Criminal Law 1 Notes PDF

Introduction 25/09/24 09 September 2024 17:08 The rule of law ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’, Tom Bi...

Introduction 25/09/24 09 September 2024 17:08 The rule of law ‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’, Tom Bingham, The Rule of Law (Penguin, 2010) 8 Principle of Legality Non- retroactivity- means that a defendant is never convicted or punished except in accordance with a previously declared offence governing the conduct in question. Fair warning Strict interpretation of legislation Non-retroactivity, art7 ECHR ‘No punishment without law’ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nation Welch v UK (1995) 20 EHRR 247 Art 7, clear definitions European Court of Human Rights stated in Kokkinakis v Greece (1994) 17 EHRR 397 that art 7: ‘...is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also em bodies, more generally, the principle that only the law can define a crime and prescribe a penalty... and the principle that the criminal law must not be extensiv ely construed to an accused’s detriment.... It follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with assistance of the court’s interpretation of it, what acts and omissions will mak e him liable’, Fair warning principle ‘Respect for the citizen as a rational, autonomous individual and as a person with social and political duties, requires fair warning of the criminal law’s provisions and no undue difficulty in ascertaining them. The criminal law will also achieve this respect more fully if its provisions keep close to moral distinctions that are both theoretically defensible and widely understood by lay people’, J. Horder, Ashworth’s Principles of Criminal Law 10th edn, (Oxford, 2022) 90 Sunday Times v UK (1979-80) 2 EHRR 245 Blasphemous libel Lemon AC 617 AC 617 X Ltd & Y v UKX Ltd & Y v UK (1982) 28 DR 77(1982) 28 DR 77 Satanic VersesSatanic Verses casecase (R v Chief(R v Chief Stipendiary Magistrate ex pStipendiary Magistrate ex p ChoudhuryChoudhury 1 QB 429) 1 QB 429) Offence was abolished by s.79Offence was abolished by s.79 Criminal Justice and ImmigrationCriminal Justice and Immigration Act 2008Act 2008 Art 7, lemon case ‘By stating that the mens rea in this offence did only relate to the intention to publish, the courts therefore did not overstep the limits of what can still be regarded as an acceptable clarification of the law. The Commission further considers that the law was also accessible to the applicants and that its interpretation in this way was reasonably foreseeable for them with the assistance of appropriate legal advice’, X and Y Ltd v UK (1982) 28 DR 77, Corinna Adam, ‘Protecting Our Lord’, The New Statesman, 15 July 1977 (reprinted 13 Feb 2006, 63) Rape Marital rape exception ‘It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant P arliamentary enactment’, R 1 AC 599, 610 (Lord Lane CJ) Offence: ‘It is felony for a man to rape a woman’, Sexual Offences Act 1956, s.1(1) ‘unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it’, Sexual Offences (Amendment) Act 1976, s.1(1) The role of criminal law Page 1 Role of Criminal Law 26 September 2024 11:07 Criminal Law function The function of the criminal law is to lay down a set of standards of what is permissible or not. It is a method of social control, a framework specifying the parameters of acceptable behaviour. The same is true of all law and indeed of ethical systems such as morality and religion... What distinguishes the criminal law from other mechanisms of social control, and from other branches of law, is the typ es of sanction that are employed to back up its rules... The convicted thief can be subjected to the shame and censure of public punishment’, Clarkson & Keating Crimi nal Law 1-001 Classic definitions of crime A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment’, Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens, 1983) 27 - ‘The domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared bythe State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished’, Proprietary Articles Trade Association v Attorney General for Canada AC 310, 324 (Lord Atkin) A declaraty function But Antony Duff says something slightly different... ‘We should not see the criminal law as prohibiting the conduct that it defines as mala in se [wrong in itself] – as offering the citizens content-independent reasons to refrain from such conduct We should see it instead as declaring such conduct to constitute a public wrong properly condemned by the community, for which the agent is answerable to the community through a criminal process’, RA Duff, Punishment, Communication and Community (Oxford, 2003) 64 A public wrong Duff suggests a crime must be a ‘public wrong’, i.e. conduct harmful to society as a whole that’s punished by the state ▫ Clue in the case name... Rex v Smith; not Jones v Smith ▫ Crime is a wrong against all citizens and criminal law condemns conduct of which the community disapproves ▫ RA Duff, ‘Responsibility, Citizenship & Criminal Law’ in Duff & Green, Philosophical Foundations of Criminal Law (Oxford, 2011) 139  But Horder suggests that conduct amounting to a public wrong is insufficient on its own to identify a crime, Horder, Ashworth’s Principles of Criminal Law (10th edn, Oxford, 2022)18-19… Theories of criminalisation Three main strands of thinking that exist on what is ‘wrongdoing’ and whether the wrongdoing should be criminalised: 1) legal moralism 2) liberalism: the harm principle 3) paternalism Legal Moralism- Devlin Immorality as a sufficient criteria for criminalisation Public morality is a vital ingredient of a society (& needed to prevent societal collapse) State has the right to safeguard anything that is essential to its existence What is immoral should be based on the standards of the ‘reasonable man’ Only in circumstances where a right-minded person would be deeply disgusted should the law maker attempt to criminalise the conduct Problems ‘...to assume a common culture or a normative consensus in.. society... is to ignore the deep and divisive role of class, ethnic, religious, status, and regional culture conflicts which often produce widely opposing definitions of goodness, truth, and moral virtue’, Tony Honoré, ‘The Dependence of Morality on Law’ (1993) 13 OJLS 1, 2 New legal moralism Duff: Immorality as a necessary, but not sufficient, criteria for criminalisation - The criminal law presupposes the moral wrongfulness of the criminal conduct - It determines which pre-criminal wrongs should count as public wrongs ‘We should not criminalize conduct that is not in some relevant way morally wrongful, nor impose criminal liability on those who are not morally culpable, but the wrongfulness of the conduct and the culpability of its agent do not give us positive reason to criminalize it...’, RA Duff, ‘ Perversions and Subversions of Criminal Law’ in RA Duff, L Farmer, SE Marshall, M Renzo and V Tadros (eds) The Boundaries of the Criminal Law (Oxford, 2010) Hart-Devlin Debate HLA Hart opposed Devlin’s ideas Supposed ‘immorality’ is not sufficiently good reason to criminalise behaviour Can only legislate against harm to self if serious public interest at stake Social intervention is only justified to prevent harm to another & not on the basis of a supposed shared morality Liberalism : harm principle John Stuart Mill ‘... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’ On Liberty (1859) (Penguin rep, 1985) 68 Paternalism Protecting persons from harming themselves & for welfare, e.g. drugs, sexual offences, etc Should injuries inflicted in the course of sado-masochistic sexual activities be lawful? The role of criminal law Page 2 Brown The Operation Spanner case’ House of Lords declined to extend the exceptions that permit consent to harm to include sado-masochistic acts done in private Brown 1 AC 212; Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 → Sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence....the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless...Society is entitled and bound to protect itself against a cult of violence’ Brown 1 AC 212, 235 & 237 (Lord Templeman) → ‘My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all.... What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards’,Brown 1 AC 212, 256 & 274 (Lord Mustill) Feinberg and the harm principle Preventing or reducing ‘harm’ to other persons justifies criminalisation Harm is defined as a ‘thwarting, setting back or defeating of an interest’ that is a consequence of a wrongful act or omission by another. Risk of harm to others also justifies criminalisation e.g. drink-driving - Feinberg also suggests that criminalisation is justified if it would cause serious offence (with reference to the extent and duration of the repugnance) provided it could not be reasonably be avoided and V did not assume the risk of being offended and it is not counterbalanced by the reaso nableness of D’s conduct, if no other means would be equally effective, The Moral Limits of the Criminal Law Vols 1-4 (Oxford, 1984-1990) The role of criminal law Page 3 The anatomy of a crime 02/10/24 13 September 2024 12:40 Actus non facit reum nisi mens sit rea That is, ‘the act is not guilty unless the mind is guilty’ The criminal offence essentially consists of two parts: 1 actus reus 2 mens rea Plus a third element – the lack a of defence 3-step structure of a crime Crimes The actus reus is everything else: 1. Conduct/act (or an omission, where there’s a duty) 2. Result - D caused the result of the act/omission 3. Circumstances of offence crimes For example Theft (s.1(1) Theft Act 1968) ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly’ - identify the AR & MR? Riot (s.1 Public Order Act 1986) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using u nlawful violence for the common purpose is guilty of riot actus reus ‘Common purpose’ is also a form of mens rea s.6 Public Order Act 1986 ‘mental element: miscellaneous’ (mens rea) (1) A person is guilty of riot only if he intends to use violence or is aware that his conduct may be violent Mens rea The most common criminal state of mind can be (from most to least blameworthy)… mens rea distinguishes between an act which might have been na accident and that which has been done deliberately 1. E.g. a child runs out in front of a car, giving D no time to brake. Child is killed. D was driving carefully 2. D sees a child in the road and accelerates hard. He hits and kills the child What distinguishes the examples is - the blameworthy state of D’s mind The outcome (the child’s death) is the same... Lack of defence 3 types of defences Negates definitional element of the offence e.g. D acts lawfully in self-defence (and even could Be on a mistaken belief in need for reasonable force) Gladstone Williams (1984) 78 Cr App R 276 Justifications D had to act in a certain way to prevent greater harm, or couldn’t be expected to have behaved differently, e.g. self -defence/differently, /LOSC Excuses the actions remain unlawful, but the D is not blameworthy, e.g. D committed a crime (except murder) under duress, fearing dea th or serious injury lack of a defence - third element Strict liability Most serious offences, like murder, require a guilty state of mind - mens rea - but some don’t... Strict Liability offences are proved by: 1. Proof of AR - voluntary conduct in performing AR 2 But no proof of R in respect of one or more of the elements of the AR is re uired Mala prohibita not what mala in se offences are – not inherently evil, not morally wrong, etc regulatory less serious public wrongs strict liability e.g. some road traffic offences actus reus Page 4 Mala in se conduct that is wrong in itself morally wrong wrong in themselves inherently evil serious offences public wrongs e.g. murder, rape, assault division of crimes no actus reus if conduct is involuntary The conduct must be voluntary ‘The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case’, Bratty v Attorney- General for Northern Ireland AC 386, 409 (Lord Denning) involuntary conduct? Bell 3 All ER 842 Facts: The defendant had been charged with reckless driving, having used a van to smash through the entrance gates of a Butl ins’ holiday camp. Held: dismissing the appeal that as the defendant had been aware of his actions he could not have been in a state of automat ism, and the fact that he believed himself to be driven by God could not provide na excuse, but merely an explanation for what he had done. In other words he co uld not rely on the defence of insanity either because the evidence was that he had known what he was doing, or had known that what he was doing was illegal. State of Affairs Offences Larsonneur (1933) 24 Cr App R 74 D was charged with ‘being found’ in the UK ‘being an alien to whom leave to land in the United Kingdom has been refused’ After being brought back to the UK by police Omissions Liability- a duty to act Normally, proving the MR of an offence means... Proving D’s positive state of mind E.g. D intended the conduct (AR) of, say, punching X And so there will be no liability for D failing to act, if there’s no duty to act, e.g. a drowning stranger But omissions liability will arise if there is a duty to act and D then fails to act according to that duty Conduct - an omission to act Circumstances a legal duty to act plus breach of duty Causa on – a result. Omission in those circumstances causes the proscribed outcome in result crimes Where a duty of care can be established – breaches may result in e.g. gross negligence manslaughter Recognised duties to act actus reus Page 5 Actus reus + Omissions 03/10/24 03 October 2024 11:55 Duty arising from a special relationship Murder by omission Gibbins & Proctor (1919) 13 Cr App R 134 The common law duty for a parent to protect their children from physical harm – man and the woman he lived with were found guilty of the murder of G’s child, who starved to death. G breached his duty of care to the child as a parent and P assumed a duty to the child by taking money to feed her Voluntary assumption of duty of care - Express undertaking – Nicholls (1874) 13 Cox CC 75 grandmother took grandchild in on death of mother - Implied undertaking – Instan 1 QB 450 D lived with aunt who became ill. D did not give her food or seek help. Convicted of manslaughter - duty imposed on her to care for the aunt - ‘wilfully left unperformed’ - Stone and Dobinson 2 All ER 341– S’s sister lived with them and became ill with anorexia nervosa. S was partially deaf, nearly blind and of low intelligence. D was ‘ineffectual and inadequate’. They tried to find a doctor but could not use a phone. Both convicted of manslaughter. Court of Appeal – by the minimal level of help they had given they had ‘assumed a duty to care and were grossly negligent in performing that duty’ Professional relationships Switching-off life support machines? There is no evidence…that at the time of conventional death, after the life support machinery was disconnected, the original wound or injury was other than a continuing, operating and indeed substantial cause of the death…Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead, and that such vital functions as exist…are being maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the person who inflicted the initial injury from being res ponsible for the victim’s death. Putting it another way, the discontinuance of treatment in those circumstances does not break the chain of causation between the initial injury and d eath’, Malcherek & Steel (1981) 73 Cr App R 173, 181-182 (Lord Lane CJ) Do medical practitioners kill by omitting to treat? Not usually. But what can you do to avoid a breach of duty of care? -Airedale NHS Trust v Bland AC 789: Removal of life support is permitted as it did not amount to murder. The actus reus of actively causing death would not be present. -Malcherek & Steel (1981) 73 Cr App R 173 Duty arising from a dangerous situation Miller 1 All ER 978 D was squatting & fell asleep on a bed with a lighted cigarette. He woke up and left the room. The house caught fire. Char ged with arson. House of Lords dismissed appeal - when he became aware of what he had done he should have taken steps to prevent or minimize the damage Duty to seek medical help Blood relationship to half-sister – did it give rise to a duty of care? No! Not here. It did NOT give rise to duty of care in Evans (Gemma) EWCA Crim 650 For Gross Negligence Manslaughter - when person created or contributed to state of affairs which the person knows or ought reasonably to know has become life threatening - this places a duty on D to take reasonable steps to save the other’s life Broughton 1 WLR 543 □ An omission must be proven cause of the result, e.g. death in Gross Negligence Manslaughter □ D supplied illegal drugs to V and omitted to seek medical assistance when a serious and obvious risk of death □ BUT to prove D caused death by his omission P must prove to the criminal standard of proof (i.e. ‘sure’) that V would have lived – IF she had received medical help □ P must prove that medical assistance would have saved V’s life □ To prove this, P must exclude realistic or plausible possibilities that V would have died anyway even if she had received medical treatment in good time □ Expert evidence of a 90% chance of V’s survival with medical help was not enough to establish causation actus reus Page 6 Causation 03/10/24 03 October 2024 13:15 Two strands of causation 1. Factual causation- "but for" test Cause & effect ▫ ‘But for’ D’s act would V be alive? Yes ▫ Factual cause, White 2 KB 124 ▫ Was D’s conduct the ‘but for’ cause of the death? Pagett 76 Cr App R 279 ▫ D may not be at fault Factual and Legal causation D must be BOTH factual and legal cause E.g. in Hughes UKSC 56 D was charged with the homicide offence of causing death by driving without insurance/licence (s.3ZB Road Traffic Act 1988) D’s driving set the scene for the collision = so he was a factual cause of V’s death But he was NOT the legal cause of the collision and V’s death, as his driving was not at fault, and he had not contributed in more than a minimal way to the collision and V’s death - See also Taylor UKSC 5; Walker EWCA Crim 3 and EWCA Crim 1956 2. Legal causation ▫ ‘Was D’s act ‘an operating and substantial’ cause of V’s death? Smith 2 QB 35 ▫ Did D’s act make ‘a significant contribution’? ▫ Was it a ‘more than minimal cause’ [de minimis]? ▫ It need not be the sole cause, Pagett 76 Cr App R 279; Hughes UKSC 56 ▫ Or, was there a new intervening act? a novus actus interveniens… Winter EWCA Crim 711 Fireworks (equivalent of 190-200kg of TNT) exploded in a container on a Sussex farm. A huge explosion caused shrapnel to be thrown over a wide area and two people were killed. The accused were convicted of gross negligence manslaughter. In civil proceedings, the Fire Service was held to have been negligent Did that negligence break the chain of causation? Third party intervention can break the chain if it is not reasonably foreseeable… But it didn’t break it because D did not have to be the sole or main cause, so long as they were a substantial cause (Cheshir e), Winter EWCA Crim 711 Blaue 3 All ER 446 ‘take your victim as you find them…’ The ‘whole man’ Physically, but also religious views, e g Jehovah’s Witness - But note the potential conflict with the Roberts (1972) 56 Cr App R 95 ‘daft’ victims case, i e D may not have caused injuri es if it was not reasonably foreseeable that V was ‘daft’ enough to jump out of a speeding car…? What should be the limits? inor assault and V commits suicide? V’s stupid self-treatment? Medical treatment- breaks in the chain of causation Jordan (1956) 4 Cr App R 142 Was the treatment ‘palpably wrong’? Abnormal? i e was it gross negligence? novus actus interveniens Smith 2 QB 35 Was the wound merely ‘the setting’ in which another cause operated? Cheshire 1 WLR 844 Was the treatment so independent of the D’s act and so potent in causing death that the D’s act was insignificant? Extraordinary and unusual cases only… Breaks in the chain The ‘FDI principle’ ‘The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility’ Hart & Honoré, Causation in Law, 2nd edn, (Oxford, 1985) 326 V injects himself = break in the chain of causation, Kennedy (No 2) 1 AC 269 This was ‘free deliberate, and informed’ conduct Legal causation and autonomy → The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the youn g, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another…’ Kennedy (No 2) 1 AC 269, (L ord Bingham) → ‘I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by puttin g it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before’, Glanville Williams, ‘ Finis for Novus Actus?’ (1989) Camb LJ 391, 391 [Kennedy (No 2) 1 AC 269, (Lord Bingham)] Breaks Was what happened the natural conse uence of D’s conduct? Was it a foreseeable act? In Pagett 76 Cr App R 279 it was a foreseeable act instinctively done for the purposes of self-preservation or in the execution of duty to prevent crime or to arrest an offender. Therefore, not an FDI break What about natural events? D beats V unconscious and leaves for dead on a beach? V is then drowned by incoming tide. Is D liable for murder? Yes, D may have foreseen, and it would be reasonably foreseeable that V would drown in these circumstances actus reus Page 7 Natural events ▪ D might leave V injured in a field ▪ V would normally have survived ▪ But an ‘extraordinary’ event intervenes… ▪ E.g. a freak tornado and V then dies from a tree falling on V. That would break the chain of causation if it was not foresee n or reasonably foreseeable ▪ Environment Agency v Empress Car Co (Abertillery) 2 AC 22 Breaks in the chain D is charged with murder after throwing sulphuric acid over V - inflicting dreadful injuries and leaving V disfigured, paralysed and in unbearable constant physical and psychological pain What if V then undergoes assisted suicide in Belgium? Does voluntary euthanasia break the chain of causation? Is it a novus actus interveniens? - No, not necessarily, if D’s act was a significant contribution to death and the assisted suicide was, at the time of the incident, reasonably fore seeable/within the range of responses that might have been expected from V, Wallace (Berlinah) EWCA Crim 690 Judicial conflict Wallace was re-tried - And convicted of ‘throwing corrosive fluid with intent to cause GBH’ (s 29 OAPA 1861) - But she was not convicted of murder or manslaughter - perhaps due to a lack of foresight of the result at the time of the incident? i.e. the jury thought it was not reasonably for eseeable (as Clarkson & Keating notes (2-088)) - Crown Court Compendium (June 2024) - the trial judge’s handbook - now says of Wallace: ‘The facts of the case, and the resulting consideration in the Court of Appeal, should be considered as being truly exceptional. It is suggested that the greatest care should be taken if seeking to apply this case to different circumstances’ (7-33) Unclear legal causation Cheshire appeared to clarify the law on legal causation, but Simon Gardner suggested in an article that there remained ‘substantial awkwardness’ in the law, ‘Causation in homicide’ (1992) 108 (Jan) LQR 24. Are decisions like Field and Wallace evidence that he was correct or, perhaps, does a lack of certainty/flexibility in this area of the law reflect the real world…? - It was stated in Hughes UKSC 56, that ‘the meaning of causation is heavily context-specific… it is not always safe to suppose that there is a settled or “stable” concept of causation which can be applied in every case’ (Lord Hughes and Lord Toulson) actus reus Page 8 Mens Rea 13 September 2024 12:41 Fault/blame ‘ so far as individuals are concerned, respect for lifestyle autonomy re uires that criminal liability be imposed only wher e there has been genuine fault, meaning that the commission of the offence could have been avoided This is a fundamental re uirement’, J Horder, Ashworth’s Principles of Cr iminal Law 10th edn, (Oxford, 2022) 200 ‘ it is a salutary principle that conviction of serious crime should depend on proof not serious crime should depend on pr oof not simply that the defendant caused (by act or simply that the defendant caused (by act or omission) an injurious result to another but omission) an injurious result to another but that his state of mind when so acting was that his state of mind when so acting was culpable. This, after all, is that meaning of the culpable. This, after all, is that meaning of the familiar rule familiar rule actus non facit reum nisi mens sitactus non facit reum nisi mens sit rearea. The most obviously culpable state of. The most obvious ly culpable state of mind is no doubt an intention to cause the mind is no doubt an intention to cause the injurious result, but knowing disregard of na injurious res ult, but knowing disregard of na appreciated and unacceptable risk of causing appreciated and unacceptable risk of causing an injurious result or a deliberate closing of an i njurious result or a deliberate closing of the mind to such risk would be readily the mind to such risk would be readily accepted as culpable also’, accepted as culpable also’, GG UKHL UKHL 50, (Lord Bingham)50, (Lord Bingham) Cunningham recklessness ‘(ii) recklessness as to whether such harm should occur or not (i e the accused has foreseen that the particular kind of har m might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it´ indeed require, any ill-will towards them person injured’, Cunningham QB 396, 399-400 This is a subjective test Approved by the Law Commission in (Law Com No 29, 1970) Offences of Damage to Property report and Working Paper (No 23)(196 9); Working Paper No 31 Mental Element in Crime (1970) The Criminal Damage Act 1971 followed and was based on the Law Commission’s work See also Stephenson QB 695, 703 (CA) concerning the tramp in the haystack... The current law is based on Cunningham Lord Bingham’s definition of recklessness in the case of G UKHL 50, : A person acts recklessly... 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 [t his is based on the Draft Criminal Code, clause 18(c)] FCO Caldwell recklessness- objective test NOT the current law Lord Diplock believed that ‘recklessness’ was an ‘ordinary English word’ (353) which included: 1) Cunningham risk taking 2) But also where D ‘creates na obvious risk... and has not given any thought to the possibility of there being such any suc h risk’ (354) But what makes it ‘obvious’? It’s obvious if a jury thinks it would be obvious to a ‘reasonable person’ It’s ‘objectively’ reckless, even if D did not think it was… mens rea Page 9 Mens Rea pt2 10 October 2024 13:09 Negligence The defendant must owe a duty to victim (as in civil law) You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely injure your neighbour. Who, then, in law is my neighbour?... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into uestion’, Donoghue v Stevenson AC 562, 580 (Lord Atkin) Negligence is not really a state of mind D has failed to achieve a standard of conduct to be expected of the reasonable Person Knowledge definition A strict form of mens rea It is stricter than ‘belief’ or ‘suspicion’ or ‘reasonable grounds to suspect’, etc Knowledge has been defined ‘as being satisfied by true belief’, (Smith, Hogan & Ormerod’s Criminal Law 17th edn (Oxford University Press, 2024), 119; Saik 1 AC 18, ) E.g. s.2(1) Fraud Act 2006 offences Maliciously The judge in Hill (Shaun Lee) EWCA Crim 1292, - directed the jury ‘ “Maliciously”; well, it does not mean waxing his moustache, and chuckling before he does something; it simply means when a person assaults another person unlawfully, knowing that some kind of harm, however slight, might happen to him, not necessarily the harm that, in fact, results, but any kind of harm' The Court of Appeal said: ‘it was really not sensible for the Recorder to have referred to “waxing his moustache and chuckling before he does something”. Summings- ups are not improved by the addition of such frivolity’ Definition ‘...in any statutory definition of a crime ‘malice’ must be taken not in the old vague sense of ‘wickedness’ in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) 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). It is neither limited to, nor does it indeed require, any ill-will towards the person injured’, Cunningham QB 396, 399-400 ‘maliciously’ definition E.g. ss.18 & 20 Offences Against the Person Act 1861 Presumption of mens rea ‘The starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient - unless Parliament has indicated a contrary intention either expressly or by necessary implication... ‘Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence’ → there is a general presumption that mens rea is an essential ingredient in criminal offences B v DPP (a minor) 2 AC 428, 460 (Lord Nicholls) ‘The paradigm of the principle of legality’ ‘...in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. This is the theoretical framework against which s.1(1) must be interpreted’, B v DPP (a minor) 2 AC 428, 470 (Lord Steyn) Strict liability As we know, most serious offences, like murder, require a guilty state of mind – mens rea - but some offences don’t... Strict Liability offences proved by: 1 Proof of actus reus voluntary conduct in performing actus reus 2 But no proof of mens rea in respect of one, or more, of the elements of the actus reus is re uired Part strict liability offences Aggravated trespass, Criminal Justice and Public Order Act 1994, s.68 1. D trespasses on land [strict liability], Bailey v DPP 2 WLR 114 (DC) 2. Other people on the land engaging in lawful activity (or about to) 3. D does an act on the land 4. D has the intention of intimidating those people in order to deter them from engaging in their lawful activity, or obstructing or disrupting the activity mens rea Page 10 Outraging public decency Remember Denis Lemon & ‘blasphemous libel’?! Now meet ‘outraging public decency’ and, the Canadian, Rick Gibson... Court of Appeal held ‘...where the charge is one of outraging public decency, there is no requirement that the prosecution should prove an intention to outrage or such recklessness... If the publication takes place, and if it is deliberate’ the offence is committed, Gibson (Richard Norman) 2 QB 619, 629 (Lord Lane CJ) Rebutting the mens rea presumption ‘…it has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principle of our law that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence. It follows from this that there will not be guilt of an offence created by statute unless there is mens rea or unless Parliament has by the statute enacted that guilt may be established in cases where there is no mens rea’, Sweet v Parsley [1970 AC 132, 152 (Lord Morris) ▪ Clear words in the statute these indicate expressly that no mens rea is re uired for the o ence, e g s 1 Contempt of Court Act 1981; e g but not clear for s 3 B Road Tra c Act 1988, Hughes UKSC 56… ▪ Interpre ng statutes and Parliament’s inten on if mens rea is included in one o ence in the Act, but not in another o ence – an interpreta on may follow that the omission of mens rea was inten onal, e.g. old Licensing Act 1872 o ences and Cundy v Le Coq (1884) 13 QBD 207 ▪ Gammon principles interpre ng statutes contextually with reference to the social context of the o ence – i.e. quasi criminal/regulatory o ences rela ng to ma ers of ‘social concern’, including public safety, Gammon v AG of Hong Kong AC 1 1) Clear words in the statute Supreme Court in Hughes UKSC 56 held the mens rea presumption was NOT rebutted by clear words in the Road Traffic Act 1988 relating to the offence of ‘causing death by driving without insurance/licence’ (s 3 B Road Traffic Act 1988) - Therefore, D was re uired to be at fault in his driving to have been the ‘legal cause’ of the V’s death as well as the ‘factu al cause’ 2) Interpreting statutes D was charged in Cundy v Le Coq (1884) 13 QBD 207, with selling alcohol to a drunk, under s.13 Licensing Act 1872 (now repealed), ‘If any licensed person permits drunkenness or any violent, uarrelsome, or riotous conduct to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall be liable to a penalty…’ The mens rea clauses in the 1872 Act s.14 – knowingly keeping a disorderly house s.16 – knowingly harbouring a constable s.13 – but this section makes no reference to knowingly selling to a drunk! ▪ D did not know the person was drunk and nothing indicated that he was ▪ Divisional Court held that mens rea wasn’t required for the selling offence 3) Gammon principles mens rea Page 11 Intention 10/10/24 10 October 2024 18:46 Intention It is D’s objective, aim or purpose to cause something to happen or bring it about ‒ e.g. D fires a loaded gun at point blank range at V’s head ‒ e.g. D stabs V in the heart ‒ e.g. D stamps on V’s head numerous times while she is lying on the floor ‘...a decision to bring about a certain consequence or as the aim’, Mohan QB 1, 8 (James LJ) Proof of intention - what D actually intended The test for proving intent is subjective as set down by s.8 Criminal Justice Act 1967 D is judged by what D in this case did think and not by what we think D ought to have thought in the circumstances DPP v Smith AC 290 - ‘I regard section 8 of the Criminal Justice Act 1967, as of central importance’, G UKHL 50, (Lord Steyn) deciding what D intended Recklessness Subjective test - what this D foresaw Not what we think D ought to have foreseen, i.e. not an objective test Unreasonable/unjustified risk-taking in relation to circumstances or result D sees a risk of X and, unreasonably, goes on to take it anyway The jury decides whether it was reasonable, in the circumstances known to D, for D to take the risk in relation to the circumstance/result E.g. s.1(1) Criminal Damage Act 1971 intent ≠ motive/desire Motive and desire aren’t the same as intent Lord Bridge’s example of a person fleeing pursuers by boarding a plane at Heathrow to Manchester Moloney AC 905, 926 Two types of intention direct intention It is D’s objective, aim or purpose to cause something to happen or bring it about Would D regard her action as a failure if she did not achieve her result? (A. Duff, Intention, Agency & Criminal Liability (Oxford, 1990) 61) indirect or oblique intention Note that this applies only in very unusual circumstances DD may not directly intend to cause something to happen, but it is virtually certain that it will, and D knew that ‘the golden rule’ ‘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’, Moloney AC 905, 926 (Lord Bridge) mens rea Page 12 Intention pt2 16/10/24 16 October 2024 11:13 Woolin (1999) 1 AC 82 Court of Appeal Approved a direction which left it open to the jury to infer intention where they were satisfied D foresaw a substantial risk of serious harm to the V House of Lords Overruled Court of Appeal Quashed the conviction and substituted manslaughter Danger of murder juries deciding that it is sufficient intention for murder if D thought it ‘highly probable’ V would suffer GBH/die = finding intention on basis of D’s risk-taking/recklessness → ‘By using the phrase “substantial risk” the judge blurred the line between intention and recklessness, and hence between murder and manslaughter’ (Lord Steyn) Woolin direction to Jury → ‘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 find 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 defendant’s action and that the defendant appreciated that such was the case’ (Lord Steyn, 96) ▪ Yes - if we think e.g. Lord Steyn meant that when he said ‘The effect of the critical direction is that a result foreseen as virtually certain is an intended result’ (Woollin 1 AC 82, 93) ▪ No - if foresight of virtual certainty is evidence from which the intention may be inferred, i.e. the Woollin rule is a rule of evidence and not substantive criminal law. See Matthews; Alleyne EWCA Crim 192 The rule of Woolin ‘In our judgment, however, the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty… Having said that, however, we think that, once what is required is an appreciation of virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law’, Matthews; Alleyne EWCA Crim 192, - (Rix LJ) Finding intent (or not) - A jury may not find intent where, despite a result being virtually certain & D appreciating that, the result is ‘at serious moral odds’ with what D intended, e.g. Steane KB 887, A. Norrie, ‘After Woollin’ Crim LR 532, 538, - ‘…such an approach has the positive merit of leaving an essentially fact-finding jury a small amount of moral “elbow-room” within which to decide whether the defendant's indifference to the death of the victim was so callous that she deserves to be labelled as a murderer’, J. Horder, ‘Intention in the Criminal Law – A Rejoinder’ (1995) MLR 678, 687 The Nedrick formula… even as modified [by Woollin] (“entitled to find”) involves some ambiguity with the hint of the existence of some ineffable, undefinable, notion of intent, locked in the breasts of the jurors’, JC Smith, Woollin case note Crim LR 890, 891 Development of Intention through case law Hyam v DPP AC 55 Facts- D set fire to a house by pouring petrol through the letterbox.Two children died. D said she was only trying to frighten her rival into leaving & not to kill/cause GBH House of Lords held: Where D foresaw that death or serious bodily harm was… ▫ ‘likely or highly probable’ ▫ this was the equivalent to intending those consequences Moloney AC 905 Facts- M shot stepfather. Both had been drinking – there was an argument as to who was faster at loading and shooting a shotgun. M claimed he had not meant to injure V – i.e. saying he had no intention to kill or cause serious harm mens rea Page 13 House of Lords held: Jury were entitled to infer intention where the consequence was ‘natural’ – in the sense that - ‘in the ordinary course of events a certain act will lead to certain consequences unless something unexpected supervenes to prevent it’ (929) - E.g. a bomb exploding on a plane Hancock and Shankland AC 455 Facts- Defendants threw block of concrete over motorway bridge & hit a taxi taking a striking miner to work. The driver was killed. Defendants said they only intended to block the middle lane & taxi was on nearside lane. Saying that they did not intend to seriously injure or kill V Lord Scarman confirmed ‘foresight does not necessarily imply the existence of intention’ Moloney guidelines were defective as the phrase ‘natural consequence’ did not convey the sense of near certainty that was intended Juries require 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 the consequence was also intended’ (473 Woollin & Nedrick compared… Lord Lane CJ said in Nedrick 1 WLR 1025, 1028 (CA), with its Hyam-like facts: ‘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’ Lord Steyn said almost the same thing in Woollin 1 AC 82, 96: ‘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 find 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 defendant’s action and that the defendant appreciated that such was the case’ mens rea Page 14 Recklessness 17 17 October 2024 11:15 Historically two types of recklessness Cunningham recklessness (Subjective test) - the current test Caldwell recklessness (Objective test) - not the current test Cunningham recklessness ‘(ii) recklessness as to whether such harm should occur or not (i e the accused has foreseen that the particular kind of har m might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require, any ill -will towards the person injured’, Cunningham QB 396, 399 -400 This is a subjective test ▪ Approved by the Law Commission in (Law Com No 29, 1970) Offences of Damage to Property report and Working Paper (No 23)(1969) ; Working Paper No 31 Mental Element in Crime (1970) ▪ The Criminal Damage Act 1971 followed and was based on the Law Commission’s work ▪ See also Stephenson QB 695, 703 (CA) concerning the tramp in the haystack… Lord Bingham’s definition of recklessness in the case of G UKHL 50, : - A person acts recklessly… with respect to— - a circumstance - when he is aware of a risk that it exists or will exist; - 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 [this is based on the Draft Criminal Code, clause 18(c)] (objective element) Universal application of G G UKHL 50 related to criminal damage, but the definition of recklessness has been applied generally (and despite what Lord Bingham said about that ) E.g. in relation to assault, Pinkney v DPP EWHC Admin 854, ; Brady EWCA Crim 2413, E.g. in relation to misconduct in public office, AG’s Reference (No 3 of 2003) EWCA Crim 868, Caldwell recklessness – objective test NOT the current law Lord Diplock believed that ‘recklessness’ was an ‘ordinary English word’ (353) which included: 1)Cunningham risk taking 2)But also where D ‘creates an obvious risk … and has not given any thought to the possibility of there being such any such r isk’ (354) But what makes it ‘obvious’? It’s obvious if a jury thinks it would be obvious to a ‘reasonable person’ It’s ‘objectively’ reckless, even if D did not think it was… - ‘… it is clearly not blameworthy to do something involving a risk of injury to another if… one genuinely does not perceive th e risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment’, G UKHL 50, (Lord Bingham) Problems with Caldwell Objective tests can be harsh… E.g. Elliott v C (1983) 77 Cr App R 103 - a 14-year-old girl with learning difficulties charged with arson after she poured white spirit in a shed and lit it In G UKHL 50, two young boys (aged 11 and 12) lit a rubbish bin and caused £1 million worth of damage to property by arson Jury told that they had to apply the objective test – ‘obvious risk’ to the reasonable person House of Lords was asked to consider if person can be convicted if the risk would not have been obvious to him because of age and/or personal circumstances Child The ‘reasonable person’ was an adult So, that the guilt of a child was judged by the standards of an adult What an adult would have thought was obvious 1) Reluctant trial judges, as in G ‘Now, I say to you, quite frankly, that you may think this is a harsh test to apply to youngsters, because no allowance is ma de for age and immaturity. Many people would be sympathetic to you. But it is my duty to expound the law to you…’, (The trial judge’s direction to the jury in G UKHL 50, ) 2) Reluctant juries – the jury in G were reluctant to convict ‘But the jury had difficulty reaching a verdict. Later that afternoon they asked the judge why they should consider the risk as perceived by a reasonable person or layman’, G UKHL 50, ) What about closing your mind to a risk? ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’ Caldwell AC 341, 358 (Lord Edmund Davies’s dissenting speech) Approved by Lords Bingham and Steyn in G UKHL 50, & ‘…knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the min d to such risk would be readily accepted as culpable also’ G UKHL 50, (Lord Bingham) - D may also be ‘negligent’ - where D should have been aware of a risk, or decided the risk was small…. Booth v CPS EWHC 192 (Admin) Facts- D collided with a car when crossing the road. He ran suddenly & without warning into the path of a car. D did not look, but t hought he could make it across if he ran mens rea Page 15 Facts- D collided with a car when crossing the road. He ran suddenly & without warning into the path of a car. D did not look, but t hought he could make it across if he ran Held- Charged with recklessly causing criminal damage to the car. D was guilty because he closed his mind to the risks as he ran ac ross the road Interaction of Actus Reus and Mens Rea The ‘principle of correspondence’ – actus reus and mens rea elements must correspond There must be mens rea in relation to each element of the actus reus Transferred Malice Ignore the archaic use of the term ‘malice’ – we mean transferred mens rea – intention or recklessness Scenario 1: Jim tries to kill Ken by shooting at him, but it turns out that it is not Ken after all Transferred malice is not needed because Jim kills the person he aimed at killing (even if it isn’t Ken) Coincidence of actus and mens rea Normally the actus reus and mens rea of an offence must coincide or interact But strict liability offences break the rule, as they don’t require every element of the mens rea to be proved for every elem ent of the actus reus Some classic cases where there have been problems: ▪ Thabo Meli 1 WLR 228 ▪ Church 1 QB 59 ▪ Le Brun 4 All ER 673 mens rea Page 16 Attempts 23/10/24 13 September 2024 12:42 What is an inchoate offence? Liability for an offence which is in some sense incomplete A crime that is ‘committed by doing an act with the purpose of effecting some other offence’, DJ Baker, Glanville Williams, Textbook of Criminal Law, 4th edn (London: Sweet & Maxwell, 2015), para18-001 General inchoate offences Attempts Conspiracy Encouraging or assisting crime Rational for inchoate offences? Preventive Justice The primary rationale for these offences is preventive: inchoate offences are intended to penalize conduct prior to the causi ng of the wrong or harm, thus authorizing official intervention (and hence prevention) before the intended result occurs, Ashworth & Zedner, Preventive Justice (Oxford : OUP, 2014) 96-7 → ‘... if the primary act (for example, killing) is harmful, society will want people not to do it. Equally, it will not want them even to try to do it, or to counsel or incite others to do it. For while the act itself causes actual harm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm – they increase the likelihood of that particular harm’s occurrence’, Hamilton 2005 SCC 47, (Fish J) Retributive Justice Since it may be said that a person is sufficiently deserving of conviction if he or she intends to commit the substantive off ence and has embarked on a course of conduct intended to lead to that; thus there is a retributive justification as well as the preventive rationale, Ashworth & Z edner, Preventive Justice (Oxford: OUP, 2014) 96-7 Attempts The essence of attempts is that D is trying to do something which would amount to a criminal offence if completed e.g. attempted burglary by trying to force entry into business premises, causing significant damage Criminal Attempts Act 1981 Common Law attempt was replaced by a statutory offence s.6 CAA 1981 abolished common law attempts s.1 Criminal Attempts Act 1981 created new offence Purely statutory offence now Pre-1981 caselaw is little help because the 1981 Act was intended to codify the law S.1(4): only indictable offences 1. Offences triable only in the Crown Court, or ‘Either Way’ offences tried there 2. s.1(4) also specifically excludes: attempting to conspire attempting to aid abet counsel or procure attempting to encourage or assist suicide attempting to assist an offender after the commission of a crime  No ‘double inchoate’ liability 3. No such thing as attempted manslaughter - as the necessary ingredients would amount to attempted murder - But s.1(5) also includes attempted low-value shoplifting as an offence s.1(1)-(3) CAA 1981 1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence (Not an omission) 2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such tha t the commission of the offence is impossible (Impossible attempts (Shivpuri 1 AC 1 overruled Anderton v Ryan AC 560)) 3) In any case where— a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence ; but b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence (It’s up to the jury to decide on the facts if it’s an attempt) The “Proximity test”: where the common law drew the line... ‘The last act’ Eagleton (1855) Dears CC 515 ‘Series of acts’ – ‘An a empt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would cons tute its actual commission if it were not interrupted’ Linneker 2 KB 99 ‘On the job’ Osborn 84 JP 63 (Rowla J) ‘ the offender must have crossed the Rubicon and burnt his boats’ - DPP v Stonehouse AC 55 per Lord Diplock, i.e. D has reached a point from which it is impossible for him to go back – no ‘turning back’ - Stonehouse the MP for Walsall North faked his death Where to draw line post-CAA 1981? An attempt begins when: ‘the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case’ Jones (Kenneth Henry) 1 WLR 1057, 1061 (Taylor LJ) [applying Gullefer (1990) 91 Cr App R 356] inchoate liability and complicity Page 17 1061 (Taylor LJ) [applying Gullefer (1990) 91 Cr App R 356] An accurate paraphrase of the statutory test: - Has the defendant actually tried to commit the act in question? - Has he only got ready, or put himself in a position, or equipped himself to do so? Geddes Crim LR 894, 895 (CA) Where to draw the line? Attempted theft where D jumps on to greyhound track and distracts dog race, hoping that ‘no race’ would be declared and he’d get bet back? Attempted murder where D gets shotgun licence, buys guns, shortens shotgun barrel, tests shotgun, jumps into back of V’s car, points sawnoff at V and says ‘You are not going to like this’? Attempted burglary where D damages door and standing by it but not crossed threshold of property? Attempted robbery where D seen earlier wearing crash helmet and sunglasses, then with imitation gun and threatening note to h and to cashier and demand money. Arrested within a yard of PO entrance? Attempted burglary where Ds drive to a farm with oxyacetylene equipment, which they conceal in a hedge, approached the barn -door and examined a padlock? Actually tried to commit offence? Attempted false imprisonment where G had left a can of cider in a toilet cubicle at a school and his rucksack was found in a nearby hedge with a large kitchen knife, rope and a roll of masking tape? Attempted child abduction but D is stopped 85 miles from the port? Attempted drink driving where D told police he’d been robbed of his car at knifepoint He provided positive breath test and a dmitted he’d intended driving home? Attempted drink driving where D is stopped before he drives from a non-public road (owned by Atomic Weapons Establishment) towards a public road? *note that these cases relate to the ‘summary only’ offence of drink driving/attempted drink driving under RTA 1988, s 5, but the principles are the same, as it is an attempt-type of offence inchoate liability and complicity Page 18 Attempts Actus Reus + Mens Rea 23/10/24 23 October 2024 11:01 Attempt- Actus Reus Law reform? The Law Commission, Conspiracy and Attempt (Law Com No 318) (December 2009) – two main defects – more than merely preparatory’ too vague and uncertain and there was too much emphasis on trying to commit the offence C. Clarkson, ‘Attempt: The Conduct Requirement’ (2009) 29 OJLS 25 Mens Rea- Intent ‘…a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence which it is alleged the accused attempted to commit, no matter whether the accused desired that consequence of his act or not’, Mohan QB 1, 11 (James LJ) (applied in Pearman RTR 39) Two elements: 1. D must intend to complete the crime 2. Recklessness as to the ‘surrounding circumstances’ in actus reus sufficient???* Mens rea – intent to bring about “end result” Always an intention to bring about “end result” of the offence - even when the mens rea for the full offence that’s been attempted, can relate to conduct that’s less serious than the end res ult - and even where mens rea for the full offence attempted includes recklessness So, the attempt mens rea will be greater than is required for the full offence – examples: - murder – an intent to kill (and not intent to cause GBH, which is sufficient mens rea for murder), Whybrow (1951) 35 Cr App R 151 - ABH – an intent to cause ABH (which is not required for full ABH offence under s.47 OAPA 1861), Mohan QB 1 - criminal damage – an intent to cause criminal damage (recklessness is sufficient mens rea for the full offence) Mens rea – intent & surrounding circs Recklessness or intention? Is D required to have intent to the ‘surrounding circumstances’ of an offence as well as to the ‘end result’? ▫ No, recklessness will probably suffice… ▫ But there is conflicting law No, knowledge/recklessness will suffice, e.g. Khan 2 All ER 783 knowledge/recklessness as to consent in attempted rape suffices Yes, intent required as to all elements of offence, e.g. Pace & Rogers EWCA Crim 186 → Smith, Hogan & Ormerod’s Criminal Law (17th edn): ‘it is submitted that Khan adopts the correct interpretation’ (p.531) → Pace & Rogers EWCA Crim 186 may be limited to impossibility offences Possible attempts: Khan 1 WLR 813 ‘The offences of rape and attempted rape are identical in all respects except that in the former sexual intercourse takes place and in the latter it does not. Therefore, the mens rea of both offences is identical, namely an intention to have sexual intercourse plus a knowledge of or recklessness as to the woman’s absence of consent’ Pace and Rogers EWCA Crim 186 Undercover police officers sold scrap metal to a scrap metal yard (to D and another), intimating that the metal was stolen - As the metal was not in fact stolen, D was charged with attempting to convert criminal property, contrary to the Proceeds of Crime Act 2002, s.327(1) inchoate liability and complicity Page 19 inchoate liability and complicity Page 20 Complicity 06/11/24 06 November 2024 11:42 Introductory Concept D as a principal: D commits the AR of the offence with the required MR. D as joint-principal: D1 and D2 commit the AR of the offence together with the required MR. D as a principal via innocent agency: D uses an ‘innocent agent’ (X) to commit an offence, where X lacks mens rea ichael [1 840] 9 Car. & P. 356. - D as an accomplice: ‘D2’ assists, encourages or procures ‘P’ to commit an offence and P does so Rationale Stringer EWCA Crim 1396, paras 48, 50: ‘The moral justification for holding D responsible for the crime is that he has involved himself in the commission of the cri me by assistance or encouragement, and that presupposes some form of connection between his conduct and the crime’ ‘ there is good policy reason for treating D’s conduct as materially contributing to the commission of the offence, and th erefore justifying D’s punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such encourag ement or assistance ’ - In English criminal law, accomplices are convicted of the same offence, with the same available penalties, as principal offenders. Legal Sources Primarily a common law concept. Accessories and Abettors Act 1861 s. 8: ‘Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at c ommon law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender’. For summary only offence s. 44 of the Magistrates’ Courts Act 1980. Actus Reus The actus reus of complicity can be satisfied either through: 1. Aiding, abetting and counselling (assisting or encouraging); or 2. Procuring the commission of an offence Can words alone satisfy the actus reus of complicity? D would be an accomplice to P’s murder of V if he had said ‘Oh goody’ when P told him of his intention to kill V. Giannetto 1 Cr.App.R. 1 Can mere presence satisfy the actus reus of complicity? Clarkson 3 All ER 344: P rapes V. D2 and D3 hear V screaming and enter the room where the rape is taking place. They do not provide direct physical assistance, for example by holding down V; nor do they provide verbal encouragement. However, they remain in the room, witnessing the rape, offering no oppositi on to it, where they have the power to do so, or at least to express dissent. D2 and D3s presence was a contribution of encouragement to the offence of rape. D2 and D3 convicted for murder as secondary parties. Their conduct in chasing V (but uttering no words of encouragement to P) amounted to conduct of assisting and encouraging P at the time when P fatally stabbed V. - Stringer EWCA Crim 1396 R v Jogee UKSC 8: Assistance or encouragement may involve presence. Numbers often matter. Most people are bolder when supported or fortified by others than they are when alone. D2’s presence is likely to be ‘very relevant evidence’ on the question whether assistance or encouragement was provided (para 11). Where people come together without agreement, often spontaneously, to commit an offence together, the giving of intentional s upport by words or deeds, including by ‘supportive presence’, is sufficient to attract secondary liability (para 78). Encouragement may be ‘inferred’ from mere presence. But it is less well understood how liability can operate as inferential encouragement. Need to look at all the circumstances, including: o The extent of D2’s knowledge and whether she may know of D1’s offence; o Whether D2’s presence was voluntary, spontaneous, pre-planned; o Whether D2 and D1 had any prior affiliation, relationship or communications (eg, part of a group or ‘gang’ / rap lyrics); a nd o Whether D2’s presence had the capacity to act on D1’s mind. Association with or membership of a group, gang In cases of spontaneous group or ‘gang’ violence, if D2 joins or associates with a group which he knows is out to cause serio us injury, and P acts with intent to cause GBH and death results, the jury may infer that D2 intended to encourage/assist the deliberate infliction of GBH and/or intended that should happen; and P and D2 will be guilty of murder: R v Jogee UKSC 8, para 95. D’s prior involvement in / awareness of communications with other group/gang members (e.g. postings on Facebook) may demonstrate that he was not a mere disinterested bystander, accidentally at the scene of the offence, and that by his presence he intended to assist or encourag e the commission of the offence. Causation Stringer EWCA Crim 1396, paras 48-49: inchoate liability and complicity Page 21 Stringer EWCA Crim 1396, paras 48-49: It is well established that D’s conduct need not cause P to commit the offence in the sense of the ‘but for’ test But D’s conduct must have some relevance to the commission of the principal offence There must be some ‘connecting link’ The precise nature of this connection is ‘elusive’ - ‘ in a case of encouragement , as contrasted with assistance, the encouragement must have the capacity to act on P’s mind ’ D’s conduct must (objectively) have constituted assistance or encouragement, even if P did not (subjectively) need assistance or encouragement. - “encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or through an intermediary” Bryce EWCA Crim 1231: D2 gave P a lift to the crime scene and the killing of V did not occur until 12 hours after P got the lift. - D’s conduct must have an ‘impact’ on P but it need not be a substantial impact It is not necessary to prove that D2’s encouragement to assistance had a ‘positive effect’ on P’s conduct or on the outcome Such a causal link may be impossible to prove. R v Jogee UKSC 8, para 12: Mens Rea 1 D2’s R as to his own conduct: 1.1 Intention to assist or encourage the commission of a crime. 1.2 Intention to assist or encourage requires knowledge of any of existing facts or circumstances necessary for the relevant conduct to be criminal. 2 D2’s mens rea as to D1’s offence: 2.1 D must intend D1 to commit the principal offence and for D1 to act with the particular mens rea required by that crime. Jogee, para 9. E.G. mens rea for murder D, as an accomplice to murder, must intend that P: o Commits an act; o Which results in the death of a human being (under the King’s peace); and o P does this act with an intention to kill or cause GBH. Foresight as evidence of intent R v Jogee UKSC 8: The court expressly rejected foresight as being equivalent to intention in respect of intending to assist or encourage. Foresight is now relegated to evidence of intention but not its equivalent. - However, foresight can be treated as ‘powerful evidence’ of intention D2s Foresight Crown Prosecution Service legal guidance: “In cases where the prosecution rely on evidence of the foresight of D2 to prove D2’s intent, CPS advocates should resist any submissions of no case to answer based on an argument that proof of intention based on foresight is insufficient”(CPS, Secondary Liability: Charging Decisions on Pr incipals and Accessories, 28 November 2023). R v Anwar EWCA Crim 551: Whether D2’s foresight is evidence of intention is a uestion of fact for the jury in all the circumstances [20, 22] In other words, the more the prosecution can show that D had foresight of P’s crime, the more the jury may find that D2 inten ded to assist or encourage P in the commission of that crime. R v McCrilly EWCA Crim 168. A rare instance in which D2’s conviction has been quashed due to lack of foresight. D2’s involvement in the burglary was limited to the search of a bedroom. When his co-burglar punched the elderly resident of the address (causing the death of V), D2 shouted at him to stop, helped when V had be en punched and waited outside for ten minutes. Intention that a range of possible offences may be committed R v Jogee UKSC 8, para 14: D2 may intentionally assist or encourage P to commit one of a range of offences, which might take various forms. If so, D2 do es not have to ‘know’ (or intend) in advance the specific form which the crime will take. Conditional Intent D2 may conditionally intend to assist or encourage an offence that will or might Well be committed by P, if the occasion aris es. Conditional intent can be inferred. R v Jogee UKSC 8, para 92: The bank robbers who attack the bank when one of them is armed no doubt hope that it will n ot be necessary to use guns, but it may be a perfectly proper inference that all were intending that if they met resistance the weapons should be used with the i ntent to do grievous bodily harm at least. R v Anwar EWCA Crim 551: it can be inferred that each of the accomplices knew that the shotgun was loaded and each had an intention that the shotgun be used to kill should the need arise based on the prior planning that all Ds were involved in. inchoate liability and complicity Page 22 inchoate liability and complicity Page 23  Denial of Intoxication 13/11/24 13 September 2024 12:42 Intoxication a denial of liability Intoxication: Rationale Majewski 2 All ER 142 “If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs or drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent ” per Lord Elwyn-Jones - Rule only applies to basic intent crimes (one's that can require recklessness) Since Majewski, courts have tried to strike an acceptable balance between public policy and criminal law principle. Morality also plays a role: a court may feel that there is moral justification for holding an intoxicated D responsible for a crime that he had involved himself in. Therefore, morally speaking, it would not be unfair to construct an intoxicated D’s mens rea and punish D. To what extent has the criminal law dealt with intoxication in a consistent, coherent and principled manner? Intoxication (with mens rea) Does D have the requisite mens rea for the offence? oYes = D is always liable. An intoxicated mens rea is still a mens rea! Sheehan and Moore ;The relevant question was not whether the appellants were capable of forming the mens rea it was whether they had in fact formed the mens rea - a drunken intent is still an intent. The burden of proving mens rea remained on the prosecution. Kingston ; Lord Taylor J "However, the purpose of the criminal law is to inhibit, by proscription and by penal sanction , anti-social acts which individuals may otherwise commit. Its unspoken premise is that people may have tendencies and impulses to do those things which are considere d sufficiently objectionable to be forbidden. Having paedophiliac inclinations and desires is not proscribed; putting them into practice is. If the sole reason why the threshold between the two has been crossed is or may have been that the inhibition which the law requires has been removed by the clandestine act of a third party, the purposes of the criminal law are not served by nevertheless holding that the person performing the act is guilty of an offence. A man is not responsible for a condition produced 'by stratagem, or the fraud of another." Heard Intoxication (no mens rea) Does D have the requisite mens rea for the offence? oNo = was the intoxication voluntary or involuntary? Involuntary intoxication Involuntary intoxication will not replace D’s lack of mens rea. Ross v HM Advocate Allen : The intoxication was still voluntary even though he had not realised the strength of it. The crime of sexual assault is one o f basic intent and therefore the appellant was unable to rely on his intoxicated state to negative the mens rea. Voluntary intoxication and no mens rea Voluntary intoxication: was the intoxicant dangerous or non- dangerous? oNON-DANGEROUS: intoxication will not replace a lack of mens rea oDANGEROUS: was the offence basic or specific intent? Lipman ; Wiggerly LJ- ▪ ‘For the purposes of criminal responsibility we see no reason to distinguish between the effect of drugs voluntarily taken an d drunkenness voluntarily induced’ ▪ R v Church did not introduce a new element of intent or foresight of causing harm to manslaughter, it mere requires that ‘ord inary sober and responsible people would recognise the existence of risk’ ▪ ‘when the killing results from an unlawful act of the prisoner no specific intent has to be proved to convict of manslaughter , and self-induced intoxication is accordingly no defence’ Hardie : Parker LJ "In the present instance the defence was that the Valium was taken for the purpose of calming the nerves only, that it was ol d stock and that the Appellant was told it would do him no harm. There was no evidence that it was known to the Appellant or even generally known that the taking of Valium in the quantity ta ken would be liable to render a person aggressive or incapable of appreciating risks to others or have other side effects such that its se lf-administration would itself have an element of recklessness. It is true that Valium is a drug and it is true that it was taken deliberately and not taken on medical prescription, but t he drug is, in our view, wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness. It may well be that the taking of a sedative or soporific drug will, in certain circumstances, be no answer, for example in a case of reckless driving, but if the effect of a drug is merely soporific or se dative the taking of it, even in some excessive quantity, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self -administration of dangerous drugs." Voluntary Intoxication, no mens rea and dangerous substance SPECIFIC INTENT: intoxication will not replace a lack of mens rea BASIC INTENT: intoxication will replace a lack of mens rea Majewski ; Heard Denials Page 24 Prior fault: basic intent offences T1 D voluntarily takes a dangerous drug and becomes intoxicated T2 D commits the AR of the basic intent offence. Liability Found! What if D would have not foreseen risk even if sober? Richardson & Irwin 1 Cr App R 392: o Question of fact for the jury based on D’s subjective foresight: would D herself, when sober, have foreseen the risk of har m? Dutch courage: specific intent exception T2:D causes harm T1:D voluntarily takes a dangerous drug and becomes intoxicated in order to cause harm at T2 Attorney-General of Northern Ireland v Gallagher Intoxicated mistake and defeneces o Hatton o O’Grady o Jaggard v Dickinson o Tandy o Wood o Taj EWCA Crim 1743 Criminal Justice and Immigration Act 2008 s 76(5): D cannot “rely on any mistaken belief attributable to intoxication that wa s voluntarily induced” Denials Page 25 Denial of Automatism 14/11/24 14 November 2024 10:37 What is Automatism? D does not complete a “voluntary” act and thus does not complete the offence charged Involuntary because of the voluntary consumption of a dangerous drug? oApply intoxication rules Involuntary because of an “internal” cause? oApply insanity rules oConditions such as diabetes and epilepsy are regarded in law as ‘internal’ causes of automatism and must be treated as insan ity. Involuntary because of an “external” cause other than the voluntary consumption of a dangerous drug? oApply automatism rules oConsiderable variation across jurisdictions (which may include “internal” psychological disorders) o“Automatism” in criminal law may not reflect clinical opinion Bratty v A-G for Northern Ireland AC 386: “‘automatism’, means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep walking …...it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the actor does not remember it... Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it ” Limits of Automatism: What degree of control must D lose? “Total loss” of control or “loss of effective” control? Automatism “re uires that there was a total destruction of voluntary control on the defendant's part Impaired, reduced or pa rtial control is not enough ” (Taylor LCJ, Attorney- General's Reference (No 2 of 1992) 3 WLR 982) Broome v Perkins Crim LR 271 R v Coley EWCA Crim 223 oDoctors agreed that D would not have been conscious of his movements. oNonetheless, the Court of Appeal asserted a particularly and restrictive approach to automatism: - “[D] was plainly not unconscious, in the sense of comatose But automatism does not re uire that, and if it did it would be even more exceptional than it is undoubtedly. On the other hand, his mind may well, if the doctors were right, have been affected by delusions or hallucinations and in that sense his detachment from reality might be described by some as an absence of conscious action. Such condition, however, clearly falls short of involuntary, as distinct from irrational, action.... [T]he defendant would, despite their hypothesis of psychotic episode, have been capable of complex organised behaviour. It is plain that a person acting under a delusion may act in such a way, and clearly this defendant did The doctor said ‘He is conscious in a way but it is conscious in the belief that he is a character [in a computer game] He does not have an awareness of what he is doing ’ That is a description of irrational behaviour, with a deluded or disordered mind, but it is not a description of wholly involuntary action ” Limits of Automatism: internal, external causes “If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an ac uitted man go entirely free If, however, disease is present the same thing may happen again ” Devlin J, Hill v Baxter 1 QB 277 Sleepwalking? o Bratty v A-G for Northern Ireland AC 386 o R v Burgess 2 WLR 1206 o R v Parks 2 S.C.R. 871 o Bilton (2005) The Guardian (unreported) o Thomas (2009) Independent (unreported) o Sexsomnia (sexual behaviour in sleep): CPS guidance on sleepwalking, particularly within the context of rape and other sexu al offences: Defences – Sleepwalking as a Defence in Sexual Offences Cases: Post-traumatic stress disorder? o R v Tate Crim LR 256 Legal distinction Denials Page 26 What if D has prior fault for causing automatism? Automatism is not available to a defendant who has induced an acute state of involuntary behaviour by his own fault”: R v Col ey EWCA Crim 223 , Hughes LJ. o Failure to follow a medical prescription. o Prior fault for automatism should be consistent with prior fault for intoxication: Law Commission (2013) Criminal Liability : Insanity and Automatism. A Discussion Paper, para. 6.1. Objective test: Quick QB 910: D’s failure to follow a prescription by eating after injecting insulin, causing a hypoglycaemic attack - “Automatism is a defence to a charge provided that a person takes reasonable steps to prevent himself from acting involuntarily in a manner dangerous to the public. It must be caused by some factor which he could not reasonably foresee and not by a self-induced incapacity ” Subjective (recklessness) test: Bailey 1 WLR 760: D will only have sufficient prior-fault where he has subjectively foreseen at T1 the potential for aggressive, unpredictable or uncontrolled behaviour at T2 an d he persists in the action or takes no remedial action when he knows it is required. Conflicting decisions? R v Marison (1997): D suffered an hypoglycaemic episode, causing death by dangerous driving. D should not have been driving because 3 months previously he had been involved in an accident when hypoglycaemic. Finegan v Heywood (2000) GWD 15-633: D who drove while sleepwalking after drinking alcohol. D would have to establish that he has avoided any course of action known to him to be likely in the light of experience to bring the state on. R v Gilbert : D acquitted of causing death by dangerous driving on the basis that she was not at fault due to a hypog lycaemic episode. Yet, D had previously suffered three hypoglycaemic episodes and was recommended to check her glucose level before driving. Summary Automatism: oTotal loss of control over conduct AND oMust be caused by an “external” factor AND oD must have no prior fault o= complete acquittal o The law on automatism is a “quagmire” R v Quick. o Aspects of automatism are “illogical, little short of a disgrace and should be abolished”, Lord Justice Davis, Law Commissi on (2013) Criminal Liability: Insanity and Automatism. A Discussion Paper, para. 1.46. oWhere automatism results from an ‘external’ cause such as head injury, it is automatism. It is a complete defence. It result s in acquittal. oWhere it is an ‘internal’ cause such as epilepsy, it amounts to legal insanity and disposal is under section 24 of the Domes tic Violence, Crime and Victims Act 2004, which has amended thedisposal options under the Criminal Procedure Act 1991. oIncompatible with medical and public opinion (Rix, p 243). oLaw reform is needed. Denials Page 27 Denial of Insanity 20/11/24 20 November 2024 10:35 Insanity as a “denial of offending” and a “defence” D is fit to stand trial, raises insanity at the time of the offence. Tension between principle and policy: oIt is unjust to hold people criminally responsible when they could not have avoided committing the alleged crime, through no fault of their own. A person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law. oD has caused harm, and may still be dangerous in the future. The insanity test is set out in the “M’Naghten Rules” as laid down by the House of Lords in 1843: “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” M’Naghten’s Case (1843) 10 Clark and Finnelly 200, 210. D must prove 1 and 2 and either 3 or 4 1. A defect of reason 2. Disease of the mind 3. Did not know the nature and quality of the act he was doing OR 4. Did not know what he was doing was legally wrong A defect of reason Clarke 1 All ER 219, 221, Ackner J “(The M'Naghten Rules) do not apply and never have applied to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full.” A mere failure to use powers of reasoning is not enough. Inability to control one’s emotions or compulsions do not amount to impaired powers of reasoning: Kopsch (1927) 19 Cr App Rep 50; A-G of South Australia v Brown AC 432. Disease of the mind Kemp “it matters not whether the aetiology of the impairment is organic... or functional, or whether the impairment itself is permanent or is transient and intermittent.” Interpreted broadly by courts. “Disease” is not the ordinary sense of that word. “Mind” is not interpreted to mean “brain” and thus not limited to mental illness. Mind includes any “internal” factor. Epilepsy: Sullivan AC 156 Sleepwalking: Burgess 2 WLR 1206 Hyperglycaemia (failure to take insulin): Quick QB 910 Arteriosclerosis: Kemp “a disease which affects the proper functioning of the mind”: Hennessy 1 WLR 287, 292. Nature and quality of D’s act (first limb) Relates to the physical aspects of the nature and quality of the act and not its moral or legal aspects, Codère (1917) 12 Cr App Rep 21, 27; Dean Johnson EWCA Crim 1978. Stephen, Digest of the Criminal Law (8th ed), p 6: “the madman who cut a woman’s throat under the idea that he was cutting a loaf of bread.” In modern terms, D “did not know what he was doing”: Sullivan AC 156. Essentially amounts to a denial of offending as D’s mind is so distorted. D lacks knowledge that the act was “wrong” (second limb) Windle (1952) 2 QB 826, Lord Goddard: “did the D know that the act was legally wrong”. If D knew that what he or she is doing was against the law, then insanity is not available. Windle confirmed in R v Dean Johnson EWCA Crim 1978. Summary Insanity can operate as a denial of liability or as a defence. If successful, the verdict is “not guilty by reason of insanity”. The Court has powers of “disposal” depending on an assessment of the D’s condition. Pursuant to section 24 of the Domestic Violence, Crime and Victims Act 2004: o to send to hospital, with or without a restriction order on release; o to discharge absolutely; o to make a guardianship order under Mental Health Act 1983; or o to make a treatment or supervision order. - The existing law has long been the subject of academic criticism for being unfair, out of date and failing to reflect advances made in medicine, psychiatry and neuroscience. Denials Page 28 Denials Page 29 Self defence 21/11/24 14 November 2024 10:54 General defences: an overview Duress: D commits a crime because of threats by a person that he (or someone else) will be killed/seriously hurt. Duress of Circumstances: Similar to duress, but D is not threatened by a person. Necessity: D is forced by circumstances to commit a crime – choice of evils? The Private and Public Defence: D uses force in defence of herself or another, or in the prevention of crime. The Private (Self-defence) and Public Defences D has the defence to any crime involving force (against the person or property) committed in order to protect legitimate interests: 1. Private: Acting to protect oneself, others, or property. (Common Law + s.76 Criminal Justice and Immigration Act 2008) 2. Public: Acting in prevention of crime or making arrest. (s.3 of the Criminal Law Act 1967) Scope of self-defence? A) Trigger: D must have believed (subjective) that force was immediately required in order to protect her public or private interests; and B) Response: The amount of force used by D must have been reasonable (objective) on the facts as D believed them to be. Stage 1: Was the use of any force necessary? Judged on facts as D honestly believed them to be. Gladstone Williams (1984) 78 Cr App Rep 276 "The reasonableness or unreasonableness of the defendant's belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant.... Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it." (Lane LCJ) Beckford v R AC 13 Dewar v DPP (2010) DC 15/1/2010 - Exception: Mistake arising from voluntary intoxication or insane delusion: O’Grady ; Haton ; Oye EWCA Crim 1725 Can D use pre-emptive force to avoid harm? If so, must the attack be imminent? Pre-emptive force is permissible. However, imminence is important for the force to be deemed necessary. oDevlin v Armstrong NI 13 Victims of domestic violence and coercive and controlling behaviour? o Centre for Women’s Justice, Double Standard: Ending the Unjust Criminalisation of Victims of Violence Against Women and Girls Final Report (London: Centre for Women’s Justice, 2022). o S. Edwards, ‘“Demasculinising” the defence of self-defence, the “householder defence” and duress’ Criminal Law Review 111. Must D try to retreat from the threat before defensive force is permissible? No strict duty to retreat, but the force must be necessary... oField Crim LR 435 oBird 1 WLR 816 What if D provoked the attack and then defended himself against V? Defence only ruled out where D has manufactured the situation in order to claim ‘self-defence’. R v Rashford EWCA Crim 3377, para 19: “We would agree that the mere fact that a defendant goes somewhere in order to exact revenge on the victim does not of itselfrule out the possibility that in any violence that ensues self-defence is necessarily not available as a defence. It must depend on the circumstances.” Stage 2: Was the amount of force used reasonable? Force must be objectively reasonable in the circumstances as D believed them to be. oPalmer v R AC 814 (Privy Council) Criminal Justice and Immigration Act 2008, 76(3): oThe question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.... Criminal Justice and Immigration Act 2008, 76(7) oIn deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. Failing the second stage: unreasonable force? Defences Page 30 Failing the second stage: unreasonable force? Where force is necessary, but level of force is unreasonable.... oMartin (Anthony) Crim LR 136 oMunir Hussain (2009) Self-defence and the “householder case” Crime and Courts Act 2013: “Use of force in self-defence at place of residence” S.43(1): Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for purposes of self-defence etc) is amended as follows: (2) Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert— - “(5A)In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstance s as D believed them to be if it was grossly disproportionate in those circumstances.” A discretionary area of judgment is applied which permits self-defence where the force is necessary and not grossly disproportionate in the circumstances as D believed them to be. R (Collins) v Secretary of State for Justice EWHC 33; R v Steven Jason Ray (2017) Domestic Abuse Survivors Who Use Violent Resistance in Response Domestic Abuse Act 2021 - silent on self-defence. Prison Reform Trust – proposed that the law extend self-defence in householder cases to victims/survivors of domestic abuse. V. Bettinson and N. Wake, ‘A New Self-defence Framework for Domestic Abuse Survivors Who Use Violent Resistance in Response’, 0 MLR (2023) 1: oA new a statutory rebuttable presumption that the victim/survivor of domestic abuse was not realistically able to retreat safely, unless it is proven otherwise. Summary Stage 1: Any force must be subjectively necessary o Force can be pre-emptive, as long as it is a defence from something imminent; o No duty to retreat; o Does not matter if attack was provoked by D as long as it was not manufactured to allow for defensive force; and o Must be honest belief but can be unreasonable belief. Stage 2: Level of force must be reasonable on the facts as D believes them to be oTake account that D may be acting impulsively oFearful; and oUnable to weigh up reasonableness in the circumstances. Defences Page 31 Duress 27/11/24 27 November 2024 10:58 Exceptions where duress will NOT apply: Not a defence to treason offences; Not a defence to murder; Not a defence to murder as a secondary party (Howe ); Not a defence to attempted murder (Gotts ); Not a defence in circumstances of prior fault. Ness (2010); Wilson Duress (by threats and/or circumstances) D cannot use the defence if he voluntarily exposed himself to threats: Sharp 1 QB 853 Shepherd (1988) 86 Cr App R 47 Heath Crim LR 109 Hasan UKHL 22 Ali EWCA Crim 716 D’s voluntary exposure Voluntary association Hasan 2 AC 467: “ the defence of duress is excluded when as a result of the accused's voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.” per Lord Bingham at Duress by threats A) Exclusions: Duress is not a defence to murder, attempted murder and certain treason offences, and will not apply in circum stances of prior fault; B) X’s threat and demand: D must have reasonably believed that she was threatened by X with death or serious injury unless sh e committed the offence; and C) D’s response: D must have shown reasonable steadfastness in response to the threat, only committing the offence because he r will was overborne. 1: X’s threat and demand Threat MUST be death or serious harm Serious psychological injury? Baker and Wilkins Crim LR 497 Must be an external threat: Roger and Rose (1998) Cr App R. 143 What if D was mistaken about the existence of the threat? D’s mistake must be reasonable: Graham (1982) 74 Cr App Rep 235: The objective test being the “reasonable man” principle The court defined the test as wheth er Graham was impelled to act as he did as a result of what he reasonably believed, and, if he had not acted in accordance with King’s wishes, would he have b een killed? The second prong of the test was if the answer was yes to the first question(s) of the test, would a sober person of reasonable firmness, sharing Gra ham’s characteristics, have not responded to whatever he reasonably believed his co-defendant said by participating in the act of killing? The fact that Graham’s will had crumbled as a result of alcohol and drugs is irrelevant to the test and was not required to be considered. Therefore, the appeal was dismissed and th e conviction stayed. Howe 1 AC 417 Cf. Martin 2 Cr App R 42 Hasan UKHL 22 Safi and Others EWCA Crim 1809 Who must be threatened? Usually, it will be D. However, can also extend to ‘a member of his immediate family, or a person for whose safety the defendant would reasonably re gard himself as responsible’ Hurley and Murray VR 562: They claimed that they had acted under duress at the orders of and through fear of Murray wh o, through acts of actual violence or threats of violence, had gained control of each of the defendants. The House of Lords dismissed their appeals against conv iction. Hasan UKHL 22 2: D’s Response to the threat Threat must have caused D’s will to be overborne: Valderrama-Vega Crim LR 220 Must be linked to the exact crime committed: Cole Crim LR 582: The Court of Appeal dismisse