Criminal Law Core Reading List Mods 2024-2025 PDF

Criminal Law Core Reading List - Mods October 2024 This document is the core reading list for the criminal law Mods course. If you are studying criminal law for FHS on the 2nd BA please refer instead to the Criminal Law Core Reading List – FHS, which is sl...

Criminal Law Core Reading List - Mods October 2024 This document is the core reading list for the criminal law Mods course. If you are studying criminal law for FHS on the 2nd BA please refer instead to the Criminal Law Core Reading List – FHS, which is slightly different. This list is intended for guidance, not necessarily as a replacement for tutors’ lists, though it is also anticipated that some tutors will want to adopt it as it stands and it has been designed with that use in mind. References in bold type are regarded as particularly important, or are very recent decisions of relevance. They should be treated as the core of the core. Examiners are entitled to assume that all candidates know this material, but it is a very bare minimum. References in standard type generally appear in most tutors’ lists, but tutors may wish to omit, vary or add to them, subject to the overall Faculty rule that the subject should not require more than 30 hours work per week for 8 weeks (7 weeks for FHS – see above). Subject to that rule, decisions as to the division of topics between weeks, the boundaries of each week’s work, and additional instructions (asterisks, essay titles, problems, points of guidance, etc) are matters for tutors. Your criminal law course for Law Mods should include at least 6 tutorials and two classes with your tutor. In addition to this there will be various lectures over Michaelmas and Hilary terms as indicated in the lists below. The list contains material which may be difficult or distressing. The sources in this list are given without any endorsement of the views expressed, particularly not the personal views of any author in these or other sources. Students should subject the sources to careful analysis, especially on any claims to authority and use of logic. For details of the precise syllabus, course description, examination details etc please refer to the Criminal Law Course Description and Regulations – Mods document, also available on the criminal law intranet site. It is part of your degree, and the professional exemptions that the law degree provides, that you are familiar with a substantial part of the criminal law and its principles. Although we will be working through the law from a doctrinal and academic perspective, given the subject matter, criminal offences can display shocking and horrible behaviour. Sadly crime might already have affected you or those close to you. If at any stage you feel that you personally have been affected by any of these things there is a variety of sources of support available. First, we are keen to support you as much as we can and there may be things we can do, at the very least in terms of the teaching. In the exam, you will have some choices about which questions you answer. In tutorials, questions are set across the course, both for discussion and for written work. Tutors might be able to help adapt a question to accommodate your experience, though that might not always be easy. Second, and more generally, there are lots of sources of support available. The University has a series of sources such as the following. The Sexual Harassment and Violence Support Service University Counselling Service There is a useful page with contacts for all kinds of help both within the University and nationally on a range of different issues here And the BBC also has a series of useful sources of help on issues such as domestic violence, Child abuse , Murder and Manslaughter and other issues. There’s quite a full list here. Books and reading You may find that your tutor recommends one or more of the following books: Ashworth and Horder, Principles of Criminal Law (OUP, 9thed 2019) AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine (7thed, Bloomsbury, 2019) Smith, Hogan and Ormerod’s Criminal Law (16th ed, OUP, 2021 by D Ormerod and K Laird) M Allen, Textbook on Criminal Law (15th ed 2019) J Herring, Criminal Law, Text, Cases and Materials (9th ed 2020) CMV Clarkson and HM Keating, Criminal Law: Text and Materials (10th, 2020) Smith, Hogan and Ormerod, Criminal Law, Cases and Materials (13th ed 2020 by D Ormerod and K Laird) At the top of each topic listed below you will find references to the relevant parts of each textbook and casebook for that whole topic. You can treat these as alternatives and it may well be that this is one of the matters on which your tutor gives you further guidance. However, you should remember that different authors will take different approaches to the material, and that textbooks and casebooks should always be supplemented by reading the relevant cases in the law reports. Reading too narrowly and neglecting case reports and academic analysis, particularly recent cases and articles, will put you at a serious disadvantage. This is particularly so given that the exam paper requires you to answer at least 2 problem questions and one essay question (see above). In addition, your College will give you a copy of Criminal Law Statutes compiled by the Faculty of Law, and you will be given a clean copy of the same document in the exam. You will also be given a clean copy of the Faculty’s list of cases in criminal law. This will be essentially the same as the list below with only the names of the cases given, and none of the surrounding references or other material. The following list is based on the assumption that topic 1 (basic principles of criminal law) will be taught as classes or seminars, rather than as tutorials with written work. As a result the reading list for that topic is correspondingly slightly longer than it is for topics 2-8. However, as before, this is entirely at the discretion of individual tutors who can organise and deliver the course as they prefer and you should not worry if the structure of your particular course does not follow the format laid out here, which is for guidance only. Equally, your tutor may give you details of precisely which lectures to attend, but details of the lectures relating to each topic are given on the lists below. Please see the Faculty Lecture list for the location of these lectures. For further information on all this, please contact the course convenor: [email protected] Vacation Reading It may be that before you came to Oxford your tutor recommended that you read some of the material covered in section 1.1 below. It will not be covered in the tutorial, and so if you have not already covered it you can leave detailed reading of it until the Christmas vacation. Nevertheless, during the course you will encounter some of the concepts listed in that section and so you might like to use it for reference when you do. 1.1 Fundamental Principles It is important that you should be able to define and use correctly the following concepts: The ECHR rights that have implications for criminal law The merits of codifying the criminal law The concept of ‘autonomy’ The ‘welfare’ principle -The ‘harm’ principle -Proportionality- Non-retroactivity, maximum certainty and the rule of law -Burdens of proof and the presumption of innocence -The principle of fair labelling Ashworth and Horder Chs 1-4 Allen Ch 1 Simester and Sullivan Chs 1-3 and 16 Smith and Hogan Chs 1-3 Clarkson and Keating Ch 1 Herring Ch 1 Smith and Hogan Cases and Materials (C&M) Ch 1 G Lamond, ‘What is a Crime?’ (2007) 27 OJLS 609 J Chalmers and F Leverick, ‘Fair Labelling’ (2008) 71 MLR 217 G de Búrca and S Gardner, ‘The Codification of Criminal Law’ (1990) 10 OJLS 5595 Topic 1 – Basic Principles of Criminal Law In later topics we will look at particular crimes, but for the first topic it is important that you understand the ‘shape’ of crimes in general. What makes a crime? Allen Chs 2, 3 and 4 Ashworth and Horder Chs 5, 6 Simester and Sullivan Chs 4, 5, 6 and 18.2 Smith and Hogan Chs 2-5 Clarkson and Keating Chs 2 and 3.i Herring Chs 2, 3, 4 and 12.14 Smith and Hogan C&M Chs 2-6 1.1 Actus Reus Larsonneur (1933) 149 LT 142, (1934) 24 Cr. App. R. 74 Voluntariness Attorney-General’s Reference (no. 2 of 1992) QB 91, 3 W.L.R. 982 Omissions Airedale NHS Trust v Bland AC 789, 2 W.L.R. 316 Miller 2 AC 161, Crim LR 466 Stone and Dobinson QB 354, Crim LR 166 Causation Roberts 56 Cr. App. R. 95, Crim LR 27 Jordan (1956) 40 Cr App R 152 Smith 2 QB 35, (1959) 43 Cr. App. R. 121 Malcherek 2 All ER 422, Crim. L.R. 401 Cheshire 3 All ER 670, Crim. L.R. 709 Blaue 3 All ER 446, Crim LR 648 Pagett (1983) 76 Cr App R 279, Crim. L.R. 393 Kennedy UKHL 38, (2008) Crim LR 222 Hughes UKSC 56, Crim LR 234 R v Wallace EWCA Crim 690 1.2 Mens Rea Simester and Chan, ‘Four Functions of Mens Rea’ (2011) CLJ 381 Intent S 8 Criminal Justice Act 1967 Steane KB 997, (1948) 32 Cr. App. R. 61 Gillick v West Norfolk and Wisbech AHA AC 112, Crim. L.R. 113 (cf now Sexual Offences Act 2003 s 73. How does this section deal with the problem instead? Cf also Re A below) Moloney AC 905, 1 All ER 1025 Woollin 1 AC 82, Crim. L.R. 890 Re A (conjoined twins: surgical separation) 4 All ER 961 pp. 1012, pp. 1027-1030 and pp. 1062-1063 Crim. L.R. 400 Matthews and Alleyne EWCA Crim 192, 2 Cr. App. R. 30 G Williams, ‘Oblique Intent’ (1988) 46 CLJ 417 JC Smith, ‘A Note on Intention’ Crim LR 85 J Finnis, ‘Intention and Side effects’, in Frey & Morris (eds), Liability and Responsibility (1991) (pp. 32-38, 41-52 and 60-61 provide the core argument). (also available in his Collected Essays, Vol II, 2011) N Lacey, ‘A Clear Concept of Intention: Elusive of Illusory?’ (1993) 56 MLR 621 A Norrie, ‘After Woollin’ Crim LR 532 Recklessness Cunningham 2 QB 396, 2 All E.R. 412 Caldwell AC 341, Crim. L.R. 392 G and R UKHL 50, Crim LR 369 Parker 2 All ER 37, Crim. L.R. 102 Stephenson QB 695, Crim. L.R. 590 H Keating, ‘Reckless Children’ Crim LR 546 Mistake Morgan AC 182 (note that this is no longer good law for sexual offences; see topic 3) K 1 AC 462 1.3 The Problem of Correspondence Must all offences have both an actus reus and a mens rea? Must they occur at the same time? Strict Liability Sweet v Parsley AC 132, 2 W.L.R. 470 K 1 AC 462, Crim. L.R. 993 G UKHL 37 at para 1-6, 24-31, Crim. L.R. 818 Coincidence of Actus Reus and Mens Rea Latimer 17 Q.B.D 359 Fagan v MPG 1 QB 439, 3 W.L.R. 1120 (cf Miller above. What is the difference between the two cases?) Thabo Meli 1 WLR 228, 1 All E.R. 373 Church 1 QB 59, 2 W.L.R. 1220 Le Brun QB 61, 3 W.L.R. 653 A-G’s Reference (no. 3 of 1994) AC 245, Crim. L.R. 829 Questions to Consider: 1. ‘There are no underlying general principles of causation. Judges simply resort to considerations of ‘policy’ to determine whether a particular defendant caused the specified harm’ Discuss. 2. ‘There is, many argue, no intrinsic moral difference between direct and oblique intention: the mere fact that an agent foresaw harm as a side-effect of her action, rather than directly intending it, cannot make her any less culpable; she still chose to bring about a harm which she could have avoided. Nor need the difference between direct and oblique intention mark any difference in the dangerousness either of the action or of its agent’ Discuss. 3. Is it desirable and possible to have a statutory definition of intention in the criminal law? 4. A result foreseen as very likely is a result intended. Discuss. 5. The conscious taking of an unjustified risk and the complete failure to appreciate the very existence of such a risk are equally blameworthy states of mind. Criminal law should not distinguish between them. Do you agree? 6. Does English law take too restrictive a view of criminal liability based on omissions? Topic 2 – Homicide Allen Ch 9 Ashworth and Horder Ch 8 (other than 8.6 and 8.7) Simester and Sullivan Chs 10 and Ch 19.2 Smith and Hogan Chs 12, 13, 14.1-14.4, 15.1-15.3 Clarkson and Keating Ch 8.i-vi, 8.x Herring Chs 5 and 12.10-11 Smith and Hogan C&M Chs 7-9 2.1 Murder S 1 Homicide Act 1957 S 8 Criminal Justice Act 1967 Law Reform (Year and a Day Rule Act) 1996 See in particular Cunningham AC 566, 3 W.L.R. 223 And from the reading in Topic 1: Steane KB 997, (1948) 32 Cr. App. R. 61 Gillick v West Norfolk and Wisbech AHA AC 112, Crim. L.R. 113 Moloney AC 905, 1 All ER 1025 Woollin 3 WLR 382, Crim LR 890 Re A (conjoined twins: surgical separation) 4 All ER 961 pp. 1012, pp. 1027-1030 and pp. 1062-1063 Crim. L.R. 400 Matthews and Alleyne EWCA Crim 192, 2 Cr. App. R. 30 2.2 Voluntary Manslaughter Loss of Control Coroners and Justice Act 2009, sections 54-56 Clinton EWCA Crim 2, Crim. L.R. 539 Asmelash 1 Cr App R 33, Crim. L.R. 599 A Norrie, ‘The Coroners and Justice Act 2009 - partial defences to murder (1) Loss of control’ Crim LR 275 Vanessa Bettinson, ‘Aligning partial defences to murder with the offence of coercive or controlling behaviour’ (2019) Journal of Criminal Law 71 Diminished Responsibility S2 Homicide Act 1957, as amended by Coroners and Justice Act 2009, sections 52 Dowds EWCA Crim 281, Crim LR 612. Golds UKSC 61 R Mackay, ‘The Coroners and Justice Act 2009 - partial defences to murder (2) The new diminished responsibility plea’ Crim LR 290 Louise Kennefick, 'Introducing a new diminished responsibility defence for England and Wales' (2011) 74 MLR 750-766 Note that it is also possible for Diminished Responsibility to arise in connection with other issues, such as intoxication, on which see further topic 8. Infanticide (though NB that this is dealt with by a separate statutory provision and leads to a conviction for infanticide, not manslaughter): S 1 Infanticide Act 1938 Suicide Pact S 4 Homicide Act 1957 cf s 2 Suicide Act 1961 2.3 Involuntary Manslaughter Constructive, or ‘unlawful act’ manslaughter Church 1 QB 59, 2 W.L.R. 1220 Lamb 2 QB 981, 3 W.L.R. 888 DPP v Newbury and Jones AC 500, Crim. L.R. 359 Dawson (1985) 81 Cr App R 150, Crim LR 383 Watson 1 W.L.R. 684, Crim LR 733 Kennedy UKHL 38, (2008) Crim LR 222 Gross Negligence Manslaughter Adomako 1 AC 171, Crim. L.R. 757 Evans EWCA Crim 650, Crim. L.R. 661 Honey Rose EWCA Crim 1168 Winterton EWCA Crim 2435 F Stark, ‘Reckless Manslaughter’ Crim LR 763 A Ashworth, ‘Manslaughter by omission and the rule of law’ Crim LR 563 M Dyson, ‘The smallest fault in manslaughter’ Archbold Review, vol 6, 4-6 Questions to consider: 1. ‘The partial defence of loss of control privileges people who display anger. That is a wrong thing for the law to do. It also discriminates against victims of abuse who kill not through anger but through despair. That too is a wrong thing for the law to do.’ Discuss. 2. How satisfactory is the Law Commission’s 2005 proposal that there should be two degrees of murder? 3. ‘The conscious taking of an unjustified risk and the complete failure to appreciate the very existence of such a risk are equally blameworthy states of mind. Criminal law should not distinguish between them.’ Do you agree? 4. ‘A ladder of offence seriousness is defensible so long as, by and large, the cases that fall within a particular tier are, other things being equal, more serious than the cases that, by and large, fall within the tier below’. (Law Com 304 para 2.47). Do you agree? To what extent does the ladder proposed in the report fulfil this aim? Is it better than or worse than the ladder proposed in the consultation paper? 5. ‘Where someone kills having intended to do serious harm, in all but the most exceptional instances such a person will have made V’s death a foreseeable consequence of his or her conduct. This provides sufficient connection or ‘correspondence’ in point of fault between what D intended and he killing, whether or not there was actual awareness that death might be caused.’ (Law Com 304 para 2.80) Do you agree? 6. ‘The primary importance of partial defences should be seen as lying in the impact that they have on sentence rather than on verdict.’ (Law Com 304 para 2.147). Do you agree? 7. Taj and Ulrike go rock-climbing. Viktor pushes some pieces of rock down on top of Taj and Ulrike as they climb. Viktor realises the rocks will hurt, but does not think they will seriously injure, as he assumes Taj and Ulrike are wearing protective helmets, as rock-climbers in this area normally do. In fact, they are not wearing helmets: Taj because his religion requires him to wear a turban, over which a helmet will not fit, and Ulrike because she thinks she looks more stylish without a helmet. Taj and Ulrike both suffer serious head injuries, which helmets would have prevented. Taj and Ulrike are taken to hospital. Until last month, they would have been taken by air ambulance and would have reached hospital within thirty minutes. But the air ambulance service has been cancelled, because the government financial support required to run it has been withdrawn for economic reasons. The journey by road ambulance takes two hours. Reaching hospital in thirty minutes would have allowed Ulrike's life to be saved, but as it is she dies in the ambulance. Taj survives, but, suffering terrible head pain and mental problems as a result of his injuries, and losing faith in his religion, he kills himself. What crimes, if any, have been committed? 8. Archie and Bob are both alcoholics. When drinking one evening they begin to argue about football, and Bob makes several insulting remarks about the Scottish football team, of which Archie is a passionate supporter. Archie becomes angry, knocks Bob to the ground and then kicks his head over 20 times, killing Bob. The defence lawyers have obtained a psychiatric report to the effect that Archie has been suffering for some time from a depressive illness which would impair his self-control. Archie, who has been charged with murder, instructs his lawyers to run the defence of loss of control. Assess the likelihood that the defence of loss of control would be successful. Topic 3 – Non-Fatal Offences against the Person Allen 10 Ashworth and Horder Chs 9.1-9.3 Simester and Sullivan Chs 11 and 21.1 Smith and Hogan Ch 16.1-16.7, 16.10 Clarkson and Keating Chs 7.i, 4.ii Herring Ch 6 and 12.4 Smith and Hogan C&M Ch 10-11 3.1 Assault Logdon v DPP Crim LR 121 Venna QB 421, Crim. L.R. 701 3.2 Battery Ireland AC 147, Crim LR 810 Martin (1881) 8 QBD 54 Collins v Wilcox 1 W.L.R. 1172, Crim LR 481 DPP v Santana-Burmudez EWHC 2908 (Admin), Crim LR 471 3.3 Assault occasioning actual bodily harm S 47 Offences Against the Person Act 1861 Savage, Parmenter 1 AC 699 Ireland AC 147, Crim LR 810 T v DPP EWHC 266 (Admin), Crim LR 622 DPP v Smith EWHC 94 (Admin), Crim LR 528 3.4 Wounding and GBH Ss 18 and 20 Offences Against the Person Act 1861 Bollom EWCA Crim 2846 at -, 2 Cr App R 6 Ireland AC 147, Crim LR 810 Dica EWCA Crim 1103, Q.B. 1257 3.5 Poisoning SS 23 and 24 Offences Against the Person Act 1861 and see Kennedy in topic 1. 13 3.6 Threats to kill S 16 Offences Against the Person Act 1861 3.7 Strangulation S. 75A Serious Crime Act 2015 R Kelly and D Ormerod, ‘Non-fatal strangulation and suffocation’ Crim LR 532. 3.8 Consent AG’s ref (No. 6 of 1980) QB 715, Crim. L.R. 553 Brown 1 AC 212, 2 W.L.R. 556(NB you will need to be aware of the judgments of both the majority and the minority in this case). Wilson Q.B. 47, 3 W.L.R. 125 Dica EWCA Crim 1103, Q.B. 1257 Konzani EWCA Crim 706, 2 Cr. App. R. 14 Barnes EWCA Crim 3246, Crim LR 381 Simon Slingsby Crim LR 570 Gillick v West Norfolk and Wisbech AHA AC 112, Crim. L.R. 113 H v CPS EWHC 1374 (Admin), Q.B. 257 BM EWCA Crim 560 Note also Domestic Abuse Act 2021, s. 71 and query how, if at all, different to the common law. Tabassum 2 Cr App R 328, Crim LR 686, but contrast Richardson Q.B. 444, Crim. L.R. 62 J Horder, ‘Re-thinking Non-Fatal Offences against the Person’ (1994) 14 OJLS 335 M Weait, 'Criminal Law and the Sexual Transmission of HIV: R v Dica' (2005) 68 MLR 121 3.8 Reform Summary of the Law Commission’s Scoping Report on Offences Against the Person: http://www.lawcom.gov.uk/wp-content/uploads/2015/11/ lc361_offences_against_the_person_summary_new.pdf Questions to Consider: 1. In what circumstances is a person who infects another with a disease guilty of a criminal offence? What should the legal position be? 2. ‘A person can validly consent to being injured, so long as there is no detriment to others.’ Discuss whether this does, and should, describe the law’s position regarding the availability of consent as a defence to the offences in ss 18, 20 and 47 of the Offences Against the Person Act 1861. 3. In instances where the Criminal Law employs the term ‘consent’, what meaning does it give to that term? Would the proposed substitution of the term ‘free agreement’ constitute an improvement? 4. Ralph and Sophie are actors in an action film. There is a scene in which they throw knives at each other. Sophie and Ralph agree that they should film the scene with real knives in order to make it as realistic as possible, despite the obvious dangers. Sophie in fact hates Ralph and throws a knife not caring whether or not it harms him. The knife narrowly misses Ralph’s head. Ralph throws a knife at Sophie aware there is a strong chance that it will hit her in the leg but assuming that under their agreement Sophie is prepared to take that risk. The knife cuts Sophie in the stomach. She is taken to the emergency room of a hospital. Dr Tao, who has drunk several pints of beer while on her shift, examines Sophie and seriously over-estimates the severity of the wound. She incorrectly tells Sophie that she is likely to be paralyzed for the rest of her life. Sophie as a result decides she would rather die and refuses all forms of treatment. The wound therefore becomes infected and Sophie dies. What crimes, if any, have been committed? 5. Intent on stealing a deadly chemical from a high security laboratory, Albers takes with him in a bag of bolt-croppers, wire-cutters, and a gun. On approaching the perimeter fence Albers sets off an alarm and is pursued by security guards. Driving off at high speed, Albers loses control and his car collides with another, killing its driver on impact and trapping a passenger. Albers is thrown clear and survives. His bag of tools is also thrown clear and it rolls down a slope towards a cycle track. Emergency services carefully release the passenger who is taken to hospital with severe stomach injuries. In successfully treating these, the surgeon notices that the passenger also has a small hernia, enduring probably from birth but likely to worsen over time and cause health problems if not treated. The surgeon attempts to repair it and during that operation the passenger suddenly dies. There is a conflict of expert testimony. One expert says that the cause of death must have been the inattentiveness of the anaesthetist. Another says that it was unforeseeable and inevitable. Meanwhile a passing cyclist notices the bag of tools and picks it up intending to hand it in at a local police station and cycles off with the bag. After a few minutes of being shaken about inside the bag the gun goes off, fatally shooting the cyclist. What crimes, if any, has Albers committed? 6. Balka knows that he is HIV positive and that unprotected sexual intercourse with another involves a risk that the other may also become HIV positive and perhaps thereafter contract AIDS. Balka has sexual intercourse with a series of partners all of whom consented both to the act and to the absence of protection. Caro did not become HIV positive; Davilo became HIV positive but did not develop AIDS; Estes became HIV positive and developed AIDS; Fabro became HIV positive, contracted AIDS, and died; and Guttoso, who agreed to unprotected sexual intercourse only because Balka had expressly misrepresented to her that he had undergone an effective vasectomy verified by subsequent medical tests, became pregnant. What crimes, if any, has Balka committed? Would it make any difference in Guttoso's case if she suffered severe depression as a result of the pregnancy? Would it make any difference in the four cases (a) if Balka had expressly misrepresented himself as free of all sexually transmissible diseases; or (b) if these four partners had been aware of his condition? Topic 4 – Sexual Offences Allen Ch 11 Ashworth and Horder Chs 9.4-9.8 Simester and Sullivan Ch 12 Smith and Hogan 17.1-17.3, 17.10 Clarkson and Keating Ch 7.ii Herring Ch 7 Smith and Hogan C&M Ch 12 4.1 The offences The three specific offences you need to know are contained in ss 1, 2 and 3 of the Sexual Offences Act 2003. V Tadros, ‘Rape without consent’ (2006) 26 OJLS 515 4.2 The definition of ‘sexual’ s 78 Sexual Offences Act 2003 H EWCA Crim 732 and Ormerod commentary Crim LR 735 4.3 Consent NB that issues relating to consent can come up in two different ways and it is important to identify which is relevant in any given case (although both may be): 1) As a matter of actus reus there may be an argument about whether the victim was in fact consenting 2) As a matter of mens rea the defendant may argue that (s)he believed the victim was consenting. Note also Domestic Abuse Act 2021, s. 71 and query how, if at all, different to the common law. Mens Rea For the old law that the 2003 SOA was designed to replace, consider Morgan AC 182 (cf ‘mistake’ in topic 1). Contrast, eg s 1(1)(c) and s 1(2) of the 2003 Act. See also Ss 75 and 76 of the Sexual Offences Act 2003 (see further below). B EWCA Crim 3, Crim. L.R. 312 Actus Reus Ss 74 and 75 of the Sexual Offences Act 2003 Under the old law, see Olugboja QB 320, 3 W.L.R. 585 Under the new Act see Bree EWCA Crim 804, Crim LR 900 Ciccarelli EWCA Crim 2665, 1 Cr. App. R. 15 Ali EWCA Crim 1279 THE PROBLEM OF MISTAKEN CONSENT: (NB that this issue also applies to other offences where consent is relevant) S 74, 76 Sexual Offences Act 2003 Under old law: Flattery (1877) 2 QBD 410 Williams 1 KB 340, (1924) 17 Cr. App. R. 56 Linekar 3 All ER 69, Crim. L.R. 320 Under new law: Jheeta EWCA Crim 1699, Crim. L.R. 144 Assange v Swedish Prosecution Authority EWHC 2849, - Bingham EWCA Crim 823, 2 Cr. App. R. 29 McNally EWCA Crim 1051; QB 593 R (Monica) v DPP EWHC 3508 (Admin), -, -, - Lawrance EWCA Crim 971. J Herring, ‘Mistaken Sex’ Crim LR 511 R Williams, ‘Deception, Mistake and Vitiation of the Victim’s Consent’ (2008) 124 LQR 132 A Sharpe ‘Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Non-Consent’ Crim LR 207 Although you are only required to know the law concerning ss 1-3 and 74-78 in detail, nevertheless you will be expected to ‘know of the existence’ of other offences contained in the Act. Other sections you may wish to consider in this regard include: S 5 rape of child under 13 (cf G from topic 1) and following offences. S 61, ‘administering a substance with intent’ (cf non-fatal non-sexual offences against the person and s 75(2)(f) SOA 2003) Ss 62 and 63, committing an offence with intent to commit a sexual offence and trespass with intent to commit a sexual offence, respectively (cf topic 7 on inchoate offences and the old law of burglary, topic 5) S 73, cf Gillick, topics 1 and 8 and accessorial liability, topic 6. Questions to consider: 1. What did the 2003 Act add to the actus reus of rape? 2. What is the difference between s 2 of the 2003 Act and rape under s 1? What is the difference between s 4(4) of the 2003 Act and rape under s 1? 3. Do you think the definition of ‘sexual’ in s 78 is satisfactory? In particular, consider the following issues: - Lord Goff criticised the old law on ‘indecent assault’ on the basis that it confused mens rea with actus reus. Does the 2003 Act avoid this? - Lord Atkin in Court gives the example of a doctor who performs an unnecessary ‘intimate’ examination without the patient’s consent, not for sexual motives but ‘for private research’ reasons. Under Court such a defendant would have committed an inherently indecent assault. What is the position of this defendant under the 2003 Act? Do you think this is the right result? - Consider the case of unusual fetishes such as, eg foot fetishes. Do you think these acts should be classed as sexual assaults? Were they so classified under Court? Are they so classified under the 2003 Act? 4. What mistakes on the part of the victim vitiated consent under the old law? Under the new law? Do you think the line is drawn in the right place? 5. Does the new law represent an improvement on Morgan? Does this mean that Morgan no longer has a role to play in the criminal law? 6. ‘When considering the crime of rape, bear in mind that the accused did not have to have sex with the victim at all. So, the victim should be seen as not consenting whenever, for any reason, she does not freely welcome the accused’s acts. Likewise, the accused should be guilty whenever there is such a lack of consent, with no requirement that he be aware of it.’ Discuss. 7. What crimes, if any, have been committed in cases (i) AND (ii)? (i) Alfred has had a sheltered upbringing and only very limited experience in sexual matters. He also has a slight learning disability. He meets Bob and invites him to his flat for coffee. Alfred takes this to mean Bob would like to have sexual intercourse with him. Immediately they enter the flat Alfred starts to undress Bob, who is so frightened he does not voice his opposition to any sexual contact. Alfred has sexual intercourse with Bob. Bob agrees. (ii) Christine tells Daniel that she loves him and would like to have sexual intercourse with him. Daniel, who is very keen to have sexual intercourse with Christine, enthusiastically agrees. In fact Christine does not love Daniel and only wants to become pregnant. 8. Fred and Geri have been friends for some months. One particular evening they go out to a pub and consume several alcoholic drinks. Fred then accompanies Geri home. Fred realises that Geri is unsteady on her feet and helps her into her apartment. Geri goes to her bedroom and begins to undress. As Fred enters the room, Geri kisses him on the cheek, takes off her remaining clothes and collapses on her bed, with her eyes closed. Fred then penetrates her, but Geri opens her eyes and tells him in no uncertain terms to get off. She begins to struggle but about a minute passes before Fred withdraws and leaves the flat. What crimes, if any, have been committed? Topic 5 – Property Offences Allen Chs 12, 13, 14, 15 Simester and Sullivan Chs 13, 14, 15 Smith and Hogan Chs 18-22, 28. Clarkson and Keating Ch 9 (though NB this does not seem to contain references to criminal damage, so you may need to consult another book for that). Herring Chs 8, 9, 10, 11.1, 11.2, 11.3, 11.6, 11.8 Smith and Hogan C&M Chs 13-18 5.1 Theft S 1 Theft Act 1968 Appropriation S 3 Theft Act 1968 Lawrence v. Metropolitan Police Commissioner AC 626, 3 W.L.R. 225 Morris AC 320, Crim. L.R. 813 Gomez AC 442, Crim. L.R. 304 Hinks 3 WLR 1590, Crim. L.R. 162 Briggs EWCA Crim 3662, Crim LR 495 Pitham and Hehl (1977) 65 Cr App R 45 S Shute, ‘Appropriation and the Law of Theft’ Crim LR 445 A Bogg and J Stanton-Ife, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003) 23 Legal Studies 402 S Gardner, ‘Property and Theft’ Crim LR 35 Property S 4 Theft Act 1968 Oxford v Moss (1979) 68 Cr App R 183 Belonging to Another S 5 Theft Act 1968 Turner 1 W.L.R. 901, 2 All E.R. 441 Dishonesty S 2 Theft Act 1968 Ghosh Q.B. 1053, Crim. L.R. 608 Ivey v Genting Casinos UKSC 67 (especially -); see in particular Crim LR 395; (2018) 134 LQR 198; (2018) 77 CLJ 18 Barton EWCA Crim 575 (especially -). Intention Permanently to Deprive S 6 Theft Act 1968 Lloyd QB 829, Crim. L.R. 518 Mitchell EWCA Crim 850 5.2 Robbery S 8 Theft Act 1968 Hale (1979) 68 Cr App R 415, Crim. L.R. 596 Dawson (1977) 64 Cr App R 170 5.3 Burglary S 9 Theft Act 1968 Collins QB 100, Crim. L.R. 498 Jones and Smith 1 W.L.R. 672, 3 All E.R. 54 Ryan (1996) 160 JP 610, Crim. L.R. 320 Walkington 1 W.L.R. 1169, Crim. L.R. 526 5.4 Other related offences The Faculty’s teaching convention specifies that you are also required to ‘know the existence of the offences created by’ the following sections: S 12 Theft Act 1968 Taking Motor Vehicle or other Conveyance without authority (TWOC). (Why was it necessary to create this as a separate offence? Which of the elements of theft is often missing in such cases?) S 21 Theft Act 1968 – Blackmail S 22 Theft Act 1968 – Handling stolen goods. (But for interest, note that in practice prosecutors now have another option: R (Wilkinson) v DPP EWHC 3012. Why, as a prosecutor, would you choose to do this? Do you think this is appropriate?) S 25 Theft Act 1968 – Going Equipped for Stealing, etc (cf your work on inchoate offences in topic 7) S. 3 Theft Act 1978 – Making off without payment (but NB Vincent EWCA Crim 295, Crim. L.R. 488) 5.5 Fraud In 2006 the new Fraud Act was enacted, replacing many of the previous offences contained in the 1968 and 1978 theft acts, such as obtaining property and services by deception. Given that the statute is so new, there are so far no cases on it that you need to know. However, you might find the cases listed below of help, even though they were decided on the basis of the pre-2006 law. Ss 1-4 Fraud Act 2006 Valujevs EWCA Crim 2888 D Ormerod, ‘The Fraud Act 2006 – Criminalising Lying?’ Crim LR 193. S Gardner, ‘Letter to the Editor, Crim LR and D Ormerod’s reply’ Crim LR 661 J Collins, Crim LR 513, ‘Fraud by abuse of position: theorising section 4 of the Fraud Act 2006’ Under the old law: MPC v Charles AC 177, Crim. L.R. 615 5.6 Criminal Damage Ss 1-3 Criminal Damage Act 1971 Smith QB 354, Crim. L.R. 101 Denton 1 All ER 65, Crim. L.R. 107 A-G's ref (No 1 2023) EWCA Crim 243 And of course G and R from topic 1 UKHL 50, Crim. L.R. 369 Questions to consider: 1. ‘The law of theft protects individuals from dishonestly being taken advantage of.’ ‘The law of theft protects individuals’ property rights’. Consider which of these statements is more accurate. 2. Discuss in what circumstances, if any, it would be accurate to state that while offences against the person are structured by considering the seriousness of the harm caused to the victim, property offences are structured according to the method of taking or dealing with the property. 3. Helen, a wealthy but naïve young woman, is befriended by Paul, a poor but charming young man. Paul untruthfully tells Helen that he loves her and persuades her to give him £500 in cash. Helen subsequently discovers that Paul has been unfaithful to her and she goes round to his flat, intending to recover the money she had given him. Using a key Paul had lent her Helen enters his flat. She uses Paul’s mobile telephone to make an expensive international phone call. She also takes from the flat five £10 notes and Paul’s annual bus pass. Helen travels home by bus, without buying a ticket. She intends to show Paul’s bus pass if required to do so, but is never asked for it. Helen writes a letter to Paul telling him that she will return his bus pass to him if he gives her back the rest of her money. Paul sends Helen a cheque for £450, but Helen does not return the bus pass and rips up the cheque. Discuss any issues affecting criminal liability. 4. Has D committed an offence in the following scenarios? - D has a market stall where he advertises and sells bags ‘just like Victoria Beckham has’. In fact the bags are cheap copies. - D sends an email to millions of people at random offering them a ‘guaranteed prize’ in a competition if they send him a £5 entry fee. In fact there are no prizes and there is no competition, but in any case no-one reads D’s email because they or their computers all recognise it as ‘spam’ and delete it. Would it matter if the police managed to arrest D before he had clicked ‘send’? - D is a waiter who, unbeknown to his employers, offers his own wine for sale instead of using the wine list belonging to the restaurant. - D takes plastic 50p pieces from his board game and feeds them to a car parking meter. - D wants to work at Oxford University, but in fact has no qualifications, so he makes up his CV and submits it. He is given a job as a fellow and tutor at St Baranabas College, where he works very hard at his teaching and research and receives a salary each month. Topic 6 – Complicity Also known as ‘accessory’ or ‘accomplice’ or ‘secondary’ liability. Please note, some major changes to this subject took place as a result of the Supreme Court decision in Jogee. For this reason, and for this topic only, we are only recommending references to textbooks which postdate the Jogee decision. Allen Ch 7 Ashworth and Horder Ch 11 Simester and Sullivan Ch 7 Smith and Hogan Ch 6 Clarkson and Keating Ch 6 Herring Ch 15 Smith and Hogan C&M 19 6.1 Aiding, Abetting, Counselling and Procuring S 8 Accessories and Abettors Act 1861 Aiding NB your reading on acts as opposed to omissions, see topic 1 NCB v Gamble 1 QB 11, 3 W.L.R. 434 JF Alford 2 Cr App R 326, Crim. L.R. 745 Abetting Clarkson 1 W.L.R. 1402, 3 All E.R. 344 Counselling Calhaem QB 808, Crim. L.R. 303 Procuring Blakely and Sutton RTR 405, Crim. L.R. 763 A-G’s Reference (No. 1 of 1975) QB 773, 2 All ER 684 Mens Rea Bainbridge 1 QB 129, 3 W.L.R. 656, DPP NI v Maxwell 1 W.L.R. 1350, 3 All ER 1140 Bryce EWCA Crim 1231. 2 Cr. App. R. 35 See also Blakely, above. 6.2 ‘Joint Enterprise’ For a while it was suggested in the light of the Privy Council decision in Chan Wing-Siu that there was an additional doctrine of ‘Joint Enterprise’ or ‘Parasitic Accessory Liability’. This idea was laid to rest by the Supreme Court decision in Jogee, which reaffirmed the standard principles of secondary liability outlined above. Note the evidence of disproportionate burden of a particular legal doctrine: Jon Robins “Dangerous Associations: Joint Enterprise, Gangs and Racism” (2016) 180 (March) C.L. & J. 161- 162 (this note concerned Parasitic Accessorial Liability particularly, but is useful as evidence relating to complicity more generally). Jogee UKSC 8, -, -, and - Anwar EWCA Crim 551 R. v Johnson (Lewis) EWCA Crim 1613 Grant EWCA Crim 1243 David Ormerod and Karl Laird, ‘Jogee: not the end of a legal saga but the start of one?’ Crim LR 539. Andrew Simester, ‘Accessory liability and common unlawful purposes (Case Comment)’ (2017) 133 (1) LQR 73-90 Matthew Dyson, ‘Principals without distinction’ Crim LR 296 What happens when the principal’s mens rea goes beyond what the secondary anticipated? Gilmour 2 Cr App R 407 6.3 Secondary Liability and the derivative principle Is secondary liability always derivative? Bourne (1952) 36 Cr App R 125 (see also diminished responsibility, s 2 Homicide Act 1957) Howe AC 417, Crim. L.R. 480 Millward (1994) 158 J.P. 1091, Crim. L.R. 527 Thornton v Mitchell 1 All ER 339 6.4 Limits to secondary liability Rook 2 All ER 955, Crim LR 698 Becerra and Cooper (1976) 62 Cr App R 212 O’Flaherty EWCA Crim 526, Crim LR 751 Tyrell 1 QB 710 (where else should this defence apply?) Gnango UKSC 59, 1 A.C. 827 In the light of Jogee (above) it is no longer necessary to be concerned with discussion of the basis for liability in this case, but you do need to know what is covered in paragraphs -, - and. 6.5 Assisting Suicide S 2(1) Suicide Act 1961 Questions to consider: 1. What crimes, if any, have been committed in cases (i) AND (ii)? (i) Nicole and Omar agree to ask Piet to give them some money. They also agree that if Piet at first refuses, Nicole will threaten him with violence, but will not use any actual violence. Nicole alone knows, however, that Piet has a weak heart, and that frightening him may induce a heart attack: an outcome for which she secretly wishes. Nicole and Omar accordingly ask Piet for money. When he refuses to give them any, Nicole threatens him. As a result, Piet does suffer a heart attack, and dies. (ii) Qiwei is a professional assassin. Rula approaches him, asking him to kill Sean, a politician, by shooting Sean as Sean rides in a ceremonial motorcade. Qiwei agrees. Rula leaves all the remaining planning and execution of the shooting to Qiwei. In fact, Rula is an under-cover police officer trying to entrap Qiwei. She knows that Sean will come to no harm as his car will have bullet-proof windows. 2. ‘D gives P chocolates to give to V. V eats them and dies because they are poisoned. D knew the chocolates were poisoned and would kill anyone who ate them….[This] illustrates why it would be wrong to abolish secondary liability. It cannot be right that D is guilty of murder if P is unaware that the chocolates are poisoned but only of assisting murder if P is aware that the chocolates are poisoned. D’s conduct and state of mind are identical in each case.’ Discuss. 3. ‘It is not the present law, and it is logically impossible that it should become the law, that the accessory must cause the commission of the principal crime’ Do you agree? 4. ‘It is apparent that the English law of complicity is replete with uncertainties and conflicts. It betrays the worst features of the common law… as a succession of opportunistic decisions by the courts, often extending the law, and resulting in a body of jurisprudence that has little coherence’ Ashworth Principles of Criminal Law, (4th ed 2003) p. 441 Do you agree with this assessment? In what ways, if any, should the English law of complicity be reformed? Topic 7 – Inchoate Liability Allen Ch 8, other than 8.5. Ashworth and Horder Ch 12 (other than 12.6) Simester and Sullivan Ch 9 Smith and Hogan Ch 9 Clarkson and Keating Chs 5.i- 5.v Herring Ch 14 Smith and Hogan C&M Chs 20-22 7.1 The Serious Crime Act 2007; Inchoate Liability for Assisting and Encouraging Crime Serious Crime Act 2007 Part 2 ss 44, 45, 46, 47, 49, 50, 51, 56, 59, 64, 65, 66 D Ormerod and R Fortson, ‘The Serious Crime Act 2007: The Part II Offences’ Crim LR 389 Sadique EWCA Crim 1150, Crim. L.R. 61 7.2 Conspiracy NB that there are both common law and statutory conspiracies, but you will not be required to know about the common law conspiracies in detail. Ss 1–5 Criminal Law Act 1977 Anderson AC 27, Crim. L.R. 651 Siracusa (1990) 90 Cr App R 340, Crim LR 712 Yip Chiu-Cheung 1 AC 111, Crim. L.R. 824 Saik UKHL 18, Crim. L.R. 998 7.3 Attempt S 1 Criminal Attempts Act 1981 Actus Reus Gullefer 1 WLR 1063, Crim. L.R. 195 Geddes (1996) 160 J.P. 697, Crim LR 894 Jones 1 W.L.R. 1057, Crim. L.R. 800 Campbell (1991) 93 Cr App R 350, Crim. L.R. 268 Tosti Crim LR 746 Mens Rea Khan 1 WLR 813, Crim LR 519 AG’s Reference No 3 of 1992 1 WLR 409, Crim LR 348 Pace and Rogers EWCA Crim 186, 1 W.L.R. 2867 J Rogers, ‘The Codification of attempts and the case for ‘preparation’ Crim LR 937 M Dyson 2014 Crim LR 445, ‘Scrapping Khan?’ P Mirfield, ‘Intention and Criminal Attempts’ Crim LR 142 7.4 The issue of impossibility S 1(2) Criminal Attempts Act 1981 S 1(1)(b) Criminal Law Act 1977 S 49(1) Serious Crime Act 2007 Anderton v Ryan AC 560, Crim. L.R. 503 Shivpuri AC 1, Crim. L.R. 536 7.5 Proposals for Reform Law Commission Report 318, Conspiracy and Attempts Questions to consider: 1. A and B run an antiques dealership. A tells B of his plan to take delivery of goods from C and asks for B help in doing so. B knows that C deals in both legitimate and stolen property and so says to A ‘I think I’d make very sure the goods are legit if I were you. Don’t take anything from him that looks dodgy, but if they’re ok, we should agree to sell them on for him’. B also declines to take any physical part in the process himself. A, however, has no such scruples and in fact knows that the goods in question will indeed be ‘hot’. Have any crimes been committed? 2. A encourages his 9-year-old neighbour, B, to break into C’s house and steal something. Has A committed an offence? 3. A emails his friend B, because A wants to have sex with B’s 12-year-old sister, C. However, in fact the person who answers the emails is C. C has always fancied A and so, pretending to be B, sends back emails to A arranging for this to happen. Has A committed an offence? 4. A persuades B to get C to get D to agree with E that D and E should commit an offence. Is this an offence on the part of A? Should it be? 5. Do you agree with the decision of the majority or the minority of the House of Lords in Saik? 6. Would the following cases be conspiracies? Why? (Hint: you might find it helpful to think back to the work you did in topic 1 on the different kinds of actus reus element): - A and B agree that they will kill C if C wins the election - A and B agree that they will drive from London to Edinburgh in X hours. This can only be done if the traffic is light. If the traffic turns out to be heavy they will have to speed. - A and B agree that if they have exhausted all other options and the terminally ill C is determined to die, they will help him to do so - A and B agree that they will burgle C’s house and if C wakes up they will kill him. - A and B agree that they will have sex with V whether or not she consents. What if they had agreed that they would only have sex with V if she did consent? If the Law Commission’s proposed reforms were implemented, what would the answer be? 7. ‘D’s state of mind, and therefore his or her culpability, is unaffected by the unknown possibility of the principal offence being committed.’ (Law Commission No 300, ‘Inchoate Liability for Assisting and Encouraging Crime’ para 6.61). Discuss. 8. ‘The inchoate offences of inchoate complicity, conspiracy and attempt punish conduct that is a step removed from the commission of the principal offence… The underlying problem is in identifying the point at which conduct is so far removed from the commission of a principal offence that it ought not to be criminalised’ (Law Commission No 300, ‘Inchoate Liability for Assisting and Encouraging Crime’ para 3.34) Discuss Topic 8 – Incapacity and General Defences 8.1 Incapacity Allen Ch 5 Ashworth and Horder Chs 5.1-2, 6.1, 6.2 and 7.1-2 Simester and Sullivan Chs 17, 18.3, 19.1, 19.4 Smith and Hogan Chs 10 Clarkson and Keating Chs 4.i, 4.vii-4.x Herring Ch 12.8-9, 12.12-13 Smith and Hogan C&M Chs 23.2, 24.5-24.6, 25 K Campbell, ‘Offences and Defences’ in I. Dennis (ed), Criminal Law and Justice (Sweet & Maxwell, 1987) 8.1.1 Infancy S 50 Children and Young Persons Act 1933 S 34 Crime and Disorder Act 1998 Re JTB UKHL 20, Crim. L.R. 581 8.1.2 Insanity (and insane automatism) Criminal Procedure (Insanity) Act 1964 Defect of Reason Clarke 1 All ER 219, (1972) 56 Cr. App. R. 225 Disease of the Mind M’Naghten (1843) 10 Cl & Fin 200 Hill v. Baxter 1 QB 277, 2 W.L.R. 76 Sullivan AC 156, Crim. L.R. 740 Quick QB 910, Crim. L.R. 434 Hennessy 2 All ER 9, Crim. L.R. 356 Burgess 2 Q.B. 92, Crim. L.R. 548 Not knowing the nature of the act or that it is wrong: Johnson EWCA Crim 1978, Crim LR 132 R Mackay, ‘Righting the Wrong? – some observations on the second limb of the M’Naghten Rules’ Crim LR 56 8.1.3 Intoxication Is intoxication ever to be considered as a defence? If it operates at all, what is its role? Majewski AC 443, Crim. L.R. 374 Bailey 1 W.L.R. 760, Crim. L.R. 533 Hardie 1 W.L.R. 64, 3 All ER 848 Allen Crim LR 698 Kingston 2 AC 355, Crim. L.R. 846 Lipman 1 QB 152 Heard EWCA Crim. 125 Crim LR 654 Richardson and Irwin 1 Cr App R 392, Crim. L.R. 494 Law Commission Report No 314, ‘Intoxication and Criminal Liability’ https://www.lawcom.gov.uk/project/intoxication-and-criminal-liability-2009/ Parts 1, 3, 4 and Appendix A. You may also find the account of the current law given in Part 2 useful as background reading. J Child, ‘Drink, Drugs and Law Reform: a review of Law Commission Report No 314’ Crim LR 488 Editorial on Law Commission Report no 314 Crim LR 133 A Simester, ‘Intoxication is Never a Defence’ Crim LR 3 Intoxicated Mistake: Jaggard v Dickinson QB 527, Crim. L.R. 717 See also Richardson and Irwin 1 Cr App R 392, Crim. L.R. 494 J Horder, ‘Pleading involuntary lack of capacity’ (1993) 52 CLJ 298 Questions to consider: 1. D has been drinking with his friends all afternoon in the pub. To make them laugh, he makes it look as if he’s going to touch the bottom of the barmaid, V, but he intends to stop short of actually doing so. Unfortunately, because he is drunk, he misjudges the distance and ends up touching V. - Has D committed a crime? - D intoxicatedly fondles what he believes to be a statue, but is actually V. Has he committed a crime? 2. ‘The issue of intoxication raises an impossible dilemma. On the one hand people are much more likely to commit crime while drunk, but on the other hand they can be regarded as much less culpable when they do so.’ Do you agree? What should the rules on intoxication and criminal law do? 3. ‘the law is hampered by the partial and ill-defined character of its understanding of how people identify harmful conduct for which they were (not) responsible, and by the related fact that it can deal with involuntary lack of capacity only through the blunt instrument of acquittal on the grounds of insane or non-insane automatism’ Discuss. 4. Ernie goes to the pub and orders a small glass of wine. In fact, he receives a large glass of wine because the barman makes a mistake but Ernie doesn’t notice. He finishes his wine. The wine interacts badly with some tranquilisers that Ernie had taken earlier in order to calm his nerves. The tranquilisers were prescribed for Ernie’s wife, but Ernie was careful in following the guidance on the prescription. At this point, Ernie begins to hallucinate and hear voices. He sets fire to a towel and pushes it through a letterbox (he thinks that it is his own house when in fact it is not). There is no one in the house and it causes some fire damage to the wooden door. A couple of hours later, and still hallucinating, he picks up a train passenger’s umbrella from the waiting room at the local railway station. Ernie mistakenly thinks it is his mother’s umbrella and that she might not mind him borrowing it. When he has finished using it, he throws it into a bin. What offences, if any, have been committed? 8.2 General Defences Allen Ch 6 Ashworth and Horder Chs 7.3, 5.6-9 Simester and Sullivan Chs 20.1, 21.2, 21.3, 22 Clarkson and Keating Chs 4.iii and 4.v Herring Ch12.1-2 and12.5 Smith and Hogan C&M Ch 23 8.2.1 Self-Defence and Prevention of Crime S 3, Criminal Law Act 1967 S 76 Criminal Justice and Immigration Act 2008 Clegg 1 AC 482, Crim. L.R. 418 Martin (Tony) EWCA Crim 2245, Crim. L.R. 136 Keane EWCA Crim 2514, Crim LR 393 Hichens EWCA Crim 1626 Ray EWCA Crim 1391 M Dsouza, ‘Understanding the “householder defence”: proportionality and reasonableness in defensive force’ (2016) 75(2) CLJ 193-196 (case note on Collins, prior to and making the same point as Ray). 8.2.2 Duress, Duress of Circumstances and Necessity Duress Hudson and Taylor 2 QB 202, 2 W.L.R. 1047 Abdul-Hussain Crim LR 570 Howe AC 417, Crim. L.R. 480 Gotts 2 AC 412, 2 W.L.R. 284 Bowen 1 W.L.R. 372, Crim. L.R. 577 Hasan UKHL 22 (aka Z), Crim LR 142 Ness Crim LR 645 Necessity and Duress of Circumstances: Dudley and Stephens (1884) 14 QBD 273 Conway QB 290, Crim. L.R. 74 Martin 1 All ER 652, Crim. L.R. 284 Quayle EWCA Crim 1415, [53-58] and [71-82], Crim. L.R. 148. Re A (conjoined twins: surgical separation) 4 All ER 961 pp. 1012, pp. 1027-1030 and pp. 1062-1063 Crim. L.R. 400 S Gardner, ‘Direct Action and the Defence of Necessity’ Crim LR 371 Note also the issue of mistaken defences (cf topic 1); see in particular s 76 Criminal Justice and Immigration Act 2008 and Hasan/Z 2 AC 467 above, and Gladstone Williams 3 All ER 411. Questions to consider: 1. A and B are brothers. Both are dying. Nothing can be done to save A, but if B were to receive a heart transplant he would survive. A is genetically similar enough to B for his heart to be suitable, but he is unlikely to die in time for the transplant to save B. D, a doctor, kills A in order to give B the heart in time to save him. Would it matter if D had A’s permission to do this? 2. In a capsized ferry 20 people are trapped in a rapidly filling lower deck. There is a rope ladder up which they might climb to safety. On the ladder is P, who is frozen with cold and fear and unable to move up or down. After shouting has produced no response, D knocks P from the ladder into the water where he drowns. D and the other passengers escape up the ladder. Is this situation covered by the decision in Re A? 3. D and P are mountaineers attached to the same rope. P is hanging below D and it becomes increasingly obvious that the rope will break before rescue can arrive and they will both fall to their deaths. However, if D were to cut the rope, P would be killed, but the rope would be strong enough to hold D until he can be rescued. D cuts the rope. Is this situation covered by the decision in Re A? 4. Why do you think the courts have traditionally been reluctant to recognise the existence of a defence of necessity? 5. ‘Consistency of approach in defences to criminal liability is obviously desirable. Loss of control and duress are analogous. In loss of control the words or actions of one person break the self- control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances’ (Lord Lane CJ 1981 in Graham (Paul) 1 WLR 294, 300) (CA)). Discuss. 6. ‘I do not think it matters whether these defences are regarded as justifications or excuses’ (Walker LJ from where?) Do you agree? 7. ‘In all human institutions, a smaller evil is allowed to procure a greater good’ (Oliver Goldsmith, The Vicar of Wakefield (1766), ch 21 available at ). To what extent is this principle recognised in the criminal law? Should the application of the principle in the criminal law be extended in any way?