Criminal Law Notes PDF

Textbooks used: 1. J Herring, Criminal Law, Text, Cases and Materials (11^th^ ed 2024) (HTM) 2. J Herring, Great Debates in Criminal Law [(4^th^ ed 2020)](https://ebookcentral.proquest.com/lib/oxford/reader.action?docID=6274047) **W1: Causation** **W2: *Mens Rea*** **W3: Homicide** **W4: Non-Fatal Assaults** **W5: Accessories and Accomplices** **W6: Sexual Offences** **W7: Defences** **W8: Property Offences\ ** Causation ========= 1 Distinguishing the Component Elements of a Crime -------------------------------------------------- - The ***actus reus*** is the conduct element of a crime. - The ***mens rea*** is the mental element of a crime. It is this element of D\'s conduct which makes his behaviour culpable. - **Conduct crimes** require proof only that the defendant did an act. There is no need to demonstrate that the act produced a particular result. The possession of prohibited drugs would be one such example. - **Result crimes** require proof not only that the defendant performed a particular act, but that the act produced certain results. Murder requires proof that the defendant's act caused the death of the victim, for example. 2 The Voluntary Act 'Requirement' --------------------------------- - Typically, a crime requires an 'act', but there are exceptions to this: - Sometimes an omission can give rise to criminal liability, where the omission constitutes the *actus reus* of a crime. - Sometimes the *actus reus* of an of an offence is defined as a state of affairs or set of circumstances which may not involve an actual act. Possession of a firearm can be an example of this. - Under certain circumstances a defendant can be responsible for the acts of another person. - Criminal law of omissions: D is only guilty of a crime when failing to act if - \(1) D is under a duty to act; - \(2) D breached that duty; - \(3) D's breach caused harm to the victim. - The defendant is under a duty to act when: - [Statutory duty] - eg. s6 Road Traffic Act 1988 where a driver must comply in giving a police officer a breath sample. - [Duties of law enforcement] - eg. police officers have a duty to assist members of the public in danger so an officer who prevents someone being kicked to death has committed an offence. - [Contractual duty] - where failing to fulfil a contractual obligation leads to a crime. - [Assumed duty] - people who voluntarily assume responsibility for another's welfare are under a duty to care for them; parents owe a duty to their child until they turn 18 - eg. *Sheppard.* - [Ownership or control of property] - it may be that if someone owns a piece of property and another person uses that to commit a crime, the owner is under a duty to seek to prevent the crime. - [Continuing acts] - eg. *Fagan* where D drove onto V's foot and did not drive off it. - [Creation of danger] - when creating a dangerous situation, one may be under a duty to prevent resulting harm. This was the case in *Miller*. - Outside the context of parent-child relationships, what matters is not the nature of the blood tie, but whether one party has taken responsibility for the other. - Controversially, a duty of care was held to exist in *R v Stone and Dobinson*. - Analogous to offences involving omissions are situational offences, where the defendant is guilty for being in a particular situation or state of affairs. An example of this is *Larsonneur*. 3 Causation ----------- First factual causation must be determined. If it is fulfilled, legal causation must be determined. Factual Causation ('but for' causation) - The test for factual causation requires the jury to consider whether, but for the defendant's unlawful actions, the harm would have occurred at the same time and in the same way that it did. - In *Dyson*, V was dying from meningitis when Dyson injured him; V died because of the injury, not the meningitis, so Dyson was responsible - V only died there and then because of Dyson. - In *White*, D put poison in V's drink; V took a sip, had a heart attack, and died; D was not held responsible as V would have died from the heart attack regardless, as it was unconnected to the poison. - Sometimes the term ***sine qua non*** is used to mean 'but for'. Legal Causation - For a long time, it was said that a legal cause is 'an operating and substantial cause'. - However, [*Wallace*](#wallace-2018-ewca-crim-690-legal-causation-test-operating-and-significant-the-voluntary-act-needed-for-nai-must-be-committed-with-free-and-unfettered-volition) said that the legal test for causation was whether 'the accused's acts can be said to have made *a* significant contribution to the victim's death\... the cause need not be substantial to render a defendant guilty'. - This suggests that the court shifted the terminology from 'operating and substantial cause' to 'a significant cause', but they did not explain the difference between the two. - Moreover, in *R v L* it was suggested that it was sufficient if the defendant's act had been a more than negligible contribution, whereas in *Hughes* the Supreme Court ruled that to be substantial it had to be more than a 'de minimis or minimal' cause. - The most common way for a defendant to deny that their act was an operating cause is to argue that there has been a '**break in the chain of causation**' or a ***novus actus interveniens***. - For example, in *Rafferty*, D and his friends hit V; V ran away; D's friends drowned V, who died; D was responsible for the assault but not the death, as the drowning was a *novus actus interveniens*. - The distinction between a third party, natural event, or an 'act of God' breaking the chain must be noted. - A *novus actus interveniens* is: - A free, voluntary or informed act (by V or a third party) which renders the original one no longer a significant cause of the result, or - An act which was not reasonably foreseeable and rendered the original act no longer a significant cause of death. *Novus Actus Interveniens* by Free Voluntary and Informed Act - The leading cases on this form of an NAI are [*Kennedy*](#kennedy-no.-2-2007-ukhl-38-discussed-in-miles-2008-clj-18-a-voluntary-and-informed-choice-by-v-breaks-the-chain-of-causation-the-unlawful-act-must-cause-vs-death-established-in-carey-2006) (where a NAI was found) and [*Wallace*](#wallace-2018-ewca-crim-690-legal-causation-test-operating-and-significant-the-voluntary-act-needed-for-nai-must-be-committed-with-free-and-unfettered-volition) (where it was not found). - If A does an act after which B does an act, then B's act is: - A free, voluntary, and informed act; and - It renders A's act no longer a significant cause, - A will not be responsible for causing the result. B's act will be a *novus actus interveniens*. - Only the free, voluntary, and informed acts of a third party will break the chain of causation. - [*Rebelo*](#rebelo-2021-ewca-crim-306) takes a broad approach to voluntariness, similar to that of [*Wallace*](#wallace-2018-ewca-crim-690-legal-causation-test-operating-and-significant-the-voluntary-act-needed-for-nai-must-be-committed-with-free-and-unfettered-volition). - [*Rebelo*](#rebelo-2021-ewca-crim-306) might be contrasted with [*Kennedy*](#kennedy-no.-2-2007-ukhl-38-discussed-in-miles-2008-clj-18-a-voluntary-and-informed-choice-by-v-breaks-the-chain-of-causation-the-unlawful-act-must-cause-vs-death-established-in-carey-2006): - In [*Kennedy*](#kennedy-no.-2-2007-ukhl-38-discussed-in-miles-2008-clj-18-a-voluntary-and-informed-choice-by-v-breaks-the-chain-of-causation-the-unlawful-act-must-cause-vs-death-established-in-carey-2006), V was using drugs for recreational purposes (and thus with the knowledge that this may be unsafe) whereas in *[Rebelo](#rebelo-2021-ewca-crim-306)* the drugs were used for weight loss, with the assumption that they were safe for consumption. - Herring argues that courts may be more 'sympathetic' to the victim in *[Rebelo](#rebelo-2021-ewca-crim-306)* 'because an addiction to weight-loss drugs is more socially acceptable than an addiction to illegal drugs', or that her 'mental health issues' may be more significant than drug addiction in this respect. - This suggests a moral judgement from the law and from juries, perhaps creating inconsistencies in how cases are ruled. - When a person is acting in a way which is justified, their action is not free, voluntary, or informed. For example, - If someone is acting in order to preserve their own life or limb - If someone is acting in line with a legal obligation (eg. [*Pagett*](#pagett-1983-76-cr-app-r-279-reasonable-acts-of-self-defence-do-not-break-the-chain-of-causation)) - If someone is acting in accordance with moral obligation (eg. A doctor who switches off life support in accordance with medical procedures will not be held to have caused the patient's death, such as in *Malcherek and Steel*). - If a person does not know the circumstances of his actions (eg. a postal worker delivering a parcel bomb is not responsible for the injury). A similar issue arose in *Field*. *Novus Actus Interveniens* by Not Reasonably Foreseeable Act - The defendant may be liable if the third party's act was reasonably foreseeable, such as in *Roberts*. - *Roberts* was approved by the Court of Appeal in *Williams and Davis*, but with a slight modification of the test. The court suggested that the question for the jury in these kinds of cases was 'whether the deceased's reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the same situation in which he was\... bear\[ing\] in mind any particular characteristic of the victim'. Rendering D's Action No Longer a Significant Cause - William Wilson has suggested that in a case where a victim suffers death in hospital it is necessary to distinguish two kinds of cases: - The death of V was a result of bad medical treatment which was attempting to treat the victim's injuries - treatment must be **palpably wrong** to break the chain of causation. - The death of V was caused by unconnected things in the hospital, such as food poisoning. - [*Cheshire*](#cheshire-1991-1-wlr-844-an-act-by-a-third-party-must-be-sufficiently-independent-and-potent-that-it-renders-the-original-cause-insignificant-in-order-to-break-the-chain-of-causation) is an example of how the courts treat cases where it is alleged that medical treatment has broken the chain of causation. Omissions Breaking the Chain of Causation; The Thin Skull Rule - The 'thin skull rule' which states that 'defendants must take their victims as they find them... it is no defence for a defendant to say that the injuries or death were caused by the physical condition of the victim'. - *R v Blaue* is an example of an omission not breaking the chain of causation. - This case shows that defendants must take the victim as a 'whole person', including not only physical characteristics but also religious beliefs. 6 Omissions ----------- - Some argue that it cannot be said that an omission causes a result - walking past a drowning child doesn't mean that one killed them, and even if one does try to help, there is no guarantee that the child will survive. - Hart and Honoré (p104) explain that omissions liability can be supported by their distinction between normal and abnormal events, suggesting that if someone is under a duty to act and fail to do so, this will be regarded as 'abnormal' and hence a cause of the result. - This argument struggles in defining what 'normal' and 'abnormal' actually mean. - Laws which punish for the failure to act are known as **bad Samaritan laws**. Dressler criticises these (p105): - 'It is wrongful conduct, and not an individual's status as a bad person or even an individual's bad thoughts, that justify criminal intervention. BS laws may violate this principle. At minimum, there is a serious risk that juries will inadvertently punish people for being... 'soulless'.' - For retributivists, punishment of an innocent person is always morally wrong, and the risk of punishing an innocent person is particularly high - There are utilitarian reasons to question BS legislation, such as that the cost of investigating and prosecuting bystanders might be prohibitive - There is a risk that the Samaritan will hurt the person she is trying to assist, hurt others in the process, or unforeseeably harm herself - Since BS statutes require an attempt at helping someone - it is not necessary to be successful in doing so - and thus the costs of such laws may easily outweigh their limited practical benefits - BS statutes can also restrict human liberty to a greater degree - a penal law prohibiting someone from doing X bars them from doing X, whereas a law that requires a person to do Y bars them from doing anything but Y Cases ----- #### (a) Acts of the defendant ### \**Larsonneur* (1933) 24 Cr App R 74 -- in a 'state of affairs' offence, D's action does not need to be voluntary 1. **Facts**: D was convicted of being 'found in the United Kingdom' while being 'an alien to whom leave to land in the United Kingdom had been refused'. She was in the UK as she was forcibly deported by Irish police. 2. **Issue**: Whether it was correct to punish D when she had performed no voluntary act to put herself in the criminal situation. 3. **Held**: D was found guilty; appeal dismissed. 4. **Reasoning per Lord Hewart CJ**: a. **Principle**: 'The condition attached to the grant of leave to land is hereby varied so as to require departure from the UK not later than...' b. **On the facts**: The circumstances in which D found herself back in the UK are 'perfectly immaterial'. #### (b) Acts of third parties ### *Smith* \[1959\] 2 QB 35 -- the *actus reus* must be an 'operating and substantial cause' but need not be the sole cause of the harm inflicted; an intervening act must be 'overwhelming' to break the chain of causation 1. **Facts**: D was charged with murder for stabbing a soldier during a barrack-room fight. V had two bayonet wounds and was dropped twice on the way to medical treatment, which was given negligently. V died. 2. **Issue**: Whether there was a break in the chain of causation. 3. **Held**: D was convicted of murder -- there was no break in the chain of causation. 4. **Reasoning per Lord Parker CJ**: a. **Principle**: 'If what happened was a natural, probable and foreseeable consequence of what was done, anything coming in between was not truly a *novus actus interveniens*'. b. **On the facts**: 'If a person is stabbed in the middle of a general affray it must be expected that he is not going to be treated in the best possible way at the immediate moment'. **This established that the *actus reus* does not have to be the sole cause of the harm inflicted, only an 'operating and substantial cause'. An intervening cause must be 'overwhelming' to break the chain of causation.** At the time of death, the wound was still said to be an 'operating and substantial cause'. ### *Jordan* (1956) 40 Cr App R 152 -- medical treatment must be 'palpably wrong' to break the chain of causation 1. **Facts**: D stabbed V. V went to hospital and hit wound was stitched up. V died days later. To prevent infection, an antibiotic was administered. After the initial doses, the doctors realised that V was allergic to it. The next day, another doctor administered it. The post-mortem found that V died of broncho-pneumonia following the abdominal injury sustained. 2. **Issue**: Whether and under what circumstances the court could listen to additional evidence. 3. **Held**: Additional evidence might have affected the jury's verdict. 4. **Reasoning per Hallett J**: The court held that the additional evidence was of a nature that would probably have affected the jury's verdict. The additional evidence opined that the death was not caused by the wound at all but that the medical treatment was inappropriate. The victim was intolerant to terramycin which was noticed and initially stopped before being continued the following day by another doctor. They had also introduced abnormal quantities of fluid which waterlogged the victim's lungs. This evidence was not available at the initial trial and it was believed that a jury would listen to opinion of two doctors that had the standing the experts did in this case. On this basis, the conviction was quashed. ### \**Cheshire* \[1991\] 1 WLR 844 -- an act by a third party must be sufficiently 'independent' and 'potent' that it renders the original cause insignificant in order to break the chain of causation 1. **Facts**: Cheshire shot the deceased in the leg and stomach, seriously wounding him. The deceased was taken to hospital where he was treated. He died due to complications in treatment. 2. **Issue**: Whether it is Cheshire or negligent doctors who are responsible for the deceased's death. 3. **Held**: Cheshire was guilty; the complication was 'a direct consequence of the appellant's act'. 4. **Reasoning per Beldam LJ**: a. **Principle**: A *novus actus interveniens* may relieve the accused of responsibility for the crime. In [Pagett](#pagett-1983-76-cr-app-r-279-reasonable-acts-of-self-defence-do-not-break-the-chain-of-causation), Robert Goff LJ states that 'the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result'. b. **On the facts**: The actions of the doctors did not amount to a break in the chain of causation between the shooting and the death. ### *Pagett* (1983) 76 Cr App R 279 -- reasonable acts of self-defence do not break the chain of causation 1. **Facts**: D, who was armed with a shotgun, shot at police officers who were attempting to arrest him. He used a pregnant 16-year-old girl as a shield from retaliation by the officers. The officers tried to fire at D, but ultimately hit V, killing her. 2. **Issue**: Whether the police sniper's shot constituted a novus actus interveniens. 3. **Held**: D was convicted of murder; the police sniper's shot did not constitute a novus actus interveniens. 4. **Reasoning per Goff LJ**: D (1) fired at the police and (2) used V 'by force and against her will' as a shield, both of which could constitute the actus reus of manslaughter or murder. The police officer fired in self-defence, which falls under self-preservation, and thus this act does not operate as a novus actus interveniens. ### *Malcherek* \[1981\] 2 All ER 422, \[1981\] Crim LR 401 -- the fact that death is brought about by a doctor's decision to end life support does not break the chain of causation for murder if the decision was made competently 1. **Facts**: D stabbed his wife, V, who was later placed on a life support machine. Doctors switched off the machine as V showed no signs of brain activity. D was convicted of murder. 2. **Issue**: Whether the doctor's decision amounted to a break in the chain of causation. 3. **Held**: D was properly convicted of murder. 4. **Reasoning per Lord Lane CJ**: The original injury was at the time of death a 'continuing, operating and indeed substantial cause of the death'. 'Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead, and that such vital functions as exist --- for example, circulation --- are being maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the person who inflicted the initial injury from being responsible for the victim's death'. #### (c) Acts of the victim ### \**Cato* \[1976\] 1 All ER 269 1. **Facts**: D and V injected each other with heroin throughout the night, leading to V's death. D argued that he knew this may result in addiction, but had no idea it could result in death or GBH. 2. **Issue**: Whether D can be convicted even though V consented to the injections. 3. **Held**: D was found guilty of manslaughter. 4. **Reasoning per Lord Widgery CJ**: a. **Principle**: It had to be shown that D's unlawful act was a significant cause of the death of the deceased. Consent may be relevant to the finding of recklessness or gross negligence but not as a defence to manslaughter. b. **On the facts**: D's possession led to his contribution in the death. Heroin was found to be a 'noxious' thing, and as the administration was 'deliberate and direct' there was 'no need to find maliciousness'. There had been an unlawful act of administering a 'noxious' thing, and that act caused death. ### \**Kennedy* (No. 2) \[2007\] UKHL 38 (discussed in Miles \[2008\] CLJ 18) -- a voluntary and informed choice by V breaks the chain of causation; the unlawful act must cause V's death (established in Carey 2006) 1. **Facts**: Kennedy (D) prepared a syringe of heroin and handed it to B (V), who injected himself and died as a result. D was initially charged with supplying a class A drug and of manslaughter but appealed this. 2. **Issue**: Whether D was responsible for manslaughter even though B 'administered' the drug to himself and was an 'informed adult of sound mind'. 3. **Held**: D was convicted of supplying class A drugs; the manslaughter conviction was quashed. 4. **Reasoning per Lord Bingham**: a. **Principle**: It must be shown that (1) D committed an unlawful act; (2) that unlawful act was a crime; (3) D's unlawful act was a significant cause of the death of the deceased (Cato). b. **On the facts**: (1 and 2) D committed an unlawful act by supplying V with heroin; (3) 'the act of supplying... could not harm the deceased in any physical way, let alone cause his death'. This is because B broke the chain of causation (novus actus interveniens) as he made a free and informed decision to inject himself. Manslaughter can therefore not be found solely for supplying the heroin. ### \**Wallace* \[2018\] EWCA Crim 690 -- legal causation test -- 'operating and significant; the 'voluntary' act needed for NAI must be committed with 'free and unfettered volition' 1. **Facts**: D threw sulphuric acid at V, leaving V disfigured, visually impaired, paralysed and in a permanent state of unbearable pain which could not be improved by doctors. V went to Belgium to get euthanised. 2. **Issue**: Whether V's act in applying for euthanasia and the doctors' actions in providing it both broke the chain of causation, each being a novus actus interveniens. Whether the judge was justified in removing the murder charge from the jury. 3. **Held**: D was found guilty of applying a corrosive substance with intent. Was the defendant guilty of murder? Justification of the acquittal? 4. **Reasoning per Sharp LJ**: a. **Principle**: A novus actus must be the 'product of the sort of free and unfettered volition' b. **On the facts**: These actions were not 'voluntary' as they were 'a direct response to the inflicted injuries and to the circumstances created by them for which D was responsible'. 'The connection between the inflicted injuries and death was therefore a direct and discernible one'. ### *Rebelo* \[2021\] EWCA Crim 306 1. **Facts**: D marketed a food supplement claimed to promote weight loss. V took an overdose of it and died as a result. 2. **Issue**: Whether V made a 'fully free, voluntary and informed decision to risk death'. Whether D's conviction for gross negligence manslaughter should be upheld. 3. **Held**: D guilty of gross negligence manslaughter (and placing an unsafe food on the market). 4. **Reasoning per Sharp P**: a. **Principle**: A supplier has a duty of care in marketing a safe substance. b. **On the facts**: D breached the duty of care owed to V in circumstances which created an obvious and serious risk of death. "It was also argued that V did not choose to take the supplements in a free and voluntary way due to her 'complex medical history and... evidence that she had lost control of her use of DNP'" (Herring). ### *Field* \[2022\] EWCA Crim 316 1. **Facts**: V was found dead at his home with the cause of death determined as acute alcohol toxicity and Dalmane use. D denied being present at V's house on the evening of his death and denied intent to kill him. They were in a relationship and so V assumed D would look out for him. 2. **Issue**: Whether Field's undisclosed homicidal intention and deception were substantial causes of V's death. 3. **Held**: D was convicted of murder. 4. **Reasoning per Sharp P**: a. **Principle**: b. **On the facts**: D's manipulation and deception led to V's death, making him criminally liable. D gave V alcohol with intent to kill him (as alcohol cannot be consumed with Dalmane), and as such V's consumption cannot be a 'free, voluntary and informed decision', because V was being 'deceived' by D. ### \**Hughes* \[2013\] UKSC 56 -- highlighted the distinction between legal and factual ('but for') causation 1. **Facts**: D, who did not have a full driving licence and was not insured, was driving when he was hit by another driver, who was on heroin, overtired, and had been driving a long distance. The other driver, V, died. He was guilty of driving without a full licence, uninsured, as these are both strict liability offences. 2. **Issue**: Whether D's acts contrary to the Road Traffic Act 1988 were enough to make him responsible for the death of the deceased driver. 3. **Held**: D was not responsible for V's death. 4. **Reasoning per \_\_**: a. **Principle**: b. **On the facts**: In order to give effect to the expression \"causes \... death \... by driving\", an unlicensed, disqualified or uninsured driver charged with an offence under the Road Traffic Act 1988 s.3ZB had to be shown to have done something other than simply putting his vehicle on the road so that it was there to be struck. Some kind of fault in the manner of his driving was a necessary element of the offence. 'There had to be something in the manner of D's driving which was open to proper criticism, beyond the mere presence of his vehicle on the road'. 'There must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death'. This was not the case, and therefore D was not responsible for V's death. ### \**Blaue* \[1975\] 3 All ER 446 -- the thin skull rule extends to religious beliefs 1. **Facts**: D stabbed V, penetrating her lung. She was taken to hospital where she was told that a blood transfusion and surgery were necessary to save her life, but she refused due to her religious beliefs as a Jehovah's Witness and died the following day. 2. **Issue**: Whether V's refusal to have a blood transfusion was a break in the chain of causation, relieving D's responsibility. 3. **Held**: D was convicted of manslaughter on the ground of diminished responsibility. 4. **Reasoning per Lawton LJ**: a. **Principle**: A novus actus interveniens requires that the act which breaks the chain of causation is a free and voluntary one. b. **On the facts**: The death of the victim was caused by loss of blood as a result of the stab wounds inflicted by the defendant. The fact she refused a blood transfusion did not break the causal connection between the stabbing and the death. 'The physical cause of death in this case was the bleeding into the pleural cavity arising from the penetration of the lung. This had not been brought about by any decision made by the deceased but by the stab wound.' This case is said to be a good example of the 'thin skull rule' which states that 'defendants must take their victims as they find them... it is no defence for a defendant to say that the injuries or death were caused by the physical condition of the victim'. ### \**Roberts* \[1972\] 56 CAR 95 -- V's action does not break the chain of causation if it is a natural consequence or result of D's action -- D is liable for reasonably foreseeable consequences of his actions 1. **Facts**: D was driving V whilst assaulting and threatening her. V jumped out of the car while it was in motion, shouting for help, and injured herself in the process. 2. **Issue**: Whether D is liable for reasonably foreseeable consequences of his actions. 3. **Held**: D was guilty of assault occasioning actual bodily harm for causing the woman's injury. 4. **Reasoning per Stephenson LJ**: a. **Principle**: The proper test is not whether D foresaw the conduct of the victim which resulted in the actual bodily harm, but whether that conduct could have reasonably been foreseen as the consequence of what he was saying or doing. b. **On the facts**: It was the jury's duty to convict if they accepted the evidence of the girl, which was accepted. The appeal against the conviction was therefore dismissed. #### (d) Omissions ### *Bland* \[1993\] AC 789 -- while euthanasia is unlawful as it is a positive act that amounts to murder, removal of life support is lawful as it is an omission 1. **Facts**: Bland was in a persistent vegetative state (PVS) and had no hope of recovery. 2. **Issue**: Whether it is unlawful to remove life support as an omission as opposed to euthanasia, which is a positive act that amounts to murder. 3. **Held**: Removal of life support is permitted as it did not amount to murder. a. 'The object of medical treatment was to benefit the patient, but since... medical opinion was of the view that existence in the PVS was not a benefit to the patient, the principle of sanctity of life, which was not absolute, was not violated by ceasing to give medical treatment'. 4. **Reasoning per Lord Goff**: It would be 'a deplorable state of affairs' if a doctor 'would be compelled either to act contrary to the principles of medical ethics... or to risk a prosecution for murder'. 5. **Reasoning per Lord Browne-Wilkinson**: It is reasonable for the doctors to conclude that there is 'no affirmative benefit... in continuing the invasive medical procedures necessary to sustain his life... they are neither entitled nor under a duty to continue such medical care... therefore they will not be guilty of murder if they discontinue such care'. 6. **Reasoning per Lord Lowry**: 'It is important... that society's notions of what is the law and what is right should coincide. One role of the legislator is to detect any disparity between these notions and to take appropriate action to close the gap'. 7. **Reasoning per Lord Mustill**: Bland now has 'no further interest in being kept alive... justification for the invasive care and treatment, together with the duty to provide it have also gone. Absent a duty, the omission to perform what had previously been a duty will no longer be a breach of criminal law'. ### \**Stone and Dobinson* \[1977\] QB 354 -- a failure to act after an assumption of responsibility can amount to *actus reus* 1. **Facts**: V was mentally and physically unstable and was living with Ds, who had assumed responsibility for her. Her condition deteriorated and they neglected to take care of her, such that she died. 2. **Issue**: Whether Ds had a duty of care for V, and if so whether it was violated, amounting to manslaughter. 3. **Held**: Ds were guilty of gross negligence manslaughter. 4. **Reasoning per Geoffrey Lane LJ**: a. **Principle**: When a duty of care is breached leading to a death, this amounts to negligence. In the case of death, this is gross negligence manslaughter. Recklessness in this context means foresight of the likelihood or possibility of death or serious injury and a determination nevertheless to persist in the omission to provide care. b. **On the facts**: 'This situation is not analogous to the drowning stranger. They did make efforts to care... the jury were entitled to find that the duty had been assumed'. ### \**Miller* \[1983\] 2 AC 161 -- where D creates a dangerous situation, D is under a duty of care to resolve the danger once they are aware of it; a failure to do so can amount to *actus reus* 1. **Facts**: D was a squatter in an abandoned property. He returned one evening, having been drinking, and fell asleep with a lit cigarette in his hand. He woke up to see a fire, took no steps to extinguish it, and went to sleep in another room. The whole house caught fire. 2. **Issue**: Whether D could be liable for the omission of not stopping the fire. 3. **Held**: D was charged with arson. 4. **Reasoning per Lord Diplock**: a. **Principle**: Arson is a 'result-crime' (Gordon, 1978). Did the accused start the fire? Did the accused take any action to mitigate the danger that he created. b. **On the facts**: He was responsible for having created the dangerous situation and was under a duty to take action to extinguish the fire once he became aware of it. **To Do:** - Haystead \[2000\] Crim LR 758 - Andrew Simester 'Causation in criminal law' (2017) LQR 416 - Andrew Simester and Bob Sullivan, 'Causing euthanasia' (2019) LQR 21 - Andrew Ashworth, 'Manslaughter by omission and the rule of law' \[2015\] Crim LR 563 - Moore, Causation and the Law *Mens Rea* ========== - Some crimes do not require any proof of the mental state of the defendant. These are known as **strict liability offences**. 2 Intention ----------- In most cases it will not be necessary for the judge to give any special direction to the jury on the meaning of intent. In difficult cases where D may not have acted with the purpose of killing or causing GBH, but that was an extremely likely result of D's actions, then the jury should be given the *Woollin* direction -- the jury may find intention only if the death or GBH was a virtually certain result of D's actions and D realised that this was so. - **Antony Duff's *test of failure*:** had the result not occurred, would D regard themselves as having failed in their plan? - However, this test is limited in cases where a result is a means to achieve a desired end. - Parliament has made it clear that foreseeing a consequence doesn't necessarily mean that it is intended. [S8 of the Criminal Justice Act 1967](#s.8-criminal-justice-act-1967): 'shall decide whether he did intend or foresee that result by reference to all evidence' (Herring, p.126). - 'In relation to the core meaning of intention, whether the defendant's act was likely to produce the consequence is irrelevant.' (Herring, p.126). - For example, if A shoots B (with the intention of killing her) from far away even though he knows he is unlikely to hit her, he will still be found to have intended to kill her. - Some commentators accept that if the defendant believes that it is impossible for their action to cause the result, they cannot be said to intend it -- they cannot be said to act with the purpose of producing a result if they did not believe that the result could possibly be caused by their act. - The HoL has made it clear that foresight of a consequence is not the same as intention, but it is evidence from which a jury may infer or find intention. (Herring, p.127) - The courts have consistently stated that 'intention is something quite different from motive or desire'. - However, this means that there are many borderline cases which can be difficult to decide, such as [*Woollin*](#woollin-1999-ac-82-noted-1999-lqr-17-defined-oblique-intention-as-d-having-foresight-that-death-or-serious-injury-would-be-virtual-certainty-to-result-from-his-voluntary-act). - The decision here makes it clear that in a murder case the jury should usually just be told to give intent its normal meaning. - The [*Woollin*](#woollin-1999-ac-82-noted-1999-lqr-17-defined-oblique-intention-as-d-having-foresight-that-death-or-serious-injury-would-be-virtual-certainty-to-result-from-his-voluntary-act) virtual certainty test appears straightforward, but there are a number of uncertainties about its interpretation: - \(1) What does 'virtually certain' mean? It means that the result will occur unless something completely unexpected occurs. - \(2) Does virtual certainty apply to the particular moment or generally? The test seems to be directed to the particular act of the defendant that killed the victim, but it is not beyond argument that where D regularly engages in an act, it may be virtually certain that someone will suffer death or GBH. - \(3) If it is shown that the event was virtually certain to result from D's acts and D appreciates this, *must* the jury find intent or *may* the jury find intention? - \(4) How should the jury decide whether or not to find intention? What factors are the jury to take into account? - \(5) Is it necessary to show that the result was virtually certain as well as showing that D believed it was? - Lord Steyn's *dicta*: '\[A\] result foreseen as virtually certain is an intended result.' This implies that all that needs to be shown is that D foresaw the result as virtually certain. - However, that is not what the recommended direction for the jury in [*Woollin*](#woollin-1999-ac-82-noted-1999-lqr-17-defined-oblique-intention-as-d-having-foresight-that-death-or-serious-injury-would-be-virtual-certainty-to-result-from-his-voluntary-act) states and the Court of Appeal in *Hayes* and [*Matthews*](#matthews-and-alleyne-2003-crim-lr-553-there-is-no-real-difference-between-the-virtual-certainty-rule-as-a-rule-of-law-and-a-rule-of-evidence) assumed that the test required both that the result was virtually certain to occur, *and* that D realised this. - \(6) What is the significance of Lord Steyn changing the word 'infer' in *Nedrick* to 'find'? - \(7) Is the test just for cases of murder, or does it apply to other crimes which require proof of intention? - \(8) In *R (Nicklinson) v Ministry of Justice*, Lord Neuberger stated that 'a doctor commits no offence when treating a patient in a way which hastens death, if the purpose of the treatment is to relieve pain and suffering', even in cases where the treatment will inevitably cause death. It seems this is an exception to the general rule in [*Woollin*](#woollin-1999-ac-82-noted-1999-lqr-17-defined-oblique-intention-as-d-having-foresight-that-death-or-serious-injury-would-be-virtual-certainty-to-result-from-his-voluntary-act) -- where doctors are appropriately giving pain relief, the jury are prohibited from finding intent. - *Adams* \[1957\] Crim LR 365, Devlin J, a doctor is 'entitled to do all that is proper and necessary to relieve pain and suffering even if measures he takes may incidentally shorten life'. Intoxication and Intent - If the drunken defendant had as their purpose the result, they intended that result. 'A drunken intent is still an intent' ([*Majewski*](#majewski-1977-ac-443), Herring, p.134). - If the drunken defendant lacked intent, they are not guilty of an intent-based crime, but they may be guilty of a recklessness-based offence. - [Moloney](#moloney-1985-ac-905-foresight-of-the-natural-consequences-of-an-act-is-no-more-than-evidence-of-the-existence-of-intent-the-jury-may-infer-intent-but-are-not-bound-to-the-judge-should-not-define-intention-to-the-jury) is a good example of how intent and intoxication can interrelate. - This case can be contrasted with *Brunch* where a very drunk man killed his wife, and the Court of Appeal held that the 'nature of the attack and the level of force used in the stabbing plainly pointed to an intention to kill, or at least to cause really serious injury'. 3 Recklessness -------------- - There are two elements that need to be shown for *Cunningham* recklessness: - D was aware that there was a risk that their conduct would cause a particular result. - The risk was an unreasonable one for D to take. - In *Cunningham* Byrne J explained that recklessness meant that 'the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it'. - It is necessary to show that there was *a* risk. It does not have to be foreseen as highly likely to occur. - The question is whether the accused foresaw the risk, not whether it would have been foreseen by a reasonable person. This is shown in [*Stephenson*](#_Stephenson_%5B1979%5D_QB). - The requirement that to be reckless D must consciously take a risk caused problems in [*R v Parker*](#parker-1977-1-wlr-600-modified-the-cunningham-test-d-is-also-reckless-if-he-closed-his-mind-to-the-obvious-risk-and-carried-out-the-act-anyway). - *Caldwell* recklessness (which has now been abolished) found D reckless if - D was aware of the risk; OR - There was an obvious and serious risk AND they failed to consider whether there was a risk. - This differs from *Cunningham* recklessness as it included defendants who were not aware of an obvious risk. However, it fell into disrepute as it punished defendants for failing to notice a risk which would have been obvious to a reasonable person. - For example, if a blind person walked into a bike and damaged it, they would have been found *Caldwell* reckless. - This was why the House of Lords abolished *Caldwell* recklessness in [*R and G*](#g-and-r-2004-ukhl-50-2004-crim-lr-369-2004-lqr-548-the-test-for-recklessness-is-subjective). - In this case, Bingham suggested that the test should be changed as follows: 'A person acts recklessly\... with respect to: - A circumstance when he is aware of the risk that it exists or will exist; - A result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.' - This recognises that D will be reckless if they realise that there is a risk of the harm arising and decide to take that risk, when to do so is unreasonable (Herring, p.142). To be reckless the defendant must foresee the result. 4-5 Negligence and Gross Negligence ----------------------------------- - If D has behaved in a way in which a reasonable person would not, then they are **negligent**. - Negligence uses an objective test, where D's state of mind is irrelevant -- there is no need to show that D intended or foresaw a risk. - In relation to manslaughter, D's negligence must be labelled **gross negligence** if there is to be a conviction. To be negligent the defendant must not have acted as a reasonable person would. 7 Intoxication -------------- - A person who at the time of the offence is not intoxicated but is suffering from a mental condition which results from previous drinking or drug taking will not be treated as voluntarily intoxicated. - For example, if drinking has led someone to depression and they commit a crime in a depressed state, they will not be treated as voluntarily intoxicated. - However, according to [*Taj*](#taj-2018-ewca-crim-1743-para-54-only), if they have a mental condition which is the **'immediate and proximate'** consequence of their intoxication, they will be treated as voluntarily intoxicated. - For example, if someone takes drugs, has a psychotic episode, and commits a crime, they will be treated as voluntarily intoxicated. - The Court of Appeal decision in [*Heard*](#heard-2007-crim-lr-654) was a complicated one. - **Basic intent** is defined as intention that only extends to the actus reus and not onto any further purpose. - *Heard* defined specific intent as ulterior intent, meaning that there must be a purpose that extends beyond the actus reus itself. - D, whether voluntarily or involuntarily intoxicated, is guilty of the offence if they have the required *mens rea*. It is not a defence for intoxicated defendants to claim they would not have committed the offence if they had been sober. - If D is involuntarily intoxicated and lacks *mens rea* they must be acquitted. - If D is voluntarily intoxicated and lacks the *mens rea*, D will be deemed reckless but will be acquitted of an offence requiring intention. In most cases, they may be convicted of a lesser offence (eg. Murder being reduced to manslaughter). 9 Transferred *Mens Rea* (Malice) --------------------------------- - The doctrine of transferred *mens rea* applies where a person aims to harm one person or piece of property but misses and harms another. For example, if A shoots at B but misses but instead kills C. - A difficult case of transferred *mens rea* was [*Attorney-General\'s Reference (No. 3 of 1944)*](#attorney-generals-reference-no.3-of-1994-1997-3-w.l.r.-421). 10 Coincidence of *Actus Reus* and *Mens Rea* --------------------------------------------- - Despite the requirement that the *mens rea* and *actus reus* coincide, the courts have developed ways of flexibly interpreting it. The defendant may have the *mens rea* at one point in time and then later (without *mens rea*) perform the *actus reus* - In [*Meli v R*](#thabo-meli-1954-1-wlr-228-it-is-sufficient-to-show-that-d-acted-with-the-requisite-mens-rea-at-some-point-during-a-chain-of-events), Ds stuck a man over the head (following a preconceived plan), thought he was dead, and threw him off a cliff. In fact, it was being thrown off the cliff which killed V. The Privy Council held that they could properly be convicted of murder as their acts were part of a plan and so could be described as 'one transaction'. - The Court of Appeal in [*Le Brun*](#le-brun-1991-4-all-er-673-ar-and-mr-do-not-need-to-perfectly-coincide) extended this reasoning to a case where there was no preconceived plan. D hit his wife, she collapsed, he picked her up to take her inside, but dropped her on the way, and she died as a result. D was convicted of Manslaughter as this was seen as one 'sequence of events'. - Whether the series is part of the same sequence of events or part of an 'unbroken causal connection' is a question of fact for the jury. 15 Intent --------- - Very few offences require proof that the defendant intended a result. Recklessness or negligence is normally sufficient. - Nevertheless, intent is widely regarded as the 'worst' kind of *mens rea*. - The **'pure intention'** view is promoted by those who argue that intention should mean purpose -- it is possible to foresee a result as virtually certain but not intend it. - The **'moral elbow room'** view is that intention is purpose, but that where D is aware that a result is virtually certain to follow from their actions, the jury should be given a discretion to decide whether the mental state is wicked enough to be called intention. - The **'oblique intention'** view is that a result which is foreseen is virtually certain or simply intended -- if a person knows that a result will occur as a result of their acts, they intended it. - - The ***'Hyam'*** view suggests that if a result is foreseen as likely then it is intended. - ![](media/image2.png) 16 Recklessness --------------- Cases ----- ### \*S.8 Criminal Justice Act 1967 8\. Proof of criminal intent. A court or jury, in determining whether a person has committed an offence, --- \(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but \(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. - A court needs to decide whether there was intention or foresight by reference to all evidence. ### *Steane* \[1947\] KB 997 -- oblique intention does not always equate intention in law; the prosecution has the burden of proof for intention 1. **Facts**: Steane was an actor living in Germany leading up to WW2. He was arrested and forced to make broadcasts on Germany's behalf by Joseph Goebbels. He was convicted of 'doing acts likely to assist the enemy with intent to assist the enemy' by a lower court. 2. **Issue**: Whether there was intent to assist the enemy. 3. **Held**: There was no intent to assist the enemy; the conviction was quashed. 4. **Reasoning per Goddard CJ**: a. **Principle**: *Mens rea* can be found on the basis that the defendant intends the natural consequence of his actions. However, if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the prosecution has to take the burden of proof for intention. b. **On the facts**: This is a case of oblique intention (where the consequence is foreseen as certain by D but is not necessarily his aim or objective). This case highlights that the presence of oblique intention does not necessarily equate intention in law. ### \**Moloney* \[1985\] AC 905 -- foresight of the natural consequences of an act is no more than evidence of the existence of intent; the jury may infer intent but are not bound to; the judge should not define intention to the jury 1. **Facts**: D and V (D's stepfather, to which he was close) had been drinking heavily. The two competed in shooting, and D fired a shotgun which hit V and killed him instantly. 2. **Issue**: Whether D had the intent to kill or cause GBH to V. 3. **Held**: Conviction of murder quashed and reduced to manslaughter. 4. **Reasoning per Lord Bridge**: a. **Principle**: 'The sole issue was whether, when he pressed the trigger, this fact and its inevitable consequence were present to the appellant's mind. If they were\... he intended to kill his stepfather'. 'If\... it never crossed his mind\... that by pulling the trigger he might injure, let alone kill, his stepfather, no question of foresight of consequences arose for consideration'. 'Whatever his state of mind, the appellant was undoubtedly guilty of a high degree of recklessness'. b. **On the facts**: When a crime of specific intent was under consideration 'the probability of the consequences taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent'. Intention is 'quite distinct from motive or desire'. ### \**Woollin* \[1999\] AC 82 (noted (1999) LQR 17) -- defined oblique intention as D having foresight that death or serious injury would be virtual certainty to result from his voluntary act 1. **Facts**: D threw his three-month-old son, V, onto a hard surface after losing his temper. D argued that he did not intend to cause the baby serious harm. 2. **Issue**: Whether D realised that there was a 'substantial risk' of causing V serious harm which would mean he is convicted of murder. 3. **Held**: There had been a misdirection by the judge -- the murder conviction was replaced with manslaughter. 4. **Reasoning per Lord Steyn**: a. **Principle**: Pursuant to *R v Nedrick \[1986\]*, the jury should decide whether D had foresight that death or serious injury would be 'virtually certain' to result from his voluntary act. The judge must make clear to the jury that 'there can be no connection between foresight of a natural consequence and intent unless the consequence is "little short of overwhelming"'. 'It is not open to the jury to make an evidential connection between foresight of a natural consequence and intent unless the consequence is little short of overwhelming'. b. **On the facts**: 'By using the phrase "substantial risk" the judge blurred the line between intention and recklessness, and hence between murder and manslaughter'. - The test in *Woollin* is a rule of evidence -- this means that appreciation of virtual certainty of death or serious harm does not necessary amount to intention for murder in law. This case changed the direction from the word 'infer' (*Nedrick*) to the word 'find'. ### \**Re A (Children)* \[2001\] Crim LR 400 -- Robert LJ supports direct intention (purpose) rather than oblique intention (foresight of an inevitable consequence; he argues that there was no intention to kill, but Brooke LJ says that there was intention to kill. 1. **Facts**: M and J were conjoined twins, and both would die if not separated. If separated, M would die but J would have a strong chance of survival. 2. **Issue**: Whether separating the twins would be lawful, or if it would amount to murder. 3. **Held**: It would be lawful. 4. **Reasoning per Ward LJ**: a. **Principle**: Self-defence. b. **On the facts**: In this case, J's life was being threatened. Therefore J (or someone acting on her behalf) would be justified when acting in order to negate that threat, even though a consequence of so doing was that the person who was the source of that threat would die. -- McBride's Guides 5. **Robert Walker LJ**: c. **Principle**: d. **On the facts**: 'Separation would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life\... Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable'. 6. **Reasoning per Brooke LJ**: e. **Principle**: There was an intention to kill. However, the necessity requirements are met -- to avoid 'an inevitable and irreparable evil'. The moral objections of *Dudley v Stephens* do not apply as Mary's lifespan is already limited. f. **On the facts**: Mary's death 'would be the virtually certain consequence of \[the surgeons'\] acts'. ### \**Matthews and Alleyne* \[2003\] Crim LR 553 -- there is no real difference between the 'virtual certainty' rule as a rule of law and a rule of evidence 1. **Facts**: Ds threw V into a river from a bridge, who drowned and died. Ds argued that although they knew V could not swim, they did not intend for him to die. 2. **Issue**: Whether Ds had 'an appreciation of virtual certainty of death or an intention to kill' -- *Nedrick*/*Woollin* direction. 3. **Held**: Ds were convicted of murder. 4. **Reasoning per Rix LJ**: a. **Principle**: There is no real difference between the 'virtual certainty rule' as a rule of law and a rule of evidence. The 'approved direction' in *Nedrick* and *Woollin* was that the jury was entitled to find intention for murder based on their appreciation that death was 'virtually certain', not that they must find intention. b. **On the facts**: Ds knew V could not swim and had no intention of saving him, so death was 'virtually certain'. ### [Antje Pedain](file:///Users/ronnylevy/Downloads/Intention%20and%20the%20terrorist%20example.pdf) \[2003\] Crim LR 579 -- Intention and the Terrorist Example - 'After [Woollin](#woollin-1999-ac-82-noted-1999-lqr-17-defined-oblique-intention-as-d-having-foresight-that-death-or-serious-injury-would-be-virtual-certainty-to-result-from-his-voluntary-act), English criminal law recognises two categories of intention to commit the *actus reus* of an offence': - \(1) 'a desire or wish to engage in an unlawful course of conduct or to bring about a legally forbidden result'; - \(2) 'a state of mind where a person foresees a particular result as a "virtually certain" consequence of his or her actions whether that result is desired\... or not'. - 'Both types of intention\... signal prior endorsement of the outcome by the actor, leaving no room for the actor to meaningfully disassociate himself from the outcome once it has materialised. From this vantage point, it is possible to see what really lies behind the heated argument whether "the doctrine of double effect" should affect our definition of intention or whether it merely establishes a defence of necessity'. - This commonality between the two categories of intention makes us 'understand how our intuitive response to *Woollin*'s case relates to the philosophical account of intention. The *reason* why we allow Woollin to distance himself from the foreseeable consequences of his actions is that he did not endorse injury or death even as a possibility.' - Another way of understanding the distinction between **intention** and **recklessness** is by applying **Duff's "failure test"** to cases of conscious risk-creation. - This test involves asking D if they would regard themselves as having failed if the result that did occur had not happened. If so, this qualifies as an intention. - **German criminal law** recognises intention as covering situation where the actor 'expects and wants the *actus reus* to result' from his act. - It also recognises a variant of intention called 'Bedingter Vorsatz' or *dolus eventualis,* which is defined as a state of mind where the defendant realises and reconciles himself to the possibility that he may bring about the legally forbidden result. - The general idea is that 'liability is founded on an attitude of "approval", "acceptance" or even indifference, towards the potential harm\... the intentional actor accepts the risk and deliberately chooses to bring it about\... the intentional actor is aware of the possibility of harm and puts up with it, taking a "so be it" attitude to its eventual occurrence'. ### Gavin Leigh (2022) J Crim L 18 -- Murderous Intent - The Attitude of a Murderer 'There is a controversy in the definition of murder in England and Wales. This relates to 'intention' in the mental element, which can include the defendant's foresight of death or grievous bodily harm (GBH) as 'virtually certain'. This 'oblique' intent is criticised as morally under-inclusive.' - 'The mental element for murder is sometimes referred to as 'malice aforethought'. This is misleading. Murder requires neither malice, in the sense of displaying any kind of attitude in the defendant's actions towards the deceased, nor aforethought in terms of any premeditated action.' - 'Recklessness is only differentiated from oblique intention by the degree of foreseen risk involved in virtual certainty. In an attitudinal context, both can be described as the creation of a risk the defendant accepts.' #### (a) Recklessness ### Stephenson \[1979\] QB 695 -- the test for recklessness is subjective (see R and G too) 1. **Facts**: D tried to sleep on a haystack. He was cold so he started a fire. The fire spread to the whole stack. This led to £3500 worth of damage. D was charged with arson. 2. **Issue**: Whether the recklessness test should be objective or subjective (ie. Risk foreseen by a reasonable person or by D himself). 3. **Held**: Conviction quashed -- a subjective test must be used. 4. **Reasoning per LJ Geoffrey Lane**: a. **Principle**: The test should be entirely subjective -- if D did not foresee a risk of damage, he should not be liable. The judge quoted *Parker* and did show the subjectivity of the test by talking about 'the defendant's state of mind'. b. **On the facts**: At trial a consultant psychiatrist gave evidence that D had a long history of schizophrenia, and this would mean that he was quite capable of lighting a fire in a haystack without ever thinking of the danger involved. This means that a subjective test of his recklessness should take place. ### \**Parker* \[1977\] 1 WLR 600 -- modified the *Cunningham* test: D is also reckless if he closed his mind to the obvious risk and carried out the act anyway 1. **Facts**: D tried to telephone for a taxi, but the telephone didn't work, and he was seen by police as trying to 'smash down' a telephone handset in frustration, damaging it. D was charged under s1(1) Criminal Damage Act. He claimed it did not occur to him that he would cause damage. 2. **Issue**: Whether D caused the damage to the telephone receiver; the degree of force he used when bringing the handset down on to the receiver. 3. **Held**: D was found guilty. 4. **Reasoning per Geoffrey Lane LJ**: a. **Principle**: Using the views expressed in *R v Briggs*, 'a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of the act'. b. **On the facts**: D was 'plainly fully aware of the circumstances of the case\... \[he was\] deliberately closing his mind to the obvious'. To the above views, Lane added 'a man is reckless in the sense required when he carries out a deliberate act knowing **or closing his mind to the obvious fact** that there is some risk of damage resulting from that act but nevertheless continuing in the performance of the act'. ### \**G and R* \[2004\] UKHL 50, \[2004\] Crim LR 369, (2004) LQR 548 -- the test for recklessness is subjective 1. **Facts**: Two boys (Ds) set fire to newspapers in the back of a shophouse and burnt down supermarket and adjoining buildings. They were charged under s1 Criminal Damage act 1971 for reckless arson. 2. **Issue**: Whether Ds were reckless in their actions. 3. **Held**: Ds were not guilty of arson as they had not been reckless (due to their maturity). 4. **Reasoning per Lord Bingham**: a. **Principle**: Conviction of a serious crime depends not only on the act or omission, but also on the state of mind of the accused. The *Caldwell* test also leads to unfairness in making the jury judge Ds based on what an average person would foresee. The majority's misinterpretation of recklessness 'is offensive to principle and is apt to cause injustice'. b. **On the facts**: The *Caldwell* rule was modified, in cases involving children, by requiring comparison with reasonable children of the same age, rather than adults. #### (b) Intoxication ### Taj \[2018\] EWCA Crim 1743, para 54 only Key themes emerge from their Lordships' judgements in [*Majewski*](#majewski-1977-ac-443)'s case. 1. Self-induced intoxication does not amount to a defence to criminal responsibility. 2. The underlying rationale is recklessness -- people are responsible for their reckless conduct in taking substances and their resulting actions. 3. This is founded in pragmatism and policy -- the needs of society to maintain order and to keep public and private violence under control. #### (i) Voluntary intoxication ### \**Majewski* \[1977\] AC 443 1. **Facts**: D assaulted police officers while intoxicated. D was charged with assault occasioning actual bodily harm. 2. **Issue**: Whether voluntary intoxication is a defence to the assault. 3. **Held**: D convicted of assault occasioning actual bodily harm. 4. **Reasoning per Lord Elwyn-Jones LC**: a. **Principle**: 'It is only in the limited class of cases requiring proof of specific intent that drunkenness can exculpate. Otherwise in no case can it exempt completely from criminal liability'. A man, 'reducing himself by drugs and drink to that condition\... supplies the evidence of *mens rea*, of guilty mind sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary *mens rea* in the assault cases'. b. **On the facts**: 5. **Reasoning per Lord Edmund-Davies**: c. **Principle**: 'A rule of law has been established that self-induced intoxication can provide a defence only to offences requiring an "ulterior" intent and is therefore irrelevant to offences of "basic" intent such as assaults'. d. **On the facts**: ### \**Heard* \[2007\] Crim LR 654 1. **Facts**: D was under self-induced drunkenness when he rubbed his penis against the police officer's leg. D was convicted with sexual assault contrary to s3 of Sexual Offences Act 2003. D argued that he did not have the intention to touch due to his drunkenness. 2. **Issue**: Whether intoxication meant that D did not have intent to commit the act -- whether the offence is one of specific or of basic intent. 3. **Held**: Appeal dismissed -- s.3 of Sexual Offences Act 2003 required no more than basic intent; thus, voluntary intoxication is no defence. 4. **Reasoning per Hughes LJ**: a. **Principle**: This offence is one of basic intent -- it had to be committed deliberately rather than accidentally. This means that drunkenness cannot be relied upon as a defence. b. **On the facts**: 'A drunken intent is still an intent'. #### (ii) Involuntary intoxication ### \*Hardie \[1985\] 1 WLR 64 1. **Facts**: D had been living with a woman. She asked him to leave the flat and gave him Valium to calm himself. She told him he can take as many as he likes as this would do no harm. D took five pills. The woman left and returned to find a wardrobe in the bedroom on fire. D was charged with damaging property with intent to endanger life. 2. **Issue**: Whether intoxication by drugs can negate *mens rea*; whether D was reckless. 3. **Held**: D was charged with arson. 4. **Reasoning per Parker LJ**: a. **Principle**: 'If the effect of a drug is merely soporific or sedative the taking of it\... cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving *mens rea* in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self-administration of dangerous drugs'. b. **On the facts**: 'There was no evidence that it was known to the appellant or even generally known that the taking of Valium in the quantity would be liable to render a person aggressive or incapable of appreciating risks to others or have other side effects such that its self-administration would itself have an element of recklessness'. Valium is 'wholly different in kind from drugs which are liable to cause unpredictability or aggressiveness'. ### \**Latimer* \[1886\] 17 QB 359 -- established the doctrine of transferred malice outside of murder cases 1. **Facts**: D was arguing with a man in a pub. He tried to hit him with his belt, but only marginally hit him. Instead, D hit a woman, V, who was standing next to the man. The woman was severely injured. 2. **Issue**: Whether it is possible to convict D of unlawful and malicious wounding in a situation where he intended to harm another -- whether *mens rea* could be transferred. 3. **Held**: D was held liable for the injuries. It is possible to use the doctrine of transferred malice outside the bounds of murder cases. 4. **Reasoning per Coleridge CJ**: a. **Principle**: 'If a person has malicious intent towards one person, and in carrying into effect that malicious intent he injures another man, he is guilty of\... general malice'. In this circumstance, 'a man is guilty of maliciously wounding the person actually wounded'. b. **On the facts**: The doctrine of transferred malice means that D can be found guilty. ### *Attorney-General\'s Reference* (no.3 of 1994) \[1997\] 3 W.L.R. 421 1. **Facts**: D stabbed his pregnant girlfriend, who went into premature labour and gave birth. The baby, V, died as a result of the stabbing. 2. **Issue**: Whether D can be convicted of murdering V. 3. **Held**: D's actions did not amount to murder but could amount to constructive manslaughter. 4. **Reasoning per Lord Mustill**: a. **Principle**: *Mens rea* cannot be transferred to a non-living being. 'The existence of an interval of time\... does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death'. b. **On the facts**: It is not possible to transfer the intent to kill (or commit GBH) from the mother to the child, as the child did not exist as a legal person at the time of the stabbing. 5. **Reasoning per Lord Hope**: c. **Principle**: To find constructive manslaughter there must be an unlawful and dangerous act, and it is that act which must have caused the death of the victim. d. **On the facts**: D fulfilled the above criteria and should therefore be convicted of unlawful act manslaughter. ### *R v K* \[2002\] 1 AC 462 -- belief as to V's age merely has to be genuine and honest. 1. **Facts**: D (26) indecently assaulted V (14). D claimed that the sexual activity was consensual, and that V had told him that she was 16, and that he had no reason to disbelieve her. 2. **Issue**: Whether D's belief as to V's age must be genuine. 3. **Held**: Belief as to the victim's age had merely to be genuine and honest. 4. **Reasoning per House of Lords**: It was not a strict liability offense; rather, the prosecution needed to prove that D either knew V was under 16 or was reckless as to her age. A reasonable belief by D that the victim was over the age of 16 could negate the necessary *mens rea*. ### \**Sweet v Parsley* \[1970\] AC 132 -- crimes are only strict liability where Parliament clearly intends this 1. **Facts**: D was concerned in the management of certain premises which were used for the purpose of smoking cannabis or cannabis resin. D had no knowledge that the house was being used for this purpose. D only visited occasionally. 2. **Issue**: Whether D can be guilty of permitting her premises to be used for the purpose of dealing in cannabis although she had no knowledge of this. 3. **Held**: D was found not guilty since (1) the offence under s.5b was not absolute and (2) D had no *mens rea*. 4. **Reasoning per Lord Diplock**: a. **Principle**: It was found that s.5b of the Dangerous Drugs Act 1965 is not an absolute offence (an action for which D is criminally liable without *mens rea*). The conduct prohibited is to be "concerned in the management of premises used for the purpose of smoking cannabis". b. **On the facts**: The phrase '"purpose" connotes an intention by some person to achieve a result desired by him'. Sweet did not intend for this to happen, or even know that it did, and therefore cannot be liable. ### \**G* \[2008\] UKHL 37 -- strict liability does not infringe on the art 6(2) ECHR presumption of innocence 1. **Facts**: D, 15, had sex with V, 12, who he believed to be 15. D claimed that V had consented. D was charged with, and pled guilty to, rape of a child under 13 under s.5 of the Sexual Offences Act 2003. He appealed his conviction on the grounds that he was also a child, V had consented, and he believed she was his age. 2. **Issue**: Whether D's prosecution was a disproportionate interference with his ECHR rights (presumption of innocence; right to a private life). 3. **Held**: Conviction upheld. 4. **Reasoning**: a. **Principle**: S.5 is a strict liability offence. This means that it is irrelevant that D believed V was 15. b. **On the facts**: The law protects children not only from paedophiles but also from making sexual decisions before they are ready to. 5. **Dissent per Lords Hope and Carswell**: Lord Hope argued that it was wrong for the law to label mutually consensual sexual activity between minors as 'rape' under the guise of protecting children from predators. The existence of the s.13 offence[^1^](#fn1){#fnref1.footnote-ref} implied that such children should not be prosecuted in this manner unless consent is absent. ### \**Fagan* \[1969\] 1 QB 439 -- assault can arise from a continuing act where the actus reus and mens rea coincide at some point; an omission can become a criminal act when it is part of a continuing unlawful situation. 1. **Facts**: D was told by a police constable to back up his car. D unintentionally drove onto the constable's foot. When the constable told him to drive off his foot, D turned off the ignition of his car instead. D was convicted of assault. 2. **Issue**: Whether the fact that there was no *mens rea* at the beginning of the *actus reus* means that there was no assault. 3. **Held**: D found guilty of assault: there was a continuing act of assault when the intention later arose. 4. **Reasoning per James J**: a. **Principle**: Although the *actus reus* and *mens rea* must be present at same time in an assault, it is not necessary for the *mens rea* to be present at the inception of the *actus reus*: it could be superimposed on an existing act. b. **On the facts**: 'There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act.' 5. **Reasoning per Bridge J**: c. **Principle**: *Mens rea* of assault is to cause the victim to apprehend immediate unlawful personal violence or recklessness as to whether such apprehension is caused. d. **On the facts**: ### \**Thabo Meli* \[1954\] 1 WLR 228 -- it is sufficient to show that D acted with the requisite *mens rea* [at some point] during a chain of events 1. **Facts**: Ds had brought V to a hut, given him beer, and hit him on the head whilst he was partially intoxicated. Ds then carried V out of the hut and left him in the open. V died of exposure. 2. **Issue**: Whether the fact that there was *mens rea* for hitting V but not for the act which killed him -- leaving him outside -- means that Ds can only be accused of culpable homicide. 3. **Held**: Ds were found guilty of murder. 4. **Reasoning per Lord Reid**: a. **Principle**: 'There was a preconceived plot on the part of the four accused to bring the deceased man to a hut and there to kill him'. b. **On the facts**: It was 'impossible to divide up what was really one transaction in this way' -- they are guilty of murder. ### \**Le Brun* \[1991\] 4 All ER 673 -- AR and MR do not need to perfectly coincide 1. **Facts**: D had an argument with his wife, V. D struck V unlawfully, without intending to do her really serious harm. D moved V to conceal the assault. D dropped V while moving her and her head hit the pavement, causing a fatal injury. D was charged with murder. 2. **Issue**: Whether coincidence of act causing death with *mens rea* necessary to constitute manslaughter. 3. **Held**: D was found guilty of manslaughter. 4. **Reasoning per Lord Lane CJ**: a. **Principle**: 'Where the assault and eventual acts causing death are part of the same sequence of events, the act which causes death and the necessary mental state to constitute manslaughter need not coincide in point of time for the offence to be established'.[^2^](#fn2){#fnref2.footnote-ref} b. **On the facts**: D committed the *actus reus* without the *mens rea* necessary for murder or manslaughter. Therefore, the *mens rea* is contained in the initial unlawful assault, but the *actus reus* is the eventual dropping of the head on to the ground. **To Do:** - *Brady* \[2006\] EWCA Crim 2413 - Heather Keating \[2007\] Crim LR 546 - Andrew Simester, 'Intoxication is Never a Defence' \[2009\] Crim LR 3 - Rebecca Williams 'Voluntary intoxication - a lost cause?' (2013) 129 LQR 264 - Allen \[1988\] Crim LR 698 - Kingston \[1994\] Crim LR 846 - Jeremy Horder \[2006\] Crim LR 383 - For a basic intent crime voluntary intoxication matters? Check this! Homicide ======== Murder ------ Murder is a common law offence: 'Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by the law, so as the party wounded or hurt etc., die of the wound or hurt etc within a year and a day.' - Sir Edward Coke, Institutes vol. 3, 47 ***Actus reus*** -- the unlawful killing of another person in the King's peace. ***Mens rea*** -- an intention to cause death or grievous bodily harm to the victim. #### (a) Actus reus ![](media/image4.png) ### Law Reform (Year and a Day Rule) Act 1996 - It used to be the case that D was liable for murder only if V died within a year and a day of D's actions. - This rule gave rise to difficulties, especially when victims were kept alive on life-support machines, and was abolished in the Law Reform Act 1996. ![](media/image3.png) [*Attorney-General's Reference* (no. 3 of 1994)](#attorney-generals-reference-no.3-of-1994-1997-3-w.l.r.-421) #### (b) Mens Rea see INTENTION, week 2 - At the exact borderline between murder and manslaughter (between intention and recklessness), the *Woollin* test applies, and the jury is given an element of discretion to decide whether or not to find intention from evidence of foresight of virtual certainty. - Supporters of this argue that it provides the jury with 'moral elbow room', but critics such as William Wilson are concerned that 'whether someone has committed murder is not a matter of opinion'. A gives B a gentle shove. B falls over and dies. In 999 out of 1000 times, B would have merely stepped back. A would, at most, receive a conviction for assault. Should A be charged with manslaughter? - Mr Justice Rix -- 'Once a person undertakes a violent act, he sets himself deliberately\... on a road which is not only seriously antisocial\... but potentially leading to calamitous results\... He has deliberately embarked on an act of criminal violence, which\... leads to incalculable consequences.' ### \*s.1 Homicide Act 1957 - Abolition of "constructive malice" -- It is no longer sufficient for a murder conviction to show that D killed while committing some other crime. Only an intention to kill or cause GBH will do. ### \*s. 8 Criminal Justice Act 1967 - Proof of criminal intent -- A court shall decide whether a person committed an offence "by reference to all the evidence". ### \**Cunningham* \[1982\] AC 566 -- *Cunningham* recklessness: D was aware that there was a risk that his conduct would cause a particular result and the ris was an unreasonable one for D to take 1. **Facts**: D attacked V in a pub, wrongly believing that V had had sexual relations with his fiancé. V suffered a fractured skull and a subdural haemorrhage from which he died 7 days later. 2. **Issue**: Whether D is liable for murder despite not having intention to kill. 3. **Held**: D was guilty of murder. 4. **Reasoning per Lord Hailsham LC**: a. **Principle**: "Malice aforethought has never been limited to the intention to kill or to endanger life". The *mens rea* for murder remains intention to kill or to cause GBH. b. **On the facts**: D had intention to cause GBH and so is liable for murder charges. ### J. Herring and H. Bows, 'Regulating intimate violence: rough sex, consent and death' \[2021\] Child and Family Law Quarterly Review 311 - The reason why defendants have been able to use the so-called \'rough sex defence\' is to present their defence not as one of consent, but a denial of the *mens rea* (mental state) requirement for a murder conviction. - Murder requires proof that the defendant intended to cause death or grievous bodily harm (GBH). If the defendant were to deny they intended to cause death or GBH (\'I was intending light strangulation and not to cause death or grievous injury\') then, if believed, they could not be guilty of murder. - The crux of the claim is that the act was not done with the intent to cause death or GBH, but for sexual purposes. - Consent cannot be a defence for an assault occasioning ABH but can be for a sexual offence (even where serious injuries are concerned). - In section 71 of the Domestic Abuse Act 2021 the Government sought to make it clear that consent to rough sex, where ABH or worse is performed, is no defence to a criminal charge. - It seems widely accepted by both the academic lawyers and practising legal community that this provision does little more than restate the common law as set out in *Brown*. - Nevertheless, there are reasons why it is thought to be useful. - Harriet Harman suggested that it was helpful to have the common law put into statute because: 'Statute law is much more under the noses of the judiciary and the prosecutors and the defence'. - Perhaps a stronger justification is that, given the controversy surrounding *Brown* and the extensive criticism it has received for its reasoning, a statutory confirmation of its standing would ensure the legal principle emerging from it still stands, despite any perceived shifts in cultural attitudes. Involuntary Manslaughter ------------------------ #### (a) Gross Negligence manslaughter - For gross negligence manslaughter, it must be shown that: - \(1) D owed the victim a **duty of care**. - The Court of Appeal in *Wacker* and *Evans (Gemma)* confirmed that the 'duty of care' is usually to be given the meaning it has in the tort of negligence. - \(2) D **breached** that duty. - The jury must ask whether D's action fell below the standard expected of the reasonable person. Where D is using a special skill, they are judged in relation to someone performing that skill. For example, in [*Adomako*](#adomako-1994-3-all-er-79-noted-1995-lqr-22-1995-mlr-457-the-test-for-gross-negligence-manslaughter-is-the-same-as-the-test-for-negligence-in-tort-where-d-is-professionally-qualified-they-are-held-to-a-higher-standard-than-the-person-on-the-clapham-omnibus), D had to act as a reasonable anaesthetist. In ***R v S***, the *obiter* states that D must be compared with 'a reasonable and prudent person of the applicant's **age and experience**'. - \(3) The breach **caused** the death of V. - \(4) There was a **serious and** **obvious risk** of death when D breached the duty. - The jury will ask whether a reasonably prudent person who was in D's position at the time of the breach of duty would be aware of the serious and obvious risk of death. - \(5) The breach was so **gross** as to justify a criminal conviction. - In *R v Sellu* the direction on grossness was that 'it must have been so bad, so obviously wrong, that, having regard to the risk of death involved in it, it can properly be condemned as criminal'. - This is an objective test, comparing Ds to the man on the Clapham omnibus. The standard can be increased (eg. If D is specialised, such as a doctor), but cannot be decreased. ### \**Adomako* \[1994\] 3 All ER 79 (noted (1995) LQR 22, (1995) MLR 457) -- the test for gross negligence manslaughter is the same as the test for negligence in tort; where D is professionally qualified, they are held to a higher standard than the person on the Clapham omnibus 1. **Facts**: D was an anaesthetist who failed to notice for six minutes that a tube that supplied oxygen to his patient had become disconnected from the ventilator. V died. D was convicted of gross negligence manslaughter. 2. **Issue**: Whether D's conduct amounted to gross negligence. 3. **Held**: D was convicted of gross negligence manslaughter. 4. **Reasoning per Lord Mackay**: a. **Principle**: The 'ordinary principles of the law of negligence apply'. b. **On the facts**: The question is 'whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission\... ### *Evans* \[2009\] EWCA Crim 650, \[2009\] Crim. L.R. 661 -- in cases of gross negligence manslaughter, where D creates or contributes to a life-threatening situation, a duty arises to take reasonable steps to save V's life 1. **Facts**: D gave her half-sister, V, heroin; D recognised that V had overdose symptoms; D and her mother did not call for medical assistance as they feared getting into trouble; they checked on V throughout the evening; in the morning, V was dead. 2. **Issue**: Whether supply of heroin created a duty of care between D and V. 3. **Held**: Appeal dismissed. 4. **Reasoning per Court of Appeal**: a. **Principle**: In cases of gross negligence manslaughter, if an individual caused or contributed to creating a life-threatening situation; a consequent duty would normally arise to take reasonable steps to save the person's life. b. **On the facts**: Evans created such a situation by providing the heroin to her half-sister and had not taken subsequent steps to negate the danger created. ### *Honey Rose* \[2017\] EWCA Crim 1168 -- to establish gross negligence manslaughter, a serious risk of death must be reasonably foreseeable without considering the information which D should have had available had they not breached their duty; set out five elements of gross negligence manslaughter 1. **Facts**: D, an optometrist, performed a routine eye exam, determining that V did not need glasses. Five months later, V fell extremely ill and died. V's cause of death was recognisable by any competent optometrist at the time of D's eye-test through a specific examination. All optometrists had a statutory duty to perform such an examination during routine eye-tests. D had performed the examination at the time, but when looking at the tests, she accidentally viewed the images from the previous year. 2. **Issue**: Whether D should be convicted of gross negligence manslaughter. 3. **Held**: D was acquitted of gross negligence manslaughter. There was no serious and obvious risk of death *at the point of breach*. 4. **Reasoning per Sir Brian Levenson P**: a. **Principle**: 'What a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent's eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed\... The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death.' b. **On the facts**: 'This is not enough to found a case of gross negligence manslaughter since there must be a 'serious and obvious risk of death' at the time of breach.' 5. **Karl Laird**: 'The less specialist D's activity, then the more likely they will be guilty'; 'the optometrist who carries out an examination of the internal eye but fails to perceive the obvious symptoms of hydrocephalus may be guilty, but the optometrist who fails even to attempt an examination of the internal eye will not commit the offence'. (Herring) ### *Winterton* \[2018\] EWCA Crim 2435 -- confirmed the principle in Honey Rose (above) 1. **Facts**: D was the site manager of a construction site where a worker, V, died after falling into an unprotected trench. The trench had not been made safe despite known risks of collapse. D was charged with gross negligence manslaughter as the trench was left open and inadequately managed under his supervision. 2. **Issue**: Whether D's conduct was sufficiently grossly negligent to amount to gross negligence manslaughter. 3. **Held**: Conviction upheld. 4. **Reasoning per Court of Appeal**: D, as the site manager, failed to implement or enforce safety measures for the trench despite being aware of its risks. V's death was directly caused by the unsafe condition of the trench. D's conduct demonstrated a flagrant disregard for life. His inaction in the face of obvious risks constituted a gross deviation from expected standards, meeting the threshold for criminal liability. #### (b) Constructive manslaughter (unlawful act manslaughter) - To be guilty of **constructive manslaughter**, D must be proved to have performed an act which: - \(1) Was unlawful; - \(2) Was dangerous; and - \(3) Caused the death of the victim. - The term **'constructive manslaughter'** indicates that the crime is **constructed from liability for a lesser crime**. It is based on the theory that if a person kills while committing a crime, then they deserve to be guilty of manslaughter. This type of manslaughter may also be known as **'unlawful act manslaughter'**. - In [*Attorney-General\'s Reference (No.3 of 1994)*](#attorney-generals-reference-no.3-of-1994-1997-3-w.l.r.-421), Lord Hope indicates that for constructive manslaughter, D must commit an unlawful and dangerous act, and it must be that act which caused V's death. - **An unlawful act** -- D must have the *actus reus* and *mens rea* but no defence. It does not need to be shown that D intended or foresaw death or even injury to V. The only *mens rea* required is for the unlawful act. - **Dangerous act** -- The act must constitute a risk of some *physical* injury. In *Carey*, it was suggested that shock could be included within the concept of physical harm. In *Johnson*, it was held that spitting at and insulting an apparently healthy victim could not be regarded as dangerous, even if they in fact led to a cardiac arrest and death. The spitting was not 'likely' to cause harm, even though it in fact caused death. Dangerousness must be judged objectively. - **Causation** -- The normal rules of causation apply; it does not matter if the act was directed at someone else. [*Attorney-General's Reference (No.3 of 1994)*](#attorney-generals-reference-no.3-of-1994-1997-3-w.l.r.-421) [\**Kennedy* (2007) UKHL 38](#kennedy-no.-2-2007-ukhl-38-discussed-in-miles-2008-clj-18-a-voluntary-and-informed-choice-by-v-breaks-the-chain-of-causation-the-unlawful-act-must-cause-vs-death-established-in-carey-2006) ### \**Church* \[1966\] 1 QB 59 -- established the *Church* test: for D to be guilty of unlawful act manslaughter, the unlawful act must be objectively dangerous; emphasised the *Thabo Meli* principle that AR and MR can coincide as part of a continuous sequence of events 1. **Facts**: D knocked V unconscious during a fight. D dumped V's body in a river, thinking she was already dead. It was found that V died from drowning. The judge directed the jury to consider the 'whole course of conduct of the accused as one'. 2. **Issue**: Whether the *mens rea* and the *actus reus* need to exactly coincide. 3. **Held**: D's conviction for manslaughter was upheld. 4. **Reasoning per Edmund Davies J**: a. **Principle**: Following [*Meli*](#thabo-meli-1954-1-wlr-228-it-is-sufficient-to-show-that-d-acted-with-the-requisite-mens-rea-at-some-point-during-a-chain-of-events), D was convicted. Davies cites Glanville Williams: 'If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter'. To establish manslaughter, 'the unlawful act must be such as all sober and reasonable people would inevitably recognise it as an act which must subject the other person to at least the risk of some harm resulting therefrom, albeit not serious harm'. b. **On the facts**: ### \**Lamb* \[1967\] 2 QB 981 -- in constructive manslaughter, the unlawful act must constitute an offence on its own, thus its corresponding mens rea must be present; a reasonable mistake can vitiate intent 1. **Facts**: D, 'in jest and with no intention to harm' pointed at his friend, V, with a revolver. D pulled the trigger, without intending to fire the revolver, and killed V. D was charged with manslaughter. At trial, expert witnesses agreed that such a mistake was commonly made. 2. **Issue**: Whether the fact that the killing was an accident amounts to a defence. 3. **Held**: D\'s conviction was quashed -- the intent for assault had not been proved. 4. **Reasoning per Sachs LJ**: a. **Principle**: Intent for assault must be proved. b. **On the facts**: In this case, intent was not present due to D's mistake. ### \**DPP v Newbury and Jones* \[1977\] AC 500 -- in constructive manslaughter, the test for whether the unlawful act would likely cause harm is objective 1. **Facts**: Ds, two 15-year-old boys, pushed part of a paving stone into the path of an oncoming train. It went through the glass window of the driving cab and killed the railway guard, V. Ds were convicted of constructive manslaughter. 2. **Issue**: Whether Ds can be convicted of constructive manslaughter even though they did not foresee that their act may cause harm to another. 3. **Held**: Ds were convicted. It is unnecessary to prove foresight for constructive manslaughter. 4. **Reasoning per Lord Salmon**: a. **Principle**: 'An accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death'. It is unnecessary to prove that the accused knew that the act was unlawful or dangerous. b. **On the facts**: 'The test is still the objective test. In judging whether the act was dangerous the test is not 'did the accused recognise that it was dangerous' but "would all sober and reasonable people recognise its danger".' Ds both should have recognised the danger. ### Dawson (1985) 81 Cr App R 150, \[1985\] Crim LR 383 -- in constructive manslaughter, physical harm must be foreseeable to a sober and reasonable person with the same knowledge as D; the harm V is subjected to must be physical harm -- 'emotional disturbance' is insufficient 1. **Facts**: Ds robbed a petrol station with a replica gun and threatened a 60-year-old man, V. V later died of a heart attack from the shock. Ds did not know of V's heart condition. Ds were initially convicted with constructive manslaughter. 2. **Issue**: Whether the test of Ds knowing that their unlawful act is likely to cause harm is relative to sober and reaso

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