Criminal Law PDF

*Criminal Law* *Week 1. Introduction* Always a presumption of innocence (6 ECHR), a high standard of proof ("beyond a reasonable doubt"), trial by jury, rights of access to lawyer when interviewed/at trial etc. *Justifications* We justify the use of criminal law to address a particular social problem. Generally, there are 2 broad possibilities: immorality or harm. The harm principle: The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." JS Mill *On Liberty.* This rejects paternalism and enforcement of morality but: - The extent to which the modern criminal law coheres with this is contested - It is also not a particularly strong *restraint.* - It's not just about where harm is caused - 'preventing' harm can also be pushed very far Some countries have a general criminal code (principal offences of interest to public), however in England and Wales there's no such thing. Criminal law is derived from statute and the common law. In modern criminal law, the former is the norm, even if some of our most serious offences are still common law offences. Criminal law tends to be thought about in two parts: \- The general part (rules which apply to all offences) \- The special part (definitions of individual offences) *Principles of Criminal Law* - The principle of individual autonomy - The principle of welfare - The principle of legality - The principle of fair labelling *The principle of individual autonomy/free will* - Individual responsibility - A precondition of criminal liability - Respect for liberty and rights of the individual There is an assumption of free will, however this is contrasted with determinism (how much is pre-determined through nature/nurture?). Autonomy → Choice → Responsibility "Paternalistic interference is offensive morally because it invades the realm of personal autonomy where each competent, responsible adult should reign supreme" (Feinburg) *The principle of welfare* - Collective goals - The policy of social defence - Morally wrong behaviour and paternalism *A. Harm Principle* 'It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and that there is no other means that is equally effective at no greater cost to other values.' *b. The Offence Principle* 'It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it probably a necessary means to that end...' According to this view, the criminal law may be properly used against any form of activity which threatens good order or is thought reprehensible. There are, on this view, no limits to the use of the criminal sanction apart from financial ones" (Ashworth *Principles of Criminal Law*). *c. Legal Paternalism* 'It is always a good reason in support of a prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself (an individual) and that there is probably no other means that is equally effective at no greater cost to other values *(Brown).* ** ** *d. Legal Moralism* It 'can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offense to the actor or to others.' *The principle of legality* - Non retroactivity (7 ECHR) - Maximum certainty - Strict construction *Non retroactivity* *Shaw c DDP:* Published "The Ladies' Directory". Indicted for conspiring to corrupt public morals, however no such offence existed. The House of Lords upheld his conviction. *RvR:* R attempts to rape is wife. Common law precedents suggest husband cannot be guilty of raping his wife. Should he have been convicted? *Maximum Certainty* The Thin Ice Principle: Citizens who know that their conduct is on the borderline of illegality take the risk that their behaviour could be criminal. The Principle of Maximum Certainty: An individual can know from the wording of the relevant provisions which acts and omissions will make him liable. *Strict Construction* The courts should exercise. Restraint in their interpretive role, favouring the defendant when they are left in doubt about the legislative purpose. The Principle of Fair Labelling: Its concern is to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking. *The anatomy of a crime* Crimes contain identification of: 1. *Actus reus* (the action) 2. *Mens rea* (the intention) *Actus reus* - Voluntariness - Omission (defendant can not be held criminally liable for an omission - Causation Attempted crime if: - More than merely preparatory acts - If mere preparation, then no crime, no attempt and no liability *Geddes:* Sex offender entered a school bathroom. He had not tried to commit the offence in question, only got ready. He was lying in wait but had not yet had any contact with any pupils. He was not convicted. *Mens rea* Criminal liability should only be imposed on persons wo are sufficiently aware of what they are doing and of the consequences it may have, that they can fairly be said to have chosen the behaviour and it's consequence. Ignorance of the law is no defence (*Esop)*. A good motive is no excuse. Is there mens rea? 1. What mens rea standard is required in regards to each separate element of the actus reus 2. The criteria of those mens rea elements 3. Did the defendant in fact act with the mens rea elements required? *Defences* - Failure of proof defences = denial of actus reus or mens rea - Substantive or "true" defences = apply when the actus reus and mens rea are both satisfied *Thabo Meli v R:* Acts part of a pre-conceived plan are considered a connected sequence, thus the act inflicting the final blow to the victim need not coincide in time with the mens rea. Ds took V to a hut, deliberately got him intoxicated by beers and then hit him. Believing that V was dead, they rolled him down a hill to make it look like an accident. Medical evidence should that it was actually the exposure that killed V. Conviction upheld. *Church:* The commission of an unlawful act does not automatically result in a conviction of manslaughter. It is only considered to be manslaughter when all reasonable individuals would foresee that the unlawful act would expose the victim to at least some danger of injury as a result of it. Man hits a woman unconscious. Thinking she is dead, he throws her body in the river, due to which she drowns. Manslaughter conviction upheld. *Le Brun:* An act to conceal a previous unlawful act is part of the same sequence of events as the previous act. Thus, where it was actually the second act that killed the victim, the fact that mens rea does not coincide in time is no defence. D punched his wife V on the chin, knocking her unconscious. D then attempted to move her body but accidentally dropped her. V sustained head injuries and died. D was convicted of manslaughter. Two approaches discussed: 1. Single transaction approach - No need for a preconceived plan - Later acts must form a continuation of the unlawful transaction - What if the later acts were meant to help rather than hide? Doesn't matter 2. Causation approach *Week 2. Actus Reus* *Omissions* Unless there's a specific duty, no criminal liability There is no liability unless: - The offence must be capable of commission by omission - D must have a legally recognised duty to act - D must have unreasonably failed to act on that duty. *Airedale NHS Trust v Bland:* Anthony Bland was a victim of the Hillsborough stadium disaster -- left in a persistent vegetative state -- brain stem continued to operate but to be kept alive he had to be feed and hydrated by means of a nasogastric tube and his excretionary functions had to be regulated -- after being in this condition for three-and-a-half years, with no prospect of recovery, the hospital authority and Anthony's parents applied to permission to cease keeping him alive. "I agree that the doctor's conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient" "In my judgment, essentially what is being done is to omit to feed or to ventilate: the removal of the nasogastric tube or the switching off of a ventilator are merely incidents of that omission" *When is there a duty to act (omission liability?* Specific statutory and common law offences: - i.e. Road Traffic Act breathalyser test - Children and Young Person Act neglecting a child Special relationship: - Parent-child (*Gibbins & Proctor:* daughter Nelly was kept upstairs and starved to death) - Spouses (*Smith)* - Doctor-patient (*Airedale NHS Trust v Bland*) Voluntary assumption of responsibility: - *Gibbins and Proctor*: She (Proctor) had charge of the child due to her own choice to live with Gibbins. She had the duty to see the child was properly fed and looked after - *Stone & Dobinson*: defendants lived together with Stone's anorexic sister Fanny. She died and evidence showed she had been in need of urgent treatment for days if not weeks - *Sinclair:* Sinclair and victim went to flat owned by Johnson to buy methadone. Injected themselves at 2:30pm. Victim fell unconscious, made limited attempts to help. Ambulance was not called until 6:30am. Victim declared dead. Contractual duty: - *Pittwood:* defendant was a railway gatekeeper. One day forgot to shut gate and man was killed when a hay-cart was struck by a train. Creation of a dangerous situation: - *Miller*: vagrant squatting in an unoccupied house. Lit a cigarette but fell asleep, woke up to find mattress smoudlering. Went to another room and went back to sleep. House caught fire and had to be rescued. - *Evans*: defendant half-sister died of heroin overdose, failure to seek medical attention. Continuing acts: - *Fagan v Metropolitan Police Commissioner:* Defendant drove on constable's foot but refused to move. - *Kaitamaki:* defendant had sexual intercourse with victim. Only after penetration did he realise victim was not consenting. He refused to withdraw however. *Causation* *Factual causation* - *Sine qua non* test: would the outcome still happened if the action/omission had not taken place? - Accelerating the result *Legal causation* - Legal cause must be substantial - Legal cause must be blameworthy: The proscribed result is not attributable to D if the culpable element in his conduct in no way made a relevant contribution to the result (*Th, R v Hughes)* - *De minimis* principle: a factual cause does not have to be the only cause; it is sufficient if established it was a cause outside of the *de minimis* range and effectively bearing upon the acceleration of the moment of the victim's death" (*Cato*) - Multiple causes: where it is alleged that a defendant caused a death, it is not necessary for the prosecution to prove that the defendant\'s acts were the sole or main cause. Rather, the question is whether they were a substantial cause of the death i.e. more than a minimal cause (*Winter)* *Intervening acts* *Intervening acts of nature* Naturally occurring events will break the chain of causation if unforeseen by D and unforeseeable to the reasonable person. "If the general form and risk of further harm was reasonably foreseeable, it may not matter that the specific manner in which it occurred was entirely unpredictable." (*R v Israr Muhammed*). *Intervening acts of third parties* It is generally accepted that a free, deliberate and informed act by a third party will break the chain of causation. Do voluntary acts of third parties always break the chain of causation? No, "the true common sense distinction is, in my view, between acts and events which, although not necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary" (*Empress Car Co.*). This however gets lots of criticism: "Giving other citizens the power to make D guilty of a crime not only disempowers D and undermines his autonomy, but is also contrary to the importance attached in modern English law to an individual's separate identity and responsibility." *Third party act which is not free, deliberate, informed, but is reasonably foreseeable* *D, driving dangerously, had shunted V's car into the path of oncoming traffic. C crashed into V and killing V and herself. "The defendant will have caused the death only if you are sure that it could sensibly have been anticipated that a fatal collision might occur in the circumstances in which the second collision did occur." (Girdler).* *R v A:* *It would not be necessary for the jury to be sure that the particular circumstances of the collision or "the exact form" of the subsequent act was reasonably foreseeable.* *Medical treatment cases* *Jordan:* *D stabbed V, who died later. Medical evidence showed cause of death was not the stab wound but pneumonia contracted after V was given high quantities of drug that doctors had already established an intolerance to. D was not convicted.* *Smith:* Man stabbed twice, one pierced lung. Doctor incorrectly diagnosed victim and V died of inappropriate treatment an hour later. This did not break chain of causation, as there was no time for careful examination and the death clearly resulted from the original wound. *Cheshire:* "When the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim's death to the exclusion of the defendant's acts" 1. The original harm inflicted by D must no longer be contributing to the occurrence of the eventual result 2. The relevant intervention by T must be independent (i.e., not itself a consequence) of the original wrongdoing by D" *Intervening acts of the victim* *Roberts*: Whilst driving, the defendant made sexual advances to his passenger and tried to remove her coat -- she jumped out of the moving car and suffered ABH. The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? *What about voluntary acts of the victim?* 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 (*Kennedy v R).* *Rebello:* V died after ingesting unlicensed food supplements supplied by D. One of the key questions in the case was whether V made a free, voluntary and informed decision to risk death by taking the pills, such as to break the chain of causation between D's act in supplying the drugs, and V's death. The jury convicted D. See also: *Field, Evans, Empress Car* *Voluntary suicide* The correct approach in the criminal law is...: were the injuries inflicted by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case... In the present case the cause of the deceased\'s death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the defendant\'s conduct made an operative and significant contribution to the death (*Dear)*. *Dhaliwal*: V committed suicide following a long period of physical and psychological abuse at the hands of her husband. Subject to evidence and argument on the critical issue of causation, unlawful violence on an individual with a fragile and vulnerable personality, which is proved to be a material cause of death (even if the result of suicide) would at least arguably, be capable of amounting to manslaughter.' See also: *Kennedy, Wallace* *The thin skull principle* "Take the victim as you find them". This entails both the physical man (*Hayward*) as the spiritual man (*Blaue*). "The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about (due to religious beliefs) did not break the causal connection between the act and death" (*Blaue*). 3. *Mens Rea* *Establishing mens rea* 1. What mens rea standard is required in respect of each separate element of the actus reus? 2. Interprate the criteria of those mens rea element(s) 3. Did the defendant in fact act with the mens rea element(s) required? *Correspondence principle* The correspondence principle: each element within the actus reus of an offence should have a mens rea element that corresponds with it. Elements of the actus reus: - Conduct - Circumstance - Result Exceptions: - Strict liability offences ((no *mens rea* beyond voluntariness as to the conduct element of the offence) - Road Traffic Act (1988): Drunk driving - Constructive liability offences (sometimes the mens rea for a crime 'X' requires no more than proof that D had the mens rea of a lesser offence 'Y' -- this is sometimes called 'constructive crime'. Liability for X is constructed from D performing the actus reus for X with the mens rea for Y.' Transferred mens rea ("transferred malice") *Latimer.* Can only transfer MR between same crimes, however no double transfer. For example from a wounded mother to a fetus, and from fetus to child. *Mens Rea Terms* - Intention - Recklessness - Knowledge - Wilful blindness - Belief - Gross Negligence: Dependent on the seriousness of the breach of duty committed, and all the circumstances (*Adomako*) - Negligence: the defendant is negligent if a reasonable person in the same circumstances (a) would have been aware of the risks of doing the actus reus and (b) would not have run those risks. It does not matter if the defendant herself was unaware of the risk. - Dishonesty: (a) What was the state of D's actual knowledge or belief as to the facts? (b) In the context of a, was D's conduct dishonest by the standards of ordinary decent people? *(Ivey v Genting Casinos*). *Intention* Direct intention: Choosing to bring about a result OR choosing to bring it about as a means to something else Oblique intention: Virtually certain consequences, defendant knows it's virtually certain and the jury finds it so (*Woolin*) Conditional oblique intention: opzet met noodzakelijkheidsbewustzijn Should there be discretion when applying *Woollin?* Yes: "There are cases where there is a 'moral threshold' such that even though the accused could foresee a result as virtually certain, it is so at odds with his moral conception of what he was doing that it could not be conceived as a result that he intended". See *After Woollin* and *Steane*. No: Sometimes the result is very intentional, however there are applicable rechtvaardigheidsgronden. *Recklessness* *Cunningham*: 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 (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. *Brigg:* "A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act" Importance was placed on 'carelessness' *Parker (Daryl):* 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" BUT ALSO: *Stephenson:* He was schizophrenic so objective rules on 'obvious risks' did not apply. The test remains subjective, the risk of damage must have entered the defendants mind even though he may have suppressed it or driven it out. Concerns with subjective test: the indifferent, the intoxicated, "I never thought about it". *Caldwell*: Someone who is aware of a risk of harm but takes the risk anyway is reckless. Someone who gives no thought to the obvious risk of harm is also reckless. However, there are some criticisms: 1. Loopholes: D considers risk and decides there is none 2. Indefensible distinctions between offences (OAPA v CDA offences) 3. Fails to protect principle of autonomy *R v G & another:* - Someone who **without having foreseen the risk involved in his actions does not deserve to be convicted of serious crime** - **The Caldwell definition leads to unfairness and injustice (for young people, mentally disabled, etc.)** - **The weight of judicial and academic criticism** - The majority of the House of Lords in *Caldwell* misinterpreted the word 'recklessly' in the Criminal Damage Act 1971: doesn't mean malicious, but in the sense of foresight and disregard of consequences or awareness and disregard of the likelihood of the existence of circumstances The distinction between recklessness and negligence turns on D's awareness or unawareness of the risk. In both cases there is an unreasonable risk taken, but D should only be held to have been reckless if he or she was aware of the risk. *The test now:* 1. D must have foreseen a risk of the offence element being satisfied 2. D must have unreasonably continued to run the risk *Caldwell is too broad and Cunningham is too narrow?* Prof. Anthony Duff: "The truth in orthodox subjectivism is that an agent most clearly displays her reckless indifference to a risk in consciously creating it, and that her unawareness of a risk often precludes the ascription of such reckless indifference: its error lies in the claim that only one who consciously creates a risk can be said to be reckless of that risk -- that unawareness of risk must always preclude the ascription of recklessness". Failure to notice a risk constitutes recklessness. WHY the agent fails to notice an obvious risk is of importance (*Intention, Agency and Criminal Liability*). 4. *Homicide* *The definition of murder* Actus reus requirements: i. The victim must have been a 'person in being' ii. The victim' §s death must have been caused by an act (or possibly omission) of the defendant iii. An intention to kill or to cause grievous bodily harm (mens rea) When does a foetus become a personal being? *Attorney-General's Reference (No 3 of 1994)* \[1998\] In the eyes of the law, when is a person dead? *Airedale NHS Trust v Bland* \[1993\] *Intention* For intention see Unit 3 and *Cunningham*. Differing degrees of murder (*Murder, Manslaughter, Infanticide)*: 1. First degree murder 2. Killing intentionally 3. Killing where there was an intention to do serious injury, with awareness of a serious risk of causing death Is only intention for mens rea too narrow? See Unit 4 Workbook *Voluntary manslaughter* Both a special defence as a partial defence to murder. *Partial defence to murder: loss of control (s54)* 1. **Where a person kills or is a party to the killing of another, D is not to be convicted of murder if:** a. **D\'s acts and omissions in doing or being a party to the killing resulted from D\'s loss of self-control,** b. **The loss of self-control had a qualifying trigger, and** c. **A person of D\'s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D** 2. **For the purposes of subsection (1a), it does not matter whether or not the loss of control was sudden.** 3. **In subsection (1c) the reference to "the circumstances of D" is a reference to all of D\'s circumstances other than those whose only relevance to D\'s conduct is that they bear on D\'s general capacity for tolerance or self-restraint.** 4. **Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.** 5. **On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.** 6. **For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.** 7. **A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.** ***Meaning of "qualifying trigger" (s55)*** 1. **This section applies for the purposes of section 54.** 2. **A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.** 3. **This subsection applies if D\'s loss of self-control was attributable to D\'s fear of serious violence from V against D or another identified person.** 4. **This subsection applies if D\'s loss of self-control was attributable to a thing or things done or said (or both) which:** a. **constituted circumstances of an extremely grave character, and** b. **caused D to have a justifiable sense of being seriously wronged.** 5. **This subsection applies if D\'s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).** 6. **In determining whether a loss of self-control had a qualifying trigger:** a. **D\'s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;** b. **a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;** c. **the fact that a thing done or said constituted sexual infidelity is to be disregarded.** 7. **In this section references to "D" and "V" are to be construed in accordance with section 54.** ***Interpretation of s55:*** - ***R v Clinton, Parker & Evans*: Sexual infidelity is not a considered a ground for loss of control in and of itself, but it can be considered a contributing factor regarding the circumstances.** - ***R v Dawes:* Man attacked his wifes partner and stabs him out of self defence. Just because D starts conflict and is aggressive, doesn't automatically mean the qualifying triggers aren't available. In this case the defence did not work?** - *R v Asmelash*: D intoxicated when he intentionally killed V. Intoxication could not be taken into account when applying the S.54(1c) test - *Rejmanski and Gassman:* On D's mental condition not being relevant to the objective limb of the LOC defence. See further *R v Sargeant*. *Diminished responsibility* - Special defence to murder - A partial defence to murder - Reversed burden of proof *Coroners and Justice Act 2009* S.52: Persons suffering from diminished responsibility (England and Wales). In section 2 of the Homicide Act 1957 (c. 11) (persons suffering from diminished responsibility), for subsection (1) substitute: 1. A person ("D") who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which: a. Arose from a recognised medical condition, b. Substantially impaired D\'s ability to do one or more of the things mentioned in subsection (1A), and c. Provides an explanation for D\'s acts and omissions in doing or being a party to the killing. 1. A. Those things are: a. To understand the nature of D\'s conduct b. To form a rational judgment c. To exercise self-control 1. B. For the purposes of subsection (1c), an abnormality of mental functioning provides an explanation for D\'s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct." *Dowds*: Acute intoxication does not qualify for defence, although it was a medically recognised condition ***Joyce and Kay* \[2017\] EWCA Crim 647: Ds had a medical condition *and* were under the influence of alcohol and drugs. Voluntary intoxication which triggered the episode made the defence useless.** ***Foy* \[2020\] EWCA Crim 270: Intoxication and diminished responsibility. Again no defence.** *Unlawful Act Manslaughter* *"An accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death" (*per *Lord Salmon* *in* DPP v Newbury & Jones *\[1976\] 2 All ER 365 HL).* *Criteria:* 1. *D intentionally did an act* 2. *The act was unlawful* 3. *The act was dangerous* 4. *The act (inadvertently) caused death* 1. *The defendant intentionally did the act* "An accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous. It is unnecessary to prove that the accused knew that the act was unlawful or dangerous " (*per* Lord Salmon in *Newbury & Jones* (*supra*)). 2. *The act was unlawful* Distinction between an unlawful and a negligently performed lawful act ((*per* Lord Atkin in *Andrews v D.P.P.* \[1937\] AC 576 HL). The meaning of "unlawful": - *Franklin:* defendant throws a box into the sea whilst walking along Brighton pier, killing a swimmer underneath. Was considered manslaughter. "It seems to me... that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case". - *Lamb:* defendant playing around with friend, points revolver at friend, three of the five chambers in the revolver were empty, defendant mistakenly thought it was safe to pull the trigger, friend shot dead. "It is perhaps as well to mention that when using the phrase 'unlawful in the criminal sense of that word' the court has in mind that it is long settled that it is not in point to consider whether an act is unlawful merely from the angle of civil liabilities". Establishing all elements of the base offence: there has to be a actus reus and mens rea provided (*R v Grey*). 3. *The act was dangerous* Would all sober and reasonable people recognise its danger (*DPP v Newbury & Jones*) and inevitably recognise the risk of some harm resulting to the other person, if not serious harm (*Church*). What knowledge may be ascribed to the reasonable man? - *Bristow*: Ds burgle business on secluded farm at night. V interrupts Ds who drive into and kill him as they're escaping. - *Dawson*: **"What needed to be considered was the foresight of the participants as they embarked upon the crime, and what, if anything a reasonable bystander would inevitably have recognised as a risk of physical harm to any person intervening".** **Defendants rob petrol station using imitation firearm and pickaxe handle. Petrol station attendant, who suffers from coronary illness, suffers a fatal heart attack after the robbers have gone. No manslaughter** - ***Carey:* 15 year-old victim approached by three defendants and was punched by one. Victim ran away but she had diseased heart and the running caused her to collapse and die later that night. No manslaughter because not reasonably foreseeable.** - *Watson:* Defendant breaks into home of victim, who is a frail 87 year-old man, and physically abuses the victim, who later dies of a heart attack. Was manslaughter*.* - *Ball:* defendant argued with victim and then shot her as she ran away -- he mistakenly thought the cartridge in the gun was a blank. Manslaughter, as mistaken beliefs are irrelevant. 4. *The act (inadvertently) caused death* "In the judgment of this Court, where the charge of manslaughter is based on an unlawful and dangerous act, it must be directed at the victim and likely to cause immediate injury, however slight" (*per* Waller LJ in *Dalby* (1982) 74 Cr App R 348 CA). *Mitchell:* Defendant starts fight in a crowded post office, elderly lady crushed to death in the resulting fracas. No requirement that unlawful act must be directed at victim to convict of manslaughter. *Gross negligence manslaughter* *Adomako*: During an operation the anaesthetist fails to realise that the tube supplying oxygen to the patient has become disconnected, patient suffers cardiac arrest and dies. Negligence will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. Adomako test: 1. The defendant owed an existing duty of care to the victim 2. The defendant negligently breached the duty of care to the victim 3. At the time of the breach there was a serious and obvious risk of death 4. It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death 5. The defendant's breach of duty must have caused the death of the victim or made a significant (i.e. more than minimal) contribution to the death of the victim 6. The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction *Wacker*: D was a driver who hid 60 Chinese immigrants in his lorry to help them enter the UK illegally. D closes an air vent to reduce risk of detection and 58 of the people died of suffocation. *Singh*: The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even serious injury but of death" *Mark*: The question is whether the reasonable person would have foreseen the risk of death, not whether the defendant foresaw it. *Rose:* When an optometrist breached duty to V = not reasonably foreseeable that the breach posed a serious and obvious risk. Concerns with this case: 1. Policy concerns: does it incentivise those with duties to do less?! 2. Does it diminish the objective nature of the test from Adomako? 3. Does it blur the line between this element and the requirement that the negligence must be 'gross'? *Broughton*: Causation. This case concerned a young woman who died at a music festival as a result of a drug overdose. Her boyfriend failed to get medical help in a timely manner, and the appeal turned on the extent to which his negligence contributed to her death. Apparently, there was a 90% chance of her surviving, but not enough to prove causation beyond a reasonable doubt. *Reckless Manslaughter* If D is reckless as to a lesser degree of harm and causes V's death, this may amount to reckless manslaughter -- a category of manslaughter left open by Lord Mackay which forms the focus of considerable academic speculation although not featuring in the law reports. The circumstances in which manslaughter by recklessness might arise are very narrow (perhaps even non-existent) as most conceivable situations in which D's reckless act causes V's death will fit within the bounds of constructive manslaughter. *Week 5. Non-Fatal Offences Against the Person* *Offences against the person framework* - Technical assault - Battery - Assault (GBH/ABH) *Technical assault* "An act which causes another person to apprehend the infliction of immediate, unlawful force on his person" (*Collins v Wilcock*) *Actus reus:* i. The victim must [apprehend] the infliction of immediate, unlawful force on his person ii. The victim must apprehend the infliction of [immediate] force *Lewis*: defendant treated his wife violently, she locked herself in a room in their third floor flat, he shouted threats to her, then she heard the sound of breaking glass, so she jumped out of the window and broke both her legs. *Ireland and Burstow*: Both defendants stalked their victims, their conduct included the making of silent telephone calls. "The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible... There is no reason why something said should be incapable of causing an apprehension of immediate personal violence" (*per* Lord Steyn in *Ireland and Burstow*). "\[The silent caller\] intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the *possibility* of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular the impact of the caller's potentially menacing call or calls on the victim" (*per* Lord Steyn in *Ireland and Burstow* (*supra*)). *Mens rea* iii. The victim must apprehend the infliction of [unlawful] force iv. There must be a [causal link] between the defendant's behaviour and the victim's apprehension *Venna:* man resisted arrest causing harm to a police officer after a disturbance. Recklessness is sufficient for mens rea here. *Savage and Parmenter*: Savage threw beer over her husband's ex-girlfriend. Glass slipped out of hand causing her hand to be cut. No intention but was convicted. Parmenter accidentally injured new-born son, was convicted regardless of lack of knowledge of new-borns. *Battery* "The actual infliction of unlawful force on another person" (*Collins v Wilcock*) *Actus reus* i. The [infliction] of force *Thomas*: School caretaker rubbed the bottom of an 11-year-old girl's skirt. There could be no dispute that if you touch a person's clothes while he is wearing them that is equivalent to touching him" (*Thomas* (*supra*)). a. *The necessary degree of force* *Collins v Wilcock*: Police officer wants to speak to woman who appeared to be soliciting for the purpose of prostitution. Woman refuses to speak to her and walks away. Police officer takes hold of her arm to stop her. Woman becomes abusive and scratches police officer with her fingernails. No conviction. "The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery" (*per* Robert Goff LJ) "Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized is friendship, or even if his back is (within reason) slapped. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life" (*per* Robert Goff LJ). b. *Force applied indirectly/through a medium* *Fagan v Metropolitan Police:* Defendant accidentally drove onto a police constable's foot and, when he realised, refused to move his car. *DPP v K*: defendant poured acid into the upturned nozzle of a hot air hand drier. When the victim went to dry his hands, the acid was blown into his face. *Haystead v Chief Constable of Derbyshire*: The defendant punched his ex-girlfriend whilst she was holding her 12 month-old baby, she dropped the baby and he hit his head on the floor. "Here the movement of Miss Wright whereby she lost hold of the child was entirely and immediately the result of the appellant's action in punching her. There is no difference in logic or good sense between the facts of this case and one where the defendant might have used a weapon to fell the child to the floor, save only that this is a case of reckless and not intentional battery" (*per* Laws LJ) ii. *The force inflicted must be [unlawful]* *Marland v DPP: Man grabbed intoxicated partner to bring her to the car, however she fell when he let her go. This was unlawful battery.* 'It would be contrary to public policy to hold that it is acceptable for a man, knowing that a woman did not consent to being touched, to say that he knew she was not consenting but he did what he did because he thought it was in her best interests in the circumstances; so using the doctrine of implied consent to override her actual non-consent. I would add, that is not the law. There may be cases of stopping someone jumping from a high building, where a person could override another\'s lack of consent, although in that kind of case it is more likely the accused would assert he was acting in defence of another. That was not a defence for which there was any evidence; this was not a case where the appellant was, for example, seeking to steer Ms Clarke out of the line of oncoming traffic.' *Per* Steyn J. *Mens rea* Venna: "In our view the element of *mens rea* in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another" (per *James LJ*). See also *Savage and Parmenter.* *Assault and Omissions* "To constitute this offence, some intentional act must have been performed; a *mere* omission to act cannot amount to an assault" (*per* James J in *Fagan v Metropolitan Police Commissioner* (*supra*)) *DPP v Santana-Bermudez:* The victim, a policewoman, conducts search of defendant. Defendants misleads victim into believing his pockets are empty. Victim puts hand into defendant's breast pocket and her finger is pierced by a hypodermic needle. "Where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the *actus reus* of an assault occasioning actual bodily harm. It remains necessary for the prosecution to prove an intention to assault or appropriate recklessness... In the present case, if (as the court implicitly found) the respondent, by giving PC Hill a dishonest assurance about the contents of his pockets, thereby exposed her to a reasonably foreseeable risk of an injury which materialised, it was erroneous of the court to conclude that there was no evidential basis for the *actus reus* of assault occasioning actual bodily harm" (*per* Kay J). *Assault occasioning actual bodily harm (ABH)* s47 Offences Against the Person Act 1861; "Whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable \[to imprisonment for five years\]" i. An assault ii. Actual bodily harm (ABH) "The proposition that the Victorian legislator when enacting ss18, 20 and 47 of the 1861 Act would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant inquiry is as to the sense of the words in the context in which they are used... the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury... I would hold that 'bodily harm' in ss18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness" (*per* Lord Steyn in *Ireland and Burstow* (*supra*)) "\[The words 'actual bodily harm'\] are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word 'harm' is a synonym for injury. The word 'actual' indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant. The purpose of the definition in section 47 is to define an element of aggravation in the assault. It must be an assault which besides being an assault (or assault and battery) causes to the victim some injury" (*per* Hobhouse LJ in *Chan-Fook*) *R (on the application of T) v DPP*: A gang of youths chased the victim and, when he fell over, kicked him in the head. He temporarily lost consciousness. iii. The assault must have [occasioned] the actual bodily harm ***Intention and recklessness? Both are possible.*** ***Unlawfully and maliciously wounding or inflicting GBH*** ***s20 Offences Against the Person Act 1861;*** ***"Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument shall be guilty \[of an offence and liable to imprisonment for five years\]"*** i. ***Either a wounding or an infliction of GBH*** a. ***A wounding*** ***C v Eisenhower:* wounding must include a break of the skin, otherwise its ABH or GBH.** b. ***Infliction of grievous bodily harm (GBH)*** - ***Grievous bodily harm (GBH):*** ***DPP v Smith:* S accelerated instead of stopping like police asked him to. P jumped on the car but slid off because of the sudden movements and was hit by another car. He was convicted of murder as GBH was foreseeable to a reasonable man (objective test).** **See also *Ireland and Burstow (supra).*** ***Cause and inflict are two separate things (Mandair, Ireland and Burstow). There can be an infliction of BH contrary to s20 without an assault being committed (Wilson (Clarence)).*** ***Inflict doesn't necessarily have to be applied directly to the victim. It can be indirectly, as long as the result is that harm is caused (Ireland and Burstow).*** ii. The wounding/infliction of GBH must have been done [maliciously] "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 (1) an actual intention to do the particular *kind* of harm that in fact was done, or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it require any ill-will towards the person injured". (James William Cecil Turner, *Kenny's Outlines of Criminal Law* (16^th^ edn.) at p186 -- approved as "an accurate statement of the law" by Byrne J in *Cunningham*). "\[I\]t is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in s20, i.e., a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result" (*per* Lord Ackner in *Savage and Parmenter* (*supra*)). iii. The wounding/infliction of GBH must be unlawful *Unlawfully and maliciously **Wounding or Causing Grievous Bodily Harm with Intent*** s18 Offences Against the Person Act 1861; "Whoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person... with intent... to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension of any person, shall be guilty... \[of an offence and liable to imprisonment for life\]" i. A wounding or causing of grievous bodily harm ii. The wounding/causing of GBH must have been done [maliciously] iii. The wounding/causing of GBH must have been [unlawful] iv. Intention to do some grievous bodily harm to any person or to resist or prevent the lawful apprehension of any person ***Proposals for Reform*** "Ancient statutes are a foreign country, for legislators did things differently then. This is particularly true of the Offences Against the Person Act 1861, a statute which has outlived its usefulness. The offences created by this Act are internally inconsistent, the language used to define them is opaque and the offences themselves are unsuited to the demand placed on the criminal law in the late twentieth century" (Graham Virgo from 'Offences Against the Person -- Do-It-Yourself Law Reform' \[1997\] CLJ 251 -- a case note on the Court of Appeal's judgment in Burstow; it was written before the House of Lords heard the case, but this in no way affects its relevance). "The crimes in the 1861 Act form a somewhat shakily constructed ladder, with rather more overlapping of offences than is necessary and more elements of constructive liability than are justifiable... There is an overwhelming case for reform of the 1861 Act. It is unprincipled, it is expressed in unhelpful language, and it may lead judges to perpetrate manifest distortions in order to secure convictions in cases where there is 'obvious' guilt but where the Act falls down" (Andrew Ashworth, Principles of Criminal Law (5^th^ edn.) pp.332-3). See Law Commission Report No 218 for proposals for reform (and for comment on this see Professor JC Smith \[1998\] Crim LR 317). ***Offences Involving Actual or Grievous Bodily Harm or Wounding*** **Ss47, 20 & 18 Offences Against the Person Act 1961.** "Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating" (*per* Lord Templeman in *Brown* (see below)) Intentional violence can be lawful, for example in surgery, tattoos, violent sports and circumcision. Duelling and fighting however are both unlawful though consensual. *What constitutes a lawful activity?* *Brown*: A group of sadomasochistic homosexuals willingly co-operate in the commission of acts of violence against each other for sexual pleasure. i. The underlying assumption of the majority Sometimes consent can be given to violence in lawful activities. Is this the case for sado-masochistic encounters? Depends on policy and public interest. "There are *prima facie* offences against ss. 20 and 47 and the next question is whether there is good reason to add sado-masochistic acts to the list of exceptions contemplated in *Att.-Gen.'s Reference*. In my opinion, the answer to that question is 'No'" (*Brown* (*supra*)) ii. Considerations the majority took into account a. *Every person does not have the right to deal with his/her body as s/he pleases* It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally". b. *Sado-masochism is not simply about the consensual achievement of sexual satisfaction; it is concerned with violence* In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that 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". c. *The risk of injury and infection* "The evidence disclosed that drink and drugs were employed to obtain consent and increase enthusiasm. The victim had no control over the harm which the sadist, also stimulated by drink and drugs might inflict. Bloodletting and the smearing of human blood produced excitement. Prosecuting counsel informed the trial judge against the protests of defence counsel, that although the appellants had not contracted AIDS, two members of the group had died from AIDS and one other had contracted an HIV infection although not necessarily from the practices of the group. d. *Possible corruption of young men* "Two members of the group were responsible in part for the corruption of a youth K... Cadman had befriended K when the boy was 15 years old. He met him in a cafeteria and, so he says, found out that the boy was interested in homosexual activities. He introduced and encouraged K in 'bondage affairs.' He was interested in viewing and recording on videotape K and other teenage boys in homosexual scenes. e. *Judicial distaste?* "The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty. A relaxation of the prohibitions in ss. 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve." *Reflection on Brown* 1. Autonomy & liberalism v paternalism & legal moralism "The reason for the proposed exemption \[is\] that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire", "The criminal law restrains a practice which is regarded as dangerous and injurious to individuals", "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" 2. Academic comment "The House of Lords decision in *Brown* leaves the law on consent to harmful conduct in an unsatisfactory state. It seems both a waste of scarce police and prosecutorial resources and an unnecessary curtailment of liberty to deem the appellants' conduct as worthy of criminal censure. The public interest did not require repression of such consensual conduct but, as the law presently stands, the question is not properly advanced in that form. Rather, one need search to discover reasons why such unorthodox conduct is needed for the public good -- in many cases a much more difficult, indeed, as *Brown* showed, impossible, task" *The pre-Brown case law* Donovan: defendant consensually beat a 17 year-old girl with a cane for the purpose of sexual gratification. This was criminal. *Attorney-General's Reference (No 6 of 1980)*: defendant and victim agreed to a fist fight, in which the victim suffered a bleeding nose and bruised face "It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. This means that most fights will be unlawful regardless of consent". *Jones (Terence):* schoolboys throw other pupils into the air and don't catch them on their way down -- one pupil suffers a ruptured spleen and another a broken arm."Mr. Arlidge submits, first, that consent to 'rough and undisciplined play' where there is no intention to cause injury, must be a defence. Secondly, he says that even if consent is in fact absent, genuine belief by a defendant that consent was present would be a defence. Thirdly, he says that if the belief is genuinely held, it is irrelevant whether it is reasonably held or not." *Aitken*: The three defendants, members of the RAF, poured white spirit onto the victim's flying suit and lit it. The victim suffered life-threatening burns on 35% of his body. "If Gibson consented to take part in rough and undisciplined mess games involving the use of force towards those involved, no assault is proved in respect of any defendant whose participation extended only to taking part in such an activity. If Gibson did not consent, the application of force to him in the course of rough and undisciplined mess games is still not unlawful if a defendant held a genuine belief, whether reasonably held or not, that he was consenting. Only if you are sure that Gibson did not in fact consent, and sure that the defendant did not hold a genuine belief that he was consenting, would an assault be proved" *The post-Brown case law* *Buttock Branding* *Wilson*: husband branded initials in wife buttocks i. The underlying assumption of the Court of Appeal We are firmly of the opinion that it is not in the public interest that activities such as the appellant's in this appeal should amount to criminal behaviour" (*per* Russell LJ in *Wilson (Alan)* (*supra*)) ii. Considerations the Court of Appeal took into account: a. Mrs. Wilson instigated the act. This differentiated it from *Brown* or *Donovan* b. No aggressive intent c. Analogy with tattooing d. The privacy of the matrimonial home *Heterosexual sado-masochistic activity* *Emmett*, *The Times*: the defendant and his fiancée engaged in consensual sexual activity that on one occasion involved partial asphyxiation and, on another occasion, setting light to lighter fuel on her breast. No distinction between hetero and homosexual couples. "This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body. With that conclusion, this Court entirely agrees". Legislative intervention: s71 Domestic Abuse Act, extreme body modification *BM* *Horseplay* *Richardson & Irwin*: two students hold their friend over a balcony, which is 10-12 feet off the ground and drop him. To convict either defendant you must be sure that 1. He alone or with the other defendant put Rose into the position from which he slipped or was dropped 2. Rose did not consent to being put these 3. He realised that Rose did not consent; 4. His actions in putting Rose there were deliberate, i.e., not accidental 5. When doing this either (a) he realised that Rose might slip or be dropped and thus sustain some degree of bodily harm or (b) would have realised that had he not been drinking' In this case, as Mr Edwards has pointed out, the defendants were not hypothetical reasonable men, but university students. *Sexual intercourse where one partner has a sexually transmitted disease* *Dica*: defendant who is HIV positive sleeps with two women -- they both contract HIV *Konzani:* s71(4) Domestic Abuse Act 2021 *The Sports Field* *Barnes:* it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal. *Consent and deception in OAPA* Consent given to a physical touching/ABH/GBH brought about by deception can be vitiated: - Where there is a deception as to identity - Or deception as to nature or quality or purpose of the act Authorities: - *Clarence* - *Richardson*: false dentist - *Melin:* professional status is inextricably linked with identity - *R v Paterson*: carried out unnecessary surgeries. *Week 6. Sexual Offences* *Rape* s1 Sexual Offences Act 2003; 1. *A person (A) commits an offence if:* a. *He intentionally penetrates the vagina, anus or mouth of another person* b. *With his penis,* c. *B does not consent to the penetration* d. *A does not reasonably believe that B consents* 4. *A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.* *Assault by penetration* *S2 Sexual Offences Act 2003:* 1. A person (A) commits an offence if a. *He intentionally touches another person (B),* b. *The touching is sexual,* c. *B does not consent to the touching,* d. *A does not reasonably believe that B consents* 3. *A person guilty of an offence under this section is liable:* a. *On summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;* b. *On conviction on indictment, to imprisonment for a term not exceeding 10 years* Note: s79 Sexual Offences Act 2003: 8\. *Touching includes touching:* *a. With any part of the body,* *b. With anything else,* *c. Through anything,* *and in particular includes touching amounting to penetration* *"Another person" for the purposes of touching will include the clothing B is wearing (H (2005)).* *Causing a Person to Engage in Sexual Activities without Consent* *s4 Sexual Offences Act 2003:* 1. A person (A) commits an offence if: a. He intentionally causes another person (B) to engage in an activity b. The activity is sexual c. B does not consent to engaging in the activity d. A does not reasonably believe that B consents. 4. A person guilty of an offence under this section, if the activity caused involved a. Penetration of B\'s anus or vagina b. Penetration of B\'s mouth with a person\'s penis c. Penetration of a person\'s anus or vagina with a part of B\'s body or by B with anything else d. Penetration of a person\'s mouth with B\'s penis Is liable, on conviction on indictment, to imprisonment for life. 5. Unless subsection (4) applies, a person guilty of an offence under this section is liable: a. On summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both b. On conviction on indictment, to imprisonment for a term not exceeding 10 years. Notes for s1-4 interpretation: S79: 'penetration' is a continuing act from entry to withdrawal S78(3): references to the body include those parts which are surgically constructed *Recurring Fundamental Concepts in the Sexual Offences Act 2003* 1. *The Absence of Consent* General definition of consent s74 Sexual Offences Act 2003: *'For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice'* i. *'Freedom to make that choice'* *R v C:* Previous sexual abuse as a child can undermine freedom, and therefore real consent, to engage in sexual activity with abuser as an adult. Since consent involves free agreement by choice simply to comply or to submit is not necessarily to consent. *R v B:* Failure of A to disclose his HIV status to B did not undermine B's freedom of choice to participate in sexual intercourse with A. But it will undermine consent for purposes of OAPA 1861 s20. Para 17: *"However, the party suffering from the sexually transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease."* R v Jheeta: Sending text messages which A knew would ensure sexual intercourse with B was more frequent. Recap s76 provides: 1. If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed: a. That the complainant did not consent to the relevant act, and b. That the defendant did not believe that the complainant consented to the relevant act Para 29. *"\[T\]his was not a free choice\..." and that "on some occasions at least the complainant was not consenting to intercourse for the purposes of section 74 and that the appellant was perfectly well aware of it."* *Julian Assange v Swedish Prosecution Authority:* Note para 79-96. B agreed to intercourse with a on the precondition that A used a condom. He did not. Court held that removal, damage, or failure to place a condom on would be material to lack of freedom to consent under s74. *R(F) v Director of Public Prosecutions* Para 26: "*He decided that he would not withdraw at all, just because he deemed the claimant subservient to his control,* she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based***.** Accordingly, her consent was negated."* ii. *Capacity to make that choice* *Bree:* Self-induced intoxication may undermine the capacity of B to enter into free agreement. Para 34: *"However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape."* *Cooper:* The complainant had schizo-affective disorder, an emotionally unstable personality disorder - the effects of which would come and go - a low IQ, and a history of harmful use of alcohol. Having left a community mental health team resource centre in a distressed and agitated state, she later met the defendant who offered to help her. He took her to a friend\'s house, gave her crack cocaine and asked her to engage in sexual activity with him, which she did. The House of Lords confirmed that: 1. A wide range of circumstances of a person's mental disorder might make B unable to make an autonomous choice even if she had an understanding of the information relevant in making that choice \[para 25\] 2. The ability to exercise autonomous choice is person and circumstance specific \[para 26\] *Robinson:* Para 22: *"...where the exploitation is of a girl who is of an age where she does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where, as here, there was evidence of acquiescence or acceptance rather than positive consent, we think that, as the judge found, it would be open to the jury to conclude that the complainant, perhaps out of embarrassment or for some other reason, had in reality gone along with acts which she did not in fact wish to engage in."* *Conclusive presumptions about consent* s76 Sexual Offences Act 2003: 1. *If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed;* a. *That the complainant did not consent to the relevant act* b. *That the defendant did not believe that the complainant consented to the relevant act* 2. *The circumstances are that:* a. *The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act* b. *The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant* *Tabassum:* *Para 38: A man with no medical qualifications examines three women's breasts under the pretence that he is conducting a study on breast cancer. While not deceived to the nature of the act (medical examination) they were deceived as to its quality* *Evidential presumptions about consent* *s75 Sexual Offences Act 2003:* 1. If in proceedings for an offence to which this section applies it is proved: a. That the defendant did the relevant act b. That any of the circumstances specified in subsection (2) existed, and c. That the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it 2. The circumstances are that: a. Any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him; b. Any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person; c. The complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; d. The complainant was asleep or otherwise unconscious at the time of the relevant act; e. Because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;\ Any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act f. In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began *Some critical responses:* Is it not conclusive that someone unconscious or asleep did not agree to intercourse? "This means that consent is necessarily regarded as absent once it is proved beyond doubt that C was asleep or unconscious at the time sexual intercourse took place." *Is it not necessary that B was in fact stupefied by a substance if the substance is capable of rendering the complainant to be stupefied or rendered overpowered? "Read as a whole, s75(2)(f) implies that once it has been established that the substance involved is capable of overpowering or stupefying the victim at the time of intercourse, it is not necessary to prove that it did in fact have this effect".* *Is it feasible to provide evidence of consent once the stupefying effect of a substance is proven? "If the stupefying effect is established, it is questionable whether D should be able to argue that C nevertheless consented to the subsequent sexual act and that the drug or alcohol did not in fact prevent her from consenting. Can freedom and capacity to make a choice really exist in any meaningful sense in this situation?"* *2. The Absence of a Reasonable Belief in Consent* Subsection 2 of 1, 2, 3 and 4 *Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents* "The question is 'whether a *belief* is reasonable.' Reference to all the circumstances may well explain *why* D came to have an unreasonable belief -- D1 was drunk, say, whereas D2 was learning disabled. D1 is to be blamed for losing his usual bearing through drink, whereas it was understandable (and condonable) for D2 to have formed an unreasonable belief. To exempt learning disabled persons and others in like case, courts will have to construe the requirement for a reasonable belief in consent to be satisfied where it was understandable and condonable for D to believe that V consented, irrespective of the objective justification for such a belief" "The present formulation \[of the *mens rea*\] is unlikely to provide the incentive to report or pursue the case that the Government is seeking. The broad reference to 'all the circumstances' is an invitation to the jury to scrutinise the complainant's behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent." *R v Ciccarelli:* Re: 'the complainant was asleep or otherwise unconscious at the time of the relevant act' Para 18: If there is sufficient evidence in as case to support the reasonable belief of consent, the prosecution would have the burden of proof to disprove consent. This evidence must be more than speculative. *The Meaning of "Sexual"* s78 Sexual Offences Act 2003: For the purposes of this Part \[Part 1 of the Act\] (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that: a. Whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual b. Because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual *'it is because of its very nature sexual' implies that penile penetration of vagina, mouth, or anus will be because under s1 there is no requirement that such penetration be sexual to commit rape.* *'because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual'* *R v H*: A seized hold of the fabric of the back-pocket B's tracksuit trousers but b then broke away. The jury required to be directed on S. 78(b). They should be told there were two questions: 1. Would they, as 12 reasonable people... consider that because of its nature the touching that took place in the particular case before them *could* be sexual? If the answer was 'No', the jury would find the defendant not guilty. If 'Yes', they would have to go on to ask themselves... 2. Whether in view of the circumstances and/or the purpose of any person in relation to the touching (or both), the touching was in fact sexual. If they were satisfied that it was, then they would find the defendant guilty. *What 'could' be sexual?* - Rubbing penis up and down police officer's thigh (*Heard*) - Removing shoes from feet (George) - Placing a girl on lap and spanking her (*Court*) ***Consent and Deceit in Sexual Offences Prior to the 2003 Act*** ***Non-disclosure of disease would not vitiate consent to assault and therefore rape*** ***Clarence:*** **Intercourse between a husband and wife when the husband had not disclosed his infection of the (then incurable) bacterial infection of gonorrhoea. The wife contracted the infection. Charged under ss20-47 of the OAPA Act 1861.** **p. 27: "That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent."** p\. 28: **"Is disease more nearly allied to the procurement of intercourse by misrepresentation as to who the man is or as to what is being done, or to misrepresentation of a thousand kinds in respect of which it has never yet occurred to anyone to suggest that intercourse so procured was an assault or a rape."** ***Fraud as to the nature or quality of the act would vitiate consent*** ***Williams:*** **Re: claiming sexual intercourse was a necessary medical procedure.** **"Where \[the complainant\] is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then it is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse."** ***Linekar:*** Re: defendant promised to pay a prostitute £25 for sexual intercourse and does not pay her. This is only fraud, not rape. *Tabassum:* Re: man with no medical qualifications examined three womens' breasts under the pretence that he is conducting a study on breast cancer was charged with the offence of indecent assault. - "The wife in *Clarence*, and the prostitute in *Linekar*, each consented to sexual intercourse knowing both the nature and the quality of that act. The additional unexpected consequences, of infection in the one case and non-payment in the other, were irrelevant to and did not detract from the women\'s consent to sexual intercourse... On the evidence, if the jury accepted it, consent was given because they mistakenly believed that the defendant was medically qualified... and that, in consequence, the touching was for a medical purpose. As this was not so, there was no true consent. They were consenting to touching for medical purposes not to indecent behaviour, that is, there was consent to the nature of the act but not its quality" (*per* Rose LJ in *Tabassum* (*supra*)) *Fraud as to the identity of the person undertaking the relevant conduct would vitiate consent* *Linekar:* "Similarly, that ingredient is not proved in the husband impersonation cases because the victim did not consent to sexual intercourse with the particular man who penetrated her. We venture to suggest that at common law it is immaterial whether the penetrator is impersonating a husband, a co habitee or a lover..." See also *Elbekkay.* *Richardson (Diana):* Re: dentist who has been suspended by the General Dental Council continues to practice dentistry whilst suspended. This was a case of s47 OAPA 1961 but discussed and relied heavily upon case law regarding consent in sexual offences. In criminal law, consent isn't about whether the patients knew the dentist was suspended; it's about whether they were misled about *who* was treating them or *what* was being done. Since they knew both, their consent was valid. SO IN ESSENCE: Agreement to conduct element knowing it was penetration of a sexual quality = consent to the sexual intercourse (as per *Clarence, Linekar,* and with view to *Williams)*; however Agreement to conduct element that was *not prima facie* sexual (e.g. touching) but was presented as medical = not consent to the *sexual* touching but fraud as to the as to the nature and quality of the act? One reading: the conduct consented to is more than it's mere physical mechanics (e.g. penetration/ touching) but also involves something distinctively 'sexual'. The parties to an agreement must therefore agree not just on the mechanics of the act but its 'sexual' quality. BUT: *Melin:* Re: man with no medical qualifications injected two women with "what was purported to be Botox", to their serious harm. Like *Richardson* (*supra),* this was a case decided under the OAPA 1961 (s.20); but discussed and relied heavily upon case law regarding consent in sexual offences. The defence argued that because there was no deception as to the nature and quality of the act, the issue of deception as to *identity* arose. At Para 25: the defence invited the Appellate Bench to find that *Richardson* remains good law and clearly states where a deception as to identity is concerned, the \"identity\" of the person cannot extend to cover the \"qualifications or attributes\" of the person". The court distinguished this from *Richardson* as the man's false claims about being a doctor were seen as potentially critical to the women's consent, making his professional status part of his "identity". The women's consent in this case was invalid. *Consent and Deceit in Sexual Offences After 2003 Act* *Dica:* Re: HIV infections. Separation of assault and sexual offences for purposes of the reasoning related to consent. Clarence (supra) overturned but only in respect of what will constitute an assault. Therefore, what will constitute an assault by penile penetration no longer necessarily = rape. HIV not relevant to identity of accused or nature or quality of the act.for purposes of sexual consent. *Konzani:* "There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease... On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent \[to the underlying injury\] is not properly informed, and she cannot give an informed consent to something of which she is ignorant." This is entirely about OAP's though. *B:* *"*Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act." (para. 17) "All we need to say is that, as a matter of law, the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity in this case." *R v Jheeta:* Court held that s76 of the 2003 Act (conclusive presumption) did not apply because Jheeta was not misled as to the nature or purpose of the act: the 'act' in question was the relevant conduct for the sexual offence, in this case it was sexual intercourse: - Para 24: "In our judgment the ambit of section 76 is limited to the "act" to which it is said to apply. In rape cases the "act" is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76(2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. - Para 28: "She was not deceived as to the nature or purpose of intercourse, but deceived as to the situation in which she found herself. In our judgment the conclusive presumption in section 76(2)(a) had no application" However, the deception as to the situation the complainant found herself in could be relevant for s74 if it undermined her freedom to choose more generally: - Para 29: The persuasion took the form of the pressures imposed on her by the complicated and unpleasant scheme which he had fabricated" N.B *Jheeta* distinguished *Tabassum* (*supra*) stating that it was decided on the basis of the "nature and quality of the act"; while the now enacted s76 does not refer to the *quality* of an act but it's purpose. *Williams* (*supra)* was more illustrative of deception as to nature and purpose because it was not known to complainer as an act of sexual penetration at all. *The extent of s76 after Jheeta* *Devonald:* Re: adult male posed as a teenage girl and caused the complainer to masturbate on a webcam. He did so in order to humiliate the complainer. The question arose whether the complainer was misled as to the *nature* or *purpose* of the act of masturbation for purposes of s76 presumption. It was confirmed he was. "The "nature of the act" undoubtedly was sexual but not on its purpose, which encompasses rather more than the specific purpose of sexual gratification by the defendant in the Act of masturbation..." *Julian Assange v Swedish Prosecution Authority*: Re: removal of condom during sexual intercourse when wearing a condom was an explicit condition of undertaking sexual intercourse with the defendant. S76 only applies where the defendant deceives the complainant as to the nature and purpose of the sex act. It was not rape. Para 86: "It would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom. His conduct would therefore amount to an offence under the Sexual Offences Act 2003." Following *B* while HIV transmission was not relevant to the issue of consent under s74, the removal of the condom may be a basis upon which free agreement originally given is vitiated if it is an express condition of the sexual relation. *R v B:* Re: defendant posed as various people online in order to compel the complainer to send sexual images of herself and perform sexual acts online for fear that her explicit photographs would be shared. s.76 did not apply and was of limited application: para 19: "There is a great danger in attempting any definition of the word purpose and in defining it too widely. A wide definition could bring within the remit of s.76 situations never contemplated by Parliament" para 20: "We shall, therefore, simply apply the normal rules of statutory construction and echo what was said in *Jheeta*. Where, as here, a statutory provision effectively removes from an accused his only line of defence to a serous criminal charge it must be strictly construed. We respectfully adopt the approach of the court in *Jheeta*. If there is any conflict between the decisions in *Jheeta* and *Devonald*, we would unhesitatingly follow *Jheeta* Thus, it will be a rare case in which s.76 be applied." para 22: *"*The complainant knew full well what she was being asked to do and what she did in fact do, namely perform a sexual act for the benefit of the camera. She could have been in no doubt that the motive was at least in part sexual gratification. If so, on one view, even if one were to extend the definition of purpose to include the appellant\'s intention, as has been suggested, there is here no evidence going to the issue of deceit as to his purpose." However, the blackmail from which images were shared could be relevant for s74 free agreement (para 24). *Subsequent judgments regarding s74 and deceptions* *R(F) v Director of Public Prosecutions:* Re: claimant agreed to participate in sexual intercourse if her husband, the defendant, withdrew. He did not. This was rape. "The evidence relating to "choice" and the "freedom" to make any particular choice must be approached in a broad common-sense way" (para 26). *McNally:* Re: deception to the gender of the defendant who had posed as a boy in order to penetrate the complainant. The complainant identified as heterosexual and had participated in the acts with a view to the defendant being male. - On 'active deception': (Para 24) R v B was not saying that HIV status could not vitiate consent if, for example, the complainant had been positively assured that the defendant was not HIV-positive: it left the issue open..." - Common sense: active deception cannot relate to trivial features? (Para 25) 'In reality, some deceptions will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge CJ\'s observation that "the evidence relating to 'choice' and the 'freedom' must be approached in a broad common-sense way". (Para 26) 'The sexual nature of the acts is, on any commonsense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male.' *Issues:* - What conditions will be considered more than trivial for consent? - Is a common-sense approach to the interpretation of s74 in cases of active deception a sufficient boundary to criminalisation? - Is it predictable what behaviour will fall to be considered as a sexual offence? *R (Monica) v DPP:* Re: an environmental activist who engaged in sexual intercourse with an undercover police officer also presenting as an environmental activist. The claimant proposed that in order to vitiate consent: 1. Para 36: The deception\...must be sufficiently serious in objective terms as to be capable as being regarded as relevant to a woman\'s decision-making...the application of this objective test would exclude a lie about personal wealth or social status but include marital status....as for the present case, it could scarcely be doubted that a state-sponsored deception of this sort should be regarded as sufficiently serious. 2. Para 36: The second proposition was that consent would be absent in a case where, viewed in subjective terms, the deception went to a matter which the woman regarded as critical or fundamental to her decision-making in line with her individual autonomy. It was clear on the available evidence that the claimant regarded the genuineness of the interested party\'s radical, street protest and/or environmental credentials as central to her wish to start a relationship with him. This was rejected by the court; only two frauds are capable of vitiating consent. Assange, Re(F), and McNally restricted as modest extensions of law: - "What may be derived from Assange\'s case is that deception which is closely connected with "the nature or purpose of the act", because it relates to sexual intercourse itself rather than the broad circumstances surrounding it, is capable of negating a complainant\'s free exercise of choice for the purposes of s.74 of the 2003 Act." (para 72). - In respect of McNally: "The Court of Appeal referred to deception concerning "wealth" could not vitiate consent... it is clear that the court was holding that the deception did not relate to the nature or purpose, but did relate to the sexual nature of this activity. To the extent, therefore, that the common law was being extended (rather than section 74 being interpreted), that extension was modest. *New formulation: "deception that is closely connected with the nature or purpose of the act"* *Lawrance:* Re: the defendant had on one occasion stated he had had a vasectomy to the complainant online and the jury appeared to accept that she sought reassurances as to his having a vasectomy on the evening they engaged in intercourse. The defendant had no such procedure, the complainant became pregnant. Court stated that Lawrance's deception did not vitiate consent as: a. **It was not closely connected with the nature or purpose of the sexual act, and** b. **It did not deprive the complainant of the freedom to choose whether or not to have sex** *Week 7: Property and Fraud Offences* Property offences: - Fraud - Theft - Robbery - Burglary - Criminal damage *Fraud* Fraud Act 2006 s1 10 years max imprisonment which can be committed by: - Fraud by false representation (s2) - Fraud by failing to disclose information (s3) - Fraud by abuse of position (s4) *Fraud by false representation (s2)* (1)(a) D dishonesty makes a false representation, and \(b) intend by making the representation: i. To make a gain for himself or another, or ii. To cause loss to another or to expose another to a risk of loss See also s2(a) and 3. *Representation method:* - S2(4): Method can be express or implied - By implication or silence - *Bernard:* implied fraud by wearing a cap or gown pretending to be an Oxford student - Commission by omission? *DPP v Ray:* Not paying at a restaurant while making it look like you have intent to pay is illegal. - NOTE: intention alone is enough, not practical loss *Representation: subject and recipient* As to what? S2(3): May include facts, law and state of mind of any person. To whom/what? S2(5): "For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)." *What is a 'false representation'?* S2(2) A representation is false if it is: a. Untrue or misleading, or b. The person making it knows that it is, or might be, untrue or misleading (mens rea) For the mens rea follow the IVEY/BARTON TEST: 1. What was the actual state of D's knowledge of belief as to the facts? 2. In the context of 1, was D's conduct dishonest by the standards of ordinary and decent people? *Fraud by failure to disclose information (s3)* A person is in breach of this section if he: a. Dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and b. Intends, by failing to disclose the information i. To make a gain for himself or another, or ii. To cause loss to another or to expose another to a risk of loss. *Mashta:* Receiving benefits wihle working. Legal duty to disclose employment status. *Zeroual:* Failure to disclose D was no longer eligible for a single person's council tax discount due to change in living circumstances. A legal duty to disclose information may derive from a statute, private contract, insurance contract or fiduciary relationship. (Fraud Act 2006, explanatory note, para. 7.28). A legal duty to disclose information occurs in circumstances where the failure to do so results in a voidable agreement (Fraud Act 2006, explanatory note, para. 7.29). For the mens rea of dishonesty follow the IVEY/BARTON TEST: 1. What was the actual state of D's knowledge of belief as to the facts? 2. In the context of 1, was D's conduct dishonest by the standards of ordinary and decent people? *Fraud by abuse of positions (s4)* 1. A person is in breach of this section if he: a. Occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, b. Dishonestly abuses that position, and c. Intends, by means of the abuse of that position--- 1. To make a gain for himself or another, or 2. To cause loss to another or to expose another to a risk of loss. Occupies a position: - Undefined, broadly interpreted in Fraud Act 2006, Explanatory Notes, s4. Quoting from Law Commission, *Fraud* (No 276, 2002) para 7.38: - Related to financial interests - *R v Pennock and Pennock, R v Marshall, R v Valujevs* Absue of position: - Broadly interpreted - *R v Pennock and Pennock* Act/omission? - S4(2) offence can be committed by act and omission *Theft* Theft Act 1968 s1: - 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.' - Maximum sentence: 7 years imprisonment (s.7) S3(1): Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner.' *Morris:* any appropriation is sufficient; touching, destroying, alienating, etc. Does appropriation necessarily mean unauthorised appropriation? Two approaches to this: 1. *Lawrence:* appropriation may occur even though the owner has consented to the property being taken. 2. *Morris:* the concept of appropriation involves an act by way of adverse interference with or usurpation of the owners rights. Which one is correct? See *Gomez:* - Assistant shop manager deceptively convinces manager to accept stolen cheques. Manager consented. Charged with theft rather than fraud. This followed *Lawrence*, theft isn't limited to unauthorised appropriation. This did, however, create a significant overlap between fraud and theft. What if there is consent without deception? Yes, see *R v Hinks:* - "The submission that only an act which is unlawful under the general law can be an appropriation is an invitation that runs counter to the decisions in *Lawrence's* case and *R v Gomez* and must be rejected.' Theft Act 1968 s4(1): 'Property includes any money and all other property, real or personal, including things in action and tangible property" 'Things in action' = Bank accounts, dishonest quotas (*AG of Hong Kong v Chan Nai-Keung).* Corpses, foliage, wild animals etc. not generally considered property. Services, electricity, confidential information, and land are all either separate offences or not considered property that can be stolen. *Belonging to another* S5(1) Theft Act 1968: Property is regarded as belonging to any person having possession or control of it, or having it any proprietary rights or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). *Turner:* Man took his car from the garage without paying for the repairs. Can the owner of property be guilty of theft? Yes, 'belonging' means the person who is in possession and control at the time, not legal possession. *Rostron:* Golf course owners maintained possession and control, even if they did not intend to collect balls themselves. Even abandoned property is still in possession of the owner in cases like this. *Intention to permanently deprive* S6(1): A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights and a borrowing or lending of it may amount to so treating it if, and only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. Whether borrowing or lending is allowed depends on whether the property would be returned in an altered or devalued (useless or worthless) state. - *Beecham:* D stole railway tickets, intending return them only when they had been used to complete a journey (so worthless) - *Lloyd:* Property not diminished in value so no theft - *Velumyl:* Man borrowed money from employers safe, without authority. He intended to pay it back. He was convicted nonetheless. Unless he intended on paying the exact notes and coins back, it was considered permanently deprived. *Dishonesty* No definition of dishonesty. Three situations provided when an appropriation is not dishonesty: Theft Act s 2(1): A person's appropriation of property belonging to another is not to be regarded as dishonest -- a. If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third person; or b. If he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or c. (Except where

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