Criminal Law Flashcards

Question

R v Hasan [2005] 2 WLR 709 House of Lords

Answer 1

The appellant worked for a woman, Claire Taeger, who ran an escort agency involving prostitution. He would drive women to clients and act as a minder. Taeger then became involved with another man, Frank Sullivan, who was a violent drug dealer. Sullivan took over much of the appellant’s work and friction developed between the two. The appellant was aware that Sullivan was a dangerous man and Sullivan had boasted to the appellant about three murders he had recently committed. One night Sullivan and another man known only as “Lunatic Yardie” ambushed the appellant outside his home. Sullivan told him to commit a burglary on a house owned by one of Taeger’s clients. He told him that “Lunatic Yardie” would accompany him to ensure that the burglary was carried out and threatened that if he did not do so he and his family would be harmed. The appellant complied and was convicted of aggravated burglary his defence of duress was rejected by the jury. He appealed to the Court of Appeal contending a mis-direction in two respects: 1. The trial judge had stated that the jury should find him guilty and reject the defence of duress if they were sure that he could have avoided acting as he did without harm coming to his family. 2. The trial judge had not directed the jury in line with R v Baker & Ward as to whether the defendant had foreseen that he was likely to be subjected to threats to commit a crime of the type for which he was charged. The Court of Appeal allowed the appeal and quashed his conviction. The facts did not suggest that the defendant could have taken evasive action and therefore there was no need to direct the jury on this point. The failure to direct in relation to foresight of the type of crime also amounted to a mis-direction. The Crown appealed to the Lords. House of Lords Held: The appeal was allowed and his conviction was re-instated. There was no mis-direction on the issue of evasive action. The issue was properly put to the jury and should not be subsumed within the application of the Graham test. There was no requirement that the defendant foresaw that type of crime that he may be compelled to commit.

Answer 2

The appellant lived in a flat with his wife, Mrs Graham (the victim), and his homosexual lover, Mr King. The appellant suffered from anxiety attacks for which he was prescribed Valium. Mr King was of a violent disposition and both the appellant and his wife were frightened of him and had experienced violence from him. On one occasion, King attacked Mrs Graham with a knife and the appellant intervened sustaining cuts to his hands as he grabbed the knife. As a result of the attack Mrs Graham went to stay with the appellant's mother. King and the appellant began drinking heavily and the appellant also took a large quantity of Valium. King then told the appellant it was time to get rid of her for good. Together they hatched a plot. The appellant phoned up Mrs Graham and told her that he had cut his wrists and to come round straight away. When she arrived King strangled her with the flex from the coffee percolator. The appellant assisted by holding onto the flex. He then helped King to dispose of the body. King pleaded guilty to murder and was sentenced. The appellant raised the defences of duress and intoxication. In relation to duress, the appellant raised an argument which was supported by medical evidence that his anxiety and intake of Valium would have made him more susceptible to threats. The trial judge directed the jury that an entirely objective test applies to decide whether the threats were such as to overbear the will of the defendant. The jury convicted and he appealed on the grounds that the judge should have allowed the jury to take into account his particular characteristics. Held: His conviction was upheld. The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not to be taken into account. The correct direction to juries should be: Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?

Answer 3

The appellant had been convicted of reckless driving. As he drove up a narrow road he was confronted with a gang of shouting and brawling youths. He heard one of them shouting, "I'll kill you Willer" and another threatening to kill his passenger. He stopped and tried to turn the car around. The youths surrounded him. They banged on the car. The appellant mounted the pavement in order to escape. The trial judge ruled that the defence of necessity was not applicable and the appellant was convicted of reckless driving. He appealed against the judge's ruling. Held: Conviction quashed. The Court of Appeal held that the defence of duress should have been available. Watkins LJ: "What ought to have happened therefore was that the Assistant Recorder upon those facts should have directed that he would leave to the jury the question as to whether or not upon the outward or return journey, or both, the appellant was wholly driven by force of circumstances into doing what he did and did not drive the car otherwise than under that form of compulsion, i.e., under duress."

Answer 4

R v Conway [1988] 3 All ER 1025 The appellant was driving with a passenger, Mr Tonna, in his car. Tonna had been in a vehicle a few weeks earlier, when another man was shot and severely injured and Tonna was chased and narrowly escaped. Tonna had been the intended victim of the shooting. The appellant noticed that a car was following him and fearing that it was the person responsible for the shooting, drove off at great speed and recklessly. In fact the car was driven by two plain clothed policemen. The trial judge ruled that the defence of necessity could not be raised. The appellant was convicted of reckless driving and appealed. Held: Conviction quashed. The defence of duress of circumstances should have been put to the jury.

Answer 5

Five appeals were jointly heard with one Attorney General reference. Each case was concerned with the applicability of the defence of necessity in relation to offences involving, possession, cultivation, production and importation of cannabis. In all the appeals the appellants argued that the cannabis was for medical purposes for the relief of pain for various medical ailments including HIV, Multiple sclerosis and severe back pain. Held: Neither the defence of necessity nor duress of circumstances was applicable in such circumstances.

Answer 6

The appellant had driven whilst disqualified from driving. He claimed he did so because his wife threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide on previous occasions and the son was late for work and she feared he would lose his job if her husband did not get him to work. The appellant pleaded guilty to driving whilst disqualified following a ruling by the trial judge that the defence of necessity was not available to him. He appealed the ruling. Held: Appeal allowed. The defence of duress of circumstances should have been available to him following the decisions in R v Conway and R v Willer. No distinction was to be drawn between driving whilst disqualified and reckless driving. It did not matter that the threat of death arose through suicide rather than murder. Simon Brown J: “The principles may be summarised thus: First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called "duress of circumstances". Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted, if the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established.”

Answer 7

[General Defences - duress of circumstances -necessity] D cultivated cannabis with intent to supply it to his wife who was dying with multiple sclerosis. D feared W might commit suicide and pleaded duress of circumstances. Held: The trial judge told the jury that the defence was not available in such a case. Nevertheless, the jury disregarded this instruction and found D not guilty. Guilty of possession fined £100

Answer 8

A 14 year old girl was raped by five soldiers and became pregnant as a result. An eminent gynaecologist performed an abortion on her and was charged with the offence of conducting an illegal abortion. He was acquitted. Mr Justice Macnaghten: “If the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are entitled to take the view that the doctor is operating for the purpose of preserving the life of the mother”

Answer 9

Mrs Gillick was a mother with five daughters under the age of 16. She sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent. Held: The declaration was refused. Lord Fraser: It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course the consent of the parents should normally be asked, but they may not be immediately available. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man tomake the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits,enter into a contract. He or she can also sue and be sued, and can give evidence on oath. I am not disposed to hold now, for the first time,that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of herage. Fraser guidelines: The doctor will, in my opinion, be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters: 1. that the girl (although under 16 years of age) will understand his advice; 2. that he cannot persuade her to inform her parents or to allow him to inform the parents that she isseeking contraceptive advice; 3. that she is very likely to begin or to continue having sexual intercourse with or without contraceptivetreatment; 4. that unless she receives contraceptive advice or treatment her physical or mental health or both arelikely to suffer; 5. that her best interests require him to give the contraceptive advice, treatment or both without the parental consent.

Answer 10

Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two and capable of living independently. However, Mary was weaker, she was described as having a primitive brain and was completely dependent on Jodie for her survival. According to medical evidence, if the twins were left as they were, Mary would eventually be too much of a strain on Jodie and they would both die. If they operated to separate them, this would inevitably lead to the death of Mary, but Jodie would have a strong chance of living an independent life. The parents refused consent for the operation to separate them. The doctors applied to the court for a declaration that it would be lawful and in the best interests of the children to operate. The High court granted the declaration on the grounds that the operation would be akin to withdrawal of support ie an omission rather than a positive act and also the death of Mary, although inevitable, was not the primary purpose of the operation. The parents appealed to the Court of Appeal on the grounds that the learned judge erred in holding that the operation was (i) in Mary's best interest, (ii) that it was in Jodie's best interest, and (iii) that in any event it would be legal. Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors. LJ Robert Walker: (i) The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests. (ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal must form its own view. (iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian foundations) and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her. (iv) But Jodie also has a right to life. (v) Every human being's right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy - the right to have one's own body whole and intact and (on reaching an age of understanding) to take decisions about one's own body. (vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them. (vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life. (viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all. (ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another. (x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable. I would therefore dismiss this appeal. LJ Brooke: If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted. According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.

Answer 11

A dog owner removed the muzzle from his pit bull terrier whilst in public as the dog was suffering from kennel cough. His conviction for allowing a pit bull terrier to be in a public place without being muzzled under s.1(2)(d) Dangerous Dogs Act 1991 was upheld. Schiemann J: “The Act does not in terms allow the person in control of the dog to make a value judgment as between what is good for the dog and what is good for the rest of mankind. We have here an absolute prohibition and a breach of that prohibition is to be followed by an order for the dog’s destruction, however blameless the dog and its owner”

Answer 12

The seven appellants were Shiite Muslims from Southern Iraq. Abdul-Hussain had been sentenced to death in Iraq following a confession which had been extracted by torture. The other appellants were also fugitives facing death sentences in Iraq. They were living in Sudan and feared being deported by the Sudanese authorities. They hijacked an aeroplane bound for Jordan and it landed at Stanstead airport. After negotiations for 8 hours the appellants surrendered. At trial, the judge ruled that the defence of duress of circumstances could not be put before the jury as there was a lack of the requirement of immediacy. Held: Appeal allowed. The convictions were quashed. The execution of the threat need not be immediate. . Imminent peril of death or serious injury is an essential element of both types of duress. The defence of duress is available to those who hijack an aircraft, although in such cases the terror induced in innocent passengers will raise issues of proportionality for determination.

Answer 13

The two appellants, aged 17 and 19, were witnesses of a fight which occurred in a pub. They were called to give evidence in criminal proceedings against one of those involved in the fight. They had been threatened with violence if they gave evidence against the defendant. The threat had been repeated on several occasions leading up to the trial and on the day of the trial the person making the threats was in the public gallery in the court room and staring menacingly at the appellants. The appellants lied in court so as not to implicate the defendant and they were later charged with perjury. The trial judge held that the defence of duress was not open to the jury as the threat was not of immediate violence as the threat was made in a court room and thus could not be carried out immediately. The jury convicted and the young women appealed. Held: The appeal was allowed and the convictions were quashed. Lord Justice Widgery: "The threat must be a 'present' threat in the sense that it is effective to neutralise the will of the accused at that time. When, however, there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval. In the present case the threats of Farrell were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night."

Answer 14

Shayler was a member of MI5 and had signed a declaration under the Official Secrets Act. In breach of this he had provided journalists with 30 documents which he had obtained through his position and which related to national intelligence and security issues. During a case management hearing the judge ruled that the defence of duress of circumstances was not available to Shayler. He appealed against this ruling contending that the disclosure was necessary to safeguard members of the public. Held: Appeal dismissed Whilst the defence of duress could be raised in offences under the Official Secrets Act, there was insufficient precision in Shayler’s claims. He could not identify the action that was going to create imminent threats to life, nor could he identify the potential victims or establish that he had responsibility for them. Lord Woolf CJ “At one end of the spectrum is the example of a spy who is kidnapped and told his wife or child will be murdered if he does not disclose top-secret information. At the other end of the spectrum is the disillusioned agent who claims that someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, ie the general public as a whole. The first is a situation where almost certainly a defendant would be able to rely on the defence. The second position is one where a defendant cannot possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum.”

Answer 15

[General defences - consent – assault - ABH - relevance of consent - definition of bodily harm] D caned a girl of seventeen for purposes of sexual gratification. She had consented. Held: An act, unlawful per se as being criminal, cannot be rendered lawful because the person to whose detriment it is done consents to it. Only if the blows struck were neither likely nor intended to do bodily harm, is it necessary to consider whether V had not consented. Not Guilty (misdirection by the trial judge, he did not make it clear that consent was irrelevant) Comment: This case is the source of the following description of bodily harm: "For this purpose we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

Answer 16

The defendant's wife had left him in 1952. The following year she petitioned for divorce. Before the hearing for the petition the defendant had sexual intercourse with her against her will. He had thrown her to the ground on three occasions and she was in a hysterical and nervous condition as a result of his actions. He was charged with rape and assault occasioning actual bodily harm contrary to s.47 OAPA 1861. The defendant relied on the marital consent exception to rape and that nervous shock does not amount to a bodily injury. Held: The petition for divorce did not revoke the marital consent to sexual intercourse thus no charge for rape could result. (The marital consent defence was overruled in R v R). There was nothing to prevent the defendant from being liable for any other offence against the person for actions in committing rape. The defendant was thus liable for ABH. On the meaning of ABH Lynsky J: "Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim"

Answer 17

A French student was lodging at the house of Mrs Fox who was engaged to the appellant. Mrs Fox's engagement ring went missing and the she accused the student of stealing it. The appellant interrogated the student during which he struck him several times. He then locked him in an upstairs room and threatened him with further violence if the ring was not returned. The student attempted to escape by roping the curtains and sheets together and tying them around the curtain pole. The curtain pole broke and the student fell to the ground and suffered a fractured wrist and a dislocated hip. The appellant was charged with the offence of an assault occasioning actual bodily harm under S.47 of the Offences Against the Person Act 1861. The prosecution did not frame the case in relation to the physical injuries sustained from him jumping out of the windows (presumably assuming his actions may amount to a novus actus interveniens). The prosecution based their case on the mental state of the victim and the fear and panic he suffered. No medical evidenced was produced to support a finding of psychiatric injury. Held: Conviction was quashed. To amount to actual bodily harm, the injury need not be permanent but should not be so trivial as to be wholly insignificant. Feelings of fear and panic are emotions rather than an injury and without medical evidence to support recognised psychiatric condition a conviction for ABH could not stand.

Answer 18

The defendant had a brief relationship with a woman She ended the relationship and he could not accept her decision and embarked on a campaign of harassment against her over a period of 8 months. He made silent telephone calls, abusive telephone calls, he appeared at her house, took photos of her, distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. Two questions for the court were: 1. whether psychiatric injury could amount to bodily harm under the OAPA 1861 2. whether a person could be liable under s.20 where there was no direct or indirect application of physical force on a person. Held: 1. Psychiatric injury could amount to bodily harm. Dicta in Chan-Fook applied. 2. The word 'inflict' in s.20 simply means cause. There was thus no requirement that physical force is directly or indirectly applied.

Answer 19

A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged in order to get the police office off the car. The defendant argued he did not intend to harm the policeman. The policeman was knocked onto the path of an oncoming car and killed. The defendant was convicted of murder. The trial judge directed the jury as follows: ‘If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder. ... On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable man have contemplated that grievous bodily harm would result to the officer in consequence of his actions - well, then, the verdict would be guilty of manslaughter.’ The jury convicted of murder and the defendant appealed on the grounds that this was a mis-direction and that a subjective test should apply. The Court of Appeal quashed his conviction for murder and substituted a manslaughter conviction applying a subjective test. The prosecution appealed to the House of Lords who re-instated the murder conviction and held that there was no mis-direction thereby holding an objective test was applicable.

Answer 20

^[Assault - wounding or GBH - actus reus] D shot V with an air gun. The pellet hit V near the eye, resulting in a bruise below the eyebrow and fluid filling the front of his eye. Held: A wound is a break in the continuity of the whole skin; an internal rupturing of the blood vessels is not a wound. Not Guilty of wounding

Answer 21

doctor recommanded women to undergo medical surgery – charged under GBH s.18

Answer 22

suspected to have killed 250 people by lethal injections but sentenced for only 15 – sentenced to life imprisonment

Answer 23

Lord Goddard CJ: " Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result."

Answer 24

The defendant attacked the victim in a pub believing (wrongly) that the victim had had sexual relations with his fiancé. The defendant knocked him to the ground and repeatedly struck him on the head with a bar stool. The victim suffered a fractured skull and a subdural haemorrhage from which he died 7 days later. The jury convicted the defendant of murder having found that he intended really serious harm at the time of the attack. The defendant appealed contending that the law of murder should be confined to those who intend to kill and thus the decision in R v Vickers was wrongly decided. The defendant relied upon dissenting judgment of Lord Diplock in Hyam. Held: The House of Lords declined the opportunity to use the 1966 Practice Statement. The mens rea of murder remains intention to kill or intention to cause GBH. Lord Hailsham: Having reached this conclusion, I doubt whether I possess moral or intellectual agility to discern exactly what I would have done with regard to the Practice Direction had I reached an opposite view. But I am impressed by the stance Lord Reid took in Knuller Ltd. v. D.P.P. [1913] A.C. 435 at 455, where he refused to invoke the Practice Direction in support of his own previous dissent in Shaw v. D.P.P. and I am impressed by the arguments of Lord Morris of Borth-y-Gest and Lord Simon of Glaisdale in the same case in favour of caution. Nor can I disregard the fact that had I reached a different conclusion I should have been saying that between 1957 and the abolition of capital punishment for murder, a number of persons (including Vickers himself) would have been executed when they ought only to have been convicted at common law of manslaughter had the trial judge anticipated my putative decision. Under the express terms of the Practice Direction stare decisis is still the indispensable foundation of the use by your Lordships of the appellate jurisdiction of the House and its normal practice. Especially must this be so in criminal law, where certainty is indeed a condition of its commanding and retaining respect.

Answer 25

The appellant had been having a relationship with a Mr Jones. Mr. Jones then took up with another woman Mrs Booth and they were soon to be married. On hearing this news, the appellant drove to Mrs Booth's house at 2.00am and poured petrol through the letter box and ignited it with matches and newspaper. She then drove home and did not alert anyone of the incident. Mrs Booth and her young son managed to escape the fire but her two daughters were killed. The trial judge directed the jury: "If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent." The jury convicted of murder. The conviction was upheld by the Court of Appeal. The appellant appealed to the House of Lords on the grounds that knowledge that a certain consequence was a highly probable consequence does not establish an intent to produce that result but is only evidence from which a jury may infer intent. Held:3:2 decision The appellant's conviction for murder was upheld as there was no misdirection. Lord Hailsham's dissent: I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.

Answer 26

The defendant shot his step father killing him. Evidence was produced that the pair had a good relationship. They had been celebrating the defendant's grandparents’ ruby wedding anniversary and had consumed a quantity of alcohol. The rest of the family had retired to bed and the two stayed up drinking. The defendant told his step father that he wanted to leave the army. The step father was not happy at the news and berated the defendant. He told him he could load, draw and shoot a gun quicker than him and told him to get the guns. The defendant returned with two guns and took the challenge. The defendant was first to load and draw and the step father said, "I don't think you have got the guts but if you have pull the trigger". The defendant pulled the trigger but in his drunken state he did not believe the gun was aimed at the step father. The trial judge directed on oblique intent and the jury convicted. The Court of Appeal dismissed the appeal and the defendant appealed to the House of Lords. Held: The defendant's conviction for murder was substituted for manslaughter. It was not a case of oblique intent and the judge should not have issued a direction relating to further expansion of intention. Lord Bridge: "The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding." Lord Bridge also gave guidance on the approach for the test on oblique intent: "In the rare cases in which it is necessary to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence."

Answer 27

The appellants were convicted of murder for the death of a taxi driver. The appellants were miners on strike. They wanted to block the road to the mine to prevent works breaking the picket line. They had dropped lumps of concrete and a post from a bridge on to the carriageway below as the convoy of workers approached. The taxi was struck by two lumps of concrete resulting in death of the driver. The prosecution contended that the appellants conduct meant that they intended nothing less than serious bodily harm. The appellants argued they only intended to block the road and no harm was intended to result from the actions. The jury were directed in acordance with the Maloney guidelines of: "First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence." The jury asked further guidance on the issue of intent with regards to foresight and the judge repeated the direction given. The jury convicted of murder. The Court of Appeal quashed the conviction and certified a point of law to the House of Lords as to whether the Maloney direction was misleading. Held: The Maloney direction was misleading as it did not refer to the degree of probability required. The appropriate direction should include a reference to the degree of probability and in particular an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.

Answer 28

The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her letter box and set light to it. A child died in the fire. The trial was held before the judgment was delivered in Moloney. The judge directed the jury as follows: "If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder." The jury convicted of murder and the defendant appealed on the grounds of a mis-direction. Held: There was a clear misdirection. The Court of Appeal reviewed the cases of Moloney and Hancock & Shankland and formulated a new direction from the two decisions. Lord Lane CJ: "the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case."

Answer 29

The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to 'substantial risk' the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. House of Lords held: Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is: "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of all the evidence."

Answer 30

Two boys were playing with a revolver. There were two bullets in the chamber but neither were opposite the barrel. The two boys believed that this meant it would not fire. One of the boys pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun went off killing the boy. The other was charged with unlawful act manslaughter. Held: There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence.

Answer 31

The appellant's child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter. Held: Appeal allowed. For constructive manslaughter there must be an unlawful 'act'. The offence could not be committed by an omission.

Answer 32

[Gross Negligence Manslaughter omissions – duty situations– actus reus] D and his common law wife failed to feed the man's 7 year-old child, Nelly, and she died from starvation. The woman hated Nelly, and was clearly the moving force. Held: Where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. The woman was held to be liable because, while the child was not hers, she was living with the man and had accepted his money for food. The courts regarded the parent's duty towards a young child as so self-evident as not to require analysis or authority. At common law a parent has a duty to act for the welfare of his child and, if harm is caused to the child by his failure to act, he may be criminally liable for the resulting harm Guilty of murder

Answer 33

R v Church [1965] 2 WLR 1220 Sylvia Notts mocked the appellant's ability to satisfy her sexually and slapped his face. A fight developed during which the appellant knocked her unconscious. He tried to wake her for 30 mins to no avail. He believed she was dead and threw her body into a river. Medical evidence revealed that the cause of death was drowning and she therefore had been alive when he threw her into the river. The trial judge made several errors in his direction to the jury and in the event they convicted of manslaughter rather than murder. The appellant appealed on the grounds of misdirection. Held: Whilst there were several errors in the judge's direction the conviction for manslaughter was safe. Edmund Davies LJ set the applicable test for constructive manslaughter: "The conclusion of this Court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."

Answer 34

Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving slab went through a glass window on the cab of the train and struck the guard killing him. The boys were convicted of manslaughter. The Court of Appeal dismissed the boys' appeals. The boys appealed to the Lords with the following certified question of law: " can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee that his act might cause harm to another?" Held: There is no requirement that the defendant foresees that some harm will result from his action. The applicable law is that stated in R v Larkin as modified in R v Church. The statement relating to foresight made by Lord Denning in Gray v Barr was erroneous and not binding in the criminal division of the Court of Appeal.

Answer 35

Three defendants attempted to rob a petrol station. They wore masks and were armed with a pickaxe handle and replica guns. The petrol attendant was aged 60 and suffered from heart disease. After the attendant sounded the alarm the defendants fled empty handed. The attendant then suffered a fatal heart attack. The trial judge directed the jury that they must decide whether the actions of the defendant were dangerous by looking at the actions form the point of view of a reasonable man who knew all the facts that they know. The defendants were convicted of manslaughter and appealed. Held: The convictions were quashed. The jury were aware of the attendant's heart condition whereas a reasonable person present at the time of the attack would not have known this. The direction to the jury was therefore a mis-direction leaving the convictions unsafe.

Answer 36

The defendant stabbed an 18 year old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. The defendant was convicted of manslaughter on the grounds of diminished responsibility and appealed arguing that the girl's refusal to accept the blood transfusion was a novus actus interveniens breaking the chain of causation, alternatively that Holland was no longer good law. Held: The defendant's conviction was upheld. The wound was still an operative cause of death (following R v Smith & R v Jordan) so no novus actus interveniens and Holland was still good law.

Answer 37

The appellant smashed a window and broke into the house of an 87 year old man, Harold Moyler. Moyler went to investigate and the appellant shouted abuse at him and ran off. The police arrived and Moyler suffered a heart attack and died 90 minutes after the initial break in. Held: His conviction was quashed as it could not be established that the break in was the cause of the heart attack. However, the Court of Appeal held that a sober and reasonable person would regard the act of the appellant as dangerous as they would have known of the age and frail condition of the victim.

Answer 38

The appellant had supplied Stefan O'Such, with Diconal tablets. Both had injected themselves with the tablets in solution. They then went to a discotheque where they parted company. O'Such subsequently met a friend who helped him on two occasions to administer intravenous injections of an unspecified substance to himself. O'Such then returned home to his flat where he fell asleep on the sofa. An attempt to wake him the next day was unsuccessful. Dalby was prosecuted for manslaughter and convicted on the basis that his supply of the Diconal tablets was an unlawful and dangerous act which caused the death of O'Such. Held: His conviction for manslaughter was quashed. The supply of drugs was not the cause of death. It was the deceased's act of injecting himself which was the direct cause of death. Waller LJ: "The difficulty in the present case is that the act of supplying a scheduled drug was not an act which caused direct harm. It was an act which made it possible, or even likely, that harm would occur subsequently, particularly if the drug was supplied to somebody who was on drugs. In all the reported cases, the physical act has been one which inevitably would subject the other person to the risk of some harm from the act itself. In this case, the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous. ... In the judgment of this Court, the unlawful act of supplying drugs was not an act directed against the person of O'Such and the supply did not cause any direct injury to him. The kind of harm envisaged in all the reported cases of involuntary manslaughter was physical injury of some kind as an immediate and inevitable result of the unlawful act, e.g. a blow on the chin which knocks the victim against a wall causing a fractured skull and death, or threatening with a loaded gun which accidentally fires, or dropping a large stone on a train….or threatening another with an open razor and stumbling with death resulting…"

Answer 39

The appellant tried to jump the queue at a Post Office. An elderly man took issue with the appellant's behaviour and challenged him. The appellant hit the old man and pushed him. The man fell back onto others in the queue including an elderly lady who fell and broke her leg. She later died. The appellant was convicted of manslaughter and appealed contending that the unlawful act was not directed at the woman. Held: The appeal was dismissed and the conviction was upheld. There was no requirement that the unlawful act be directed at the victim.

Answer 40

The appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence manslaughter. The Court of Appeal dismissed his appeal but certified the following question to the House of Lords: "In cases of manslaughter by criminal negligence not involving driving but involving a breach of duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R. v. Bateman (1925) 19 Cr. App. R. 8 and Andrews v. Director of Public Prosecutions [1937] A.C. 576, without reference to the test of recklessness as defined in R. v. Lawrence (Stephen) [1982] A.C. 510 or as adapted to the circumstances of the case?" Held: His conviction for gross negligence manslaughter was upheld. The Lords ruled that the law as stated in R v Seymour [1983] 2 A.C. 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991. The certified question was answered thus: "In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R. v. Bateman 19 Cr. App. R. 8 and Andrews v. Director of Public Prosecutions [1937] A.C. 576 and that it is not necessary to refer to the definition of recklessness in R. v. Lawrence [1982] A.C. 510, although it is perfectly open to the trial judge to use the word "reckless" in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case." Lord Mackay LC set the test for gross negligence manslaughter: "On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission... It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. "

Answer 41

The appellant was the driver of a lorry carrying 60 Chinese illegal immigrants from Rotterdam to England. The lorry had a concealed compartment in which the immigrants were placed. Once inside they were sealed in. The lorry was a refrigerated lorry which meant that there was no ventilation. There was one air vent. The immigrants were told that if the vent was shut, they must be silent to avoid detection. The appellant shut the vent 10 minutes before boarding the ferry. He did not re-open it. The lorry was on the ferry for 10 hours. Consequently 58 of immigrants suffocated. The appellant was convicted of gross negligence manslaughter for each of the deaths. He appealed on the grounds that one of the general principles of the law of negligence, known by the Latin maxim of ex turpi causa non oritur actio, was that the law of negligence did not recognise the relationship between those involved in a criminal enterprise as giving rise to a duty of care owed by one participant to another. Held: The principle of ex turpi causa did not operate in criminal law to negate a duty of care. Kay LJ: "the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state’s duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. Thus looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise. Public policy, in our judgment, manifestly points in totally the opposite direction."

Answer 42

The two appellants sold heroin to a 15 year old girl at their flat. This was the first time she had used heroin and she used twice the amount generally used by an experienced user. She took the heroin in the presence of the appellants. She fell into a coma and the appellants left the flat leaving the girl alone when it was clear that she required medical assistance. They returned to the flat the following day and found her dead. Medical evidence was such that if the girl had received medical assistance she would not have died. They were convicted of gross negligence manslaughter and appealed contending that a drug dealer does not owe a duty of care to summon medical assistance to his client. Held: The convictions were quashed due to a misdirection but the court did not rule out the possibility of a duty of care being owed by drug dealers. "He (the trial judge) did not make any ruling as to whether the facts were capable of giving rise to the relevant duty and he did not direct the jury in relation to that issue. To extend the duty to summon medical assistance to a drug dealer who supplies heroin to a person who subsequently dies on the facts of this case would undoubtedly enlarge the class of person to whom, on previous authority, such a duty may be owed. It may be correct to hold that such a duty does arise. However before that situation can occur, the Judge must first make a ruling as to whether the facts as proved are capable of giving rise to such a duty and, if he answers that question in the affirmative, then to give the jury an appropriate direction which would enable them to answer the question whether on the facts as found by them there was such a duty in the case being tried by them. Unfortunately, the question as to the existence or otherwise of a duty to take care towards the deceased was not, in this case, at any time considered by the Judge, and the jury was given no direction in relation to it. The behaviour of these two Defendants towards Lucy Burchell was about as callous and repugnant as it is possible to imagine but, for the reasons which we have given, we are obliged to quash the convictions for manslaughter.

Answer 43

optometrist has to carry out tests on a boy of 8 years old – breach of he duty to carry out the examination in a suitable manner – the boy died – if the optometrists had examines the eyes correctly she would have seen symptoms of the boy's brain being ill – on appeal, the breach of the initial exam is not in itself the cause of the boy's death (would have been different if she had carried out the exam correctly but had failed to tell the boy to have medical care)

Answer 44

Facts The defendant drove off whilst the victim was having a conversation with him; the victim’s head still part way in the car The defendant’s head was crushed by the rear wheel of the car Issue Could the defendant be convicted of manslaughter? Decision Yes – reckless manslaughter Reasoning This is the only known reckless manslaughter conviction, were the probability of serious harm or death was present, and that risk was assessed and then taken by the defendant

Answer 45

ailed under Offenses against the person's Act & not for manslaughter for killing sby by driving on his bicycle

Answer 46

The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked him to do so. Her skin became infected and she sought medical treatment from her doctor. The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the Person Act 1861. Held: The wife’s consent was valid. The branding was more akin to tattooing and cosmetic enhancement rather than infliction of pain for sexual gratification. The court further held that consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts.

Answer 47

The appellants were schoolboys. They were convicted of inflicting GBH on two fellow school mates having thrown them into the air with the intention of catching them. Unfortunately they had dropped them resulting in serious injury including a ruptured spleen. Evidence was produced that the boys had engaged in the activity before without injury and that it was taken by all as a joke with no intention to cause injury. The trial judge would not allow the defence of consent to go to the jury. Held: Appeal allowed. The convictions were quashed. Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent, if the appellants had a genuine belief in consent they should be allowed the defence. There was no requirement that the belief be reasonably held, provided it was genuine.

Answer 48

The appellants were RAF officers. During the course of celebrations on completing their training, as a practical joke, they had taken to setting fire to officers wearing their fire resistant clothing. They had done this to two officers and on each occasion the fire had been extinguished without injury. However, on the third occasion the officer sustained serious burns. The appellants were court martialled and convicted of GBH under s.20 Offences Against the person Act 1861. Held: Appeal allowed. If the officer had consented or the appellant’s believed that the officer had consented it was open for the judge to find that no offence had been committed.

Answer 49

The five appellants were convicted on various counts of ABH and wounding a under the Offences Against the Person Act 1861. The injuries were inflicted during consensual homosexual sadomasochist activities. The trial judge ruled that the consent of the victim conferred no defence and the appellants thus pleaded guilty and appealed. The Court of Appeal upheld the convictions and certified the following point of law of general public importance: "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?" Held: 3:2 The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861 where the injuries resulted from sadomasochist activities. Lord Templeman: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction." Lord Lowry: "What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sadomasochism and the physical cruelty that it must involve (which can scarcely be regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a judicial imprimatur."

Answer 50

The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm but clearly did risk harm. On the first occasion he tied a plastic bag over the head of his partner. On the second, he poured lighter fluid over her and set it alight. Held: These were not acts to which she could give lawful consent, and the conviction was upheld: ‘Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry [in R v Brown [1994] AC 212], the point at which common assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our judgment, that the activities [engaged] in by this appellant and his partner went well beyond that line. The learned judge, in giving his ruling said: ‘In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause [for] the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.’ With that conclusion, this Court entirely agrees.’

Answer 51

Defense of 50 shades for SM practises

Answer 52

The three appellants were convicted of rape following a violent attack. They had been out drinking for the night with a fellow officer in the RAF who invited them back to his house to have sexual intercourse with his wife while he watched. According to the appellants, he had told them that his wife would be consenting, although she would protest in order to enhance her sexual arousal. The circumstances were such that the wife had made it quite clear she was not consenting and she sustained physical injuries requiring hospital treatment. The trial judge had directed the jury that the defendants' belief in consent had to be reasonably held. The jury found them guilty. They appealed contending there was no requirement that the belief need be reasonably held. Held: The belief must be genuine and honest. There was no requirement that the belief was reasonable. The convictions were upheld, however, as the House of Lords was of the opinion that no jury properly directed would have considered the belief of the defendants in the circumstances as genuine.

Answer 53

Jogee and his co-defendant, Hirsi, spent the evening taking drugs and drinking alcohol causing their behaviour to become increasingly aggressive.[1][2] Twice during the night the pair visited the house of Naomi Reid who was in a relationship with Paul Fyfe (the deceased).[3] After the second visit Reid sent Jogee a text asking him not to bring Hirsi back to her house in Rowlatts Hill but the men returned for a third time only minutes later.[4] By this time the deceased had returned to the house and an angry exchange ensued between him and the two defendants. At 2:30am on 10 June 2011, Jogee was outside shouting encouragement to Hirsi who stabbed and killed the deceased The rule regarding joint enterprise has been wrongly interpreted since the case of Chan Wing-Siu v The Queen [1985] AC 168. The correct position is that the defendant must intentionally act or encourage the principal to act with the requisite intent in order to be found liable for the same offence.

Answer 54

L persuaded C to have sexual intercourse with Mrs L, telling him that she liked being forced to have sex against her will, and that if she struggled it was merely evidence of her enjoyment. C was convicted of rape but appealed successfully against his conviction on the basis that he had honestly thought she was consenting to sexual intercourse. L appealed against his conviction for aiding and abetting the rape, on the basis that if the principal had been acquitted, there was no offence to which he could have been an accomplice. In dismissing the appeal, the Court of Appeal held that the actus reus of rape had been committed by C in that Mrs L had been forced to submit to sexual intercourse without her consent. L had known that she was not consenting, and thus had the necessary mens rea to be an accomplice. Alternatively, the court was willing to view C as an innocent agent through whom L had committed the offence of rape.

Answer 55

The defendants were engaged in prize fighting. It was held that prize fighting in public was unlawful, notwithstanding the consent of the individuals involved. Stephens J: "When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults."

Answer 56

``` Two soldiers (the defendants) had entered a room following the noise from a disturbance therein. They found some other soldiers raping a woman, and remained on the scene to watch what was happening. They were convicted of abetting the rapes and successfully appealed on the basis that their mere presence alone could not have been sufficient for liability. It was held that the jury should have been directed that there could only be a conviction if (a) the presence of the defendant at the scene of the crime actually encouraged its commission, and (b) the accused had intended their presence to offer such encouragement. ```

Answer 57

Brief Fact Summary. Herbert Wilcox (Wilcox), the proprietor of Jazz Illustrated, was charged with aiding and abetting Coleman Hawkins (Hawkins) in contravention of the Aliens Order of 1920, by failing to comply with a condition stating that Hawkins shall take no employment, paid or unpaid, while in the United Kingdom and shall not land in the country without the leave of an immigration officer. Synopsis of Rule of Law. Aiding and abetting can be found through the mere encouragement of criminal activity. The encouragement does not have to be directly communicated to the person committing the criminal offense. Facts. Hawkins is a celebrated saxophone player. Mr. Curtis and Mr. Hughes, owners of a jazz club in Willesden, invited Hawkins to the United Kingdom to perform a concert. Although Mr. Curtis and Hawkins had applied for permission for Hawkins to land, their petition was refused. Wilcox was present when Hawkins landed at the airport. Despite the law, Hawkins came to the country anyway and a concert was arranged at the Princess Theatre in London. Wilcox purchased a ticket for the show and subsequently, wrote about that show for publication in his magazine. Issue. Can Wilcox be convicted of aiding and abetting an offense committed by Hawkins, an individual whom Wilcox has never met? Held. The evidence presented was sufficient for the magistrate to find that Wilcox aided and abetted the offense committed by Hawkins. Discussion. The court found that several of Wilcox’s actions contributed to his conviction on the charge of aiding and abetting, including: The fact that Wilcox came to the airport to report the arrival of Hawkins for Jazz Illustrated showed the important effect Hawkins’ arrival had for the jazz industry. Further, his arrival was newsworthy to Wilcox, who could report Hawkins arrival in order to sell copies of the magazine. Wilcox clearly knew that it was an unlawful act for Hawkins to play without permission in the United Kingdom. Further, Wilcox’s paid presence at the concert, as well as his verbal encouragement, support the fact that Wilcox was aiding and abetting Hawkins to play illegally. The court noted that the decision might have turned out differently had Wilcox paid for his tickets to the concert, yet protested Hawkins’ play while the concert was occurring. This is a strange result considering the court’s focus on the payment for the tickets. No matter what Wilcox did when he came to the theatre, his payment for the tickets could be seen as aiding and abetting Hawkins’ actions just as much as does an article later printed in a magazine. In fact, the later magazine article might be seen as not really aiding and abetting Hawkins at all. This is true because the mere fact that an article was published does not mean that Wilcox will be encouraged to break the laws of the United Kingdom in the future. The fact that Hawkins was coming to the country to play for a paying audience encourages anyone who paid for tickets to that show to break the laws of the country on that night only.

Answer 58

The defendant had hired a man named Zajac to kill a woman. Z testified that after being paid by the defendant he had decided not to carry out the killing, but instead to visit the victim's house, carrying an unloaded shotgun and a hammer, to act out a charade that would give the appearance that he had tried to kill her. He claimed that when he had stepped inside the front door of the victim's house, she had screamed and he panicked, hitting her several times with the hammer. The defendant appealed, submitting that, on Z's evidence there was no causal connection, or no substantial causal connection. The Court of Appeal affirmed the defendant's conviction. It was held that the offence of counselling a person to commit an offence is made out if it is proved that there was a counselling, that the principal offence was committed by the person counselled and that the person counselled was acting within the scope of his authority and not accidentally when his mind did not go with his actions. It is not necessary to show that the counselling was a substantial cause of the commission of the offence.

Answer 59

The accused had laced a friend's drinks with alcohol knowing the friend would shortly afterwards be driving home. The friend was convicted of drunken driving. The accused was charged as an accomplice to this offence, but was acquitted following a successful submission of no case to answer. The trial judge had taken the view that there had to be evidence of some agreement between the accomplice and the principal. Lord Widgery CJ held that the offence had been procured because, unknown to the driver and without his collaboration, he had been put in a position in which he had committed an offence which he never would have committed otherwise. There was a case to answer and the trial judge should have directed the jury that an offence is committed if it is shown beyond reasonable doubt that the accused knew that his friend was going to drive, and also knew that the ordinary and natural result of the added alcohol would be to bring the friend above the prescribed blood/alcohol limit.

Answer 60

The appellants were members of a gang who had gone to the victim's house to commit a robbery, arming themselves with knives. During the robbery the victim was stabbed to death by a member of the gang and the defendants were convicted as accomplices to the murder. The Privy Council dismissed their appeals. It was held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. On the other hand, if it was not even contemplated by the accomplice that serious bodily harm would be intentionally inflicted, he is not a party to murder.

Answer 61

The appellant, on a visit to India, was approached by a man named Desai, who offered to pay him £1,000 if, on his return to England, he would receive a suitcase which a courier would deliver to him containing packages of substance which the appellant was then to distribute according to instructions he would receive. The suitcase was duly delivered to him in Cambridge. On 30 November 1982, acting on instructions, the appellant went to Southall station to deliver a package of substance to a third party. Outside the station, he and the man he had met by appointment were arrested. A package containing a powdered substance was found in the appellant's shoulder bag. At the appellant's flat in Cambridge, he produced to customs officers the suitcase from which the lining had been ripped out and the remaining packages of the same powdered substance. In answer to questions by customs officers and in a long written statement the appellant made what amounted to a full confession of having played his part, as described, as recipient and distributor of illegally imported drugs. The appellant believed the drugs to be either heroin or cannabis. In due course the powdered substance in the several packages was scientifically analysed and found not to be a controlled drug but snuff or some similar harmless vegetable matter. Judgment The certified question from the Court of Appeal (Criminal Division) was "Does a person commit an offence under section 1 of the Criminal Attempts Act 1981 where, if the facts were as that person believed them to be, the full offence would have been committed by him, but where on the true facts the offence which that person set out to commit was in law impossible, e.g., because the substance imported and believed to be heroin was not heroin but a harmless substance?" The House of Lords adjudged that the certified question be answered in the affirmative. In doing so, it overturned its own ruling the year before in Anderton v. Ryan, applying the Practice Statement of 1966.[1]

Answer 62

The appellant had taken a substantial quantity of drugs over a 48 hour period. He then went to a pub and had a drink. He got into a fight with two others. The landlord went to break up the fight and the appellant attacked him. When the police arrived, he assaulted the arresting officer. Another officer was struck by the appellant when he was being driven to the police station. The next morning he attacked a police inspector in his cell. He was charged with four counts of occasioning actual bodily harm and three counts of assaulting a police constable in the execution of his duty. The appellant claimed he had no recollection of the events due to his intoxication. He was found guilty on all counts and appealed contending that he could not be convicted when he lacked the mens rea of the offences due to his intoxicated state. Held: Appeal dismissed. Conviction upheld. The crime was one of basic intent and therefore his intoxication could not be relied on as a defence.

Answer 63

[Inchoate Offences – attempts – nature of mens rea of attempted murder] D built an electric device to give an electric shock to his wife when she took a bath. Held: Only intent to kill suffices for attempted murder, because "the intent becomes the principal ingredient of the crime". Intent to cause grievous bodily harm was sufficient mens reafor the full offence of murder. Not guilty

Answer 64

[Attempts - more than preparatory - embarking on the full crime] D climbed onto a greyhound racetrack in an attempt to stop a race. The dog on which he had placed a £18 bet was losing and he had hoped to recover his stake. The stewards decided not to stop the race. Held: D, at the stage he jumped on to the track, could not be said to be in the process of committing theft and had not committed acts which were more than merely preparatory to the offence of theft. Lane LCJ: the actus reus of attempt is satisfied ... "when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case". Not Guilty This test is often referred to as the "Gullefer Test"

Answer 65

The appellants were schoolboys. They were convicted of inflicting GBH on two fellow school mates having thrown them into the air with the intention of catching them. Unfortunately they had dropped them resulting in serious injury including a ruptured spleen. Evidence was produced that the boys had engaged in the activity before without injury and that it was taken by all as a joke with no intention to cause injury. The trial judge would not allow the defence of consent to go to the jury. Held: Appeal allowed. The convictions were quashed. Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent, if the appellants had a genuine belief in consent they should be allowed the defence. There was no requirement that the belief be reasonably held, provided it was genuine.

Answer 66

Attempts - more than preparatory - embarking on the full crime] D planned to rob a post office. He drove to the post office on a motorcycle, walked towards the post office wearing a motorcycle helmet. D carried an imitation gun and had a threatening note in his pocket, which he planned to hand over to the cashier. D was arrested before he entered the post office. Held: D had not 'embarked on the crime proper', he had not entered the post office, he had not attempted to remove the imitation firearm, he was not wearing a disguise, and his acts were "merely preparatory". The test to be applied is the "Gullefer test" this test represents the true meaning of the words in s1 of the Criminal Attempts Act 1981. Previous common law tests were irrelevant. Not guilty of attempted robbery

Answer 67

False imprisonment - Requirement for evidence to show that defendant had committed act which was more than merely preparatory Facts Gary William Geddes (G), 29, was discovered in the toilets of a school to which he had no connection, with a rucksack. When leaving the school, G discarded the rucksack which was contained a knife, rope and masking tape. G was convicted of attempted false imprisonment under Section 1(1) of the Criminal Attempts Act 1981 (1981 Act). G appealed against his conviction. Issue Section 1 of the 1981 Act states that a person is guilty of attempting to commit an offence where a person does an act which is more than merely preparatory to the commission of the offence, with the intention to commit that offence. G claimed that his actions were merely preparatory to the commission of an offence under section 1 of the 1981 Act, therefore section 1 was not applicable. Held Following the case of R v Campbell [1991] 93 Cr App R 350, determining whether actions amounted to an attempt of a crime, and not mere preparation, will depend upon the facts of the case. Attempt requires both the mens rea of intention to commit a crime and the actus reus of an act by the defendant which was more than merely preparatory to the commission of that crime. The offence under section 1 of the 1981 Act therefore required evidence that a defendant had moved from the planning and preparation stage to implementing his intention. In this case, G had a clear mens rea of intention to commit the offence under section 1 of false imprisonment, however he had not made any contact with his pupils and his preparatory actions of packing his rucksack and being in the school toilets did not surpass the preparation stage to the implementation and execution stage of that offence. The appeal was allowed and the conviction quashed.

Answer 68

[Inchoate Offences – attempts – must be more than preparatory] DD attempted to burgle a barn. Around midnight, they were disturbed examining the padlock on the barn door, but ran off when they realised they were being watched. Their cars were parked in a lay-by nearby, and hidden in a hedge between the cars and the barn was an oxy-acetylene cutting set. Held: The jury had been entitled to find that their acts were more than merely preparatory. Guilty

Answer 69

The appellant was convicted of robbery with a firearm and sentenced to 14 years. The evidence included police evidence of his confessions in interview. He challenged the veracity of the interview notes, alleging that the police officers concerned had ‘fitted him up’. After the trial those representing the appellant discovered that one of the senior officers concerned had, two months before the trial, been reprimanded for certifying interview notes in another trial when these, to his knowledge, had been wrongly rewritten. The fact that this officer was facing disciplinary proceedings should have been disclosed to the defence. Held: The court set out to control the questions that may be asked on behalf of a defendant in a criminal trial of officers who are members of a police force which has obtained a reputation for bad behaviour. The court considered at length the use to which the defendant could have put of evidence of the police officer’s previous misconduct, had he been aware of this: ‘The test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible questions must be relevant to the issue before the court. Issues are of varying degrees of relevance or importance. A distinction has to be drawn between, on the one hand, the issue in the case upon which the jury will be pronouncing their verdict and, on the other hand, collateral issues of which the credibility of the witnesses may be one. Generally speaking, questions may be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of testing his credit. ‘ and ‘The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted: see Lawrence J in Harris v Tippett (1811) 2 Camp 637, 638. The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail.’ As to the admission of evidence to suggest that the testimony of a police witness appeared to have been disbelieved in a previous trial: ‘The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying.’

Answer 70

Conspiracy - no need for complete offence - some part need be played by D] D agreed to supply diamond wire to enable a prisoner to escape. D did not believe the plan would succeed and intended to go abroad after supplying the wire. Held: (1) Conspiracy may be committed even without intending the agreement to be carried out. (2) An intention to play some part in the agreed course of conduct must be established. Lord Bridge: 'Neither the fact that he intended to play no further part in attempting to effect the escape, nor that he believed the escape to be impossible would ... have afforded him any defence.' Guilty

Answer 71

In R v Saik [2006] HL the defendant suspected but did not actually "know" that the money he was laundering was the proceeds of crime, he was therefore not guilty. In this case Lord Nicholls explains and clarifies the law of conspiracy and this now must be seen as the leading case on the subject.

Answer 72

The appellant published a 'ladies directory' which listed contact details of prostitutes, the services they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the grounds that no such offence of conspiracy to corrupt public morals existed. Held: The appeal was dismissed. The House of Lords in effect created a new crime. Viscount Simonds: "In the sphere of criminal law I entertain no doubt that there remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. That is the broad head (call it public policy if you wish) within which the present indictment falls. It matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public decency, to another considering that it may succeed in its obvious intention of provoking libidinous desires, it will seem a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief or the undermining of moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society."

Answer 73

The defendant published a progressive magazine. In this magazine advertisements were placed by homosexuals seeking to meet other like minded individuals to engage in sexual practices. They were charged with conspiracy to corrupt public morals as established in Shaw v DPP. The House of Lords doubted the correctness of the decision in Shaw but declined to depart from it. Lord Reid: "I dissented in Shaw’s case ([1961] 2 All ER at 446, [1962] AC 220). On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act."

Answer 74

D exhibited a model's head with earings of foetuses – conspiracy to corrup public morals

Answer 75

^[Conspiracy - no need for complete offence - some part need be played by D] D met with a US undercover policeman, and arranged for him to transport heroin from Hong Kong to Australia. Held: Lord Griffiths: 'The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out [Anderson] An undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator.' The policeman intended to traffic in drugs by exporting the heroin (albeit for the purpose of combating drug trafficking and with full knowledge of immunity from prosecution). Guilty

Answer 76

The defendant's conviction for an offence of attempting to incite another to distribute indecent photographs of children under 16 was safe because the defendant's response to an advertisement was an offer capable of constituting incitement.

Answer 77

D subscribed to a website showing indecent pictures of children, thereby encouraging the owner of the site to continue their publication

Answer 78

D charged with child fantasies – had communicated with another man to prepare the commital of such abuse

Answer 79

A couple cared for children without fee who were referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of Lords was whether the attempt by the individuals to prevent the couple so doing was a breach of the Race Relations Act 1968, whether, in caring for the children in their home without fee, the couple were ‘concerned with the provision to. . a section of the public . . goods, facilities or services’. Held: (Majority – Lord Wilbeforce dissenting) Even though the couple might be seen as providing goods, facilities and services, within their home, the Act would not regard the members of the household itself as a ‘section of the public’. The private household was beyond the reach of the Act. What made their household different, and brought it within the reach of the Act, was the public nature of the service they offered the children. The children were referred to them by a public authority. They might care for as many as fifty children each year. Their Lordships noted that the Act did not lay down a line of separation between the public and private sphere and that the facts of the case made it difficult to tell.

Answer 80

^[Incitement = encouragement, urge, spur on, persuasion or command of another to commit an offence] D advertised for sale a police radar-alerting device that was unlawful to operate without a licence, although it was not unlawful to own one. Held: D was guilty of inciting an unlawful act, by persuading and inciting the use of the device. The actus reus may be implied rather than express, incitement being determined by looking at the acts taken 'as a whole'. Guilty

Answer 81

^[Incitement - intention regarding the surrounding circumstances and the result of the actus reus] D was trafficking in family allowance books. He lent money in return for family allowance books containing signed vouchers. Agents under D's direction cashed the signed vouchers. Held: Unless the agents knew their actions to be unlawful and therefore a summary offence D could not solicit them. Not guilty.

Answer 82

The court considered whether a girl between the ages of 13 and 16 could be convicted of aiding and abetting a male who had had unlawful sexual intercourse with her. Held: A person for whose protection an offence has been created cannot be convicted of aiding and abetting a person who commits the offence against her. Parliament could not have intended that a statute passed to protect girls also made girls punishable under it. (Criminal law Amendment Act 1885)

Answer 83

^[Incitement - formally not possible to incite a lawful act - intention regarding the surrounding circumstances and the result of the actus reus] D urged his daughter to commit incest with him; she was legally incapable, by her age, of being either a principal or accessory to incest. Held: D was not guilty of incitement for persuading his daughter to commit an act, which was not an offence. Scarman LJ: "at common law the crime of incitement consists of inciting another person to commit a crime ... An inciter is one who reaches and seeks to influence the mind of another to the commission of a crime" Criminal Law Act 1977 s 54, it is an offence for a man to incite a female whom he knows to be his granddaughter, daughter or sister, to have sexual intercourse. Not guilty

Answer 84

The Court of Appeal in R v Claydon (2005) EWCA Crim 2817 has repeated this criticism. Claydon had sexually abused the thirteen-year-old son of his partner in the 1980s, and was tried twenty years later on an indictment containing counts of sexual offences, including two counts of incitement to commit buggery. At that time, there was an irrebuttable presumption that a boy under the age of fourteen years was incapable of sexual intercourse (applying R v Waite (1892) 2 QBD 600-601 and R v Williams [1893] 1 QB 320-321). It was argued by the Crown that, although the boy could not in law have committed the act incited, it was nevertheless quite possible for the defendant to incite him. Having considered R v Whitehouse and R v Pickford,[9] the Court of Appeal felt obliged to reject that argument. As Laws J said in Pickford, "it is a necessary element of the element of incitement that the person incited must be capable [by which he meant capable as a matter of law] of committing the primary crime."[10] The Court agreed because the focus of the offence of inciting is solely on the acts and intention of the inciter while the intention of the person incited are not relevant when considering whether the offence of incitement has been committed. It further endorsed the views of Smith and Hogan (10th Edition at p 295) who criticised the decision in Curr on the basis that "...the real question should not have been not whether the women actually had the knowledge, but whether D believed they had." Furthermore, Smith (1994) said that "the court has confused the mens rea of incitement with the mens rea of the offence incited".

Answer 85

The appellant was a tenant in a ground floor flat. With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. By installing these items, in law they become the property of the land lord. as they form part of the flat. When the tenancy came to an end, the appellant removed the wiring which involved damaging the wall panels. He was convicted of criminal damage and appealed contending he lacked the mens rea of the offence as he believed that since he had paid for the panels he had a right to damage them. Held: His conviction was quashed. He lacked the mens rea of criminal damage as he believed the property he damaged belonged to him. It was irrelevant that the mistake was one of law rather than fact as it related to a mistake of civil law rather than criminal law and there was no need to demonstrate a reasonable belief, it being sufficient that it was honestly held.

Answer 86

The appellant married in Sept 1880. In Dec 1881 her husband went missing. She was told that he had been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married another. 11 months later her husband turned up. She was charged with the offence of bigamy. Held: She was afforded the defence of mistake as it was reasonable in the circumstances to believe that her husband was dead

Answer 87

The defendant was convicted of unlawfully taking an unmarried girl under the age of 16 out the possession of her father. The defendant bona fide and on reasonable grounds believed that the girl was over 16. Held: This provided no defence. ‘It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl’s actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not quite ten years old, but whom he on reasonable grounds believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutable age. The 55th section, on which the present case arises, uses precisely the same words as those in sections 50 and 51, and must be construed in the same way.’ Brett J (dissenting) ‘Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea.’ Statutes: Offences against the Persons Act 1861 51 50

Answer 88

The defendant decided to kill his wife. He bought a knife and a bottle of whisky which he drank to give himself "Dutch Courage". Then he killed her with the knife. He subsequently claimed that he was so drunk that he did not know what he was doing, or possibly even that the drink had brought on a latent psychopathic state so that he was insane at the time of the killing. The House of Lords held that intoxication could not be a defence in either case as the intent had been clearly formed, albeit before the killing took place. Lord Denning stated: "If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on his self-induced drunkenness as a defence to a charge of murder, not even as reducing it to manslaughter. He cannot say that he got himself into such a stupid state that he was incapable of an intent to kill. So also when he is a psychopath, he cannot by drinking rely on his self-induced defect of reason as a defence of insanity. The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do."

Answer 89

The appellant had taken some LSD. He was hallucinating and believed he was being attacked by snakes and descending to the centre of the earth. Whilst in this state he killed a girl by cramming bed sheets into her mouth. Held: His intoxication could be used to demonstrate that he lacked the mens rea for murder as murder is a crime of specific intent. His intoxication could not be a defence to manslaughter as it is a crime of basic intent.

Answer 90

The defendant set light to a wardrobe after consuming some out of date valium tablets which had been prescribed to his partner. He took the valium tablets as he was feeling stressed as his partner had asked him to leave their home. He was charged with arson at his trial he stated that he remembered nothing of starting the fire due to his intoxicated state but accepted that he must have started it as he was the only one in the room when it started. The trial judge directed the jury that as the defendant had voluntarily consumed the valium, his intoxication could be no defence to the crime committed. The defendant appealed. Held: The appeal was allowed Parker LJ: "In the present instance the defence was that the Valium was taken for the purpose of calming the nerves only, that it was old stock and that the Appellant was told it would do him no harm. There was no evidence that it was known to the Appellant or even generally known that the taking of Valium in the quantity taken would be liable to render a person aggressive or incapable of appreciating risks to others or have other side effects such that its self-administration would itself have an element of recklessness. It is true that Valium is a drug and it is true that it was taken deliberately and not taken on medical prescription, but the drug is, in our view, wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness. It may well be that the taking of a sedative or soporific drug will, in certain circumstances, be no answer, for example in a case of reckless driving, but if the effect of a drug is merely soporific or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs."

Answer 91

Kingston had a business dispute with a couple. They employed Penn to gain some damaging information on Kingston in order to blackmail him. Kingston was homosexual with paedophiliac predilections. Penn invited a 15 year old boy to his room and gave him a soporific drug in his drink. The boy remembers nothing from the time of sitting drinking the drink on Penn's bed until waking the next morning. Penn then invited Kingston to the room and drugged his drink without his knowledge. Penn and Kingston then both engaged in gross sexual acts with the unconscious boy. Penn recorded the events and took photographs. Kingston was charged with indecent assault on a youth. At his trial the judge directed the jury: "In deciding whether Kingston intended to commit this offence, you must take into account any findings that you may make that he was affected by drugs. If you think that because he was so affected by drugs he did not intend or may not have intended to commit an indecent assault upon [D.C.], then you must acquit him; but if you are sure that despite the effect of any drugs that he might have been slipped - and it is for you to find whether he was drugged or not - this part of the case is proved, because a drugged intent is still an intent. So intention is crucial, intention at the time; and, of course, members of the jury, you will bear in mind there is a distinction between intention at the time and a lack of memory as to what happened after the time. " The jury convicted him and he appealed to the Court of Appeal where his conviction was quashed. Lord Taylor CJ: "However, the purpose of the criminal law is to inhibit, by proscription and by penal sanction, anti-social acts which individuals may otherwise commit. Its unspoken premise is that people may have tendencies and impulses to do those things which are considered sufficiently objectionable to be forbidden. Having paedophiliac inclinations and desires is not proscribed; putting them into practice is. If the sole reason why the threshold between the two has been crossed is or may have been that the inhibition which the law requires has been removed by the clandestine act of a third party, the purposes of the criminal law are not served by nevertheless holding that the person performing the act is guilty of an offence. A man is not responsible for a condition produced 'by stratagem, or the fraud of another." The prosecution appealed to the Lords. Held: Appeal allowed. There is no principle of English law which allows a defence based on involuntary intoxication where the defendant is found to have the necessary mens rea for the crime. The prosecution had established the defendant had the necessary intent for the crime - a drunken intent is still an intent.

Answer 92

The appellant consumed some home made wine. This had a much greater effect on him than anticipated. He committed sexual assaults and claimed he was so drunk he did not know what he was doing. He argued that he had not voluntarily placed himself in that condition as the wine was much stronger than he realised. Held: The intoxication was still voluntary even though he had not realised the strength of it. The crime of sexual assault is one of basic intent and therefore the appellant was unable to rely on his intoxicated state to negative the mens rea.

Answer 93

Daniel M'Naghten attempted to kill the Prime Minister, Sir Robert Peel, but instead shot and killed Edward Drummond, the Prime Minister's Secretary. M'Naghten was suffering from insane delusions at the time of the killing. The House of Lords formulated the M'Naghten rules which apply in determining whether a person should escape criminal liability on the grounds of being insane. Lord Tindal CJ: "In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong."

Answer 94

Criminal insanity is artificial & out of date – psychiatry is now more precise than before

Answer 95

A devoted husband of previous good character made an entirely motiveless and irrational violent attack upon his wife with a hammer. He was charged with causing grievous bodily harm. He suffered from hardening of the arteries which lead to a congestion of blood in the brain. This caused a temporary lack of consciousness, so that he was not conscious that he picked up the hammer or that he was striking his wife with it. He sought to raise the defence of automatism. Held: The hardening of the arteries was a " disease of the mind " within the M'Naghten Rules and therefore he could not rely on the defence of automatism. Devlin J:- "It does not matter for the purposes of law, whether the defect of reason is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there."

Answer 96

The appellant strangled and killed a young woman whilst giving her a lift. He then dumped her body on the side of the road and drove home. The appellant was a friend of the family of the deceased and had often visited their home and given her lifts. The appellant suffered from psychomotor epilepsy and stated that at the time of the killing a terrible feeling came over him and he was not conscious of his actions. He wished to raise the defence of automatism but the trial judge refused to allow this to be put before the jury and directed the jury with regards to insanity. The jury rejected the insanity defence and convicted him of murder. The appellant appealed contending the judge was wrong not to allow the defence of automatism. Held: Appeal dismissed. The trial judge was correct in directing the jury as to insanity.

Answer 97

The appellant kicked a man. At the time of the attack he was suffering from epilepsy. The trial judge ruled that on the evidence the appropriate defence was insanity not automatism. The appellant appealed. Held: The appeal was dismissed. The trial judge was correct in only allowing insanity to be put for the jury's consideration. Lord Diplock: "The purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against the recurrence of the dangerous conduct. The duration of a temporary suspension of the mental faculties of reason, memory and understanding, particularly if, as in the appellant's case, it is recurrent, cannot on any rational ground be relevant to the application by the Courts of the McNaghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of "not guilty by reason of insanity"

Answer 98

The appellant had stolen a car and was stopped by the police whilst driving it. He was taken to the police station and at first felt well but later taken to hospital because he was unwell. He was a diabetic and was required to take two insulin doses per day. He had not been taking his insulin as he was in an emotional state as his wife had just left him. The appellant had no recollection of taking the car. The appellant raised the defence of automatism, however, the trial judge ruled that the appropriate defence would be insanity. The appellant changed his plea to guilty and then appealed against his conviction. Held: Appeal was dismissed. The trial judge was right to rule that insanity was the appropriate defence. The hyperglycaemic state was caused by the disease of diabetes itself and not an outside factor of injection of insulin. - R v Quick [1973] 3 WLR 26 distinguished.

Answer 99

The appellant smashed a bottle over a woman's head and then struck her with a video recorder whilst she was asleep. The appellant had no recollection of the events and claimed he had been sleepwalking. This claim was supported by medical evidence. He sought to rely on the defence of automatism, however the trial judge ruled that on the evidence the only defence available was insanity. The jury returned a verdict of not guilty by reason of insanity. The defendant appealed contending that the trial judge should have allowed the defence of automatism to be put before the jury. Held: The appeal was dismissed. The evidence demonstrated there was an abnormality or disorder, albeit transitory, due to an internal factor, which had manifested itself in violence and which might recur. Lord Lane CJ "We accept that sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking, and particularly violence in sleep, is not normal."

Answer 100

Mrs Clarke, a 58 year old woman, absent-mindedly placed a jar of mincemeat, a jar of coffee and some butter into her bag whilst shopping in a supermarket. She had no recollection of placing the items in her bag. Medical evidence was given at her trial which stated that she was suffering from depression and was diabetic. The trial judge ruled that this raised the defence of insanity. At this point Mrs Clarke changed her plea to guilty and then appealed against the judge's finding of insanity. Held: Short periods of absent-mindedness fell far short of amounting to a defect of reason.

Answer 101

The appellant killed his wife. She was suicidal and he administered an aspirin overdose. Medical evidence supported the view that he was suffering from a mental condition at the time of the crime. On arrest he said to the police, "I suppose they will hang me for this". The trial judge refused to allow the defence of insanity to be put before the jury as he had demonstrated that he realised that what he was doing was unlawful. Held: The appeal was dismissed. The trial judge was correct to refuse the defence of insanity. Wrong, for the purposes of the M'Naghten rules, meant unlawful. It did not matter that he thought his actions were not morally wrong.

Answer 102

The defendant had been charged with reckless driving, having used a van to smash through the entrance gates of a Butlins' holiday camp. When interviewed he told the police: "It was like a secret society in there, I wanted to do my bit against it". The defendant contended that he had not driven recklessly because, although he knew there was a risk of his causing criminal damage, he felt that he was able to cope with it because he was being instructed to act by God. Following the rejection of his submission of "no case" on this basis, he changed his plea to one of guilty. The Court of Appeal held, dismissing the appeal that as the defendant had been aware of his actions he could not have been in a state of automatism, and the fact that he believed himself to be driven by God could not provide an excuse, but merely an explanation for what he had done. In other words he could not rely on the defence of insanity either because the evidence was that he had known what he was doing, or had known that what he was doing was illegal.

Answer 103

D was separated from her husband – charged with harassment & imposed a restraining order – it is an offence to harass & stalk

Answer 104

The Appellant had been convicted of attempted murder. He was a heavy user of cannabis, and he also regularly played a video game where one of the objectives was to kill opponents with knives. Having apparently gone to bed the Appellant had then dressed in dark clothing and a balaclava and entered his neighbour's house before stabbing a man to his head, chest, arms and back. It was the Appellant's case that he had blacked out and awoken outside his next-door neighbour's bedroom. He heard a female scream and blacked out again, he then awoke in the garden outside. Three psychiatrists gave evidence at trial and stated that the Appellant suffered from no underlying mental illness or disorder, they said that it is possible that he had experienced a "brief psychotic episode", most likely triggered by the consumption of cannabis, but they were unable to offer any other psychiatric explanation. The trial judge refused to leave to the jury issues of insanity and automatism, stating that it was a case of voluntary intoxication, the abnormality of mind had external causes and was self-induced. The Court of Appeal held that the defendant was experiencing a state of mental abnormality at the relevant time, but that because this arose because of external factors it was not insanity and because it was a case of voluntary intoxication and there was no complete loss of conscious control it was not automatism.

Answer 105

[Automatism - an external factor] D, a nurse, assaulted a patient. He was a diabetic, had taken insulin and not eaten sufficient food. He drank whisky and rum he could not remember the assault. He pleaded automatism. Held: D was suffering from automatism, which is a mental abnormality caused by an external factor. He was not suffering from insanity caused by hypoglycaemia (low sugar in the blood) by taking insulin prescribed by his doctor. [Distinguished from hyperglycaemia high blood sugar occurring naturally, which would be insanity] Lawton LJ: 'a self-induced incapacity will not excuse ... nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, for example, taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin.' Not guilty

Answer 106

The appellant, a diabetic, was charged with theft of a can of coke and some sandwiches. At the time of the offence he was suffering from hypoglycaemia (low blood sugar level due to an excess of insulin) causing him to be absent minded and lacking in full consciousness. He had £90 in his pocket at the time. The trial judge wrongly held that this gave rise to the defence of insanity. The appellant pleaded guilty and appealed the judge's ruling. Held: The appeal was allowed and the appellant's conviction was quashed. The automatism was induced by an external factor of insulin rather than the internal disease of diabetes. The correct defence therefore, was non-insane automatism.

Answer 107

The appellant was a charge nurse in a hospital. He attacked one of his patients whilst on duty. The patient was a paraplegic and suffered a fractured nose, black eyes and bruising. The appellant was charged with assault occasioning ABH under s.47 OAPA 1861. The appellant sought to raise the defence of automatism as at the time of the attack he was hypoglycaemic, in that he had taken too much insulin and eaten very little on the day in question. In addition he had consumed alcohol before the attack. The trial judge ruled that this gave rise not to automatism but insanity. The defendant then changed his plea to guilty and appealed. Held: The appeal was allowed and the conviction was quashed. His hypoglycaemia was caused not by his diabetes but by the external factor of insulin. "In this case Quick's alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It follows in our judgment that Quick was entitled to have his defence of automatism left to the jury and that Mr. Justice Bridge's ruling as to the effect of the medical evidence called by him was wrong. Had the defence of automatism been left to the jury, a number of questions of fact would have had to be answered. If he was in a confused mental condition, was it due to a hypoglycaemic episode or to too much alcohol? If the former, to what extent had he brought about his condition by not following his doctor's instructions about taking regular meals? Did he know that he was getting into a hypoglycaemic episode? If yes, why did he not use the antidote of eating a lump of sugar as he had been advised to do? On the evidence which was before the jury Quick might have had difficulty in answering these questions in a manner which would have relieved him of responsibility for his acts. We cannot say, however, with the requisite degree of confidence, that the jury would have convicted him. It follows that his conviction must be quashed on the ground that the verdict was unsatisfactory."

Answer 108

T took part in a robbery and was charged with robbery and causing ABH. She raised the defence of automatism since at the time of the offence she was in a dissociative state, suffering from Post Traumatic Stress Disorder caused by the external factor of rape. Held: The rape constituted an external factor and therefore the non-insane automatism was open to the jury despite the fact that Post Traumatic Stress Disorder is generally perceived as being a condition of the mind.

Answer 109

The defendant was drowsy with drink and her lover found her unconscious on her living-room floor. The victim then hauled her to bed, her head banging on the stairs, and raped her. The defendant went to the kitchen and returned with a knife and stabbed her lover. The defendant argued that she was not responsible for her actions as she had been suffering from automatism from the shock of being raped. At Kingston Crown Court the trial judge said "If her amnesia is real, because of automatism, then she is not to be convicted". The jury found her not guilty of wounding charges.

Answer 110

The appellant went to the house of his ex-lover's new partner, Mr Harrison. The appellant was visibly upset and Mr Harrison invited him in and they had a cup of tea and discussed the situation.The appellant was diabetic and had taken insulin but had not eaten. He said he was feeling unwell and asked Mr Harrison to get him a cup of water and sugar. Ten minutes later, the appellant got up to leave. He then said he had left his glove. Mr Harrison bent over to pick up the glove and the appellant struck him with an iron bar leaving a wound which required 10 stitches. The appellant was charged with wounding under s.18 OAPA 1861. At his trial he raised the defence of automatism arguing that the effect of the sugar and water had sent him into a state of hypoglycaemia and he was not conscious of his actions and thus incapable of forming the mens rea of the offence. The trial judge ruled that self-induced automatism could not be relied on. The jury thus convicted and the appellant appealed. Held: The trial judge had mis-directed the jury. However, the mis-direction did not render the conviction unsafe. Griffiths LJ: "In our judgment, self-induced automatism, other than that due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution have proved the necessary element of recklessness. In cases of assault, if the accused knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that he was reckless.... In the present case the Recorder never invited the Jury to consider what the Appellant's knowledge or appreciation was or what would happen if he failed to take food after his insulin or whether he realised that he might become aggressive. Nor were they asked to consider why the Appellant had omitted to take food in time. They were given no direction on the elements of recklessness. Accordingly, in our judgment, there was also a mis-direction in relation to the second count in the indictment of unlawful wounding. We think it very doubtful whether the Appellant laid a sufficient basis for the defence to be considered by the jury at all. But even if he did, we are in no doubt that the jury properly directed must have rejected it. Although an episode of sudden transient loss of consciousness or awareness was theoretically possible, it was quite inconsistent with the graphic description that the Appellant gave to the police both orally and in his written statement. There was abundant evidence that he had armed himself with the iron bar and gone to Harrison's house for the purpose of attacking him, because he wanted to teach him a lesson and because he was in the way. Moreover, the doctor's evidence to which we have referred showed it was extremely unlikely that such an episode could follow some five minutes after taking sugar and water. For these reasons we are satisfied that no miscarriage of justice occurred and the appeal will he dismissed."

Answer 111

The appellant was a diabetic. He had driven erratically while suffering from hypo-glycaemia (low blood sugar level caused by an excess of insulin in the bloodstream). His defence of non-insane automatism failed because of evidence that he had exercised conscious control over his car by veering away from other vehicles so as to avoid a collision and braking. His conviction for driving without undue care and attention was therefore upheld.

Answer 112

The appellant, a lorry driver, crashed into some cars parked on the hard shoulder of a motorway. Two people were killed. He raised the defence of non-insane automatism based on "driving without awareness" induced by "repetitive visual stimulus experienced on long journeys on straight flat roads". The defence of automatism was left to the jury and the defendant was acquitted. The Attorney General referred a point of law to the Court of Appeal as to whether such a condition could found a defence of automatism. Held: The defence of automatism should not have been left to the jury and that the state described as "driving without awareness" was not capable of founding a defence of automatism. Lord Taylor CJ: "As the authorities … show, the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough. Professor Brown [who gave expert evidence for the respondent] accepted that someone "driving without awareness" within his description, retains some control. He would be able to steer the vehicle and usually to react and return to full awareness when confronted by significant stimuli."

Answer 113

D had been raped & then charged with theft & ABH – medical evidence for PTSD & that she was in a dissociated state of minde – the jury convicted her

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