Paper one x Flashcards
(141 cards)
1
Q
What does the defence of consent apply to ?
A
Applies to some non fatal offences.
2
Q
What are the two issues with consent ?
A
- is the consent genuine (real) ?
- What offences can a person consent to ?
3
Q
What happened in the case of R v Slingsby (1995) ?
A
D was charged with involuntary manslaughter.
V took part in ‘vigorous’ sexual activity but due to scratches induced by D’s signet ring V suffered blood poisoning and died.
Consent meant there was no unlawful act thus no manslaughter.
4
Q
What case is this ? D was charged with involuntary manslaughter.
V took part in ‘vigorous’ sexual activity but due to scratches induced by D’s signet ring V suffered blood poisoning and died.
Consent meant there was no unlawful act thus no manslaughter.
A
R v Slingsby (1995)
5
Q
What happened in the case of R v Donovan (1934) ?
A
D caned V for the purpose of sexual gratification. This caused bruising and he was convicted of indecent assault and common assault.
D appealed on the basis that V had consented to the act. D’s conviction was quashed.
6
Q
What case is this ? D caned V for the purpose of sexual gratification. This caused bruising and he was convicted of indecent assault and common assault.
D appealed on the basis that V had consented to the act. D’s conviction was quashed.
A
R v Donovan (1934)
7
Q
What happened in the case of R v Tabassum (2000) ?
A
D pretended to be medically qualified to obtain the opportunity to examine women’s breasts. He appealed his conviction for indecent assault on the basis that the Vs had consented to the examination.
D’s conviction was upheld as consent was given only because Vs had been misled into believing D was medically qualified so his fraud vitiated (destroyed) the consent.
8
Q
What case is this ? D pretended to be medically qualified to obtain the opportunity to examine women’s breasts. He appealed his conviction for indecent assault on the basis that the Vs had consented to the examination.
D’s conviction was upheld as consent was given only because Vs had been misled into believing D was medically qualified so his fraud vitiated (destroyed) the consent.
A
R v Tabassum (2000)
9
Q
What happened in the case of R v Melin (2019) ?
A
D twice injected what was said to be Botox into the Vs. Following the second injection, both suffered really serious harm.
The prosecution case was that Vs consent to the treatment was on the basis that D was medically qualified which he was not and therefore the consent was vitiated (invalidated).
10
Q
What case is this ? D twice injected what was said to be Botox into the Vs. Following the second injection, both suffered really serious harm.
The prosecution case was that Vs consent to the treatment was on the basis that D was medically qualified which he was not and therefore the consent was vitiated (invalidated).
A
R v Melin (2019)
11
Q
Is consent valid if the child has a cognitive disability ? + case law
A
Consent may not be vaild - Burrell v Harmer (1967)
12
Q
Is consent valid if has been obtained by fraud as to nature of the act or D’s identity ? + case law
A
Consent is not valid - R v Tabassum (2000)
13
Q
Is consent valid if there is fear present ? + case law
A
Fear may negate consent - R v Olugboja (1982)
14
Q
Is consent valid if the V is aware of relevant facts / transmission of disease ? + case law
A
V must be aware of relevant facts such as transmission of a disease - R v Dica (2004) and R v Golding (2014)
15
Q
What case demonstrated implied consent ?
A
R v Wilson and Pringle (1987)
16
Q
Can a person consent to murder ? - euthanasia.
A
NO
Pretty v United Kingdom (2002)
R (Nicklinson) v Ministry of Justice (2014)
17
Q
Can a person consent to S18,20,47 of OAPA ?
A
Generally not but there are some exceptions laid out in A-G’s Ref (No 6 of 1980) (1981).
18
Q
What case related to implied consent going too far in sport ?
A
R v Barnes (2004)
19
Q
What was said in R v Barnes (2004) ?
A
“only where conduct is sufficiently grave to be properly categorised as criminal”.
20
Q
What are the three circumstances where sporting injuries would more than likely deemed criminal ?
A
- Intentionally inflicted injuries
- Where injury was inflicted recklessly - more likely to be criminal if it happens after play has ceased.
- Off the ball injuries more likely to be criminal.
21
Q
What act relates to bodily adnornment ?
A
Tattooing of Minors Act 1969
22
Q
What happened in the case of R v BM (2018) ?
A
Certain body modification procedures did in fact amount to serious harm and wounding, and that the customer’s consent could not amount to a defence for causing these ‘injuries’.
D, Brendan McCarthy was a registered tattooist and body piercer who also provided body modification. Had no formal medical qualifications. The three counts were based on the following procedures that D had performed, all without anaesthetic:
removal of a customer’s ear;
removal of a customer’s nipple; and
splitting a customer’s tongue to resemble a reptile’s tongue.
23
Q
What case is this ? Certain body modification procedures did in fact amount to serious harm and wounding, and that the customer’s consent could not amount to a defence for causing these ‘injuries’.
D, Brendan McCarthy was a registered tattooist and body piercer who also provided body modification. Had no formal medical qualifications. The three counts were based on the following procedures that D had performed, all without anaesthetic:
removal of a customer’s ear;
removal of a customer’s nipple; and
splitting a customer’s tongue to resemble a reptile’s tongue.
A
R v BM (2018)
24
Q
What happened in the case of R v Wilson (1996) ?
A
D 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 OAPA 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.
25
What case is this ? D 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 OAPA 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.
R v Wilson (1996)
26
What case relates to medical consent for under 16 year olds ?
Gillick v West Norfolk and Wisbech Area Health Authority (1986)
27
What united kingdom country allows reasonable and lawful chastisement of children ?
In England Only
28
What acts and cases link to the Reasonable and lawful chatisement of children ?
A v UK (1998)
s 58 Children act 2004
Children (Abolition of Defence of reasonable punishment) (Wales) Act 2020
29
Is consent a defence to Sado masochism ?
Not generally
30
What cases relate to consent and sad masochism ?
R v Brown (1993)
R v Emmett (1999)
R v Wilson (1969)
31
What points is there to evaluate consent ?
1. The basis for denying / allowing consent should be clear.
2. Policy matters and inconsistency
3. Defence not available for euthanasia
4. The exceptions where consent is allowed as a defence give rise to problems and inconsistencies.
32
What three points can be referred to when evaluating consent on the basis for denying / allowing consent should be clear ?
It is not evident, where the defence is allowed, what it is based on:
1.Level of harm (Pretty / R v Leach (1969) – crucifixion)
2.Intention of the parties (Brown / Wilson)
3.Need to protect innocent groups (Burrell – Boys getting a tattoo).
33
What case relates to public policy of evalution of consent ?
In R v Brown (1993), the House of Lords held that consent was not a defence to sadomasochistic acts done in private by homosexuals, even though all the participants were adults and the injuries did not require medical attention.
This contrasts with the decision in R v Wilson (1996) where the Court of Appeal took the view that it was not in the public interest that the consensual branding of a woman by her husband should be criminalised.
R v Emmett (1999)
A person could consent to risky sexual activity unless the harm went “beyond the permitted level”.
This leaves the law very unclear and inconsistent decisions are likely.
34
Why is consent not a defence for euthanasia ?
You have a Right to Life whether you want it or not!
Unlawful to assist someone to die or to euthanize them with their consent
35
How have the law commission reformed consent ?
Law Commission Consultation Paper No.139 - Consent in the Criminal Law (1996)
Ds should be able to rely on the V's consent to an act intended to cause injury, or likely to cause injury, but not to an act intended or likely to cause serious disabling injury.
Surgical treatment circumcision, tattooing and ear-piercing to be kept as a special case.
No special consideration to horseplay or to sexual activities.
They suggest adopting special rules in relation to boxing and other organised sports.
36
What are the quick facts about self defence ?
Covers defence of oneself and others.
Common law defence but also outlined in statute.
Absolute defence - So D will be acquitted.
37
What statutes relate to self defence ?
s.3 Criminal Law Act 1967
‘a person may use such force as is reasonable in the circumstances in the prevention of crime’.
s.76 Criminal Justice & Immigration Act 2008
Elaborates on the meaning of ‘reasonable force’.
s.43 Crime and Courts Act 2013
Wider defence for householder cases.
38
What is the degree of force test for self defence?
A person may use such force as is reasonable in the circumstances as he genuinely believes them to be in the defence of himself or another.
39
What happened in the case of R v Hussain (2010) ?
D’s house was broken into by a group of armed men.
One of D’s sons managed to escape and alert their uncle (U).
D & U chased off Burglars and severely beat one of them.
HELD
Convicted of s.18 OAPA.
Threat had passed – force not reasonable. (Merciful sentences given)
40
What case is this ? D’s house was broken into by a group of armed men.
One of D’s sons managed to escape and alert their uncle (U).
D & U chased off Burglars and severely beat one of them.
HELD
Convicted of s.18 OAPA.
Threat had passed – force not reasonable. (Merciful sentences given).
R v Hussain (2010)
41
What happened in the case of R v Clegg (1995) ?
D was a Soldier at a checkpoint in Northern Ireland.
Car came speeding toward him, he shouted stop but the car did not.
D fired three shots at the car.
The last shot was shown to have been fired once the car has passed.
HELD
Conviction of murder upheld as the danger has passed thus force was not reasonable.
42
What case is this ? D was a Soldier at a checkpoint in Northern Ireland.
Car came speeding toward him, he shouted stop but the car did not.
D fired three shots at the car.
The last shot was shown to have been fired once the car has passed.
HELD
Conviction of murder upheld as the danger has passed thus force was not reasonable.
R v Clegg (1995)
43
What statutes relate to householder cases ?
s76 CJIA 2008 (as amended by Crime and Courts Act 2013).
44
What is the householder rule for self defence ?
Must not be 'grossly disproportionate'
45
What are the householder rule requirements ?
- The force used must be used by D while in or partly in a building that is a dwelling.
- D must not be a trespasser.
- D must have believed V to be a trespasser.
46
What happened in the case of R v Gladstone Williams (1984) ?
The appellant witnessed a man attack a youth. He rushed to the aid of the youth and hit the attacker.
In fact, the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping.
The appeal was allowed and the appellant's conviction was quashed.
HELD
D’s defence was successful. It was based on D’s genuine mistaken view of the facts regardless of whether it is reasonable.
47
What case is this ? The appellant witnessed a man attack a youth. He rushed to the aid of the youth and hit the attacker.
In fact, the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping.
The appeal was allowed and the appellant's conviction was quashed.
HELD
D’s defence was successful. It was based on D’s genuine mistaken view of the facts regardless of whether it is reasonable.
R v Gladstone Williams (1984)
48
Can a pre- emptive strike constitute self defence as a defence ?
yes - you may act to prevent unlawful force.
49
What happened in the case of AG Ref N02 (1983) ?
Ds shop had been attacked and damage by rioters.
Fearing further attack he made petrol bombs.
He was charged for the possession of these.
He pleaded self-defence and was acquitted by the Jury.
Court of Appeal confirmed that self-defence includes preparation.
50
What case is this ? Ds shop had been attacked and damage by rioters.
Fearing further attack he made petrol bombs.
He was charged for the possession of these.
He pleaded self-defence and was acquitted by the Jury.
Court of Appeal confirmed that self-defence includes preparation.
AG Ref N02 (1983)
51
What happened in the case of R v Bird ?
An argument broke out between D and her ex BF.
Eventually a fight broke out which ended in the BF losing an eye.
D was initially convicted because the Judge said that she must show evidence that she did not wish to fight.
On appeal her conviction was quashed as it was not a requirement to show a reluctance to fight.
52
What case is this ? An argument broke out between D and her ex BF.
Eventually a fight broke out which ended in the BF losing an eye.
D was initially convicted because the Judge said that she must show evidence that she did not wish to fight.
On appeal her conviction was quashed as it was not a requirement to show a reluctance to fight.
R v Bird (1985)
53
What are the five evaluation points for self defence ?
1.Is force necessary?
2. The law is too generous to the defendant.
3. Pre-emptive strike.
4. Excessive force - The ‘all or nothing approach’
5. Widening of defence in householder cases.
54
Is force necessary as an evaluation point for self defence ?
Question for the jury.
In most cases this will be quite straightforward such as the victim coming at the defendant with a knife.
However, problems may arise if D does not retreat.
R v Bird (1985) and s76(6A) CJIA (2008) now makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose.
55
Discuss excessive force 'all or nothing ' as a defence eval point for self defence ?
If a person uses excessive force, they cannot claim self-defence.
This can work very harshly in murder cases due to mandatory life sentences.
Other offences may take into account excessive force when sentencing.
56
What statute is assault and battery under?
s.39 Criminal Justice Act 1988
57
What statute is s.47 ABH, s.20 GBH, and s.18 GBH with intent.
Offences Against the Person Act 1861 (OAPA).
58
What type of offence is assault ?
common law offence
59
What is the definition for assault ?
An act causing the victim to apprehend immediate unlawful force, with intent or recklessness as to causing such apprehension.
60
What is deemed as an act in assault AR ?
An act: An omission is insufficient (Fagan v MPC).
Words alone: R v Constanza.
Silent calls: R v Ireland.
Spitting: R v Misalati.
61
What cases relate to AR assault - apprehension of immediate unlawful force ?
Belief, not fear, is required: R v Lamb.
Immediate means imminent, not instantaneous: Ireland; Smith v Woking.
62
What relates to the AR assault - force must be unlawful ?
Legal threats (e.g., police arrest) are not assault.
63
What case relates to the AR assault - words can negate assault ?
Tuberville v Savage.
64
What is the mens rea for assault ?
Intention or recklessness as to causing another to apprehend immediate unlawful force.
65
What type of offence is battery ?
Common law offence
66
What statute is battery charged under ?
s.39 Criminal Justice Act 1988.
67
What is the definition of battery ?
Application of unlawful force to another, with intent or recklessness.
68
What is the AR of battery ?
Infliction of force: Even slight touching (Collins v Wilcock).
Can be through Indirect force: R v Martin.
Omissions: Duty-based omissions can result in battery (DPP v Santa-Bermudez).
69
Example cases of battery AR ?
Thomas – touching a girl’s skirt.
Haystead v CC of Derbyshire – indirect battery through a dropped child.
Bramhall – surgeon branding livers.
70
What is the MR of battery + cases ?
Intention or subjective recklessness to apply unlawful force (R v Venna; R v Spratt).
71
What type of offence is s 47 OAPA 1861 ?
Statutory offence - triable-either-way
72
What is the AR for s47 OAPA 1861 ?
Assault or Battery causing
Actual bodily harm = interfering with health or comfort of the victim: R v Miller.
Causation rules apply (factual/legal causation).
Psychiatric injury: Can be ABH if clinically recognised (R v Chan-Fook; R v Burstow).
73
What's the MR of s47 OAPA 1861 + case law ?
Mens rea of assault or battery is sufficient.
No requirement to foresee actual bodily harm (R v Roberts; R v Savage).
74
What type of offence is s20 OAPA 1861 ?
statutory offence - triable-either-way
75
What is the AR of s20 OAPA 1861?
Unlawful wounding (break in both skin layers: JCC v Eisenhower) OR
Infliction of GBH (really serious harm: DPP v Smith; Saunders).
Includes psychiatric harm (Burstow).
Causation rules apply.Indirect Infliction:
Martin: barred theatre doors case.
Burstow: psychiatric harm without physical assault.
76
What is the MR of s20 OAPA 1861 ?
‘Maliciously’ means:
Intention or recklessness to cause some harm (R v Cunningham,).
No need to intend or foresee serious injury.
77
What type of offence is s18 OAPA 1861 ?
Indictable only (Crown Court).
78
What is the AR of s18 OAPA 1861 ?
Unlawful wounding (break in both skin layers: JCC v Eisenhower) OR
Infliction of GBH (really serious harm: DPP v Smith; Saunders).
Includes psychiatric harm (Burstow).
79
What is the MR of s18 OAPA 1861 + case law ?
Specific intent to cause grievous bodily harm or to resist arrest
Direct or oblique (indirect) intent suffices (Ismail; Belfon).
Key cases:
Intent to wound is insufficient: R v Taylor.
Resisting arrest: Morrison.
80
What are the evaluation points for non - fatal offences ?
1. The Offences Against the Person Act 1861 is outdated.
2.The OAPA 1861 inadequately addresses psychological harm.
3. The language used in the OAPA 1861 is archaic and unclear.
4.Assault is charged under the Criminal Justice Act 1988, which lacks a statutory definition.
5. Public misunderstanding of the term "assault" leads to confusion.
6. Assault and battery are not defined within the OAPA 1861.
7. "Actual Bodily Harm" lacks a statutory definition in the OAPA 1861.
8. "Grievous Bodily Harm" is not defined within the OAPA 1861.
81
What's the nature of attempts ?
Attempts fall under inchoate offences, which also include conspiracy and encouraging or assisting crime.
These offences criminalise conduct that comes close to, but does not result in, the completion of a full offence.
Mere criminal thoughts or preparation are not criminal. Liability only arises when D takes a step more than merely preparatory towards committing an offence.
82
What is the statutory basis for attempts ?
Section 1(1) Criminal Attempts Act 1981 (CAA 1981):
“If, with intent to commit an offence… a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”
Section 6(1): Abolished the common law offence of attempt.
Section 4(1): Attempt is generally punishable as the full offence.
Section 1(4): Attempts apply only to indictable and triable either way offences, not summary-only offences unless Parliament explicitly allows it.
83
What is the AR of attempts ?
D must perform an act, not an omission, that is more than merely preparatory (MTMP).
What qualifies as MTMP is decided by the jury under s.4(3) CAA 1981.
Courts have developed two key tests:
Has D moved from planning to execution?
Has D actually tried to commit the offence, rather than merely getting ready?
84
What cases relate to the AR of attempts ?
Cases showing Mere Preparation (MP):
R v Campbell
R v Nash
R v Gullefer
R v Geddes
Cases showing MTMP:
R v Tosti & White
R v Jones
R v Toothill
R v Boyle and Boyle
AG Ref (No.1 of 1992)
85
What's the MR of attempts ?
Must intend the full offence.
R v Mohan
Intent = “a decision to bring about … the commission of the offence … no matter whether the accused desired that consequence or not.”
R v Pearman: Oblique intent suffices – foresight of result as virtually certain = intent.
Attempted Murder
Requires intention to kill. Intent to cause GBH is not sufficient.
R v Whybrow: Jury must be directed that only intent to kill qualifies.
86
What is conditional intent for attempts ?
A conditional intent (e.g. “I’ll steal if there’s something worth stealing”) does suffice.
AG Ref (Nos. 1 and 2 of 1979) confirms this.
87
Can you attempt s20 OAPA 1861 ?
No – S.20 requires recklessness as sufficient mens rea.
Attempts require intention.
Case: R v Millard and Vernon – pushing fence recklessly ≠ attempt.
88
Is impossibility a defence to attempts ?
Section 1(2) CAA 1981: Factual impossibility is not a defence.
D can be guilty even if offence turns out to be impossible (e.g., no drugs, fake child, etc.)
Factual Impossibility:
R v Shivpuri – Thought substance was heroin, was vegetable matter. Guilty.
R v Jones – ‘Child’ was policewoman. Still guilty.
Legal Impossibility:
R v Taaffe – D thought smuggling currency was illegal. It wasn’t. Not guilty – offence must exist in law.
89
What are the quick facts about intoxication ?
Intoxication includes alcohol, drugs (legal/illegal) or any other intoxicating substance such as glue sniffing.
Intoxication is not a defence as such but may prevent the D from forming mens rea.
90
What are the two points that you must consider when talking about intoxication ?
1) Was the intoxication VOLUNTARY or INVOLUNTARY?
2) Is the offence one of SPECIFIC INTENT or BASIC INTENT?
91
What is voluntary intoxication ?
Where D has chosen to take the intoxicating substance or knows that a prescribed drug will make them intoxicated.
92
What happened in the case of R v Sheehan and Moore (1975)?
Two Ds, in a drunken state, poured petrol over a man and set light to him causing his death. Ds were too drunk to have formed any mens rea to kill or cause GBH.
HELD:
Offence downgraded to involuntary manslaughter (basic intent offence) as they did not form the MR for murder.
93
What drunken intent for voluntary intoxication ?
However, if D has formed the MR for the offence, then he or she are guilty.
A drunken intent is still an intent - A-G for N. I. v Gallagher (1963).
94
What happened in the case of A-G for N.I. v Gallagher (1963) ?
D decided to kill his wife and bought a knife to do so. Drank whiskey for dutch courage and claimed this meant he could not form the mens rea.
HELD:
Where D forms the intention to kill and drinks in order to give themselves Dutch courage, they can not then rely on their intoxication to demonstrate they did not have the necessary mens rea.
95
Is Voluntary intoxication and basic intent offences a defence ?
Not a defence to offences of basic intent if D would have realised the risk had they been sober - DPP v Majewski (1977).
This is because becoming intoxicated is a reckless course of conduct.
96
What happened in the case of DPP v Majewski (1977) ?
D consumed large quantities of alcohol and drugs then attacked the pub landlord, damaged the premises and went on to attack the arresting officers.
HELD:
No defence possible for basic intent offences due to drinking/drug taking being reckless in itself.
97
What is voluntary intoxication and Mens Rea ?
If D had MR when he committed the offence, involuntary intoxication will not be a defence. See R v Kingston (1994).
However, if D did not have MR then they will not be guilty.
98
What happened in the case of R v Kingston (1994) ?
Ds coffee was drugged by someone wishing to blackmail him. He was shown a 15 year old boy and invited to abuse him, which he did. D was homosexual with paedophiliac predilections
HELD:
D had formed the MR of the offence and it did not matter that he may not have done so without being drugged.
99
What case is this ? Ds coffee was drugged by someone wishing to blackmail him. He was shown a 15 year old boy and invited to abuse him, which he did. D was homosexual with paedophiliac predilections
HELD:
D had formed the MR of the offence and it did not matter that he may not have done so without being drugged.
R v Kingston (1994)
100
What happened in the case of R v Hardie (1984) ?
D had a dispute with girlfriend who offered him valium to calm him down.
D did not know it could affect his behaviour in other ways.
Set fire to a wardrobe.
Not reckless & no prior MR.
101
What case is this ? D had a dispute with girlfriend who offered him valium to calm him down.
D did not know it could affect his behaviour in other ways.
Set fire to a wardrobe.
Not reckless & no prior MR.
R v Hardie (1984)?
102
What case relates to an intoxicated mistake ?
R v Lipman (1970)
103
What happened in the case of R v Lipman (1970) ?
D & his GF had taken LSD. Both fell asleep and D began hallucinating, believing his GF was a snake trying to attack him. D suffocated his GF by cramming bed sheets into her mouth. D was charged with Murder & Manslaughter.
HELD:
D’s intoxication could be used to demonstrate that he lacked the MR for murder as it is a crime of specific intent. However, D’s intoxication could not be a defence to manslaughter as it is a crime of basic intent.
104
What case is this ? D & his GF had taken LSD. Both fell asleep and D began hallucinating, believing his GF was a snake trying to attack him. D suffocated his GF by cramming bed sheets into her mouth. D was charged with Murder & Manslaughter.
HELD:
D’s intoxication could be used to demonstrate that he lacked the MR for murder as it is a crime of specific intent. However, D’s intoxication could not be a defence to manslaughter as it is a crime of basic intent.
R v Lipman (1970)
105
What happened in the case of R v O'grady ?
D and the victim (V), who were friends, had been drinking heavily and fell asleep. D claimed that he awoke to find V hitting him so he picked up a glass ashtray and hit V before going back to sleep. In the morning D awoke to find that V was dead. D was convicted of manslaughter.
HELD:
D is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.
106
What case is this - D and the victim (V), who were friends, had been drinking heavily and fell asleep. D claimed that he awoke to find V hitting him so he picked up a glass ashtray and hit V before going back to sleep. In the morning D awoke to find that V was dead. D was convicted of manslaughter.
HELD:
D is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.
R v O'grady (1987)
107
What topic does the case of R v O'grady (1987) relate to ?
Intoxicated mistake - intoxication
108
What happened in the case of R v Hatton (2005) ?
D had drunk 20 pints of beer and went back to his flat with his friend. D found the friend dead in the morning from injuries induced by a sledgehammer. D recalled a fight within which he claimed he acted in self defence but made a mistake about the force necessary.
HELD:
A drunken mistake about the amount of force required in self-defence is not a defence. D guilty of Murder.
109
What case is this ? D had drunk 20 pints of beer and went back to his flat with his friend. D found the friend dead in the morning from injuries induced by a sledgehammer. D recalled a fight within which he claimed he acted in self defence but made a mistake about the force necessary.
HELD:
A drunken mistake about the amount of force required in self-defence is not a defence. D guilty of Murder.
R v Hatton (2005)
110
What topic does the case of R v Hatton (2005) relate to ?
intoxicated mistake - intoxication - mental capacity defences
111
Evaluation point one for intoxciation ?
Distinction between voluntary and involuntary intoxication can be unclear
- At present all intoxicating substances are treated similarly, whether legal or illegal.
No leeway is given in cases where D’s inhibitions are broken down by involuntary intoxication.
112
Evaluation point two for intoxication ?
Lowered Inhibitions due to Intoxication
R v Kingston (1994)
- D was found guilty of indecent assault. He had been involuntarily drugged and then sexually assaulted a boy at the suggestion of the person who drugged him.
The basis of the conviction was that D was homosexual with paedophiliac predilections and therefore had the MR necessary to commit the offence.
This case ignores the fact that D was not to blame for the intoxication and may not have committed the offence if he had not been intoxicated.
113
Evaluation point three - intoxication ?
Fautless intoxication
- Faultless intoxication by soporific drugs (which induce drowsiness or sleep) is treated as involuntary intoxication.
R v Hardie (1984) D’s conviction for arson was quashed after taking his partner’s valium to calm himself down and then setting fire to a wardrobe.
CA decided that D should be allowed a defence, because he had not taken a drug that was known to cause aggression or unpredictability.
Can be argued that this is a sensible outcome as reasonable people may have thought the same.
However, it could be said to be reckless to take drugs prescribed for someone else. This also seems unfair to someone in Kingston’s position where their inhibitions have been lowered by involuntary intoxication.
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Evaluation point four - intoxication ?
Distinction is artificial and illogical.
Law Commission: ‘specific intent’ and ‘basic intent’ have been interpreted by different judges to mean different things, resulting in great uncertainty.
The Law Commission proposed abolishing the terms ‘specific intent’ and ‘basic intent’.
There is also the issue that there is no ‘fall back’ basic intent crime for some specific intent crimes.
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Evaluation point five for - intoxication - mental capacity defences
The Level Of Intoxication
- If a person is very intoxicated, this may prevent D from forming the necessary MR for a defence.
No fixed level of intoxication as to when D will be found liable for their criminal acts when intoxicated.
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Evaluation point six - intoxication ?
The relationship of AR and MR- basing liability on prior fault
- Some aspects of the rules on intoxication seem contrary to the normal rules on AR and MR.
In Majewski Lord Elwyn-Jones said that a D who voluntarily gets into an intoxicated state,
“supplies the evidence of MR, of guilty mind, certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary MR in assault cases''.
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Evaluation point seven - intoxication ?
Competing interests in the defence of intoxication.
- Personal autonomy - an adult can make a choice to spend as much of their own money as they wish on buying intoxicating substances, even in public when they are drinking alcohol.
Social paternalism - excessive consumption of alcohol, and the consumption of illegal drugs, cause damaging consequences for society and therefore the individual should be discouraged from taking them. Criminal justice system attempts to balance the rights of the D and the victims of crime.
If intoxication was always allowed as a defence then the rights of victims and society would not be protected.
However, if it is never allowed then the rights of D would not be protected, for example when D is involuntarily intoxicated.
Could be argued that the distinction between legal and illegal drugs and intoxicating substances could be reflected in sentencing.
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Evaluation point eight - intoxication ?
The law on intoxication is largely policy based.
This is because many offences are committed by intoxicated Ds.
Statistics suggest that half of all violent crimes are committed by a D who is intoxicated through the use of drugs and/or alcohol.
Also there is a need to balance the rights of D and the victim.
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What type of offence is theft ?
triable either way
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What is the maximum sentence for theft ?
7 years
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Define theft ?
Under Section 1(1) of the Theft Act 1968, theft is defined as:
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”
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Discuss the AR element - theft - appropriation ?
Appropriation (Section 3)
Defined in Section 3(1) as:
“Any assumption by a person of the rights of an owner amounts to an appropriation...”
This includes acts such as selling, destroying, or using the property.
R v Morris: Switching price labels in a supermarket was held to be an appropriation.
R v Pitham and Hehl: Offering to sell someone else's furniture was considered an appropriation.
Consent is not a defense to appropriation:
Lawrence v MPC: A taxi driver took more money than the fare from a passenger's wallet with consent; this was still appropriation.
R v Gomez: Confirmed that appropriation can occur even with the owner's consent if obtained dishonestly.
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Can accepting a gift be appropriation ?
YES - Even accepting a valid gift can be appropriation:
R v Hinks: Receiving gifts from a person of limited intelligence was held to be appropriation.
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Can appropriation occur more than once?
Appropriation is a single point in time, so only happens once:
R v Atakpu and Abrahams: Once property is appropriated, subsequent dealings are not new appropriations.
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Discuss the AR element property - theft ?
Property (Section 4)
Defined in Section 4(1) as:
“Property includes money and all other property, real or personal, including things in action and other intangible property.”
This encompasses:
Money: Coins and banknotes.
Real Property: Land and buildings (with specific exceptions).
Personal Property: Tangible items like books, cars, and clothes.
Things in Action: Rights enforceable by legal action, such as bank account balances.
Other Intangible Property: Includes patents and trademarks.
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What is considered not property ?
Certain items are not considered property:
Confidential Information: Not property under the Act.
Oxford v Moss: A student who read an exam paper in advance was not guilty of theft as the information was not property.
Wild Plants and Creatures: Not property unless taken for commercial purposes.
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Discuss the AR element belonging to another - theft ?
Belonging to Another (Section 5)
Defined in Section 5(1) as:
“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.”
Key points:
Possession or Control: A person can be guilty of stealing their own property if someone else has possession or control.
R v Turner.
Abandoned Property: If property is truly abandoned, it cannot be stolen.
R v Ricketts.
Property Received Under Obligation (Section 5(3)): If property is given for a specific purpose, failing to use it accordingly can be theft.
Davidge v Bunnett.
Property Obtained by Mistake (Section 5(4)): If a person receives property by mistake and fails to return it, this can be theft.
Attorney-General’s Reference (No.1 of 1983), R v Gilks.
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Discuss the MR element dishonesty - theft ?
Dishonesty (Section 2)
The Act provides situations where a person is not dishonest.
Section 2(1)(a): Belief in legal right to the property.
R v Holden: D believed he had the right to take discarded tyres; conviction quashed.
Section 2(1)(b): Belief that the owner would consent.
R v Robinson: D believed he was entitled to money owed; not dishonest.
Section 2(1)(c): Belief that the owner cannot be discovered by taking reasonable steps.
R v Small: D took an abandoned car, believing the owner could not be found; not dishonest.
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Is the Ivey test objective or subjective ?
Objective
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What is the test for dishonesty ?
Ivey v Genting Casinos: Established that dishonesty is judged by the standards of ordinary decent people, regardless of the defendant's personal beliefs, unless they meet one of the exceptions under 2(1)..
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What case confirmed the application of the Ivey test in criminal law ?
R v Barton and Booth
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Discuss the MR element of theft - Intention to permenantly deprive?
Intention to Permanently Deprive (Section 6)
This involves an intention to treat the property as one's own to dispose of regardless of the owner's rights.
R v Velumyl: D took money from his employer intending to repay it; since he did not intend to return the exact notes, he was guilty of theft.
DPP v Lavender: D took doors from one council property to use in another; this was treating the property as his own.
R v Lloyd: D borrowed film reels, copied them, and returned them; not guilty as the films retained their value.
R v Easom: D rummaged through a handbag but took nothing; no intention to permanently deprive, so not guilty of theft.
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What act defines robbery ?
Section 8(1), Theft Act 1968
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Define robbery ?
"A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force."
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What is the AR of Robbery ?- 1st element
1. There Must Be a Completed Theft
If any of the elements of theft (appropriation, property, belonging to another, dishonesty, intention to permanently deprive) are missing, there is no robbery.
R v Robinson.
R v Waters.
Corcoran v Anderton.
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What is the second element of AR for robbery ?
Force or Threat of Force
Dawson and James:
Clouden:
P v DPP:
B and R v DPP:
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What is the third element for AR of robbery ?
Force Must Be Used on Any Person
Victim of force need not be the owner of the property.
E.g., if a gang ties up a guard to steal from a train, this is robbery.
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What is the fourth element for AR of robbery ?
Timing – Force Must Occur Immediately Before or at Time of Theft
R v Hale:
Ds tied up V after stealing jewellery.
Held: Appropriation was a continuing act, so force used afterwards could count for robbery.
R v Lockley:
D used force to escape after shoplifting.
Held: Upheld Hale – theft was ongoing during forceful escape.
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What is the fifth element for AR of robbery ?
Force Must Be Used in Order to Steal
If force is applied for another reason (e.g., assault) and theft follows later, this is not robbery.
R v Vinall:
D punched V, took his bike later.
Held: Theft was an afterthought – no robbery as the force was not used in order to steal.
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What is the MR of robbery ?
The defendant must have:
The mens rea for theft:
Dishonesty (assessed using the Ivey v Genting test)
Intention to permanently deprive
Intention to use force to steal – there must be a link between the force and the theft.
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