AQA A-Level Law Criminal Law Knowledge Organiser PDF

AQA A-Level Law Knowledge Organiser Criminal Law Name ………………………………………………………………................... Page | 1 Contents Key Terms 3 Rules of Criminal Law...

AQA A-Level Law Knowledge Organiser Criminal Law Name ………………………………………………………………................... Page | 1 Contents Key Terms 3 Rules of Criminal Law 5 General Elements of Liability 6 Actus Reus 6 Causation 6 Mens rea 7 No-fault and Strict Liability 8 Absolute Liability 8 Strict Liability 8 Non-Fatal Offences 9 Assault 9 Battery 10 Actual Bodily Harm: S.47 Offences Against the Person Act 1861 10 Grievous Bodily Harm (GBH)/ Wounding: S.20 Offences Against the Person Act 1861 11 Grievous Bodily Harm (GBH)/ Wounding: S.18 Offences Against the Person Act 1861 12 Murder 13 Voluntary Manslaughter 14 Loss of Control 14 Diminished Responsibility 15 Involuntary Manslaughter 17 Unlawful Act Manslaughter 17 Gross Negligence Manslaughter 18 Theft 19 Robbery 21 Preliminary Offence of Attempts 22 Capacity Defences 23 Insanity 23 Automatism 24 Intoxication 25 Necessity Defences 27 Self-Defence/ Prevention of Crime 27 Duress/ Duress of Circumstance 29 Theory of Criminal Law 31 Page | 2 Key Terms Absolute liability: Offences which mean no mens rea at all is required for the offence nor does the actus reus have to be voluntary. Acquittal: A decision by a court that a defendant accused of a crime is not guilty. Acts of Parliament: Acts of Parliament creates new laws and changes existing laws. Actus Reus: This is an act, an omission or a state of affairs that is the prohibited conduct in an offence. Autonomy: Independence or freedom, as of the will or one’s actions. Bare assertion: A bare assertion is a claim of fact without supporting evidence. It may be true or false, or something in between, but we can't know, because it is a bare assertion. Beyond Reasonable Doubt: The standard that must be met by the prosecution’s evidence in a criminal trial. Common law: A system of laws based on customs and court decisions rather than written laws made by Parliament. Common law forms the basis of the English Legal System. Conduct: A manner of personal behaviour Conviction: The formal decision of a criminal trial which finds the accused guilty. Crown Prosecution Service: The CPS prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. Defendant: The person who has caused loss or damage. Duty of care: A moral or legal obligation to ensure the safety or well-being of others. Exoneration: Clearing from a criminal charge. Indictable offence: An offence that has to be tried at the Crown Court. Judge: A public officer appointed to decide cases in a court of law. Jury: A group of people who have been chosen to listen to all the facts in a trial in a law court and to decide if a person is guilty or not guilty, or if a claim has been proved. Liable: Responsible by law, legally answerable. Manslaughter: The crime of killing a human being without malice aforethought, or in circumstances not amounting to murder. Mens Rea: The mental element (guilty mind) or the fault in an offence. Misdemeanours: An act seen as wrong or unacceptable. Negligence: An act or a failure to act due to the fault of the defendant which causes injury or damage to another person or his property. Offence: A breach of a law or rule, an illegal act. Omission: A failure to act. Prosecution: The pursuit of legal proceedings, particularly criminal proceedings. Punishment: A penalty imposed on a defendant duly convicted of a crime by an authorised court. Page | 3 Reasonable man: A phrase frequently used in tort and Criminal Law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability. Statute: A statute is an Act of Parliament: a law. Statute law and the statute book are collective terms for all Acts in force. Strict liability: A civil action where fault of the defendant does not need to be proved. Summary offence: A criminal offence that is only triable (summarily) in the magistrates' court. Triable-either-way offence: An offence that can be tried in either the Magistrates’ Court or the Crown Court. Verdict: A jury's finding on the matters referred to it in a criminal or civil trial. Victim: A natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence; A close relative of a person whose death was directly caused by a criminal offence. Page | 4 Rules of Criminal Law Criminal law sets out the types of behaviours which are forbidden by the state, for which there is punishment. What a criminal offence is will change over time. This may be because of changing views of our society, or changes in technology which lead to the need for new offences to cover situations. The Role of the State The majority of criminal law is set down by the state through Acts of Parliament. Usually it is the Crown Prosecution Service (CPS) who conduct criminal proceedings, but a private individual/ organisation can also bring a case. Some conduct can also be criminalised by judges, but this is rare (R v R (1991). Elements of Crime There are many offences aimed at different ‘wrong’ behaviour. For all crimes, except those of absolute or strict liability, there are two elements which must be proved by the prosecution. These are: Actus reus (guilty act), and Mens rea (guilty mind) The actus reus is an act, omission or a state of affairs that is the voluntary prohibited conduct together with any required consequences caused by the prohibited conduct of an offence. The mens rea is the mental element (guilty mind) or the fault element in an offence. These terms come from the Latin maxim ‘actus non facit reum nisi mens sit rea’ which means ‘the act itself does not constitute guilt unless done with a guilty mind’. Burden of Proof Burden of proof refers to the obligation to prove that the defendant committed the offence. In criminal law, the burden is on the prosecution to prove that the defendant committed the offence to the required standard. Standard of Proof Standard of proof refers to the level to which the evidence must be proved to gain a conviction. In criminal law, the required standard is ‘beyond all reasonable doubt’. The judge or jury must be certain that the defendant committed the offence (99%). Types of Criminal Offence There are three different types of criminal offence: Conduct crimes: The guilty act itself is criminal, irrespective of the consequence (i.e. Rape, Theft, Actual Bodily Harm) Consequence/ result crimes: The guilty act itself may not be criminal, but the consequence is (i.e. swinging an axe isn’t illegal but killing somebody with it, is) State of affairs crimes: The actus reus can be a state of affairs for which the defendant is responsible (i.e. possessing an offensive weapon in a public place) Page | 5 General Elements of Liability Actus Reus The actus reus of a crime refers to the guilty act. This must be a voluntary act, but it can also be formed via an omission. If the defendant has no control over their actions, they will not have formed the actus reus of the crime. Hill v Baxter (1958): “If he were struck by a stone or overcome by a sudden illness; or the car was temporarily out of control by his being attacked by a swarm of bees” An omission is a failure to act. An omission does not generally make a person guilty of an offence. Omissions are only blameworthy in criminal law if the defendant had a duty to act and failed to do so: Statutory omissions: S.170 Road Traffic Act 1988 Duty arising from a special relationship: R v Gibbins and Proctor (1918) Assumption of care: R v Stone and Dobinson (1977) Contractual duty: R v Pittwood (1902) Duty arising from public position: R v Dytham (1979) Creating a dangerous situation: R v Miller (1983) The case of Airedale NHS Trust v Bland (1983) further confirms that doctors can remove treatment if it is in the best interests of the patient. This is not an omission which will attract criminal liability. Causation When a defendant is charged with a resulting crime, it is not enough to prove that the defendant had the actus reus of that crime. He must also have caused the outcome. This is known as causation. Where causation is required, the prosecution must show that the defendant’s conduct was the factual and legal cause of the harm suffered. The chain of causation is the link between the defendants actions and their criminal consequence. The chain must remain unbroken for causation to be proven. Defendant’s actions (with Factual causation Legal causation Consequence (e.g. death) requisite mens rea) Factual causation Factual causation checks that the defendant’s actions caused the harm as a fact. The ‘but for’ test is used to determine this – ‘but for’ the defendant’s actions the harm would not have occurred. R v White (1910): ‘But for’ the defendant poisoning his mother’s tea, she would have died in any event’ R v Pagett (1983): ‘But for’ the defendant using his girlfriend as a human shield, she would not have died’. Page | 6 Legal causation Legal causation checks that the defendant remains the ‘substantial and operative’ cause of the harm suffered (R v Smith (1959). For legal causation to be met, there must be no novus actus interveniens (new act intervening) which breaks the chain of causation. There are several different aspects to consider here which may/ may not be an intervening act: Acts of the victim R v Roberts (1971): If the defendant causes the victim to react in a reasonably foreseeable way, then any injury to the victim will be considered to have been caused by the defendant R v Williams and Davis (1992): If the defendants reaction is ‘daft’ and ‘unforeseeable’ then the chain of causation will be broken and the defendant will not be liable for the injury suffered Thin-skull rule The defendant must take his victim as he finds him, even if the victim is susceptible to further injury R v Blaue (1975): The defendant must take his victim as he finds them, and this includes their religious beliefs Acts of third parties (medical treatment) R v Smith (1959): To meet the requirements of legal causation, the defendant’s actions must be the ‘substantial and operative’ cause of the harm suffered R v Cheshire (1991): Medical treatment is unlikely to break the chain of causation unless it is ‘so potent in causing the injury’ that the defendant’s actions are insignificant R v Jordan (1956): Medical treatment will only break the chain of causation where the treatment given is ‘palpably wrong’. Naturally occurring events A naturally occurring incident may occur which breaks the chain of causation, but it must be unforeseeable Mens rea The mens rea of a crime refers to the state of mind at the time of the offence. Levels of mens rea graduate: Direct intention: Where it is the defendant’s main aim or purpose to bring about the consequence (R v Mohan (1976)/ Fagan v MPC (1969) Oblique (indirect) intention): Where the consequences of the defendants actions are virtually certain, and the defendant appreciates that this is the case (R v Woollin (1998) Recklessness: Where the defendant sees a risk of a consequence occurring but takes that risk anyway (R v Cunningham (1957) Negligence: Where the defendant falls below the standards expected of the reasonable man Transferred malice The principle of transferred malice ensures that mens rea can be transferred from an intended victim to the actual victim where the defendant misses their target or the ‘domino rally effect’ occurs. According to R v Pembilton (1874) this can only occur where the actus reus of the offence is the same. Other case authority for transferred malice includes R v Latimer (1886) and R v Mitchell (1983). Coincidence of actus reus and mens rea The coincidence rule ensures that the actus reus and mens rea of an offence occur at the same time (or coincide). The courts have modified this rule so that a series of linked acts/ omissions can be treated as a single, continuing act. Case examples include Fagan v MPC (1969) and R v Church (1966). Page | 7 No-fault and Strict Liability Absolute Liability Absolute (or no-fault) liability does not require a voluntary actus reus and nor does it require any mens rea for the defendant to be convicted of an offence. Absolute liability crimes are generally ‘state of affairs’ crimes, where a defendant is liable because they have ‘been found’ in a certain situation (e.g. having a knife in a public place). Case examples include R v Larsonneur (1933) and Winzar v Chief Constable of Kent (1983). Strict Liability Strict liability crimes are crimes where the element of mens rea is not needed to prove liability for at least part of the actus reus (R v Prince (1875), but the actus reus must be voluntary. A defendant can be convicted of an offence if the voluntary act inadvertently (without meaning) caused a prohibited consequence (Callow v Tillstone (1900). If the Act of Parliament does allow due diligence, then the defendant will still be guilty, even where they took all possible care (Harrow LBC v Shah (1999). The defendant will still be guilty even where they have made a genuine mistake (Cundy v Le Cocq (1884). These offences exist to regulate society and protect the vulnerable: PSGB v Storkwain Ltd (1986): The supply of medicine must be carefully regulated R v Prince (1875): Protection of children is a matter of social concern Callow v Tillstone (1900): Food safety is of paramount importance Harrow LBC v Shah (1999): Gambling is a matter of social concern Cundy v Le Cocq (1884): Drunkenness on the streets must be deterred Origins Almost half of all statutory laws (made by Parliament) are absolute or strict liability. That being said, the statute is not always clear as to whether the offence is one of strict liability or not. This then leaves the court to consider whether it is or not by interpreting the statute. Sweet v Parsley (1970): where mens rea is unclear in statute, the courts starting assumption is that there needs to be mens rea for liability, especially where the action is ‘truly criminal’. Gammon (Hong Kong) Ltd v AG for Hong Jong (1985) There is a presumption that mens rea is required for a criminal offence The presumption is strong where the action is ‘truly criminal’ (particularly if imprisonment is a sentence available) The presumption applies to statutory offences and can only be displaced by clear wording from Parliament There is an exception to this where the statute is concerned with social or public safety It should only apply if it will help enforce law by encouraging greater vigilance to prevent a prohibited act Justification for No-fault and Strict Liability Offences Policy issues: Many statutory offences are aimed at preventing danger to the public. The risks of danger in such circumstances outweigh an individual’s rights. It is more important to protect the public, even where a defendant has taken every possible care to avoid an offence. Social utility: Strict liability offences help to regulate society by regulating activities involving danger to health, safety or morals. Making an offence one of strict liability promotes greater care over those matters by encouraging higher standards i.e. food and hygiene in restaurants. Page | 8 Non-Fatal Offences Non-fatal offences are crimes committed where Most Serious nobody has died. They are generally covered under the Offences Against the Person Act 1861 but there are some common law offences. These crimes are either basic intent crimes (where the mens rea can either be formed through intention or recklessness), or specific intent crimes (where the only mens rea available is intention). Least Serious Assault Fagan v MPC (1969): An assault is ‘an act where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence’. Actus reus: An act which causes the victim to apprehend immediate unlawful violence Mens rea: Intentionally or recklessly causing the victim to apprehend immediate unlawful violence S.39 Criminal Justice Act 1988: Assault is a summary offence. It carries with it a maximum sentence of 6 months imprisonment and/ or a £5000 fine. Actus reus An act An assault requires some act or words (an omission is not sufficient) R v Constanza (1997): Written words can be an ‘act’ sufficient for an assault R v Ireland (1997): Silence is an ‘act’ which can amount to an assault Causing the victim to Normal rules of causation apply i.e. factual and legal causation Apprehend The victim must anticipate some unlawful violence R v Lamb (1967): If the victim does not anticipate unlawful violence, there is no assault Logdon v DPP (1976): There does not need to be an actual threat for there to be an assault Immediate Smith v Chief Superintendent of Woking Police (1983): ‘Immediate’ does not mean ‘instantaneous’ but rather ‘imminent’ Tuberville v Savage (1669): If the words indicate that there will be no violence, then there cannot be an assault Read v Coker (1853): A ‘conditional offer’ can still be an assault Unlawful violence ‘Unlawful force’ is often used instead because the victim is not required to apprehend injury, pain or harm The victim simply need to apprehend the level of force that amounts to a technical battery i.e. touching Mens rea Intention, or Fagan v MPC (1969)/ R v Mohan (1976) Recklessness R v Cunningham (1957) Page | 9 Battery R v Ireland (1997) A battery is where ‘the defendant intentionally or recklessly applies unlawful force upon the victim’ Actus reus: Application of unlawful force Mens rea: Intentionally or recklessly applying unlawful force on the victim S.39 Criminal Justice Act 1988: Battery is a summary offence. It carries a maximum sentence of 6 months imprisonment and/or a £5000 fine. Actus reus Application The application of force must be applied to the victim DPP v K (1990): The application of force need not be directly applied Unlawful The ‘force’ must be unlawful Collins v Wilcock (1984): There is an implied consent to force when there is: jostling in crowded places, handshakes, back slapping, and tapping to gain attention, provided no more force was used than reasonably necessary in the circumstances R v Thomas (1985): Touching a person’s clothes whilst they are wearing them is equivalent to touching them, and is unlawful Force There must be sufficient ‘force’ to constitute a battery Faulkner v Talbot (1981): Any touching will suffice. A battery need not be hostile, rude or aggressive NB: It is possible for a battery to occur even where there is no assault. This can occur where the victim is unaware that unlawful force is about to be used on him (if their attacker comes up behind them for example). Mens rea Intention, or Fagan v MPC (1969)/ R v Mohan (1976) Recklessness R v Cunningham (1957) Page | 10 Actual Bodily Harm: S.47 Offences Against the Person Act 1861 ‘Whoever shall be convicted of any assault occasioning actual bodily harm shall be liable… to imprisonment for five years’ Actus reus: Assault or battery which causes actual bodily harm to the victim Mens rea: Intention or recklessness as to whether the victim fears unlawful force (assault) or is actually subjected to unlawful force (battery) Actual bodily harm, contrary to S.47 Offences Against the Person Act 1861 is a triable-either-way offence. Actus reus An assault or battery The defendant must have first committed either an assault or battery (detailed above) Either will suffice, but all the elements of the actus reus for the offence must be present Occasioning This has been deemed as meaning ‘caused’. Normal rules of causation apply i.e. factual and legal causation Actual bodily harm Some ‘additional’ harm must come to the victim beyond that of an assault or battery – there must be ‘actual bodily harm’ R v Chan-Fook (1994) ▪ Actual means ‘not so trivial as to be wholly insignificant’ ▪ Bodily is ‘not limited to harm to skin, flesh and bones but includes injury to the nervous system and brain such as a recognised and identifiable psychiatric condition’ ▪ Harm is ‘anything which goes beyond interference with the health and comfort of the victim’ ▪ Actual bodily harm does not include ‘mere emotions such as fear, distress or panic’ T v DPP (2003): Loss of consciousness, even momentarily, can amount to actual bodily harm R v Burstow (1997): ‘Bodily harm’ must be interpreted to include psychiatric illness Mens rea R v Roberts (1971): The mens rea for ABH is intentionally or recklessly causing an assault or battery There is no need for the defendant to intend or be reckless as to whether actual bodily harm is caused, so the defendant either: Intends or is reckless as to an assault, or Intends or is reckless as to causing a battery This decision was confirmed in the cases of R v Savage (1991) and R v Parmenter (1991) Page | 11 Grievous Bodily Harm (GBH)/ Wounding: S.20 Offences Against the Person Act 1861 ‘Whoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon any person, either with or without any instrument, shall be guilty of an offence’ Actus reus: Unlawful infliction of a wound or grievous bodily harm Mens rea: Intention or recklessness as to the wound or grievous bodily harm (‘some harm’) Grievous bodily harm/ wounding, contrary to S.20 Offences Against the Person Act 1861 is a triable-either-way offence and carries a maximum sentence of five years imprisonment. Actus reus Unlawful Unlawful means that consent has not been given Infliction R v Burstow (1997): Inflict means ‘to cause’ so normal causation rules apply (factual and legal) Wound, or JCC v Eisenhower (1983): A ‘wound’ is a cut or break in the continuity of the skin R v Wood (1830): A broken bone is not considered a wound, unless the skin is also broken Grievous bodily harm DPP v Smith (1961): Grievous bodily harm should be given its ordinary meaning of ‘really serious harm’ R v Saunders (1985): The word ‘really’ is superfluous – ‘really serious’ and ‘serious’ are the same thing R v Bollom (2004): The severity of injuries should be assessed according to the victim’s age and health R v Dica (2004): Infecting a person with HIV is grievous bodily harm Mens rea R v Cunningham (1957): The word ‘maliciously’ means ‘intention or recklessness’. It does not require any ill will towards the person injured R v Savage (1991): The defendant must intend or be reckless as to ‘some harm’ R v Parmenter (1991): Confirmed that Cunningham recklessness applies to all offences which use the word ‘maliciously’ For S.20, there is no need for the defendant to foresee the level of injury sustained Page | 12 Grievous Bodily Harm (GBH)/ Wounding: S.18 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, or with intent to resist arrest or prevent the lawful arrest of any person shall be guilty of… an offence’ Actus reus: Unlawful infliction of a wound or grievous bodily harm (the same cases can be used as for S.20) Mens rea: Intention to cause grievous bodily harm or prevent or resist an arrest (‘really serious harm’). Grievous bodily harm/ wounding, contrary to S.18 Offences Against the Person Act 1861 is an indictable offence with a maximum penalty of life imprisonment. Mens rea R v Taylor (2009): Intention to wound is not enough for the mens rea of S.18. The defendant must have intended to cause grievous bodily harm or prevent or resist arrest R v Nedrick (1998): Indirect intention is sufficient intention for S.18 R v Morrison (1989): Where the defendant is trying to resist arrest, they must intend to resist the arrest but can be reckless as to whether their actions will cause injury Page | 13 Murder Murder is an indictable, common law offence. Lord Coke defined murder in the 17th century as: ‘The unlawful killing of a human being under the King’s (or Queen’s) peace, with malice aforethought, express or implied…’ Actus reus: The unlawful killing of a human being under the Queen’s peace Mens rea: Intention to kill or cause grievous bodily harm (R v Vickers (1957) Under the Murder (Abolition of the Death Penalty) Act 1965 if a person is convicted of murder then they must serve a mandatory life sentence. The minimum tariff (time that they must serve in prison) is around 10-15 years. Defendants who serve this sentence are released ‘on licence’ after the minimum tariff has been served and can be recalled to prison for any misdemeanours. Actus reus Unlawful Some killings are lawful (killing an enemy during the course of war, killing in self-defence, etc) R v Clegg (1995): Soldier may kill in the course of their duties but will be liable for murder if they go beyond their duty and use excessive force Killing This can be an act or omission Usually it will be a positive act i.e. stabbing, shooting R v Gibbins and Proctor (1918): An omission will only form part of the actus reus for murder if the person is under a duty to act and fails to do so Human being This is a legal test, not a medical one Attorney-General’s Reference (No.3 of 1994)(1997): A child must have ‘an existence independent of the mother’ and be capable of ‘living and breathing’ independently to be classed as a human being R v Malcherek and Steel (1981): A person with an inactive brain stem is not a human being in law Under the Queen’s peace The killing of an enemy during the course of war is not murder – during that time, such a person is not under the Queen’s peace Mens rea R v Vickers (1957): The mens rea for murder is intention (direct or indirect) to kill or cause grievous bodily harm (GBH) DPP v Smith: GBH means ‘really serious harm’ R v Mitchell (1983): Transferred malice can apply to murder Page | 14 Voluntary Manslaughter Voluntary manslaughter may be argued where the defendant has killed the victim but there is a reason for it. Voluntary manslaughter acts as a partial defence to murder. The defendant may plead either loss of control or diminished responsibility. If successful, the conviction for murder will be substituted for one of voluntary manslaughter which carries with it a discretionary life sentence. Loss of Control S.54 Coroners and Justice Act 2009: A person is not to be convicted of murder if: 1. The act/ omission arose from a loss of control There must be a total loss of control. A partial loss of control or temper, anger or a reaction that is out of character is not sufficient R v Jewell (2014): ‘Has the defendant lost all ability to maintain his actions in accordance with considered judgement or [has he] lost his normal powers of reasoning? S.54(2) CJA 2009: The loss of control does not have to be sudden (contrary to the old defence of provocation (R v Ahluwalia (1992) 2. The loss of control had a qualifying trigger S.55(3) CJA 2009: The loss of control was attributable to the defendants fear of serious violence from the victim against the defendant or another identified person ▪ This is a subjective test based on the defendant’s point of view ▪ S.55(6)(a) CJA 2009: Where the defendant incites the violence to have an excuse to use force, they cannot rely on this as a qualifying trigger R v Dawes (2013) S55(4) CJA 2009: The loss of control was attributable to a thing or things done or said (or both) which constituted circumstances of extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged ▪ This is an objective test with a very high threshold (R v Zebedee (2012) Excluded matters ▪ S.55(6)(c) CJA 2009: Sexual infidelity does not count as a qualifying trigger, but R v Clinton (2012): The thing said or done can amount to a qualifying trigger if, ignoring the sexual infidelity, it still amounts to being extremely grave in character and gives the defendant a justifiable sense of being seriously wronged ▪ S.54(4) CJA 2009: The defence will fail if the defendant is found to have had a desire for revenge R v Ibrams and Gregory (1981): Evidence of pre-planning/premeditation is evidence of a considered desire for revenge 3. A person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint would have reacted in the same way R v Rejmanski (2017): This is an objective test, based on the standards of the reasonable man R v Van Dongen (2005): The defence will fail if the jury considers that the ‘normal person’ might have lost control but would not have reacted in the same way R v Asmelash (2013): Voluntary intoxication is not a matter to be considered as part of the defendant’s circumstances R v Jewell (2014): The burden of proof is on the prosecution to disprove loss of control but the defendant must put forward sufficient evidence of the possibility of the defence. It must be more than a ‘bare assertion’. Page | 15 Diminished Responsibility S.2 Homicide Act (as emended by S.52 Coroners and Justice Act 2009: A person is not to be convicted of murder if there was an: 1. Abnormality of mental functioning, which R v Byrne (1960): ‘Abnormality of mind… means a state of mind so different from that of ordinary human being that the reasonable man would term it abnormal’ 2. Arose from a recognised medical condition, which If the condition is listed on an official list then it will be accepted. The most notable list is the World Health Organisations ICD-10, but evidence from medical experts is always needed: R v Bryne(1960): Sexual psychopathy R v Seers (1985)/ R v Gittens (1984): Depression R v Reynolds (1988): Postnatal depression R v Sanderson (1994): Paranoid psychosis R v Martin (2003): Paranoid personality disorder R v Ahluwalia (1992)/ R v Hobson (1997): Battered Wife Syndrome (BWS) R v Vinagre (1997): Othello syndrome (doubtful as to whether it would work again) R v Wood (2008): Alcohol Dependence Syndrome 3. Substantially impairs the defendant's ability, and which R v Bryne (1960)/ R v Lloyd (1967)/ R v Golds (2016): ‘An impairment which was of some importance, or was a serious degree of impairment. It needs to be something more than trivial’ The abnormality of mental functioning must substantially impair the defendant's ability to: Understand the nature of their conduct This covers situations where the defendant is in an automatic state and does not know what they are doing i.e. suffering from delusions and believing they are killing the devil Form a rational judgement, or A situation of learned helplessness i.e. a battery suffering woman who can see no alternative but to murder her abusive husband Exercise self-control The inability to control one’s actions i.e. a sexual psychopath who could not control their perverted desires 4. Provides an explanation for the defendant’s actions There has to be a causal connection between the abnormality of mental functioning and the killing It does not need to be the only factor, but it must be a significant one. This is especially important where the defendant is intoxicated at the time of the offence: The defendant was intoxicated at the time of killing and tries to use the defence of diminished responsibility R v Dowds (2012): Transient effect of drug or drinks on the brain cannot found the defence of diminished responsibility – there must be an abnormality of mental functioning caused by a recognised medical condition The defendant was intoxicated and has a pre-existing abnormality of mental functioning R v Diershmann (2003): Where there is a pre-existing abnormality of mind, intoxication does not prevent the defendant from using the defence – it does not have to be the sole cause of the defendant doing the killing The intoxication was due to addiction Page | 16  R v Wood (2008): Alcohol Dependence Syndrome can be an abnormality of mental functioning ((provided corroborating medical evidence is provided) The burden of proving the defence is on the defendant. This only needs to be proved ‘on a balance of probabilities’ (or more likely than not). Essentially, the defendant accepts that they have met the requirements of murder but argue that they should not be considered wholly at fault because there is a medical reason as to why they acted the way they did. Page | 17 Involuntary Manslaughter Involuntary manslaughter is an unlawful killing where the defendant does not have the mens rea for murder. There are two types of involuntary manslaughter: unlawful act manslaughter (where the defendant commits an unlawful act and the victim dies), and gross negligence manslaughter (where the defendant owes a duty of care of some sort which was breached and caused the death of the victim). If convicted of one of these offences, the defendant will be liable to serve a discretionary life sentence. Unlawful Act Manslaughter Also known as constructive manslaughter (because the liability for death is built up from the liability of another crime), there are several elements which must be present: 1. The defendant committed an unlawful act – a crime R v Lamb (1967): The unlawful act must be a criminal offence (they must meet the actus reus requirements of the unlawful act) R v Franklin (1883): It must be a criminal act, rather than a civil wrong R v Lowe (1973): It must be a positive act – an omission is not sufficient 2. The act must be objectively dangerous R v Church (1965): An act will be considered dangerous when ‘all sober and reasonable people would inevitably recognise must subject the other person to, at least, some harm resulting therefore, albeit not serious harm’ R v Mitchell (1983): Confirmed that the test in R v Church is an objective one R v JM and SM (2012): Confirmed that a person only has to foresee ‘some harm’ – a person does need to foresee the type of harm that a victim suffers R v Goodfellow (1986): The unlawful act can be aimed at property as well as people R v Dawson (1985): What a reasonable person would, or would not know, needs to be taken into account 3. The act must cause the death, and Normal rules of causation apply i.e. factual and legal 4. The defendant must have the required mens rea for the unlawful act DPP v Newbury and Jones (1976): The defendant must have the mens rea for the unlawful act. It is not necessary for the defendant to realise that the act is unlawful or dangerous Page | 18 Gross Negligence Manslaughter Gross negligence manslaughter is a common law offence, the current test for which was laid out in the case of R v Adomako (1994). There are five tests, all of which must be established for a conviction: 1. The existence of a duty of care by the defendant to the victim R v Adomako (1994): The ordinary principles of negligence in civil law apply to decide whether a duty of care is owed Caparo v Dickman (1990): Created the current test for imposing a duty of care in new situations: 1. Foreseeability Kent v Griffiths (2000): If a reasonable person would foresee that damage or injury will be caused then this will be satisfied 2. Proximity Bourhill v Young (1943): Even if the harm is reasonably foreseeable, a duty of care will only exist if there is proximity in time, space or relationship 3. Fair, just and reasonable to impose a duty of care Hill v Chief Constable of West Yorkshire: The courts must consider whether allowing a duty of care will ‘open the floodgates’ to any future claims R v Singh (1999): There is a duty of care to manage and maintain property properly R v Khan and Khan (1998): Drug dealers do not owe a duty of care to summon medical assistance to their clients (questionable?) R v Edwards (2001): Parents owe a duty of care to their children R v Wacker (2001): There can be a duty of care between those involved in criminal activities 2. Conduct (an act or omission) in breach of that duty It must be shown that the defendant breached the duty owed A defendant breaches their duty of care if they fall below the standards of the reasonable man of the age and profession in the circumstances (E.g. a reasonable anaesthetist makes sure the air pipe is securely fastened) 3. Which creates a serious or obvious risk of death R v Adomako (1994): The court were not clear whether there had to be a risk of death or whether there just needed to be a risk to ‘health and welfare’ of the victim R v Misra and Shrivastava (2004): ‘The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk, not merely of injury, but of death’ 4. Which then causes death Normal rules of causation apply i.e. factual and legal 5. The whole of which amounts to gross negligence- conduct so bad in all the circumstances as to be considered criminal conduct The fact that a defendant has been negligent is not enough to convict them of gross negligence manslaughter R v Bateman (1925): ‘The facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment’ R v Adomako (1994): Whether a defendant's actions are grossly negligent is a matter for the jury – they must decide whether the conduct was ‘so bad in all the circumstances as to amount to a criminal act or omission’. Page | 19 Theft S.1(1) Theft Act 1968 ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ Actus reus: Appropriation of property belonging to another Mens rea: Dishonestly, and with the intention of permanently depriving the other of it S.7 Theft Act 1968: A person guilty of theft shall be liable to imprisonment for a term not exceeding seven years. Actus reus Appropriation S.3 Theft Act 1968: ‘… any assumption by a person of the rights of an owner amounts to appropriation…’ S.3(1) Theft Act 1968: There can be appropriation where the defendant acquires property without stealing it, but then later decides to keep or deal with the property as an owner R v Vinall (2011): For there to be an appropriation, the defendant must appropriate at least one of the owner’s rights R v Morris (1983): The defendant does not have to assume all the rights of an owner, any rights will suffice Lawrence v Commissioner for Metropolitan Police (1972): Appropriation can occur even when the owner has consented to the defendant taking their property, provided the defendant has been dishonest R v Hinks (2000): Even where there is a valid gift, this can amount to appropriation, provided the defendant has been dishonest Property S.4 Theft Act 1968: Property includes ‘money and all other property, real or personal, including things in action and other intangible property’ Money: Includes coins and bank notes of any currency Personal property: All tangible/ moveable items such as jewellery, cars, etc. Real property: S.4(2) Theft Act 1968: A person cannot steal land, save for in three circumstances: 1) Transfer of ownership when it is not a persons land to do so 2) Taking something that forms part of the land be severing it or causing it to be severed (crops, soil etc) 3) Under a tenancy, if a tenant removes fixtures from the property Things in action: A thing in action is a right which can be enforced against another person by an action in law – it is the right itself that is property under the definition of S.4 i.e. a bank account Other intangible property: This refers to rights which have no physical presence but can be stolen i.e. electricity. NB: Oxford v Moss (1979): Confidential information is not property S.4(3) Theft Act 1968: A person who picks wild flowers or mushrooms does not steal what they pick, unless it is for a reward or other commercial purpose S.4(4) Theft Act 1968: Wild creatures are not property unless they have been tamed and are in possession of another person Page | 20  Belonging to another S.5(1) Theft Act 1968: Property shall be regarding as belonging to any person having possession or control of it S.5(2) Theft Act 1968: Where property is received by mistake, an intention not to make the restoration shall be regarding as having an intention to permanently deprive that person of the property or proceeds (keeping change for example) (A-G’s Reference (No.1 of 1983)(1985) S.5(3) Theft Act 1968: Where a person receives property from another which they are required to deal with in a certain way, the property shall be regarded as belonging to another (Davidge v Bunnet (1984) R v Turner (No.2)(1971): There is a right to retain possession and control over property until a bill has been paid R v Woodman (1974): A person can be in possession of something, even if they do not know that they have got it R (on the application of Ricketts) v Basildon Magistrate’s Court (2010): Where goods are left for someone, the goods belong to the original owner until the new owner takes possession of them Mens rea Dishonestly The Act does not define dishonesty, but it does define three situations where a person will not be dishonest (subjective test) if they appropriate property 1. S.2(1)(a) Theft Act 1968: Where they believe they have a right in law to deprive the other of it 2. S.2(1)(b) Theft Act 1968: Where they believe they would have the other’s consent if the other knew of the appropriation 3. S.2(1)(c) Theft Act 1968: Where they believe the person to whom the property belongs cannot be found by taking reasonable steps Ivey v Genting (2017): created the new test for dishonesty: 1. What were the facts as the defendant understood them to be (subjective test)? 2. Given these facts, would the defendant’s actions be considered dishonest by ordinary, decent people (objective test)? R v Barton and Booth (2020): Confirmed the test in Ivey v Genting (2017) as the new test for dishonesty in criminal cases (was previously the Ghosh test (R v Ghosh (1982) Intention to permanently deprive S.6(1) Theft Act 1968: A person has an intention to permanently deprive if they have ‘an intention to treat the thing as his own to dispose of regardless of other’s rights (including borrowing or lending for a period making it equivalent to an outright taking or disposal) DPP v Lavender (1994): The dictionary definition of ‘dispose of’ was too narrow, as it can also include ‘dealing with’ property R v Lloyd (1985): A person has an intention to permanently deprive if they keep property until ‘the goodness, the virtue, or the practical value… has gone out of the article’. Page | 21 Robbery S.8 Theft Act 1968 ‘A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force’ Actus reus: Actus reus of theft (appropriation of property belonging to another), and the use of force or seeking to put any person in fear of force in order to steal Mens rea: Mens rea of theft (dishonestly and with the intention of permanently depriving the other of it), and intention to use force in order to steal S.8(2) Theft Act 1968: A person guilty of robbery, or an assault with an intention to steal, shall on conviction on indictment, be liable for imprisonment for life Actus reus Actus reus of theft (Appropriation of property belonging to another) R v Zerei (2012): There must be a completed theft for a robbery to be committed i.e. all the elements of theft must have been present Corcoran v Anderton (1980): Where force is used to steal, the moment the theft is complete there is a robbery Force or seeking to put any person in fear of force in order to steal Threat of force R v Dawson and James (1976): ‘Force’ is an ordinary word and it is for the jury to decide. The amount of force can be small P v DPP (2012): The force or threat of force must be against the person B and R v DPP (2007): It does not matter if the victim did not fear force, only that the defendant intended it Immediately before or at the time of the theft R v Hale (1979): The force and theft can be viewed as part of a continuing act (confirmed in R v Lockley (1995) In order to steal The force must be used in order to steal I.e. If a defendant has an argument with an eventual victim and punches them, knocking them out and then sees that some money has fallen out of the victim’s pocket and decides to take it then they will not be guilty of robbery Mens rea Mens rea of theft (Dishonestly and with the intention to permanently deprive) Intention to use force Fagan v MPC (1969)/ R v Mohan (1976) R v Woollin (1998) Page | 22 Preliminary Offence of Attempts S.1(1) Criminal Attempts Act 1981 ‘If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the full offence, he is guilty of attempting to commit the offence’. NB: This can only apply to indictable offence (including triable-either-way offences which are charged on indictment) Actus reus: An act which is more than merely preparatory to the commission of the full offence Mens rea: Intention to commit the full offence S.4(1) Criminal Attempts Act 1981: A person guilty of an attempt shall be liable for the maximum sentence available for the full offence Actus reus Attorney-General’s Reference (No.1 of 1992): The defendant need not have performed the last act before the crime, nor need he have reached the ‘point of no return’ R v Gullefer (1987): An attempt begins when the ‘merely preparatory acts have come to an end and the defendant embarks upon the crime proper’ R v Geddes (1996): Attempts should be considered by asking two questions: 1. Had the accused moved from planning or preparation to execution or implementation? And 2. Had the accused done an act showing that he was actually trying to commit the full offence, or had he only gone so far as getting ready, or putting himself into a position, to do so? Moore v DPP (2010): For conduct to constitute an attempt to commit and not an act that is merely preparation to the commission of the full offence, the conduct by the defendant has to be sufficiently close to the final act that it could, on application of common sense, be properly regarded as part of the executions of the individual’s plan to commit the intended offence Mere preparation cases: R v Geddes (1996), R v Campbell (1990 Attempts cases: R v Boyle and Boyle (1987), R v Tosti (1997) Mens rea R v Easom (1971)/ R v Husseyn (1977): The mens rea for an attempt is the same intention as would be required for the full offence Attorney-General’s Reference (No.1 of 1979)(1980): If a person has a ‘conditional intention’ (i.e. an intention to steal if there is something worth stealing), then this will suffice for the mens rea of an attempt R v Millard and Vernon (1987): Generally, recklessness is not sufficient for the mens rea of an attempt, even where it would be for the full offence Attorney-General’s Reference (No.3 of 1992)(1994): If recklessness is only one part of the offence, then this can be sufficient for a conviction of attempt R v Whybrow (1951): for a conviction of attempted murder, the defendant must have intended to kill (intention to cause GBH is not sufficient) Impossibility of the offence being committed S.1(2) Criminal Attempts Act 1981: ‘A person may be guilty of attempting to commit an offence... even though the facts are such that the commission of the offence is impossible’ R v Shivpuri (1986): The defendant was convicted of attempting to be knowingly concerned in dealing with prohibited drugs even though the suitcase he received only contained snuff and vegetable matter Page | 23 Capacity Defences Insanity R v M’Naghten (1843) The accused must be labouring under such a ‘defect of reason, from a disease of the mind as to not know the nature and quality of the act he was doing, or as to not know that what he was doing was wrong’. Insanity is a special, full defence. To be successful, the defendant must come within the legal rules of insanity. Whether the defendant is suffering from insanity is a matter for the jury. The burden of proof is on the defence to the required standard (‘on a balance of probabilities’ or more likely than not that they were suffering from insanity at the time of the offence). DPP v H (1977: Insanity cannot be used as a defence to strict liability crimes because there is no mental element required for the offences Defect of reason A defect of reason means that the defendant’s powers of reasoning are impaired R v Clarke (1972): If the defendant is capable of reasoning but has failed to use those powers, then this is not a defect of reason Disease of the mind The defect of reason must be due to a disease of the mind. This is a legal term, rather than a medical one R v Kemp (1956): The disease of the mind can be a mental or physical illness (but the physical disease must affect the mind) R v Sullivan (1984): It does not matter if the impairment is ‘permanent or transient or intermittent’ provided it existed at the time of the act R v Hennessy (1989): The disease of the mind must be caused by an internal factor, rather than an external one R v Burgess (1991): Sleep-walking comes within the legal definition of a disease of the mind sufficient for insanity R v Quick (1973): A diabetic who has taken insulin but failed to eat enough food will not be able to rely on the defence of insanity because the disease of mind will then have been caused by an external factor Which caused the defendant to not know the nature and quality of the act, or, to not know that it was legally wrong R v Oye (2013): A defendant may not understand the nature and quality of their acts if they are in a state of unconsciousness or impaired consciousness R v Windle (1952): Wrong, means legally wrong. If the defendant knows the nature and quality of the act and that it is legally wrong, they cannot use the defence of insanity Where insanity is successfully used as a defence, the jury must return a verdict of ‘not guilty by reason of insanity’. If this verdict is given, the judge must impose one of the following: A hospital order (with or without restrictions as to when the defendant will be released) A supervision order, or An absolute discharge Page | 24 Automatism Bratty v Attorney-General for Northern Ireland (1963) ‘An act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking’ This definition covers insanity (insane automatism) as well as non-insane automatism. Non-insane automatism is a complete defence where the cause of the automatism is external. Involuntary act An involuntary act is the defendant’s mind not controlling his limbs in a purposeful way Attorney-General’s Reference (No.2 of 1992)(1993): There needs to be a complete lack of control, not a partial one Watmore v Jenkins (1962): If the defendant has control over their actions, the act will not be involuntary Caused be an external factor The automatism must be caused by an external factor Hill v Baxter (1958): ‘A person should not be made liable at the criminal law who, through no fault of his own, becomes unconscious when driving as, for example, a person who has been struck by a stone or overcome by a sudden illness, or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees’ Examples of external factors include: ▪ A blow to the head ▪ A sneezing fit ▪ Hypnotism ▪ The effect of taking a drug R v T (1990): Exceptional stress can be an external factor which may cause automatism Which is not self-induced or foreseeable Automatism will not be available as a defence if a defendant knows their conduct will bring about an automatism state, or are reckless as to the consequences If the automatism is self-induced or foreseeable, a defendant will have a defence to specific intent crimes but not to crimes of basic intent R v Bailey (1983): If consequences of actions are not common knowledge, then the defence may still be available R v Hardie (1984): If a defendant is reckless as to the possible side effect of falling into a state of automatism then the defence is not available. If the defendant is not reckless then they can use the defence of automatism to all offences (including basic intent crimes) Page | 25 Intoxication ‘Intoxication’ covers the effects of alcohol, drugs and other substances such as solvents (i.e. glue sniffing). To consider this defence it has to be shown that the defendant was so intoxicated that they were incapable of forming the mens rea for the offence. Intoxication is a major factor in the commission of many crimes. Statistics suggest that one half of all violent crimes are committed by a defendant who is intoxicated. The defence is strongly based on public policy: the courts cannot usually punish someone who cannot form the mens rea of an offence, but this must be balanced with punishing people who commit crimes after having become intoxicated. There are two main ways of identifying intoxication in law: Voluntary intoxication Involuntary intoxication Whether the defendant can rely on the defence (or is guilty or not), depends on: Whether the defendant is voluntarily or involuntary intoxicated, and Whether the offence charged is one of specific or basic intent Voluntary Intoxication Voluntary intoxication is where the defendant chooses to take a substance that they know can cause intoxication. This can be a complete defence to specific intent crimes but will not usually be a defence to crimes of basic intent. If a defendant is charged with a specific intent crime and pleads intoxication successfully, then their charge is usually substituted for the lesser, basic intent crime. Specific intent crimes R v Sheehan and Moore (1975): The test for voluntary intoxication is not whether the defendants were capable of forming the mens rea, but whether the defendant’s had in fact formed the mens rea – ‘a drunken intent is still an intent’ Attorney-General for Northern Ireland (1963): If the defendant has the necessary mens rea despite their intoxicated state, then they are still guilty of an offence as a drunken intent is still an intent R v Lipman (1970): Where there is an alternative, basic intent offence, the defendant may be charged with both the specific and basic intent offence. It is then left to the jury to decide whether the defendant had the mens rea for the specific intent offence There are some issues with ‘fallback’ offences of specific intent crimes. For some crimes, it is easy to establish a fallback offence (for murder, the fallback is manslaughter for example). For other crimes, it is difficult to establish the fallback offence (i.e. for theft). In instances where the defendant pleads intoxication successfully and there is not a ‘fallback’ offence, there will be no conviction so the defendant will be acquitted. Basic intent crimes Where recklessness is sufficient to prove mens rea, the defence will fail if the defendant is voluntarily intoxicated DPP v Majewski (1977): Becoming intoxicated voluntarily is considered to be a reckless course of conduct, and recklessness is enough to constitute the necessary mens rea Page | 26 Involuntary Intoxication Involuntary intoxication occurs where the defendant was unaware that they were taking an intoxicating substance. This includes where drinks have been ‘spiked’ or situations where a prescribed drug has the unexpected effect of making the defendant intoxicated and the defendant does not realise its effect R v Kingston (1994): If the defendant is intoxicated through no fault of their own: They are allowed to argue that they did not form the mens rea whether the offence is of specific or basic intent, but If the prosecution can prove that they did form the mens rea then they will be guilty of the offence whether specific or basic, even if they would not have committed the offence had they not been intoxicated Page | 27 Necessity Defences Self-Defence/ Prevention of Crime Both self-defence and prevention of crime are full defences in criminal law. If used successfully, a defendant will be found not guilty. They are two separate defences but are governed by similar rules: Self-defence: Created under common law (as amended by the Criminal Justice and Immigration Act 2008), this defence allows for a person to defend themselves (or another person) and their property Prevention of crime: Under S.3(1) Criminal Law Act 1967, this provides a defence to those acting in self- defence in the prevention of crime, or in assisting a lawful arrest There are two questions to be asked when assessing whether a defendant may successfully rely on the defence: 1. Was it necessary to use some degree of force (subjective test)? S.76(4) Criminal Justice and Immigration Act 2008: If the defendant claims to have held a particular belief as regards the existence of any circumstances a) The reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it, but b) If it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not – I. It was mistaken, or II. (if it was mistaken) the mistake was a reasonable one to have made Attorney-General’s Reference (No.2 of 1983)(1984) A defendant is entitled to make preparations in self-defence for a future attack against them Malnik v DPP (1989): A defendant will only be justified in reacting to a threat which is imminent R v Rashford (2005): Even where the victim is the initial aggressor, they will be able to rely on self- defence if the victim’s response is wholly disproportionate and so long as that was not the defendant’s aim all along (as an excuse for him to use force) 2. If so, was the degree of force used proportionate or reasonable to the harm threatened or the risk being averted (objective test)? S.76(3) Criminal Justice and Immigration Act 2008: ‘The question of whether the force was reasonable is to be decided by reference to the circumstances as the defendant believed them to be’ S.76(7) Criminal Justice and Immigration Act 2008: In a pressured situation, it may be difficult to weight to a nicety the exact measures of necessary actions The test used is objective (based on the reasonable man) but it is clear that the force used must not be excessive or disproportionate R v Bird (1986): Withdrawing or showing an unwillingness to fight is good evidence that a defendant is acting reasonably and in good faith, but there is no requirement to show this i.e. the defence can still be successful even where a pre-emptive strike is used R v Oye (2013): An insane person cannot set the standards of reasonableness as to the degree of force used i.e. psychological characteristics are not relevant R v Clegg (1995)/ R v Martin (2002): If the defendant uses excessive force, then self-defence will not be available NB: ‘Householder cases’ The public backlash of R v Martin (2002) forced the government to review the law for householder cases. As a result S.76(5A) Criminal Justice and Immigration Act 2008 now includes the wording ‘force which is grossly disproportionate will not be reasonable’. Page | 28 To be considered a householder case: The force must be used by the defendant while in or partly in a building that is a dwelling The defendant must not be a trespasser The defendant must have believed the victim to be a trespasser The new test for ‘householder’ cases only, is then: 1. Was the degree of force the defendant used ‘grossly disproportionate’ in the circumstances as they believed them to be? If no, then 2. Was the degree of force the defendant used nevertheless reasonable in the circumstances as they believed them to be? If so, they will have a defence R v Ray (2017): Where the force is disproportionate, but not grossly disproportionate, the jury are free to decide whether the defence of self-defence is valid. This defence can be applied to all offences (whether fatal or not) and is a complete defence in criminal law. Page | 29 Duress/ Duress of Circumstance Duress is a defence in criminal law based on the fact that the defendant has effectively been forced to commit a crime. There are two types of duress: Duress of threats: Where there is a specific threat/ consequence given to the defendant if they do not commit the crime Duress by circumstance: Where the circumstances around the defendant dictate the crime, rather than a person They are both common law defences and, if successful, are full defences, meaning that a defendant will be exonerated of liability. R v Howe (1987)/ R v Gotts (1992): Duress is not available as a defence for murder (R v Howe)¸or attempted murder (R v Gotts) Duress of Threats R v Hassan (2005): Lord Bingham set out the current test which is to be used in order for the defence to succeed: 1. There must be a threat to cause death or serious injury The threat has to be of death or serious injury (serious injury is to be given its normal meaning equivalent to GBH so ‘really serious harm’ R v Valderrama-Vega (1985): The cumulative effects of all the threats should be considered by the jury R v Hudson and Taylor (1971): The threat must be effective and in operation when the defendant carries out the crime. The threat of death or serious harm must be immediate (imminent) 2. The threat must be directed against the defendant, their immediate family or somebody close to them 3. Whether the defendant acted reasonably in the light of the threats made will be judged objectively R v Graham (1982): In deciding whether the defendant acted reasonably, the jury must consider: i. Was the defendant compelled to act because they reasonably believed they had a good reason to fear death or serious injury? ii. Would a sober person of reasonable firmness, sharing the same characteristics of the defendant, have acted in the same way? R v Bowen (1996): Age, gender, pregnancy and serious physical characteristics can be taken into account but not IQ. The relevant characteristics must be those which go towards the ability to resist pressure and threats R v Martin (2000): Mental illness of the defendant can be taken into account R v Graham (1982): Voluntary intoxication is not to be taken into account 4. The threats must relate directly to the crime committed by the defendant R v Cole (1994): If there is not a sufficient connection between the threats and crimes committed the defence will not be available 5. There was no evasive action the defendant could have taken R v Gill (1963): If there is a safe avenue of escape, then this must be pursued R v Hudson and Taylor (1971): There must be exceptions to the principle (that if there is a safe avenue of escape it must be pursued), in light of the fact that police protection is not completely fool proof, which may leave some individuals so afraid of the consequences if they went to the police, that they would not go Page | 30  6. The defendant cannot use the defence if they have voluntarily laid themselves open to the risk of duress R v Sharp (1987): ‘Where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress’ (confirmed in R v Hassan (2005) Duress of Circumstance Duress of circumstance differs from duress of threats – it is the circumstances that dictate the duress rather than the person R v Abdul-Hussain (1999): To successfully plead duress of circumstances, the same rules as laid down in R v Hassan (2005) are followed R v Pommell (1995): It is for the jury to decide whether duress of circumstance is present Page | 31 Theory of Criminal Law When deciding what behaviour should be criminalised, there are three questions which are considered 1. What ought to be the basis for criminalising conduct? 2. How far should individuals have autonomy to do what they wish, or should the welfare of the community as a whole take priority? 3. What principles should be used when framing rules on criminal law? What ought to be the basis for criminalising conduct? Harm Harm is a basis for criminalising conduct. The approach in deciding what actions should be criminal stems from the idea that individuals have the right to be free from harm, either: Individually (one individual hitting another), or on a Wider community basis (terrorist offences) There are several offences which illustrate this principle i.e. murder/ manslaughter. Strict liability offences (although regulatory), still fall in line with this principle as they deal with issues such as pollution and protection of underage children etc. which protects people from harm. The law is arguably paternalistic in nature. Paternalistic laws are put in place to protect us from doing harm to ourselves. This includes making the supply and use of certain drugs illegal i.e. heroin, because it is addictive and deprives people of control of their lives. The law is, however, inconsistent in this regard. For example, whilst the UK has imposed standardised packaging and stricter taxation measures on cigarettes, it is not a crime for an adult to buy and smoke cigarettes, even though they can cause serious health problems. The law has been particularly inconsistent where the actions of consenting adults in private causes harm: R v Brown (1994): Consenting adults partaking in homosexual sadomasochistic activities were convicted under S.47 and S.20 Offences Against the Person Act 1861 (they were unable to rely on the defence of consent) (paternalistic approach) R v Wilson (1997): The defendant branded his wife’ initials on her buttocks (with consent). On appeal, it was held that there was no unlawful act, even though the wife had to seek medical attention (libertarian approach – maximising freedom). Legal Moralism An alternative approach to criminalising conduct is the theory of legal moralism. This appeal relies on the principle that conduct which is immoral should be criminalised. This is a balancing act as morals may change over time. It is an approach used less often now but which can be seen in the cases of R v Brown (1994) and R v Hinks (2000). Lord Hobhouse, in dissenting judgement in R v Hinks (2000), argued against the theory of legal moralism, stating: “An essential function of the criminal law is to define the boundary between what conduct is criminal and what merely immoral. Both are the subject of the disapprobation of ordinary right-thinking citizens and the distinction is likely to be arbitrary of at least strongly influenced by considerations subjective to the individual members of the tribunal. To treat otherwise lawful conduct as criminal merely because it is open to disapprobation would be contrary to principle” Page | 32 How far should individuals have autonomy to do what they wish, or should the welfare of the community as a whole take priority? An individual should have the freedom to act as they see fit. Any attempt to limit this should only be done where necessary to limit harm (as the main basis for criminalising conduct). There are some persons with limited autonomy because their ability to make choices is considered less than a competent adult: Those under 18 Those suffering from a mental disorder Autonomy is not always given in English Law. E.g. The laws on assisted suicide currently limit the autonomy of individuals to help a loved one die peacefully. The criminal law presumes that a defendant has autonomy (responsibility) for their own actions. In reference to the principle of fault, the criminal law also recognises that there will be no fault (or liability) in circumstances where a person does not have autonomy for their actions: Children under the age of criminal responsibility (10) Involuntary acts If a person commits an offence in a state of automatism If a person lacks the mens rea for an offence Where, even where a defendant has the necessary mens rea, there is another reason why they should not be blamed for the offence (defences) A person cannot be convicted of an offence except on the basis of their own criminal responsibility. Relating to autonomy of individuals, this is also referred to as the concept of individual responsibility. A person is not responsible for a crime committed by another person, unless they have contributed in some way i.e. joint enterprise. What principles should be used when framing rules on criminal law? Fair Labelling The offence of which a person is convicted must correctly describe the kind of crime that has been committed. This is generally because of the moral stigma attached to the offence making it important to have the correct label. This principle is not always adhered to: Murder R v Vickers (1957): The mens rea for murder includes an intention to kill or cause grievous bodily harm Grievous bodily harm and actual bodily harm Under S.18, S.20 and S.46 OAPA 1861, the name of these offences includes the word ‘bodily,’ yet the crime includes psychiatric damage (R v Chan-Fook (1994)/ R v Burstow (1997) and transmission of HIV (R v Dica (2004) Assault The crime of assault is not in line with the common understanding of the word (wrongly that there must be physical contact between the defendant and the victim). Page | 33 Correspondence The actus reus and mens rea of a crime should be set at the same level i.e. the mens rea should be intentionally or recklessly bringing about the degree of harm set out in the actus reus. This is not always the case: Murder The actus reus is the unlawful killing but the mens rea includes an intention to cause grievous bodily harm (R v Vickers (1957) S.47 Offences Against the Person Act 1861 The actus reus is assault/battery causing actual bodily harm but the mens rea is intentionally or recklessly causing an assault or battery Unlawful Act Manslaughter The actus reus requires the death of the victim but the mens rea only requires intention or recklessness as to the unlawful act itself Maximum certainty The principle that the law should be as certain as possible. If it is not known what elements constitute a crime, then it is not fair that a person should be convicted of that time. This principle is not used very often to argue a criminal case. The most recent attempt of this principle being used was in the case of R v Misra and Shrivastava (2004) where the defendant’s tried to argue that the law on gross negligence manslaughter did not adhere to the principle. This was, however, rejected: the court found that the case of R v Adomako (1994) made the elements of the offence clear. No retrospective liability Where the conduct is not an offence at the time the defendant does the conduct, it is clearly unfair to convict them of the offence. This is enshrined by Article 7 European Convention of Human Rights (Human Rights Act 1998). There have only been a few instances where this has not been adhered to: War Crimes Act 1991: Allows for a British citizen from 1990 onwards to be prosecuted for a war crime carried out in Germany during World War II R v R (1991): A man was convicted of marital rape (which had not been an offence previously as women were seen as property at that time). Page | 34