Criminal Law Flashcards
R v R[1991]
The defendant was charged with the attempted rape of his wife. At the time of the offence the couple had separated although no formal legal separation existed and neither party had partitioned for a divorce.
Held:
The House of Lords overturned the matrimonial exception to rape. His conviction for rape was upheld.
DPP v Morgan[1976] AC 182House of Lords
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.
DPP v Smith[1961] AC 290House of Lords
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.
R v Cunningham[1957] 2 QB 396Court of Appeal
The appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring property where his future mother-in-law was sleeping and was poisoned by the gas. He was charged under s 23 of the Offences against the Person Act 1861 which provides ‘Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony …’ The trial judge directed the jury that malicious meant wicked. The jury convicted the defendant and he appealed.
Held:
Malicious means either 1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
MPC v Caldwell[1982] AC 341House of Lords
The appellant had been working at a hotel and had a grudge against his employer. One night after consuming a large quantity of alcohol he went to the hotel and started a fire. The hotel had 10 guests sleeping in the hotel at the time. Fortunately the fire was discovered and distinguished early and no people were actually harmed. The appellant was convicted of aggravated criminal damage under s.1(2) Criminal Damage Act 1971 and appealed in relation to the required level of recklessness. The defendant argued that he had given no thought as to the possible endangerment of life due to his intoxicated state.
House of Lords upheld his conviction and formulated what has become known as Caldwell recklessness:
A person is reckless as to whether property is destroyed or damaged where:
(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and
(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.
NB this test of recklessness no longer applies seeR v G & R[2003] 3 WLR
R v G & R[2003] 3 WLRHouse of Lords
R v G & R[2003] 3 WLRHouse of Lords
The two appellants, aged 11 and 12, went camping for a night without their parents’ permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over £1m of damage.
Held:
The defendants’ convictions were quashed. The House of Lords overruledMPC v Caldwell[1982] AC 341.
The appropriate test of recklessness for criminal damage is:
“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk.”
Alphacell Ltd v Woodward[1972] AC 824
Alphacell Ltd v Woodward[1972] AC 824
The appellant factory owner was convicted of causing polluted matter to enter a river under the Rivers (Prevention of Pollution) Act 1951. The offence related to an underground pipe which had become disconnected due to a blockage. The appellant was unaware of the pollution and it was not alleged that they had been negligent.
Held:
As a matter of public policy the offence was one of strict liability and therefore the appeal was dismissed and the conviction upheld.
Fagan v MPC[1969] 1 QB 439
A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman’s foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of theactus reus, the driving onto the foot, he lacked themens reaof any offence since it was purely accidental. When he formed themens rea,he lacked theactus reusas he did nothing.
Held:
The driving on to the foot and remaining there was part of a continuing act.
R v Miller[1983] 2 AC 161House of Lords
The defendant had been out drinking for the evening. He went back to the house he had been staying in and fell asleep on a mattress with a lighted cigarette in his hand. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. At his trial, the prosecution did not rely on the acts of the defendant in falling asleep with a lighted cigarette as being reckless, but relied solely on the grounds that upon becoming aware of the fire he failed to take steps to put the fire out or call the fire brigade.
Held:
The defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.
Thabo-Meli v R[1954] 1 WLR 228Privy Council
The four appellants were convicted of murder. They had planned to kill a man and then make it look like an accident. They took him to a hut and beat him over the head. Believing that he was dead, they then took his body to a cliff and threw it off. Medical evidence showed that the deceased died from exposure of being left at the bottom of the cliff and not from the blow to the head. They appealed against their convictions on the grounds that theactus reusandmens reaof the crime did not coincide. That is to say when they formed the intention to kill, there was noactus reusas the man was still alive. When they threw him off the cliff, there was nomens reaas they can intend to kill someone they believed was already dead.
Held:
Convictions upheld. The act of beating him and throwing him off the cliff was one continuing act.
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.
R v Cogan and Leak [1976] QB 217.
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.
R v Pembliton(1874) LR 2CCR 119
The defendant threw some stones into a crowd of people. He wanted to disperse the crowd. A stone hit and smashed a window. He was convicted of criminal damage and appealed.
Held:
Conviction quashed. Hismens reafor an offence against the person could not be transferred to a property offence as they are entirely different offences.
R v Latimer(1886) 17 QBD 359
The defendant got into a fight in a pub with another man. He took off his belt and hit the man with the belt. The belt ricocheted off and hit a woman in the face.
Held:
The defendant was liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. Themens reahe had to cause harm to the man was transferred to the woman.
CHANDLER (TN) V DIRECTOR OF PUBLIC PROSECUTIONS: HL 12 JUL 1962
The judge had refused to allow cross examination and evidence concerning the appellants’ beliefs. The Attorney General submitted that since the appellants’ purpose had been to immobilise an airfield, which was a prohibited place, the judge should direct the jury to return a verdict of guilty and that any other verdict would be perverse.
Held: Lord Devlin spoke of the extent to which courts may enquire into the proper exercise of discretionary powers conferred by statute.
Ponting, R v[1985]
[Juries – role in cases – perverse findings]
D a civil servant working in the Ministry ofDefencesaw documents showing the Government (of MT) had lied about the sinking of the ship “GeneralBelgrano”during the Falklands War.
D gave copies of these documents to an opposition MP so that the matter could be raised in Parliament D was charged under the Official Secrets Act.
Held: despite the judge’s clear direction that D’s conduct did amount to an offence, the jury acquitted him.
Not guilty
R v Shayler[2001] EWCA Crim 1977 Court of Appeal
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.
Beckford v The Queen[1988] AC 130 Privy Council
The appellant was a police officer. He was issued with a shot-gun and ammunition and sent with a number of other armed police officers to a house. According to the appellant a report had been received from Heather Barnes that her brother Chester Barnes was terrorising her mother with a gun. Heather Barnes, however, denied that she had made a telephone call to the police or that her brother was armed.
The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found. The trial judge directed the jury:
“A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional.”
The jury convicted him of murder (which carries the death penalty in Jamaica). He appealed contending the judge was wrong to direct that the mistake needed to be reasonably held.
Held:
The appeal was allowed and the conviction was quashed. The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.
Jones & others 2004
Cutting a fence to prevent war → no public defense as no crime of public agression
Mouse’s Case (1608) KB
[General Defences - duress of circumstances -necessity - damage to property acceptable to save life]
A barge en route from Gravesend to London was in danger of sinking when a storm started. Some of the fifty passengers threw various items overboard to lighten the ship. Mouse was the owner of some of this cargo, and brought a civil action for trespass to goods.
Held:Their actions had been justified by the danger to life.
R v Dudley and Stephens(1884) 14 QBD 273
The two defendants became shipwrecked by a storm. They were forced to abandon their ship and were stranded in a small emergency boat with two others including a young cabin boy. They had been stranded for 18 days. The food had ran out 7 days earlier and they had had no water for five days. Dudley and Stephens agreed to draw straws to see which one of them would be killed so that the others could eat him. The third man did not agree and the cabin boy was by this time too weak to take part in any decision. As the third man had not agreed, the defendants decided that it would be better to kill the cabin boy as he was close to death and he had no family. Dudley and Stephens cut the cabin boys throat. He was too ill to put up any resistance. All three men fed on the boy and were rescued four days later.On their return to England Dudley & Stephens were charged with the boy’s murder.
Held:
The defendants were convicted of murder. The defence of necessity was not allowed. They were sentenced to death but then granted a pardon by the Crown and served 6 months imprisonment.
LB Southwark v Williams[1971] Ch 734 Court of Appeal
Lord Denning:
“necessity would open a door which no man could shut…If hunger were once allowed to be an excuse for stealing the plea would be an excuse for all sorts of wrong doing. The courts must take a firm stand.”
Leigh v Gladstone (1909)TLR
[General Defences - duress of circumstances -necessity - to save life]
It was not assault to force-feed a prisoner (a sufraget) against her will if it was to save her from injury.
R v Bourne[1938] 3 All ER 615
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”
R v Hasan[2005] 2 WLR 709House of Lords
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 duressif 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 withR v Baker & Wardas 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 amis-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.
R v Graham[1982] 1 WLR 294 Court of Appeal
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?
R v Willer(1986) 83 Cr App R 225 Court of Appeal
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.”
R v Conway[1988] 3 All ER 1025
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.
R v Quayle & ors[2005] 1 WLR 3642Court of Appeal
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.
R v Martin[1989] 88 Cr App R 343 Court of Appeal
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.”
Blythe, R v (1998) Warrington CC
[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
R v Bourne[1938] 3 All ER 615
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”
Gillick v West Norfolk & Wisbeck Area Health Authority[1986] AC 112 House of Lords
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 goodreason 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, andcan 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 consentto 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) willunderstand his advice;
2.that he cannot persuade her to inform her parents orto allow him to inform the parents that she isseeking contraceptive advice;
3.that she is very likely to begin or to continue havingsexual intercourse with or without contraceptivetreatment;
4.that unless she receives contraceptive advice ortreatment 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 theparental consent.
Re A (conjoined twins)[2001] 2 WLR 480
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.
Cichon v DPP[1994] Crim LR 918 Divisional Court
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”
R v Abdul-Hussain[1999] Crim LR 570Court of Appeal
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.
R v Hudson & Taylor[1971] 2 WLR 1047
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.”
R v Shayler[2001] EWCA Crim 1977 Court of Appeal
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.”
Donovan, R v (1934) KBD
[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, unlawfulper seas 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.”
R v Miller[1954] 2 All ER 529
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”
R v Chan Fook[1994] 1 WLR 689Court of Appeal
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 anovus 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.
R v Burstow[1997] UKHL 34House of Lords (Considered at same time as R V Ireland)
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:
- whether psychiatric injury could amount to bodily harm under the OAPA 1861
- whether a person could be liable under s.20 where there was no direct or indirect application of physical force on a person.
Held:
- Psychiatric injury could amount to bodily harm. Dicta in Chan-Fook applied.
- The word ‘inflict’ in s.20 simply means cause. There was thus no requirement that physical force is directly or indirectly applied.
DPP v Smith[1961] AC 290House of Lords
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.
JJC v Eisenhower(1983) QBD
^[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
Ian Paterson
doctor recommanded women to undergo medical surgery – charged under GBH s.18
Harold Shipman
suspected to have killed 250 people by lethal injections but sentenced for only 15 – sentenced to life imprisonment
R v Vickers[1957] 2 QB 664
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.”
Rv Cunningham[1982] AC 566House of Lords
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. Themens reaof 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 Directionstare decisisis 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.
R v Hyam[1975] AC 55House of Lords
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.
R v Moloney[1985] AC 905House of Lords
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.”
R v Hancock & Shankland[1985] 3 WLR 1014
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.
R v Nedrick[1986] 1 WLR 1025Court of Appeal
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 ofMoloneyandHancock & Shanklandand 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.”
R v Woollin[1999] AC 82House of Lords
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.”
R v Lamb[1967] 2 QB 981
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.
