Criminal Law

Question 1

Why was the conviction for attempted murder dismissed but the CofA in R v White?

Answer 1

The defendants act was not in fact the cause of his mother’s death, she would have died anyway. The case does not satisfy the ‘but for’ test which is - ‘ but for the defendants actions would the harm have occurred at that time anyway.’ In other words if you eliminate the act of the defendant would the prohibited have occurred anyway?The deadly poison did not cause the death, but heart failure (natural causes.)

Question 2

What authority establishes that the defendants act was the cause of the consequence?

Answer 2

R v White. The jury must be satisfied that the acts or omissions of the accused were in fact the cause of the relevant consequence. in this case there is no causal link between the consequence and his act therefore the defendant was acquitted of murder.

Question 3

What did R v Poulten make clear?

Answer 3

R v Poulton (1832) 5 C & P makes it clear that the child must be fully expelled from the mother’s body and born alive to constitute a ‘reasonable person in being.’ (The victim of a homicide must be a human being.)

Question 4

What did AG-Ref (No 3 of 1994) [1998] AC 245 establish?

Answer 4

Following the stabbing of a pregnant woman in the abdomen, her child was born prematurely and subsequently died. The House of Lords held that the child was not a live person when stabbed and therefore this could not be murder.

Question 5

What did R v Reeves establish?

Answer 5

This case indicated that it was not necessary for the umbilical cord between mother and child to have been cut to constitute a ‘reasonable person in being.’

Question 6

What does the authority R v Dalloway establish?

Answer 6

The consequence must be caused by the defendant’s culpable act for legal causation to ensue.

The defendant was driving a horse and cart without holding the reins. A child ran in front of the cart, he was struck by one of the wheels and killed. It appeared on the evidence that, even if the defendant had been holding the reins, he could not have stopped the cart in time. If he had not been driving the cart, the child would not have been killed, and in that sense he ‘caused’ the death. However the court held it was necessary to go further and show that the death was due to the culpable element in his act – the negligence in not using the reins. Accordingly D’s conduct was not to blame for the killing and he was acquitted of manslaughter.

Question 7

Which authority can you use to show that the consequence (motorcycle crash death) must be caused by the culpable act?

Answer 7

R v Marchant. In this case there was a motorcycle collision with tractor spikes causing the death of the motorcyclist. However there is not a operating a substantial legal cause. Even if the tractor driver had covered the spikes as he was meant to the impact with the tractor would have killed the biker anyway. Therefore consequence was not caused by the culpable act of not covering the spikes.

Question 8

What does R v Benge confirm?

Answer 8

It confirms that a defendant can still be liable even when other causes were present. So long as the defendants act was the main and substantial cause of the prohibited consequence, the defendant will be prosecuted.

Question 9

Outline the R v Benge case.

Answer 9

Benge was the foreman of some railway tracklayers. He thought that the next train was not due for several hours so ordered the track to be taken up. He sent a man with a red flag down the track to stop any trains. However this signalman did not go the correct distance and the driver of the train, it appeared, was not keeping a good look out. The train crashed and several people were killed. It was held that, if the defendant’s negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent. So long as it could be shown that the defendant was negligent and his negligence was a main/substantial cause of the crash, the subsequent negligence of the train driver and flag holder were immaterial.

Question 10

Which authority established that a defendants act must be a substantial cause of the prohibited harm?

Answer 10

R v Cato. It was held that substantial does not mean ‘really serious’. It means one that is not a ‘de minimus, trifling one’.

Question 11

What did R v Pagett state?

Answer 11

In law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result.

Question 12

What did R v Kimsey state?

Answer 12

It was held that it is sufficient that the accused’s conduct was more than a minimal cause of the consequence. It stated you ‘do not have to be sure that Kimsey’s driving was a substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link.’

Question 13

Which authority establishes that courts are generally reluctant to allow medical malpractice to break the chain of causation?

Answer 13

R v Smith and R v Cheshire.

Question 14

Outline R v Smith and when would you apply this authority to a legal scenario?

Answer 14

Smith stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. On his arrival it was not realised how seriously ill the victim was and he received treatment which was not only inappropriate but positively harmful and he died a couple of hours later. Smith was convicted of murder. You would apply this legal authority when there is a case of medical negligence. Generally the courts have established that medical negligence/malpractice rarely break the chain of causation ‘novus actus interveniens.’

Question 15

Why was the conviction for attempted murder dismissed but the CofA in R v White?

Answer 15

The defendants act was not in fact the cause of his mother’s death, she would have died anyway. The case does not satisfy the ‘but for’ test which is - ‘ but for the defendants actions would the harm have occurred at that time anyway.’ In other words if you eliminate the act of the defendant would the prohibited have occurred anyway?The deadly poison did not cause the death, but heart failure (natural causes.)

Question 16

What authority establishes that the defendants act was the cause of the consequence?

Answer 16

R v White. The jury must be satisfied that the acts or omissions of the accused were in fact the cause of the relevant consequence. in this case there is no causal link between the consequence and his act therefore the defendant was acquitted of murder.

Question 17

What did R v Poulten make clear?

Answer 17

R v Poulton (1832) 5 C & P makes it clear that the child must be fully expelled from the mother’s body and born alive to constitute a ‘reasonable person in being.’ (The victim of a homicide must be a human being.)

Question 18

What did AG-Ref (No 3 of 1994) [1998] AC 245 establish?

Answer 18

Following the stabbing of a pregnant woman in the abdomen, her child was born prematurely and subsequently died. The House of Lords held that the child was not a live person when stabbed and therefore this could not be murder.

Question 19

What did R v Reeves establish?

Answer 19

This case indicated that it was not necessary for the umbilical cord between mother and child to have been cut to constitute a ‘reasonable person in being.’

Question 20

What does the authority R v Dalloway establish?

Answer 20

The consequence must be caused by the defendant’s culpable act for legal causation to ensue.

The defendant was driving a horse and cart without holding the reins. A child ran in front of the cart, he was struck by one of the wheels and killed. It appeared on the evidence that, even if the defendant had been holding the reins, he could not have stopped the cart in time. If he had not been driving the cart, the child would not have been killed, and in that sense he ‘caused’ the death. However the court held it was necessary to go further and show that the death was due to the culpable element in his act – the negligence in not using the reins. Accordingly D’s conduct was not to blame for the killing and he was acquitted of manslaughter.

Question 21

Which authority can you use to show that the consequence (motorcycle crash death) must be caused by the culpable act?

Answer 21

R v Marchant. In this case there was a motorcycle collision with tractor spikes causing the death of the motorcyclist. However there is not a operating a substantial legal cause. Even if the tractor driver had covered the spikes as he was meant to the impact with the tractor would have killed the biker anyway. Therefore consequence was not caused by the culpable act of not covering the spikes.

Question 22

What does R v Benge confirm?

Answer 22

It confirms that a defendant can still be liable even when other causes were present. So long as the defendants act was the main and substantial cause of the prohibited consequence, the defendant will be prosecuted.

Question 23

Outline the R v Benge case.

Answer 23

Benge was the foreman of some railway tracklayers. He thought that the next train was not due for several hours so ordered the track to be taken up. He sent a man with a red flag down the track to stop any trains. However this signalman did not go the correct distance and the driver of the train, it appeared, was not keeping a good look out. The train crashed and several people were killed. It was held that, if the defendant’s negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent. So long as it could be shown that the defendant was negligent and his negligence was a main/substantial cause of the crash, the subsequent negligence of the train driver and flag holder were immaterial.

Question 24

Which authority established that a defendants act must be a substantial cause of the prohibited harm?

Answer 24

R v Cato. It was held that substantial does not mean ‘really serious’. It means one that is not a ‘de minimus, trifling one’.

Question 25

What did R v Pagett state?

Answer 25

In law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result.

Question 26

What did R v Kimsey state?

Answer 26

It was held that it is sufficient that the accused’s conduct was more than a minimal cause of the consequence. It stated you ‘do not have to be sure that Kimsey’s driving was a substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link.’

Question 27

Which authority establishes that courts are generally reluctant to allow medical malpractice to break the chain of causation?

Answer 27

R v Smith and R v Cheshire.

Question 28

Outline R v Smith and when would you apply this authority to a legal scenario?

Answer 28

Smith stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. On his arrival it was not realised how seriously ill the victim was and he received treatment which was not only inappropriate but positively harmful and he died a couple of hours later. Smith was convicted of murder. You would apply this legal authority when there is a case of medical negligence. Generally the courts have established that medical negligence/malpractice rarely break the chain of causation ‘novus actus interveniens.’

Question 29

What is the general rule regarding omissions in criminal law established by R v Wm Smith?

Answer 29

There is no general duty to act to prevent harm. ‘Omission without a duty, will not create an indictable offence.’

Question 30

Which authority established that parents are clearly under a duty of care to their children?

Answer 30

R v Gibbons & Proctor. Gibbons lived with his girlfriend, Proctor, together with his child, Nelly, and Proctor’s children from a previous relationship. Both Gibbons and Proctor deliberately starved Nelly to death. Gibbons was convicted of his daughter’s murder based on breach of the statutory duty imposed on him to care for his child (this duty is now enacted in the Children and Young Persons Act 1933).

Question 31

which other authority applies the Proctor precedent that parents are clearly under a duty to are for his/her children?

Answer 31

Re A (Children) (Conjoined Twins). In this case both children were certain to die in the absence of a surgical procedure to separate them. The operation would save one twin, but the parents would not give their consent. The judge observed that the parents had a legal duty to the twin that could be saved. By denying that twin the chance to live, they might be guilty of killing her under the principle in Gibbons and Proctor.

Question 32

Which authority established that marriage between persons confers a legal duty to care for one another?

Answer 32

R v Hood. In this case D was held to be liable for the manslaughter of his wife who died as a result of broken bones suffered three weeks earlier after a fall. D had failed to summon medical assistance to assist her. The basis of his liability, it seems, stemmed from his relationship with her, based on marriage.

Question 33

Which authority established that if one voluntary assumes a duty towards another person, the law will hold him liable if he fails to carry out that duty?

Answer 33

R v Nicholls. This states that If a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter: per Brett J.

Question 34

Which other cases confirmed at R v Nicholls principle?

Answer 34

R v Stone and Dobinson. In this case Stone lived with his mistress Dobinson. They both accepted into their home Stone’s elderly, weak and anorexic sister. They failed to care for her properly, as a result of which she died. Stone and Dobinson were convicted of her manslaughter, and their convictions were upheld, on the basis that although neither was under a duty imposed by law to care for an ailing relative, they had voluntarily assumed this duty upon themselves.

Question 35

Which case followed the approach taken in R v Stone and Dobinson?

Answer 35

R v Ruffell.

Question 36

What are the material facts of R v Ruffell?

Answer 36

The victim was at R’s house. They were taking drugs. V became unconscious, R tried to revive him. He telephoned V’s mother the next day. R said that V was ill and sitting on R’s doorstep. V’s mother told R to take V inside and keep him warm. R agreed, but did not, returning to bed. Later V was found by a man, taken to hospital and he died. The trial judge directed the jury that a duty of care could be assumed: V was a friend, V was in R’s house, R had attempted to revive him. The jury was told If they decided R had assumed this duty, they were entitled to decide whether by putting V outside R had breached that duty. The jury decided in the affirmative and R was convicted.

Question 37

State another case that is an example of the circumstances where a duty will arise?

Answer 37

R v Instan. In this case Instan lived with her aunt, who was 73 years old. Her aunt gave Instan money to provide both of them with food. The aunt developed gangrene in her leg and became bedridden. Instan used the money given to her by her aunt to buy food for herself but did not give any to her aunt, nor did she summon medical assistance. The aunt died and Instan was convicted of her manslaughter. Instan was deemed to have assumed a duty of care for her aunt.

Question 38

In R v Dobinson what were the factors that persuaded the Court of Appeal that each defendant had assumed a duty of care for the victim?

Answer 38

D was a blood relation of the appellant Stone who was occupying a room in his house. The defendant had undertaken the duty of trying to wash her and of taking such food to her as was required. So there was evidence of an assumption to a duty to care. The omission to act was that no effort was made to summon an ambulance or social services or police despite the entreaties of Mrs.Wilson and Mrs.West. There was a social worker who used to visit Cyril but no words were spoken to him despite evidence that the defendant was aware of her poor condition by mid-July.

Question 39

Which authority can be used in cases where there is a breach of a contractual duty, through an omission?

Answer 39

R v Pittwood. Pittwood is contractually obliged as a Gatekeeper to close the gate when a train is coming. An omission to do so could amount to manslaughter if a man is killed through failure to close the gate when a train is coming.

Question 40

Which authority established that an individual inadvertently setting in motion a chain of events that causes the risk of damage, and that individual becomes aware of what is happening and he can prevent further damage, his inaction or omission to do so can become an actus reus of criminal damage?

Answer 40

R v Miller. In this case Miller, a squatter, fell asleep in a bed whilst holding a lighted cigarette. He awoke to find the mattress smouldering. He realised it was his cigarette which had caused the fire, but all he did was to move to another room and go to sleep again. The house was damaged by fire. Miller was convicted of arson.

Question 41

Which authority established that public office holders generally have a duty to act?

Answer 41

R v Dytham. D was a police constable who saw a man being kicked so badly that he later died. D did not attempt to stop the disturbance and when the incident ceased he drove off. He was guilty of wilfully neglecting to perform his duty.

Question 42

Which authority established that one can have a duty to act for control over 3rd parties?

Answer 42

Du Cross v Lambourne. The accused was convicted as an accessory to exceeding the speed limit because he sat in the passenger seat of his car and allowed his friend to exceed the speed limit. His inactivity, when he had the power to prevent his friend speeding, was found to have encouraged the offence.

Question 43

Which case inferred that it may be lawful to omit to administer life saving treatments?

Answer 43

R v Arthur. This is one of the first cases in which the English courts judicially recognised that it may be lawful to omit to administer life saving treatment. In this case, the trial judge directed the jury that Dr Arthur, an eminent paediatrician, who had given instructions that a severely handicapped and terminally ill baby should not be fed, would not necessarily be guilty of the child’s homicide, even though the child starved to death.

Question 44

Which case highlights the difficulties in deciphering the distinctions between an omission and a positive act?

Answer 44

Airedale NHS Trust v Bland. There is no dispute over the decision, to withhold feeding and ceasing to administer antibiotics, but there is a dispute over the purpose, which was to end a persons life. The judge said that discontinuing life support is no difference to not initiating the treatment in the first place. However questions have to be raised, how can a purported positive act of withholding intravenous feeding be considered an omission?

Question 45

What is the general rule established by Airedale NHS Trust v Bland?

Answer 45

Generally speaking the mere decision not to grant life saving treatment will not give rise to criminal liability. But it important to note that this principle is contextual and it all depends in the facts of the case.

Question 46

Which authority establishes that mens rea for murder?

Answer 46

R v Vickers. The mens rea for murder is an intention to kill or cause GBH. (Direct intent.)

Question 47

What is the Woollin Rule (oblique intent)?

Answer 47

Where the purpose of the defendant in acting is to achieve something other than death or GBH.

Question 48

What does the S54(1) Coroners and Justice Act 2009 provide?

Answer 48

Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

Question 49

What did R v Clinton make clear regarding the defence of provocation?

Answer 49

The old defence of law of provocation has been replaced by a new defence of loss of control and that is the new law from which we are to work on. But old cases of provocation may still be useful in establishing what is required for a loss of self control.

Question 50

What requirement did Section 52 (2) of the Coroners and Justice Act 2009 remove in R v Clinton?

Answer 50

It removes the requirement from the defence of provocation that the loss of control should be sudden. Lord Chief Justice states that ‘ the loss of control need not be sudden, but it isn’t have been lost.’

Question 51

What are two of the changes to the old test for provocation?

Answer 51

1) There need not be a complete loss of control. (R v Richens).
2) Loss of control need not be sudden. s54 (2)
(R v Ahulwalia).

Question 52

When will a defence be lost?

Answer 52

If it is established that the defendant was acting out of a considered desire for revenge. s54 (4) and old case law, R v Ibrams and Gregory. I this case it was stated that circumstances which induce a desire for revenge are inconsistent with provocation since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary lost of self control, which is the essence of self control. Although the new law states that loss of control doesn’t need to be sudden or complete, revenge negates a loss of control.

Question 53

Would the cases R v Doughty and R v Davies have formed a basis for a defence for loss of control under the new Coroners and Justice Act 2009?

Answer 53

No. The loss of control must be attributable to a ‘serious fear of violence’ for there to be a defence, as s55 (3) states. Under the old law, almost anything could amount to a provocation and form the basis of a defence. The bar has now been raised.

Question 54

What did the case R v Acott make clear is necessary for the second qualifying trigger?s55(4)(a) &(b)

Answer 54

There must be something said or done. So if a person was driving in slow moving traffic caused by snow lost self control, he would not be able to rely on this defence.

Question 55

What else did Clinton confirm regarding the justifiable sense of being seriously wronged?

Answer 55

It is an objective question like when you are considering ‘circumstances of an extremely grave nature.’ It is best to think of the literal meaning of the phrase because of the scarcity of case law to define. (Statutory interpretation).

Question 56

How did the case of R v Ahluwalia help assist when a qualifying trigger may be used?

Answer 56

That a gradual loss of self control is sufficient to constitute a loss of control, it doesn’t have to be complete. However the longer the delay between the provocations and the gradual loss of control, the more unlikely that a defence is successful. However in this case, the defendant was prosecuted anyway because of evidence of planning which negates loss of control

In this case the defendant had been a victim of domestic violence for many years. On the night in question, her husband had argued with her and threatened to beat her the following morning. After he fell asleep, the defendant poured petrol over him and set him alight, causing burns from which he later died.

Question 57

What other cases can be used to show when the qualifying trigger of ‘causing the defendant to have a justifiable sense of being seriously wronged.’?

Answer 57

R v Thornton in which the defendant was a victim of long term domestic abuse, consistently violent towards to defendant. The defendant lost her self control and stabbed her husband.

R v Humpries.In R v Humphreys [1995] 4 All ER 1008 the defendant had been assaulted and abused, both sexually and mentally, by her partner over many years. She also had a tendency to cut her own wrists. On the night of the killing the defendant was taunted and threatened with rape. The defendant lost her self-control and stabbed her partner to death.

The case of R v Baille [1995] 2 Cr App R 31 confirms that such a situation could arise outside of martial abuse type cases. Here the defendant learned that his son had been threatened by a drug dealer. He drove to the dealer’s house, taking a shot gun and a razor. At the house, he confronted the dealer, slashed his throat and then chased after him, shooting him twice. The dealer died from his injuries.

Question 58

Why would a defence not be likely to ensue in the cases of R v Ibrams and R v Johnson?

Answer 58

In R v Ibrams, a defence cannot be used if it stems from an act of revenge. In R v Johnson, a defendant cannot create the qualifying trigger as an excuse to use violence himself. I the Johnson case, the defendant created the violence (initiated the provocation) by making threats of violence to the victim, a struggle then ensued during which time the defendant stabbed the victim. So the ‘violence was caused by a thing which D incited to be done.’

Question 59

What did para 20 of the Clinton judgment establish with regards to sexual infidelity?

Answer 59

Sexual infidelity on its own cannot qualify as a trigger for the purposes of s55.

Question 60

What did DPP v Camplin recognise?

Answer 60

That the jury should take into account the defendants personal characteristics such as he age and sex of the defendant with regards to element 3 of the reasonable man test. Section 54 (1) (c).

Question 61

Did Attorney General for Jersey v Holley broaden out what characteristics could be taken into account or did did case set down a realistic realistic yet effective check on the defendant’s actions. To ensure fairness, some of the defendants characteristics should be attributed to the normal man but his reaction should objectively be measured against a reasonable man exercising ordinary powers of self control?

Answer 61

The latter.

Question 62

What are the requirements of ss54(1)(c) laid out by DPP v Camplin and Attorney General for Jersey v Holley?

Answer 62

That the jury is not not limited to considering characteristics that “affect the gravity of the provocation” and can take into ‘all the defendants circumstances…’

Question 63

What did R v Morhall confirm with regards to intoxication and loss of self control?

Answer 63

As a general rule, it is adjudged that intoxication is excluded from qualifying triggers. The reasonable man test; reasonable being always sober and effect of drugs and drink is excluded.

Question 64

What does R v Campbell establish?

Answer 64

Provocation is not available as a defence to attempted murder charge. This remaking the case under new law.

Question 65

How does R v Byrne define ‘abnormality of mental functioning?’

Answer 65

A state of mind so different from that of an ordinary human beings that the reasonable man would term it abnormal.

Question 66

What was the recognised medical condition in R v Reynolds that constituted diminished responsibility?

Answer 66

Post natal depression and pre menstrual syndrome.

Question 67

What was the recognised medical condition in R v Ahluwalia and R v Thornton?

Answer 67

Acute depression and battered woman syndrome/post traumatic stress disorder.

Question 68

What does R v Simcox and R v Lloyd establish?

Answer 68

Impairment must Be more than trivial or minimal. ‘Substantial impairment of D’s ability.’

Question 69

What did R v Dietschmann consider?

Answer 69

The jury must first consider the effect of the matters other than the alcohol and determine whether they amounted to such abnormality of mental functioning as might have substantially impaired the defendant’s ability to do one of the things in s2(1A). From that case the jury should ask themselves:

If the defendant was intoxicated at the time of the killing, the jury should then ask themselves: has the defendant satisfied you that, despite the drink,

1. ​he was suffering from mental abnormality; and
2. ​his mental abnormality substantially impaired his mental responsibility for his fatal acts?

Question 70

What does R v Tandy make clear with regards to ADS (alcohol dependency syndrome)?

Answer 70

If the defendant was in a position to resist the urge to drink, or was able to stop drinking but chose to carry on, the defence was not available, even if there was evidence of an alcohol dependency syndrome. In this case defendant’s brain had not been injured and her drinking was not involuntary. It was relevant that she had drunk vodka, rather than cinzano, her usual drink, and she had been able to stop before she finished the bottle. She had only drunk 9/10th of the bottle! Therefore ADS cannot constitute diminished responsibility.

Question 71

What was the newer approach in R v Wood that reviewed the stricter approach of Tandy with regards to ADS?

Answer 71

Even if there was an element f voluntary choice to start drinking or not to stop at some point, the jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol.If they decide that it was a significant factor, they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.

Question 72

What did the case of R v Dowds establish?

Answer 72

A defence cannot rely on voluntary or temporary drunkenness even when based on habitual heavy binge drinking. This is not a recognised medical condition, only ADS.

In the case of R V Dowds, the defendant a binge drinker stabbed his partner after a night of heavy drinking. Dowds tried to argue that we was suffering a recognised medical condition namely Acute voluntary intoxication.’ The CofA appeal rejected the defence.

Question 73

What did R v Campbell establish with regards to diminished responsibility and attempted murder?

Answer 73

DS is not available as a defence to a charge of attempted murder.