempted rape requires D TO INTEND EVERY ELEMENT OF THE AR OF THE PRINCIPLE OFFENCE =:› MR Attemted Rape != MR Rape since would have required D to have intention or knowledge as to V’s non-consent (Circumstance).
BUT here D did not intend non-consent (he did not want V to not consent, he was merely indifferent ie reckless to it reckless != intent)
HELD (Principle)
Attempt need not include an intention as to attendant circumstances of the offence BUT merely MR required for principal offence
25
What is the principle of Khan 1990 CA?
Attempt need not include an intention as to attendant circumstances of the offence BUT merely MR required for principal offence
26
How can Khan be applied to Attempted Criminal Damage?
It would be sufficient that D was reckless as to the circumstance event (here that the property belongs to another)
Criminal Damage: CDA 1971
A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged.......
27
4 problems with Khan
Clean this up!
1. Hard to divide up principal offences until conduct, circumstances and result elemnts
2. lack of clarity mr MR circumstance element.
1. What if MR of circumstance satisfied by lesser negligence? Seems from Law Commission Conspiracy and Attempts No 318, 2009 8.133 that minimum MR would be recklessness
3. && Ulterior MR element ==› should be intended for attempts liability BUT streitig
4. PACE Impossible attempt && Potential Recklessness
28
Undercover police officers sold scrap metal to D intimating that stolen. BUT metal not infact stolen
⇒ Handling Stolen Goods (-)
⇒ Attempt to convert criminal property
Case and outcome?
Pace 2014 EWCA Crim 186
Crown Court guilty(+)
Factual impossibility does not bar liability (seen before) && followED Khan
⇒ sufficient if D had MR of suspicion as to circumstance element of principal offence
⇒ Contrast with where Intention which MUST BE SHOWN in Attempts in relation to MR for a result based offence AR)
HERE Cout of Appeal Attempt (-)
Ratio: The defendants, scrap metal merchants, appealed against convictions for attemption to deal in stolen metals. The court was asked as to the mental element required for criminal attempt under section 1 of the 1981. The context here was an accusation of concealing, disguising or converting criminal property contrary to s.327(l) of the 2002 Act, under which it was necessary to establish that certain elements were suspicious.
Held: Appeals against conviction were allowed.
Section 327(1) required the defendant to have **known** that the property was criminal property. Mere suspicion of that fact was insufficient.
⇒ D is required to intend **EVERY** element of Principal Offence, including any circumstantial elements.
29
Current Law follows Khan and Pace.
ROugh rule if Possible apply Khan ==› **intention** as to conduct and results BUT allowing MR to mirror required for principal offence (may be less than intention)
If Impossible apply Pace ==› intention for every element of principal offence
SO what about Criminal Damage?
30
Name some Non-Fatal Offences against the Person
Assault
Battery
Assault occasioning actual bodily harm
wounding or inflicting GBH
wounding or causing GBH with intent
Plus Conduct based
Harassment and stalking
Torture
slavery
Administering poison
Domestic abuse
31
What is bodily autonomy?
Right not to physically interfered with against your will.
as enshrined in Art 8 ECHR (respect for private life see CONSTI)
==\> personal violence in Assault and Battery
since line cannot be distinguished between different degrees of violence ==\> must prohibit lowest form of it==\> noone has the right to meddle with another in the slighest manner.
Variation
school bullying
32
Name the conduct-focussed offences
Stalking, harassment, poisoning, also sexual offences
33
Links for Non Fatal Offences V The Person
Smith + Hogan Criminal Law 15th EDItion 2018 , Ch 16
34
What is the AR + MR of Assault?
**Under Common Law**
Any conduct by D that , **intentionally or recklessly**, causes V to \*apprehend\* immediate AND unlawful personal violence.
CF _Battery_
Battery **inflicts** unlawful NOT necessarily immediate BUT lacks injury)
35
Result element of Assault AR, MR
AR V apprehends an imminent threat of unlawful force
(in fact on V- ie IF V asleep assault (-) )
MR Intention or recklessness
36
What is the common Law Definition of Victim wrt NonFatalOAtheP?
The Common Law Definition of Victim wrt Non Fatal Offences Against the Person is (Draft Criminal COde)
37
Statutory confirmation of CommonL offences of Assault and Battery?
s.39 Criminal Justice Act 1988 p 75
"Common assault and battery shall be summary offences and a person guilty of eithre...shall be liable to a fine not exceeding Level 5, .....not exceeding six months imprisonment, or both"
Simplies OAPA 1861
38
in order of seriousness the 5 result-based OAtP?
LEAST
5 Psychic (or technical) Assault (no Injury)
4 Battery (no Injury)
3 S.47 Assault occasioning actual bodily harm
2 S.20 Inflict grievous bodily harm or wound
1 S.18 Cause grievous bodily harm or wound **with intent**
**MOST**
start from greatest possible harm and work back
39
Is Hostility a necessary ingredient of Assault?
(-)
For example
Brown 1994 AC 212
sadomasochistic acts performed by men on each other =\> all done for mutual enjoyment of participants
40
Exuberant hug of a stranger at NYE -assault?
given no hostility needed ==\> (+) BUT
D will have genuine belief in consent on that occasion so (-)
ALSO
Hughes LJ in B 2013 EWCA \<>
41
Position of CPS Charging Standards on Assault and Battery, ie. when to charge and when not to
CPS Charging Standards _NOW_
no injury or non serious injuries
_PREVIOUSLY_
slightly more bruises, a black eye, superficial cuts,....
42
Key Authority for defining [Technical] Assault
Fagan v MPC 1969
driving on foot on police officer but omission!
**Any act** by D that, **intentionally or recklessly**, **causes another person to apprehend immediate and unlawful personal violence**.
==\> so as to appear to V to be on the point of ex striking, shooting, or stabbing him.
Also defines Battery CF There
43
D showing V a pistol in a drawer and declaring he would hold her hostage. Assault?
Logdon v DPP
YES
44
D shakes fist at V who s safely locked inside his car
if obvious to V that D is unabel to carry out his threat =\> Assault(-)
[Immediate action iN Assault]
45
Question to ask for Assault +
Does D intend to cause V to believe that he can and will carry out the act immeduately and whether V does so believe
46
D points an immitation gun at V. Assault?
If V believes it to may be a real and loaded gun (+)
EX
*Logdon v DPP* [1976] Crim LR 121 (D.C.)
V was a tax inspector. Whilst attending D’s premises, D showed V a gun in a drawer and told V that she would not be allowed to leave until she had sorted out his tax problems. The gun was in fact a replica. D claimed that it was a joke and that he had no intention of carrying out his threat, **but V believed unlawful force was about to be inflicted. D’s conviction for assault was confirmed by the Divisional Court**.
ELSE NO
47
series of silent telephone calls to women. Assault in 1998?
Assault occassioning ABH (+)
Since AOABH \<== [Tech Assault/Batt] =\> Technical Assault +
The D, Ireland, made a series of ‘silent’ telephone calls to three different women. The victims suffered psychiatric injury. D was found guilty of assault occasioning actual bodily harm (which includes assault) and his conviction was upheld by the House of Lords.
BUT apprehension of "immediate unlawful violence" lacking?
It was an act of some kind ==\> wide definition of act to include ostensiblt silence.
Steyn "A thing said is also a thing done" (but sticks and stones?)
48
Can a condition threat constitute an assault?
Read v Coker (1853) 13 CB 850
D and his servants surrounded V, rolling up their sleeves and threatening to break his neck **if he did not leave the premises**. Assault (+) The threat of violence was immediate and accompanied by an intention to assault.
BUT opinion divided.
EX
Blake v Barnard 1840 9 C&P 626
D presented a pistol at P’s head and said that, if P was not quiet, he would blow his brains out.
HELD: it was incumbent on plaintiff to substantiate the allegation in the declaration, that the pistol was loaded with gunpowder, ball, and shot, and unless the jury were satisfied that the pistol was loaded they ought to find for defendant.
Assault (-)
49
Case where actions would constitute an assault but words negate it
*Tuberville v Savage* [1669] 1 Mod Rep. 3
T put his hand menacingly on his sword and said, “If it were not Assize time, I would not take such language.” T prima facie committed an assault when he put his hand on his sword. However, as it was Assize time (the judges were in town!) his words ruled out the possibility he was going to carry out his threat. The court held that an assault had not been committed.
_These days_
if V was aware that not possible?
=\> What about even if act not possible=\> assault +
And conditional?
50
D, over a period of 20 months, hounded a female ex-colleague by following her, making numerous phone calls, going to her home, writing offensive messages on her door and writing 800 letters to her (the more recent of which she interpreted as threats). The final letter was hand-delivered, giving rise to a charge of assault occasioning actual bodily harm. Case?
R v Constanza [1997] 2 Cr App R 492 . Assault (+).
apprehension of physical violence \<\> to satisfy immediate
BUT
Protection from Harassment Act 1997
51
When is violence under Assault lawful - defences?
V consents OR
D using reasonable force in self-defence
52
MR of Assault: Authority?
R v Venna [1975] 3 All ER 788 (CA)
INTENT AS TO TECH ASSAULT
OR
SUBJECTIVE RECKLNESSNESS
D must intend to cause another person to apprehend the immediate application of unlawful personal violence [force] to his body, or is reckless as to whether such apprehension be caused
(technically also that V's apprehension would be of Immediate violence but unlikely to be enforced)
53
MR of Battery
Intention to apply force to the body of another or recklessness as to whether force be so applied
54
Recklessness and criminal damage cases, what kind of test is used? What was applied?
R v G
subjective test for recklessness
Cunningham style
D must actually forsee the risk of causing V to apprehend immediate and unlawful personal violence and **go on unjustifiably to take that risk.**
55
D creeps up behind V intending to hit him over the head without attracting his attention (=\> apprehension (-) =\> battery) but V unexpectedly turns round to avoid the blow (=\> no battery).
Assault (-) but attempted battery(+) but sumary offence =\> no offence of attempted battery
## Footnote
=\> no offence?
56
digging a pit for V to fall into or placing an obstacle in the path of V so that he falls over it Examples of what kind of force?
Sufficient for battery?
They are examples of Indirect Force.
Battery. Authority
DPP v K [1990] Crim LR 321
D placed **acid into a hand-drying machine** which, when the machine was next switched on, ejected acid onto the person trying to dry himself. D was found guilty of assault occasioning actual bodily harm (s.47), although the battery was indirect.
57
D punched woman who was holding baby=\> baby injured. Indirect force =\> battery?
YES
## Footnote
*Haystead v Chief Constable of Derbyshire* [2000] Cr App R 339
At the magistrates’ court, D pleaded guilty to assault on the woman and the neighbour, but not guilty to assaulting the child. His defence was that he had not applied force directly to the child. D was convicted and appealed.
Held: appeal dismissed. The Divisional Court found that on the facts there was a **direct** application of force.
=\> clear causal link between D’s action in punching the woman and the consequence that force was applied to the child when it hit the floor. =\> No difference between what had happened and the use of a weapon to cause the child to fall to the floor (extension of oneself =\> direct assault)
_BUT_
**Court recognised (obiter) that there can be a battery by the indirect application of force.**
58
Omission can lead to a battery if what element is present
creation of danger and exposure of someone to it
## Footnote
*DPP v Santana – Bermudez* [2003] EWHC 2908 (Admin)
Facts
D, an intravenous drug user, assured a WPC who was about to search him that he was carrying no ‘sharps’. The WPC carried out a search and in doing so stabbed her finger on a syringe D was carrying in his pocket. Although immaterial to the actual decision in the case, D’s blood tested positive for HIV and hepatitis C.
59
D opened door of van in which there was a holdall containing valuable sub-aqua equipment
Husseyn 1978
Jury directed that if D were about to look into holdall && if in jurys opinion they were valuable =\> attempt (+)
BUT CA misdirection (+)
Grounds
\<
Held Huyssen only applied if speciifc item on indictment.
See also cinema case Easom
BEST To Put on Indictment:
"attempted to steal from a holdall" => would be + whwther anythign there to steal or not (or thing looking for was not in holdall)
60
Result Crime
a crime not complete unless and until the conduct of the accused had caused property belonging to another to be damaged or destroyed; some crimes also require that the accused casuses a particular prohibited consequence or result R v Miller [1983] 2 AC 161, [1983] 1 All ER 978
61
Conduct Crime
crimes that prohibit conduct regardless of consequences
62
Offences Against the Person Act 1861, 14
Whosoever shall attempt to administer to or shall attempt to cause to be administered to or to be taken by any Person any Poison or other Destructive Thing, or shall shoot at any Person, or shall, by drawing a Trigger or in any other Manner, attempt to discharge any kind of loaded Arms at any Person, or shall attempt to drown, suffocate, or strangle any Person, with Intent, in any of the Oases aforesaid, to commit Murder, shall, whether any bodily Injury be effected or not, be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years,—or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement.
63
Criminal Procedure Act 1851, s9
If on the trial of any person charged with any felony or misdemeanor it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried.
64
fact pattern
Tatbestandmerkmale
65
Kimsey [1996] Crim LR 35
Now, you do not have to be sure that the dangerous driving...was the principal, or a substantial cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a tri-fling link between the dangerous driving and the crash which resulted in Helen Osbourne's death."
66
de minimis
slight or trifling link R v KImsey 1996
67
dangerous driving did not have to be a substantial cause of the death.
Hennigan [1976] 3 All ER 133
68
enough that the act contributed significantly to that result.
Pagett (1983) 76 Cr App R 279
69
novus actus interveniens
intervention of a third person may be regarded as the sole cause of the victim's death
70
Kingston [1994] 3 WLR 519 R. v Kingston (Barry)
liability was found despite D only commiting the offence due to the wrongful acts of others. ORIG: jury were directed that a drugged intent was still an intent but quashed on appeal.
71
offences with actus reus with no corresponding mens rea elements
A Strict offences. usually regulatory, EX: selling defective products B strict liability elements. if a partic. AR element does not require an MR =\> 'strict'.. Contention: violates Autonomy principle
72
R v K [2002] 1 AC 462
even tho statute had no mens rea element (indecent assualt from Sexual Offences Act 1956, s. 14)=\> hoL ruled on appeal that there is a presumption that mens rea will be required even if statute silent.
Here: prosecution had to show that D knew V was under 16. And that the min. req. is recklessness G[2008] UKHL 37
73
Mens Rea witjout a corrs. AR
ulterior mens rea.
74
offence of theft
D must appropriate the property of another dishonestly and wit the intention to permanently deprive V of that property. The intention is an Ulterior MR element as it is not necessary that the permanent deprivation happens==\> permanent deprivation not part of AR of offence
75
Ulterior mens rea
What is it and find 2 offences where it is in evidence. MR w/o corresonding AR element
76
Criminal Damange Act 1971, s. 1(2)
Offence to destroy or damage property intending or being reckless as to whether any property would be destroyed or damaged AND intending or being reckless as to whether the life of anothr would be thereby endangered. Min Req reckless as to endangerment of anothers life. Again does not matter if a persons life is endangered.
77
Actus Reus elements
1 Conduct 2 Circumstance 3 Result (if [result crime])
78
for certain crimes MR is adapted \<= finding subjective MR is difficult
A Objectification, ex What would a reasonable person have done in Ds position? ex harassment - what D ought to have known. B Lack of positive belief, D must have positive and reasonable belief. Ex Rape MR D 'does not reasonably believe that V consents'. So D will have MR if did not care V consented=\> D did not believe V consented. OR if D did believe V consented =\> stil MR if a reasonable person would not have so believed when put in D's position
79
Cases relating to Dishonesty
Ivey v Genting Casisnos [2017] UKSC 67 before Ghosh 1982
80
Ivey test
1. Wghat was actual state [whether certain knowledge is held or lacked by D] of D'sknmowledge or belief as to the facts. 2. [Objectieve] as to 1, was Ds conduct dishonest by standards of ordinary decent people?
81
battery
offence of making contact with V with a corresponding intention or recklnessness as to that contact.
82
Test for voluntariness
whetehr D had control over her conduct [act or omission] at the relevant time
83
When is movement voluntary?
Obvious: when time to consider actions, instinctive action in a fight. Presumption of Voluntariness (to be rebutted)--Defences: unconscious, semi-conscious. under physical restraint from X ==\> D omission to move. Reflex or Spasm. Except if reason [self-induced] ==??=\> self-intoxication, or driving while tired. See [Defences]
84
Malevolant passenger and involuntary movement
Bell [1984] 3 All ER 842
85
Name some defences
automatism, intoxication, insantiy
86
Why voluntary conduct is fundamental
Hart TB p98: "unless man has a fair opportunity to adjust his behaviour to the law, its penalties ought not to be applied to him"
87
Exceptional cases where voluntariness not required
Larsonneur [1933] 24 Cr App R 74, Winzar v Chief Constable of Kent (1983) The Times, 18 March
88
Winzar v Chief Constable of Kent (1983) The Times, 18 March
charged for being drunk on a public highway even though police put him there
89
AR Circumstance element
any factual circumstances requyred to exist for the offence.
90
AR Result element
any consequenecs of Ds action/omission required for the offence
91
Mens Rea hierarchy
worst is Intention
92
conduct v result crime
which prohibit conduct regardless of consequences are called X crimes
93
No factual causation
R v White [1910] 2 KB 124
94
More than minimal cause
LEGAL CAUSATION. Kimsey [1996] Crim LR 35 OR Pagett (1983) 76 Cr App R 279 contribute significantly
95
Benge (1865) 4 F & F 504
actions of third parties in establishing/breaking chain of legal causation. foreman of a train crew. lots of people involved in accident
96
Explaining Oblique Intention
If D plces bomb n hold for intention of blowing up some insured items with the intention of gaining from insurance =\> DIrect Intention (-) but Oblique Intention (+) because it was virtually certain consequence that there were deaths on plane as the result of her act AND D realised as such. See Woollin [1998] 4 All ER 103
97
actus non facit reum nisi mens sit rea
the act and the act must both concur to constitute the crime
98
If D approaches V from behind or V is asleep or V very young....
V cannot apprehend that he is about to be struck =\> no assault. Yet Battery if actually hit ==\>assault != always != attempted battery ALSO may be D's intent to 'scare' V only.
99
Definition of Battery in Fagan v MPC
A battery is any act by which D, intentionally or recklessly, applies or inflicts unlawful personal violence upon another person.
100
Definition of Assault in Fagan v MPC
An act (causing) / apprehension by another person / immediate / unlawful personal violence (force)
101
dictionary meaning of apprehend
anxiety or fear that something bad or unpleasant will happen OR understanding; grasp. Legal under Assault means expect
102
D looking thru the window of a bed seting room at V in her nightclothes with intent to frighten her
Smith v Chief Supt. Woking Police Station (1983) 76 Cr. App. Rep 234 Asssault(+) shows that immediate wide interpretation. CF COnstanza
103
Assault Occasioning Actual Bodily Harm
section of OAPA 1861?
AR
MR = as per assault OR battery
s.47
## Footnote
AR of (psychic) assault or (usually) battery that occasions ABH
Case where assault if V injures himself in making reasonable espcae attempts after being subjected to psychic assault.
104
\*\*Occassioning\*\* ABH
case and test?
R v Roberts 1971
Here D tried to take off Vs coat in a moving car whereupon V jumped out.
V’s act is reasonably foreseeable
QN for occassioning is causation objective test
would apply if no reasonable person could be expected to forsee the chain of causation would be broken
Savage and PArmenter confirming Roberts
105
What is ABH? Which cases
Miller 1954
\<>
Need not be really serious. Otherwise that would be GBH (DPP v Smith 1961)
Must be \<> (T v DPP)
106
Is loss of consciousness ABH?
Yes
T v DPP 2003
since conscious =\> ABH(+) =\> no physical PAIN necessary ==\> ABH (+)
107
Is cutting off hair ABH?
What about neurotic disorders?
HAIR?
yes no need to be permanent. Fact hair will regrow is irrelevnat.
NEUROTIC?
Yes because bodily means "concenred with the body" =\> encompasses all parts of bodt inclding nervous system and brain BUT NOT brain functions (fear and anxiety)
108
CPS Charging Standard Link
https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard
BUT
These charging standards are a matter of practice and do not have the force of law.
The Charging Standards state s.47 should be charged where there is loss or breaking of teeth, temporary loss of sensory functions, extensive or multiple bruising, displaced broken nose, minor fractures, minor (but not merely superficial) cuts of a sort probably requiring medical treatment (e.g. stitches) or psychiatric injury more than mere emotions such as fear, distress or panic.
109
**LGS 11 KEY POINTS:**
**Psychic assault** (*Fagan v MPC*)
**AR -** An act (causing) / apprehension by another person / immediate / unlawful personal violence (force)
**MR -** Intention or recklessness as to causing apprehension by another person of immediate unlawful personal violence (force) (*Venna*)
**Battery** (*Fagan v MPC*)
**AR -** An act by which D applies unlawful personal violence (force) on another
**MR –** Intention or recklessness as to applying unlawful personal violence (force) on another (*Venna)*
**S.47 Assault occasioning actual bodily harm**
**AR -** AR of psychic assault or battery / Occasioning (causing) / ABH (*Miller; T v DPP*)
**MR -** MR of psychic assault or battery (coinciding with AR) (*Roberts; Savage and Parmenter*)
110
Wounding and Inflicting GBH s.20 OAPA 1861
whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence, and being convicted thereof shall be liable… to imprisonment… not exceeding [five] years.
There are two alternative ways of committing the actus reus of this offence:
1. Malicious wounding
OR
1. Maliciously inflicting GBH
111
Authorities on GBH?
effectively ordinary natural meaning
\<\> DPP v Smith 1961 and ordnary meaning of word
Or at least "serious"
Janjua and Choudhury [1999]1 Cr App R 91
deep stab wounds caused by a knife with a 5½ inch blade
BUT R v Bollom 2004
extensive bruising and abrasions on baby not GBH
=\> assess injuries taking victim into account
112
depression and GBH?
Ireland and Burstow [1998] AC 147
Assuming Depression a Serious psychiatric injury and expert evidence =\> severe deprssion was GBH +
113
CPS Charging standards on GBH
injuries resulting in permanent disability
or loss of sensory function,
non-minor permanent visible disfigurement, broken or displaced limbs or bones, injuries
which cause substantial loss of blood
and injuries resulting in lengthy treatment or incapacity.
114
Inflict GBh (v cause GBH s.18)
Based on Salisbury 1976 VR 452
inflict has a narrower meaning that cause and requires \<>
BUT where infliction of psychatric injury cannot be this narrow
so GBH + in Burstow and Ireland 1998also Steyn here: \<>
==\> ‘Inflict’ should be interpreted in the same way as ‘cause'
115
Perching precariously on a low railing over a crowded dancefloor =\> s.20?
Brady
rendered V paralysed.
AR is Ds whole conduct in perching and resultant harm to V on dance floor. Falling and losing balance does not break causation.D had been reckless/malicious about this very falling.
116
S.20 AR of Wounding
Charging Standards: Minor wounds ==\> wound-
Eisenhower 1984
DC held that for a ‘wound’ both the inner and outer skin must be broken' or
\<> S+H
117
Air pellet caused internal rupruting of blood vessels and not beak of skin- wounding as s.20 OAPA 1861?
NO
C(A Minor) v Eisenhower 1984
118
Ds stafforshire terrior attached V and D failed to call the dog off. Wounding with intent to do GBH, ie s.20?
Marsh 2012
YES
==\> offence can be committed indirectly (think police man car run over case) == by omission?
119
What does malice mean in s.20 OAPA 1861?
Malice or maliciously has nothign to do with ill-will or spite.
## Footnote
Mowatt [1967] 3 WLR 1192.
maliciously == intentionally or recklessly
120
Definition of Cunningham (1957) recklessness
\<>
and this also applies whenever malice appears
subjective test
BUT
no longer since R v G?
==\> need to include G definition of recklessness
BUT
also includes whether unjustifiable for D to take that risk
121
R v G G definition of recklessness
If he intends ot foresees a risk and takes that risk unjustifiably
122
What did Diplock say in Mowatt 1968
Sufficient to prove that D foresaw some harm might result and took the risk unjustifably
==foresaw some bodily harm to some person, albeit of a minor nature, might result from his actions.
Confirmed in *R v Brady* [2007]
where it was enough to see 'a' risk of bodily harm rather than a \<‘obvious and serious risk\> of harm
123
What was Savage and Parmenter 1991 HL about?\>
RATIO
It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result.
FACTS
CASE 1 Ms. Savage threw beer over her husband’s ex-girlfriend in a bar. Yet, while doing so, the glass slipped out of her hand resulting in the victim’s wrist being cut. She claimed that she had no intention to harm her with the glass, yet was convicted for inflicting grievous bodily harm.
CASE 2 Mr. Parmenter had injured his new-born son, yet claimed that he had done so accidently as he had no experience with small babies. Mr. Parameter was also convicted of inflicting grievous bodily harm.
124
s. 18?
S.18 OAPA 1861: Whoever shall unlawfully and maliciously wound or cause grievous bodily harm to any person by any means whatsoever...with intent to do some...grievous bodily harm _or_ with intent to resist or prevent lawful apprehension or detainer…. may be sentenced to life imprisonment.
The AR of s.18 is identical to that of s.20, except for the use of the word ‘cause’ rather than ‘inflict’.
125
s.18 MR?
With intent to do GBH OR with intent to resist arrest or prevent the lawful apprehension or detainer of any person
Intent = as in Murder
which is
D acted in ordr to cause GBH OR if not his purpose (=intent) +\>
he knew that GBH was a virtually certain consequence of his act.
126
Does an intention to kill necessarily include an intention to cause GBH?
YES Grant 2014 EWCA
127
MR of s.18
The MR of s.18 is the same regardless of whether D has wounded V or caused him GBH. In every s.18 case, the prosecution must prove an ulterior intent: either intent to do GBH or intent to resist arrest. Recklessness is not enough.
128
When is maliciously considered for a s.18 offence?
alleges intent to resist or prevent the lawful apprehension or detainer, == D intended to resist arrest AND wounded or caused GBH ‘maliciously’,
i.e.
that not only did D intend to resist arrest etc., but that D also intended or was reckless as to the risk of some harm
NOT for causing GBH or wounding with intent to do GBH
because intent to do grievous bodily harm must include include foresight of the possibility of some bodily harm
129
A uniformed police officer is about to lawfully arrest D’s mate. D gently takes hold of the policeman’s jacket to stop him arresting his mate. The policeman trips, falls and cracks his head open on the pavement, resulting in a fractured skull.
D intends (it his aim or purpose) to prevent that lawful apprehension of his friend. He therefore has the required intent.
In addition, he must act maliciously – he must intend or be reckless as to some bodily harm. He ‘gently takes hold of the policeman’s jacket’. There is no evidence that he intended any harm (direct or indirect intention) or that he realised a risk that the policeman would be harmed.
Therefore, although he intends to prevent the lawful apprehension of his friend, he
![]()Is D guilty of causing GBH with intent to prevent the lawful apprehension of any person, contrary to s.18 OAPA?
D intends (it his aim or purpose) to prevent that lawful apprehension of his friend. He therefore has the required intent.
WATCH LGS 12
130
How to address Problem Question?
1. since OAPA covers result crime
## Footnote
=\>consider result ie seriousness of injjuries if any
=\> start at **most serious** offence given injury and work down to **least serious**
131
What are charged under s. 39 Criminal Justice Act 1988?
mechanism for charging only
[Technical Assault and Battery] Σ Assault
132
for result based crimes need to establish...
causation
133
When an assault act can be an ommission?
when D creates a situation he does not remedy
134
Does a conditonal threat === assault?
Read v Coker 1853
D surrounded V threatened him to break his neck if did not leave premises.
==\> Assault +
Supported by Ansell v Thomas 1974
Threat to throw someone out unless they left premises =\> assault +
**Blake v Barnard 1840??**
presenting a pistol at s.os head would blow his brains out if not quiet.
D knew that C did not know that gun was unloaded
D wished to cause fear =\> assault +
135
interp. of immediacy by courts
tends to be wide, subjective and objective
**Constanza 1997**
**assault actual ABH(+) =\> Tech Assault/Batt(+)**
first harassing phone calls, letters | final letter hand-delivered
\<>
Confimed by
Smith v Chief Super of Woking 1983
looking thru bed sit window at 11pm =\> tech assault +
Variant
D: Next month I wil.. =\> immediate -
136
R v G recklessness Test
Was D aware of the risk that their conduct may cause V to apprehend immediate and unlawful personal violence and was it unreasonable in circumstances for D to take that risk?
137
Difference Tech Assault v Battery
Tech Assault no contact
138
Personal Violence in Assault
personal violence in Assault and Battery
since line cannot be distinguished between different degrees of violence ==\> must prohibit lowest form of it==\> noone has the right to meddle with another in the slighest manner.
==\> force needed but no harm needed.
==\> hostility -
==\> Ommission OK if continuing act Fagan v MPC
"If the act is a continuing act there is a continung threat to inflict unlawful force. If assault is battery && that battery continues =\> continuing act of assaut ==\> assault +
(also consider whether this means Ommissions =\> assault(+)? AND Miller squatter set fire and moved to other room.=\> Duty to remedy a danger. Ommission here =\> Assault
=\> Indirect force? (+)
DPP v K
acid in hairdryer =\> assault occ. ABH(+)
if use extension of me =\> direct(+)
dug a pit for so to fall into/obstacle =\> ex Martin in theatre =\> assault
139
R v Miller
squatter set fire and moved to other room.=\> Duty to remedy a danger. Ommission here =\> Assault
Fagan v MPC
Where D creates a danger =\> duty to remedy danger. Omission to remedy danger =\> Assault(+)
Also DPP v Santana Burmudez 2003
sharps
140
Case where Assault occasioning ABH s.47 OAPA based on assault (not usual battery)?
Roberts 1971
women passenger pushed out of car moving =\> injury
141
What does occasion mean in a s.47 offence?
== cause =\> \*factual and legal causation\* (EOC LGS 2) needed (objective test)
But for Test factual
Break of CoC? legal
142
Definition ABH . Authority
Miller 1954
Any hurt or injury calculated to interfere with the health or comfort of victim
AND
R(T) v DPP 2003
More than transient and trifling
143
Authority for psychiatric injury for ABH
Ireland and Burstow 1998
MUST result in some identifiable clinical conditon, ex clinical depression (here)
expert psychiatric evidence needed.
144
MR of s.47 OAPA
No requirement that D..
No requirement that D..has to intend or forsee the additjonal harm for which he is punished over and above an assault or battery
145
GR on Consent and OAP
==\> negates liability for assault/battery
With serious offences like ABH
AGS Ref No 6 1980
"starting point contrary to will and without consent of V"
"persons consent is irrelevant"
Brown 1994
Sadomasochistic homo acts | mutual sexual pleasure ==\> guity s.47 s.20
146
battery everyday acts deemed consent
Collins v Wilcock 1984
as per GOFF LJ
147
Sadomasochistic homo acts | mutual sexual pleasure ==\> guity s.47 s.20?
(+)
R v Brown 1994 HoL
grounds:
Not in public interest to have people cause each other injury for no good reason.
_BUT exceptions on PUBLIC POLICY GROUNDS_
Surgery ==\> consent avoids Drs liability (+) ALL treatments, also non essential
Body modification (piercing, tattooing)
Religious flagellation!
Sports
Horseplay
(unclear) sexual pleasure
148
Body modification (piercing, tattooing)
R v Wilson 1996
Branding initials on wifes buttocks. Wife consented =\> analogy with tatooing =\> lawful +
tongue splitting
by 'Dr Evil': Wolverhampton tattooist consent + licenced -=\> guilty GBH+ CA
149
Horseplay and consent
unlawful sport. Usually \> 10 yo also adults
GR consent recognised
R v Jones 1987
giving bumps.
CA: consent IS a defence to "rough and undisclipned play" where no intention to cause injury
R v AItken 1992
RAF officers
Hazing Setting fire to each other. previous acivities OK. V seriously burned. Recognised Consent as defence
Students
Richardson and Irwin 1999
Students drunk dropped P over a balcony =\> horseplay consent +
150
When is Consent invalid?
V lacks capacity to consent AGE Mental incapacity
Durress or fraud
taking on identity of another
151
when can fraud invalidated given consent? Doctors cases
Dentist lying about qualifications Richardson 1998 =\> Invalid consent (-)=\> Consent (+)
BUT
Tobassum 2000
Fraud as to nature and quality of D's conduct as is D purporting to be carrying ut a breast cancer study and D not medically qualified but V thoght he was =\> Invalid consent (+)=\> Consent (-)
152
D had unprotected sex with V and infected V with HIV. D did not inform V had diseases.
_R v Dica 2004_
V had consented to intercourse but not risk of infection =\> consent gained thru fraud =\> invalid consent + =\> consent -
Confirmed by _Konzani 2005_
HIV | D aware of it did not inform V
=\> s.20 CPA +
=\> consent defence -
"because of lack of information, V had not consented to risk of contacting HIV"
"criical distinction between taking a risk of the various potentially adverse and possibly problematic consequenecs of sexual intercourse and giving inforemd consent to risk of infection of a fatal disease"
(would anyone ever do that?)
(Charlie Sheen?)
**Variant**
If V was informed that D had STD==\> valid consent +
153
Self-defence General Principle
D may only use such force as is reasonable in all the circumstances as D believed them to be.
=\> up to protsecution to disprove self-defence if D adduces evience of it (WIlliams 1983)
154
5 Situations where self-defence may apply
1. Defend himself v attack=physical harm\*
2 defend others v attack=physical harm\*
3 defend property\*
4 prevent a crime
5 effect lawful arrest
\*common law
+ **s.3 Criminal Law Act 1967**
BUT Irrelevant a per McInnes 1971
155
D actng in self-deence against attack by person under age of criminal responsibility =\> self defence +?
Technically -
because kid + ==\> crime - =\> prevention of crime -
s.3 Crminal Law Act 1967
3 Use of force in making arrest, etc
(1) A person may use such force as is reasonable in the circumstances i**n the prevention of crime**, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) above shall **replace** the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
156
Issues when deciding whether reasonable force used as part of self-defence
1 was there a need to use force?
based on facts as D believed them to be
**Gladstone Williams 1984 in conjunction with CJIA s.76(4)**
D did believe honestly (even if mistaken) that force was necessary
=\> self defence +
2 was it reasnable?
157
When reasonable for D to make a pre-emptive strike?
AGS reference no 2 of 1983
Beckford v R 1987
==\> must be apprehension == expection of an imminent attack
==\> if D then mistaken =\> look at facts as D believed them to be =\> and that this belief was HONEST
158
Can a D who was initial aggressor ever plead self-defence?
R v Rashford 2006
Question was whether realiation was such that was entitled to defend himself?
159
w self-defence which Act?
CJIA s.76
160
Definition Self Control
#loss of control means a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning#
Smith & Hogan
as put forward in R v Jewell [2014] EWCA Crim 178 the Court of Appeal
==\> seem clear that the loss of self-control does not have to be ‘complete’
=\> defendant does not know what he is doing
=\> D would lack the mens rea for murder
=\> absurd result
=\> Therefore: sufficient that he could not restrain himself from doing what he did.
==\> D must have lost their **self-control** at moment the act leading to death carried out.
161
losing temper == loss of self control?
R v Dawes [2010] EWCA Crim 322,
(-)
162
What if loss of
self-control has been delayed or builds up gradually
. It may also follow not from just one event but from a ‘cumulative impact’ of earlier events (see R v Dawes [2013] EWCA Crim 322)
still a partial defence (+)
163
Defendant said he thought that workmates (including the victim) might be plotting to do him harm culminating in the victim saying ‘one more evening and you’re dead’. After this the defendant went home, showered and changed, then visited his father and borrowed a gun. He then prepared a ‘survival pack’, left a note asking his neighbours to take care of his cat and then some 12 hours after the statement by the victim the defendant shot him twice
R v Jewell [2014] EWCA Crim 144
## Footnote
The court decided there was not sufficient evidence of loss of control because delay was too great
==\> backed up by
Lord Judge CJ in Clinton R v Clinton; R v Parker; R v Evans [2012] EWCA Crim 2
164
D. mercifully suffocating his terminally ill wife (at her request) showed control by the fact that he stopped when he (wrongly as it turned out) thought she had changed her mind.
Cocker!!
Stop-start
165
D.s plan to attack a man who had been subjecting them to violence, a week after the last incident. Victim died.
Planning and defence
**Ibrams and Gregory**
HELD:
166
If pre meditated act +\> defence of loss of sudden control?
s.54 (4) Coroners and Justice Act 2009
## Footnote
=\> loss of control if it had been a pre meditated act =\> not sudden
=\> not defence
=\> like old law
=\> but slow burn v revenge?
167
What are the Qyualifying Triggers?
1. Fear of serious violence from the victim against the defendant or another identified person (s.55 (3)).
=\> (explanatory notes to the Act) Fear is judged subjectively. a threat of serious violence to D or another identified person which D fears.
=\> BUT 55(6) (a) does not apply if D caused V to act this way
168
1. **Approach to loss of control questions.**
* What has D been charged with?
Loss of control is only relevant if the charge is murder.
* Does D have the mens rea for murder?
If not, there may either be a complete defence or a conviction for involuntary manslaughter to which the defence of loss of control does not apply.
* Has D lost their self-control?
Apply the subjective test; identify the facts which support a loss of self control.
* Did Ds loss of self control have a qualifying trigger?
If so, identify what.
Did D fear serious violence from the victim against either himself or another identified person?
Was something done or said which constituted circumstance of an extremely grave character and caused D to have a justifiable sense of being seriously wronged?
Acts or words will suffice and they do not necessarily need to have been directed at the defendant.
* What about the ‘objective’ requirement?
Is there anything about D which should be taken into account?
For what purpose may you do so?
How did D react?
169
The defendant strangled a young girl in the YWCA hostel in Birmingham. The medical evidence was to the effect that the defendant was a sexual psychopath who from an early age had been subject to perverted violent desires which he found difficult to control.
Dimished Responsibility?
Byrne 1960 (old law but likely applicable in determining abnormality of mental functioning)
YES
The Court of Appeal quashed his conviction for murder and substituted one of manslaughter.
Lord Parker, C J in the Court of Appeal
‹Abnormality [of the mind] ... means [a state of mind] so different from that of ordinary human beings that the reasonable man would term it abnormal.›
==› probable that the term ‘abnormal’ will be understood in the same way in respect of the new requirement of abnormality of mental functioning.
170
What is a recognised medical conditionwith respect to S.2 Homicide Act 1967?
Recognised medical conditions include paranoia, schizophrenia, irresistible impulse, delusions and autism, but not immaturity.
Is this less exhaustive?
Could be narrower than old law.
==› Under the ‘old law’ there were instances of doctors giving ‘unusual’ diagnosis (i.e. not universally recognised) as the basis of DR.
==› Consider Dowds noted (paras 29-32), the “recognised” international textbooks on medical conditions (ICD and DSM) include an awful lot of things which it would be very strange to allow people to use as an excuse for murder. For example, pyromania, anger and paedophilia are all listed in these books.
==› The Dowds case did not itself involve those kinds of conditions, but the court provided a note of caution:QUOTE They may well be a medically useful description of something which underlies the vast majority of violent offending, but any suggestion that it could give rise to a defence, whether because it amounted to an impairment of mental functioning or otherwise, would, to say the least, demand extremely careful attention. ===› the medical classification begs the question whether the condition is simply a description of (often criminal) behaviour, or is capable of forming a defence to an allegation of such.QUOTE
171
What is substantial impairment in s.2(1)(b) iof Homicide Act 1957?
In Lloyd [1973] 1 All ER 107
#the impairment need not be total but it must be more than trivial or minimal#
**BUT may be too easy to show**
**So**
**Golds [2016] UKSC 61, by setting out two potential meanings of “substantial”:**
**#As a matter simply of dictionary definition, “substantial” is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance# (-)**
**or (2) important or weighty, as in a substantial meal or a substantial salary (+) #**
**Preferred 2nd**
**#It is just that where a substantial impairment is demonstrated, the defendant is convicted of the lesser offence and not of murder. But it is appropriate, as it always has been, for the reduction to the lesser offence to be occasioned where there is a weighty reason for it and not merely a reason which just passes the trivial.#**
172
What if the abnormality arises solely from intoxication through drink or drugs?
R v Dowds [2012] EWCA Crim 281
Appellant was a 49 year old college lecturer. Over the weekend of 19/21 November 2010 he killed his partner of about 18 months at the house which they shared. He inflicted approximately 60 knife wounds to her, chiefly stabs and chiefly about the neck, where he severed the carotid artery causing injury from which she would have died within seconds.
Appellant did not contend that he was an alcoholic or clinically dependent on drink. He said he was a heavy but elective drinker and was intoxicated at the time of the offence.
At the outset of the trial the judge was invited to rule whether or not simple voluntary and temporary drunkenness was capable of founding the partial defence of diminished responsibility. He ruled that as a matter of law it could not and in consequence, diminished responsibility was not raised before the jury.
The defences put before the jury at trial were that he lacked the mens rea for murder and loss of control. Both were rejected by the jury ⇒ Murder +
Appeal
Ground that diminished responsibility was relevant and should have been left to the jury. Appellant contended that the amendments to s.2 mean that **voluntary and temporary drunkenness** may now give rise to diminished responsibility because acute intoxication is a “recognised medical condition.
There is a lengthy discussion in the judgment as to the meaning of a recognised medical condition and in particular the breadth of conditions covered by the two accepted international classifications of medical conditions.
Held
⇒ fell back onwell established rule (on policy grounds) that voluntary acute intoxication is not capable of being relied upon
⇒ Here intoxication **voluntary and uncomplicated** by any alcoholism or dependence
⇒ Same conclusions in relation to the effects of the voluntary ingestion of other drugs or substances.
⇒ Did not matter that voluntary intoxication might have been listed as a medical condition in the International Statistical Classification of Diseases (ICD).
⇒ THEREFORE presence of a ‘recognised medical condition’ is a necessary but not sufficient condition
173
What if the abnormality arises from two or more conditions, one of which is a recognised medical condition and the other of which is intoxication through drink or drugs?
The defendant can still rely on the defence of diminished responsibility if the jury take the view that, despite the drink or drugs, the defendant’s ability to understand the nature of his conduct / to form a rational judgement / to exercise self-control was substantially impaired by the abnormality of mental functioning arising from a recognised medical condition and that this provided an explanation for his being party to the killing.
⇒ because s.2 (1B) does not require the abnormality of mental functioning arising from a recognised medical condition to be the **sole** cause of the killing.
⇒ This is the case even if the defendant would not have killed but for being intoxicated.
⇒ Dietschmann
R v Dietschmann [2003] UK HL 10; [2003] CLR 550. HoL, OLD
⇒Stewart [2009]
⇒ Kay [2017]
⇒ Joyce [2017].
In these cases the jury have to decide whether any abnormality of mental functioning remaining - after the jury have discounted the intoxicant - substantially impaired his ability in the specified respect and provided an explanation for his acts.
Lord Hutton suggested the following direction to the jury in cases such as these:
NOT satisfied you of that ⇒ NO defence of diminished responsibility> (page 913)
⇒This approach is not easy for the jury to apply, but it does recognise the moral difference between a killer who is simply intoxicated and a person with an abnormality of mental functioning arising from a recognised medical condition that kills whilst intoxicated.
174
What if the defendant bases a plea of diminished responsibility on their condition of **alcoholism**?
R v Stewart [2009] EWCA Crim 593
## Footnote
If the defendant was not suffering from an abnormality of mental functioning then the defence will fail.
If he was, then the jury must consider whether the defendant’s ability to do one or more of the things specified in s.2(1A) at the material time was substantially impaired as a result and whether this provides an explanation for his act in killing.
Until this matter comes before the courts it is unclear which factors will be relevant when applying this latter test, but the extent to which the defendant was able to choose when and what to drink is likely to be highly relevant. This would be consistent with caselaw in respect of the old section 2.
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Alcoholism and partial defence of involuntary manslaughter
the Court of Appeal clarified an aspect of the approach in R v Woods, stating that it did not require the jury to ‘separate out each and every drink consumed by the defendant and decide whether it was taken voluntarily or involuntarily’.
When considering whether the defendant was suffering from an abnormality of mind at the time of the killing, the jury will need to consider ‘the nature and extent of the syndrome and whether, looked at broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink’.
If the defendant was not suffering from an abnormality of mental functioning then the defence will fail.
R v Stewart [2009] EWCA Crim 593
pre 2009 CJA
f the defendant was **NOT** suffering from an abnormality of mental functioning then the defence will fail.
If abnormality of mental functioning+ → the jury must consider whether the defendant’s ability to do one or more of the things specified in s.2(1A) at the material time was substantially impaired as a result and whether this provides an explanation for his act in killing.
⇒ extent to which the defendant was able to choose when and what to drink is likely to be highly relevant as consistent with caselaw in respect of the old section 2.
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Who has the burden of proving defence of deminished responsiblity?
the burden of proving the elements of the defence of diminished responsibility on the balance of probabilities.
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More information about expert opinion and DR
Nicholas Hallett, ‘Psychiatric evidence in Diminished Responsibility’ Journal of Criminal Law (2018), pg. 1.
