Criminal Law Notes PDF

**Criminal Unit Notes:** **Chapter 1:** **What is a crime:** A crime is committed against society: a public wrong deserving of punishment rather than an act which could be compensated with money under the civil law -- can be an overlap between those situations that amount to a criminal offence an...

**Criminal Unit Notes:** **Chapter 1:** **What is a crime:** A crime is committed against society: a public wrong deserving of punishment rather than an act which could be compensated with money under the civil law -- can be an overlap between those situations that amount to a criminal offence and those which are dealt with by the civil courts. - For example: a person could face criminal prosecution for assault, but the victim could also bring a civil claim for compensation for the injuries they suffered. Criminal proceedings initiated by a public official, often the Crown Prosecution Service (CPS). Upon charges, the case proceeds to trial even if the victim does not want it to go any further. If the defendant pleads not guilty, there will be a trial and a final verdict -- this results in criminal sanctions, designed to meet requirements: - To punish offenders - To reduce crime (deterrence) - To reform and rehabilitate offenders - To protect the public - To allow offender to make reparations to persons affected by their offence Sanctions imposed: - Imprisonment - Community sentences -- completing unpaid work - And fines (paid to the court) **Why Criminalise Certain Behaviour:** - **The main goal of criminalisation is protection of society, namely that people will be deterred from behaving in a way that is unacceptable and potentially dangerous to others if they know they will be punished.** - To punish those who have caused harm or loss to either people or property (murder and theft). - Reaction to public opinion -- increased legislation on possession of knives - Conduct may also be decriminalised as a result of more enlightened public attitudes -- lowering the age of consent for homosexual persons. The law reflects opinions and beliefs of society generally -- and a person found guilty will be imprisoned and removed from society, lesser forms of punishment, rehabilitation HOWEVER -- some offences do not achieve any goals of criminalisation. Example: driver who commits a speeding offence by exceeding 30 mph speed. The punishment is often minor, and it is arguable whether the driver is rehabilitated and does not prevent similar crimes. Yet, main object is to protect the public from dangerous drivers. - **The Moralist Approach:** Seeks to criminalise conduct that is regarded morally blameworthy, even if no harm is caused. Example: the moralist approach approves of the criminal liability that attaches to being found drunk and disorderly contrary to s 91(1) of the Criminal Justice Act 1967, and of the offence contrary to s 9 of the Sexual Offences Act 2003 committed when a boy (aged just 18) has sexual intercourse with his consenting girlfriend aged 15 years and 11 months. The approach may be criticised as an invasion of privacy. Indeed, in a leading report on the criminalisation of homosexual activity, the Wolfenden Committee on Homosexual Offences and Prostitution of 1957 commented that: It is not \... the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary. - **The Utilitarian Approach:** The Wolfenden Committee also highlighted that the purpose of the criminal law was: \... to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are particularly vulnerable. Seeks to criminalise conduct that in addition to being blameworthy, also causes identifiable harm: - Murder - Assault - Theft - Criminal damage - Harm inflicted to person or property If the moralist approach is followed, there is no need for specific harm to be identified. AUTHORITY: v Brown \[1994\] 1 AC 212 which concerns the defence of consent to assault. The majority of the judges, represented by the judgment of Lord Templeman, adopt a moralist stance; whilst the minority view as expressed by Lord Mustill reflects the utilitarian approach. **The Rule of Law:** - **Clear laws**: People can only be punished for actions that are clearly defined as crimes by law. If a law is unclear, the benefit of the doubt goes to the defendant. - **No punishment for past actions**: You can\'t be punished for something that was legal when you did it, even if it becomes illegal later (no retrospective laws). - **Fair trials**: Before being punished, the defendant must go through a fair trial, following legal procedures. - **Limits on penalties**: Punishments must be within the boundaries set by law and cannot be excessive. **The Classification of Offences:** Some criminal trials are before a judge and jury in the Crown Court and others take place in the Magistrates -- all criminal cases begin in the Magistrates -- the final venue depends on the type of crime. All criminal cases are classified as summary only, either-way or indictable only offences and this is primarily governed by s 17 of the Magistrates' Courts Act 1980. - **Summary Only Offences:** Regarded as less serious crimes and must be tried in the magistrates court. - Motoring offences - Threatening to inflict violence - Causing criminal damages to property up £5000 In the magistrates' court, cases are usually heard by three lay magistrates who are not required to have any legal qualifications. They rely on their legal adviser to advise them on points of law. Alternatively, the matter could be dealt with by a district judge (magistrates' court) who is a qualified solicitor or barrister. - **Either-Way Offences:** Middle range offences which can be tried in magistrates or Crown Court. - Theft - Dangerous driving - Burglary - Certain types of assault The final venue for the trial of either-way offences is laid down by ss 18--22 of the Magistrates' Court Act 1980 (as amended) -- if the defendant pleads not guilty, the venue will depend on if the magistrates court is prepared to deal with the case -- decide if they can cope with the legal and factual complexities of the case, and given the seriousness, their sentencing powers are adequate -- MAXIMUM IS 6 MONTHS If magistrates decide not capable -- the defendant will be told their trial will take place in the Crown Court Example: if magistrates conclude the punishment for theft is 12 months' imprisonment, they must decline jurisdiction and send case to Crown Court. If magistrates decide they are capable -- adequate sentencing powers -- of dealing with the case, the defendant has final decision on where the trial is held -- magistrates or crown court -- typically pick crown courts trials due to jury being more sympathetic. - **Indictable Only Offences:** Most serious crimes. - Murder - Rape - Robbery Must be tried in the Crown Court before a judge and jury. **Burden and Standard of Proof:** Defendant's guilt is determined by magistrates or a jury who assess evidence before them. Before conviction, there must be proof that the accused committed the crime with the required guilty mind. - **Legal Burden of Proof:** The burden of proving a defendant guilty of an offence is on the prosecution -- extends to proving the guilty conduct and necessary state of mind required to establish a criminal offence/disproving any defences -- AUTHORITY: Woolmington v DPP \[1935\] AC 462 -- defendant charged with murder for shooting his wife -- The House of Lords stated Viscount Sankey LC it was prosecution to prove that the defendant has intend to kill his wife (serious harm) not for the defendant to prove it was accident. Some situations where defendant does have to prove a defence -- at common law defendant must prove defence of insanity if they wish to rely upon it to evade criminal liability. Some statutory defences such as if the defendant wants to rely on diminished responsibility to the offence or murder, the burden of proof is on the defence to rpove innocence. - **Standard of Proof:** In criminal cases, the prosecution must prove the defendant\'s guilt beyond reasonable doubt. If the court has any reasonable doubt after hearing all the evidence, the defendant must be acquitted, as the prosecution has not fulfilled its burden of proof. If the defendant must prove a defence, they need only do so on the balance of probabilities, meaning it is more likely than not that the defence exists. - **Evidential Burden:** Although defence rarely has a burden of proof to discharge -- the defendant will often have an evidential burden imposed on them -- the defence must raise some evidence of a fact in issue to convince the court that the matter deserves consideration -- thereafter prosecution must disprove the issue beyond all reasonable doubt = self defense. Example: The Crown has evidence that Ellen hit Oksana causing Oksana to suffer a black eye, and has decided to charge Ellen under s 47 of the Offences Against the Person Act 1861 (assault occasioning actual bodily harm). The prosecution must prove the following elements beyond reasonable doubt: \(a) That Ellen hit Oksana. \(b) That Oksana suffered an injury. \(c) That Ellen had the necessary state of mind to be guilty of the offence (for example, that she intended to hit Oksana or was reckless in hitting her). In the witness box, Ellen claims that she only hit Oksana because Oksana had threatened Ellen and was about to slap her. Ellen is raising the issue of self-defence. By saying this in evidence, Ellen has satisfied the evidential burden placed upon her, so now it is up to the prosecution to show, beyond reasonable doubt, that the self-defence argument is not valid. **Criminal Appeals:** Routes of appeal in criminal cases: - If (on appeal against a conviction by a jury) the Court of Appeal holds that the judge's direction contained an error of law, the appeal must normally be allowed and the conviction quashed. - - \(b)  However, the appeal can be dismissed and the conviction upheld if the Court of Appeal is certain that the conviction is safe because the only possible verdict that a properly directed reasonable jury could have reached would have been one of 'guilty'. In other words, even if there has been an error, the conviction can still be upheld if the Court of Appeal applies what is known as the 'proviso'. - - \(c)  If a conviction is quashed there is a general power to order a retrial in such circumstances. - - \(d)  The Crown cannot appeal against a jury's verdict of not guilty, but the Attorney-General can make a reference to the Court of Appeal to settle (clarify) a point of law for the future. These cases are cited as Attorney-General's Reference (No 1 of 1999), for example. However, whatever happens on such a reference, the defendant remains acquitted. - \(e)  Either side can appeal to the High Court (King's Bench Division) on a point of law against a decision by magistrates. It is important to note here that if the magistrates acquit the defendant and the prosecution refers the matter on a point of law to the High Court, it can result in the reversal of the magistrates' decision (unlike Crown Court acquittals). - - \(f)  A defendant can appeal against their sentence. If the sentence is imposed by a magistrates' court, the appeal lies to the Crown Court; but if the sentence is imposed following a jury trial (Crown Court), the appeal is to the Court of Appeal. Unlike a defendant's appeal to the Crown Court against sentence, if the defendant appeals to the Court of Appeal against sentence, the sentence will either be confirmed or reduced; it cannot be increased. - - \(g)  Following a Crown Court trial, the prosecution has no right of appeal against sentence but can ask the Attorney-General to refer the sentence to the Court of Appeal if it is considered that the sentence is 'unduly lenient'. **Criminal Cases Review Commission:** CCRC -- an independent body established by s 11 of the Criminal Appeals Act 1995 -- role is to enquire into a case and possibly refer it to the Appeal Courts. If accused was convicted following Crown Court trial and al appeals refused -- defendant can ask CCRC to investigate the case. If the CCRC decides the conviction may be unsafe, it can refer the matter back to the Court of Appeal for re-consideration, and that Court has exactly the same powers as it would have on appeal by the defendant. CCRC involved in miscarriages of justice and instrumental in quashing of many convictions -- Derek Bentley/Sally Clarke. **Proposals of Reform:** **Role of Law Commission**: The Law Commission regularly suggests reforms to address problematic areas of criminal law. Examples include proposals on **fraud** and **corporate manslaughter**, leading to the **Fraud Act 2006** and the **Corporate Manslaughter and Corporate Homicide Act 2007**. **Homicide Law**: The Law Commission has proposed reforms regarding **homicide** (murder and manslaughter), which we will study further. Many of these proposals have not yet been enacted but are important for understanding the current legal framework and its challenges. **[\ ]** **[Chapter 2]** **[General Principles -- Actus Reus:]** Actus non facit reum nisi mens sit rea -- AUTHORITY: Lord Hailsham, as stated in the case of Haughton v Smith \[1975\] AC 476, this means 'an act does not make a man guilty of a crime, unless his mind be also guilty'. Consequently, there are usually three key components required for a conviction: - Guilty conduct by defendant (actus reus) - Guilty state of mind of the defendant (mens rea) -- intention - Absence of any valid defence -- self-defence would be valid **General Principles of Actus Reus:** Differs in every offence and can be found in statue or in case law -- anything referred to in the definition of an offence, other than the state of mind or reference to possible defence. Examples: \(1)  The offence of criminal damage is established under s 1(1) of the Criminal Damage Act 1971: A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. The actus reus of the offence of criminal damage is therefore: a. the destruction or damage of property, b. which belongs to someone other than the defendant. The references in the definition to 'intention' and 'recklessness' relate to the defendant's state of mind at the time of the offence and are not therefore part\ of the actus reus; instead they are the mens rea (state of mind) requirements which are discussed in the next chapter. The statute also includes the phrase 'without lawful excuse' and this is a reference to a defence to the crime of criminal damage. \(2)  The offence of murder is established at common law. The modern definition is as follows: The unlawful killing of a human being under the Queens peace with malice aforethought \[the intention to kill or to cause really serious bodily harm\]. The actus reus of the crime of murder is the killing of a human being. The reference to 'malice aforethought' is concerned with the defendant's state of mind at the\ time of the killing and is therefore the mens rea. In addition, the use of the word 'unlawful' within the definition means essentially 'without a defence'. **Types of Crimes:** Criminal liability requires a positive act by defendant -- defendant must do something. HOWEVER -- in some cases the actus reus of an offence can be established providing that the defendant failed to act, or just by proving that a state of affairs existed. Actus reus of an offence can require additional circumstances and or consequences to follow from the defendants actions. EXAMPLE: the offence of criminal damages not only requires defendant to do something (destroy or damage property) but the circumstance of the property belonging to someone else must exist. Actus reus can consist of: - an act/failure to act by defendant - the existence of certain circumstances at the time of conduct - certain consequences that follow the conduct to determine the above, statues, case law, relevant legislation and judgement of the court should be consulted. - **Conduct Crimes:** Involves an act -- can include omissions to act. To be criminally liable the defendant must act in a certain way -- 'pure' conduct crime -- defendants behaviour that is criminalised rather than the result. Only the forbidden conduct needs to be proved. EXAMPLE: dangerous driving, no requirement to prove harmful consequences or injury. - **Result Crimes:** A crime that causes a specific consequence. Conduct itself is not enough, certain consequences must follow from the behaviour before the actus reus of the offence is established. EXAMPLE: murder -- the persons death must be a consequence of the act. If these elements of causation cant be proved, then the actus reus itself is not proved. HOWEVER -- there is overlap between conduct and result crimes. EXAMPLE -- an assault with bodily harm requires conduct -- a punch -- but also a result -- harm to the victim. Rape -- conduct crime: penile penetration, yet a circumstance of no consent must be proved. - **State of Affairs Crimes:** Do not require conduct -- the actus reus is satisfied by existence of a statute of affairs/circumstance. The effect is that the defendant may be liable despite having no control of the situation. EXAMPLE -- being present in a prohibited area. AUTHORUTY: R v Larsonneur (1933) 97 JP 206 -- a French citizen deported from Ireland to England against her will -- convicted of illegally being in the UK despite it was against her will. EXAMPLE: Naomi is at a local bar, celebrating the start of the weekend. Because she is driving home, she only drinks orange juice but, unknown to Naomi, one of her colleagues adds vodka to her drink. At the end of the evening, Naomi gets into her car, which is parked on the road outside, but is so affected by the alcohol that she cannot even get the key into the ignition. She is approached by a police officer, breathalysed and found to be above the legal limit for driving. Although Naomi has done nothing except sit in her car, she is guilty of an offence under s 4(2) of the Road Traffic Act 1988, which makes it a crime to be in charge of a motor vehicle on a road or other public place while unfit to drive through drink or drugs. This is because the actus reus is complete as soon as Naomi gets into the car, as s 4(2) is a state of affairs offence. The justification for such offences is public policy; it is regarded as more important to\ prevent drunken or drugged motorists from driving than being concerned with unfairness to a particular individual. Such offences are, however, the exception rather than the rule. They are known as offences of absolute liability and are very unusual. In summary, therefore, it is essential to check the definition of an offence to identify all the elements of the actus reus. These could include conduct by the defendant, the existence of certain circumstances and/or certain results occurring, or even in rare cases that a state of affairs existed at the time of the offence. **Liability for Omissions: ** **** In most cases, defendant must take positive steps to commit a crime. HOWEVER -- can establish the actus reus of a criminal offence where the defendant failed to so something: **criminally liable for a failure or omission to act**. EXAMPLE -- road traffic situations including failing to stop at a red light or after an accident. **General Rule:** No general duty recognised by criminal law stating a person to intervene and help someone in trouble -- exceptions and principles apply which allow defendant to be found criminally liable for their omissions: - **Special Relations:** Where there is a special relationship between defendant and victim, the defendant can incur criminal liability for failing to act -- AUTHORITY: R v Gibbins and Proctor (1918) 13 Cr App R 134 -- defendants convicted of murdering 7-year-old child by starvation. Gibbins, child's father -- as a parent he had a duty of care which he had failed to maintain therefore committed the actus reus of murder. Proctor -- not the mother of the child but was also convicted of murder due ot her failure ot provide food -- she had assumed a duty towards the child by choosing to live with the father and by receiving house-keeping money from him. Therefore a relationship was established, thus actus reus of murder. - **Voluntary Assumption of Care:** When a person voluntarily undertakes care for another who cannot care for themselves -- could be due to infancy, mental illness or physical disability -- AUTHORITY: R v Stone and Dobinson \[1977\] QB 354 -- the two defendants assumed care for Stone's sister Fanny who was eccentric and anorexic. Her condition detreated and she was bed ridden resulting in her death of blood poisoning from bed soars as she was not properly cared for. Defendants charged with manslaughter as they failed proper steps under their duty of care. Duty applied because: Fanny was a blood relative to Stone, yet both assumed a duty of care to look after her when they accepted her into their home -- made some example to care by providing food **YET** their failure to seek medical help resulting in conviction of manslaughter. The judgment of Lane LJ suggests that the defendants in Stone and Dobinson might have escaped liability if they had done nothing at all to help Fanny. There appears to be no general liability towards one's relatives or persons staying at your home: it was the assumption of a duty towards Fanny by both defendants arising out of their ineffectual attempts to care for her that led to criminal liability. **Cross-over between special relationships and voluntary assumptions of care:** The scope of special relationships that may impose a duty to act remains unclear, except for the well-established duty of parents to care for their minor children. In other cases, a special relationship may arise if one assumes responsibility for the victim, such as by accepting payment or offering accommodation to care for someone, or perhaps by inviting someone who cannot care for themselves to live as part of one\'s family. AUTHORITY: **R v Ruffell \[2003\]**, the defendant was convicted of manslaughter after failing to properly care for a friend who had taken drugs. The defendant had initially tried to revive the friend, but when those efforts failed, his failure to take further action resulted in his conviction. **R v Smith \[1979\]** -- the defendant\'s wife refused medical attention after giving birth to a stillborn child, and he respected her wishes. When she later changed her mind and he sought medical help, it was too late to save her. The trial judge instructed the jury to consider whether the wife was capable of making rational decisions about her care. If so, the defendant might have been released from his duty to act. If she was too ill to make such decisions, the duty to act might remain. In this case, the jury was unable to reach a decision, and the defendant was acquitted. - **Judge: if the victim is capable of deciding their own fate, the defendant could be released from any duty to act established by the common law.** Additionally, **Smith** suggests that a special relationship might exist between husband and wife, though this has not been conclusively ruled upon by higher courts since the case was a first-instance decision. Airedale NHS Trust v Bland \[1993\] -- doctors decided that due to no quality of life and vegetative state, override their duty of care to sustain his life due to feeling it was not in the best interest of the patient -- by ending artificial sustaining of his life. The court accepted this evidence and granted permission to discontinue treatment. The decision is important because: - The House of Lords (now the Supreme Court) confirmed that doctors should seek court permission before withdrawal of life-sustaining treatment such as artificial feeding, although in Frenchay Healthcare NHS Trust v S \[1994\] 2 All ER 403, the Court of Appeal accepted that there may be emergency situations where prior approval is impracticable. - The judges in Bland also confirmed that if a patient has refused life-saving treatment, for example for religious reasons, not only is a doctor released from their duty to act but they would be committing a criminal offence of assault if they did. This view would seem to endorse that of the trial judge in R v Smith above. - Lastly, it is clear from **Bland that the court was only concerned with omissions to act**; there is still no legal right for a doctor to take positive steps for the purpose of ending a patient's life, for example by deliberately administering an overdose of medication to a terminally ill person. - **A Contractual Duty to Act:** If a contract of employed specifies a certain obligation to act, a failure to do so can lead to criminal liability -- contracts of medical staff and lifeguards. AUTHORITY for failure to act under contractual duty: R v Pittwood (1902) 19 TLR 37 -- failure to close gate on a railway for public passing resulted in a person's death. The defendant was convicted of man slaughter -- he was contractually obligated to act to protect members of the public and therefore liable in criminal law for failure to act -- in this case the consequence of fialing to act. Modern society -- careers/health care staff contractually bound to act and could be liable for homicide if they fail to take steps to prevent those in their care suffering harm. - **Creation of a Dangerous Situation:** If the defendant does something the endangers the victim, and are aware of it, they are under a duty to take reasonable steps to prevent the harm from accruing. AUTHORTY: R v Miller \[1983\] 1 All ER 978 -- defendant was a squatter who lay on a mattress, he began to smoke a cigarette and fell asleep. He woke up to find the cigarette was on the mattress smouldering but he did not take the steps to remedy the situation, he left it and the house caught fire -- he was charge with causing criminal damage to property: - He has created a dangerous situation and having realised he had done so, he was under a duty to take reasonable steps to prevent damage: such steps are dependent on the circumstances of the case -- how large the fire was. **A Statuary Duty to Act:** When legislative provisions impose a duty for an individual to act in a certain way, given the set of circumstances. When a statute provides failure to act in accordance with the addressed provisions will result in criminal liability. Example: parents must care for their child under the Children Act 1989 and care drivers must stop after being involved in an accident Road Traffic Act 1988, s 170. **Differences between statutory and other duties to act:** Failing to act when required to do so under a statutory provision will usually lead to prosecution for the omission itself, for example, failing to stop at a red light -- the penalties will reflect this. Failing to act when there is a duty to do so imposed by contract or by a special relationship -- result in criminal prosecution for the **consequences of that omission**. For example, if the consequence is death -- conviction of murder or manslaughter and imprisonment. **Voluntary Acts:** Where for the actus reus to be established requires conduct, either by act or omission, liability will only accrue where conduct is willed -- must be voluntary and not a reflex or an action which they have no control. The court in case Hill v Baxter \[1958\] 1 QB 277 -- gives example someone being swarmed by bees whilst driving -- they would not of committed the actus reus of the offence of careless driving. **Alleged involuntary conduct -- advised to plead defence of automatism.** Can only be argued if the defendant is blameless. Defendants actions may be involuntary -- but can be argued to be partly to blame: example -- health worker falling asleep whilst driving tired after nightshift. **[Causation]: - an element of actus reus** Causation applies to **result crimes** -- to establish actus reus, prosecution must demonstrate that the act or omission **caused the consequence**. **FACTUALLY AND LEGALLY** Examples \- Daria stabbed Vera (conduct) leading to Vera's death (result). \- Deshi failed to seek medical help for his daughter (omission) so that the child died (result). In both examples, defendant cause the death -- however now always clear. Two tests to determine causation: - **Factual Causation:** The process of establishing whether a specific action or event directly caused a particular outcome or consequence -- the defendant cannot be considered the cause of an event if the event would have occurred in precisely the same way without the defendants act or omission: did the defendant **AS A MATTER OF FACT, CAUSE THE VICTIMES DEATH** -- *"But for the defendants conduct, would the victims death have occurred in the way it did?":* - If the answer is **NO** -- factual causation will be established - If the answer is **YES** or **MAYBE** -- for example other causes of death, other matters will need to be considered before causation can be proved. AUTHORITY: R v White \[1910\] 2 KB 124 -- Defendant poisoned mothers drink, intending to kill her -- she suffered a fatal heart attack after drinking a small amount and medical evidence concluded she died of a heart failure, unconnected to the drink -- the defendants actions did not contribute to the death, so he was NOT LIABLE for causing it -- attempted murder as opposed to murder. For factual causation to be established the defendants act or omission must accelerate the death -- acceleration of death must be 'significant' -- AUTHORITY: R v Cheshire \[1991\] 3 All ER 670, the Court of Appeal confirmed that 'significant' here simply meant 'more than negligible'. This is for the jury to decide as a question of fact, but a day or two can be sufficient to establish factual causation. **Smith and Hogan (Criminal Law, 14th edn)** **example of what would be 'negligible' acceleration: D and V are roped together mountaineers. V has fallen over a one thousand foot precipice and is dragging D slowly after him. D cuts the rope and V falls to his death five seconds quicker than both V and D would have fallen. Any acceleration of death is killing but factors that produce a very trivial acceleration may be ignored. D's act is not a sufficiently substantive cause of V's death.** The test of factual causation provides assistance in deciding fate of defendant -- HOWEVER, not a limited value -- if only factual causation had to be demonstrated it would mean those who have a very tenuous connection to the victims fate would be liable. Legal causation needed as factual causation is too broad. - Example: asking a friend to go shopping, yet on the way they are stabbed and killed. If all what was need is factual causation, you would be to blame for your friends death -- "but for" you asking your friend to go, they would not have died. - **Legal Causation:** The process of establishing that the defendant (defendants conduct) was the **LEGAL** cause of the crime/death.  Legal causation is a combination of different rules -- not all relevant to every situation: - **The consequence must be attributable to a culpable act or omission:** This means that legal causation will only be established is the result was due to the defendants illegal actions -- AUTHORITY: R v Dalloway (1847) 2 Cox CC 273 -- defendant negligently driving a horse and cart without holding the reigns when a child ran out in front of it and was killed. The jury directed that to convict for manslaughter only if they were satisfied that holding the reins would have saved the child -- jury acquitted. Even though there **WAS A CULPABLE ACT** it did not cause the child's death which was unavoidable. - **The culpable act must be a more than minimal cause of the consequence:** This means the prosecution must prove that the accused's act/contribution to the consequence of the victim is more than trivial or minimal -- legal causation only established if their conduct was the "operating and substantial cause" -- AUTHORITY: R v Smith \[1959\] 2 QB 35 and R v \'and Steel \[1981\] 2 All ER 422 -- Lord Lane in Malcherek: Where a defendant injures a victim that requires them to be placed on life support, the defendant will continue to be the operating cause of death, the withdrawal of life-sustaining treatment (given the medical treatment given was considered normal and in line with approved medical practice) does not break the chain of causation between the initial injury and the death -- does not break the chain of causation. - **The culpable act need not be the sole cause:** There may be multiple causes of the particular result and it does not matter that the defendant's act was just one of these. AUTHORITY: R v Benge (1865) 4 F & F 504 -- the defendant was a foreman of a track-laying crew and, as a result of misreading the train timetable, the track was up at a time when a train was due. The resulting accident caused death. Although the signalman and train driver were also at fault, the defendant could not rely on this to avoid liability. More recently: R v Pagett (1983) 76 Cr App R 279 -- defendant held his girlfriend hostage and then used her as a human shield when the police fired back at him. He was found guilty of manslaughter and the Court of Appeal commented that: \... in law, the defendant's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act (or omission) contributed significantly to that result. - **Taking the victim as the defendant finds them:** If the victim has unusual physical or mental state or belief which contributes to their death, although unforeseen by the defendant, they will have to answer for the consequences of such. If a defendant happens to choose a frail victim, or one with firm beliefs on medical treatment which lead to the refusal of such treatment, that is their bad luck. AUTHORITY: R v Blaue \[1975\] 1 WLR 1411 -- defendant stabbed a woman who refuses a blood transfusion because of religious beliefs. The victim died of the injuries inflicted by defendant although could have been saved medically. The defendant still said to have caused the death and convicted of manslaughter. Lawton LJ: \... those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man \... \... The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. R v Watson \[1989\] 2 All ER 865 -- The defendants had thrown a brick through the window of the home of an 87-year-old man who suffered from a serious heart condition. When the man awoke to find the defendants in his home, they verbally abused him and he died 90 minutes later of a heart attack. The defendants were convicted of manslaughter. On appeal, the Court of Appeal (although allowing the appeal on a different ground) confirmed that, if the jury were properly directed, it was open to them to decide that the defendants had caused the victim's death. - Referred to as the **"eggshell skull rule"** **The Chain of Causation Must Not Be Broken:** - novus actus interveniens -- 'a new and intervening act'. Some defendants argue that the link between their act and the result (usually death) has been broken by an intervening act or event -- which would break the chain of causation -- meaning the defendant will not be the cause of the result and void of liability. For the jury to decide as a matter of common sense, but guidelines set by the Appeal Court assist decision making: - where the **victim acts** in a particular way - when an act by some **other person intervenes** between the defendants conduct and the end result - where some **event** occurs between the defendants conduct and the end result The argument that the chain of causation HAS been broken will not succeed if the court decides: - that despite the intervening event the injuries inflicted by the defendant were still a substantial cause of death/result - if the intervening event was foreseen or foreseeable -- was it reasonable to suggest the defendant or a reasonable person would have foreseen occurrence of such event. - **Victim's Acts:** The rule states that if a victim\'s voluntary action occurs after the defendant\'s initial act but before the consequence (such as injury or death), legal causation may not be established. This happens when the victim\'s action is **\"free, deliberate, and informed**\" (i.e., voluntary). In such cases, the defendant may not be held responsible for the final consequence because the victim\'s action breaks the chain of causation. However, if the victim's act was not voluntary, the defendant could still be liable. - HOWEVER: whilst this principle is valid it is rarely used. EXAMPLE: if the victim decides not ot get medical help, the defendant still liable Two exceptions: - **Escape cases -- escape by victim:** Determines how foreseeable the victims escape was. AUTHORITY: R v Roberts (1971) 56 Cr App R 95 -- the victim jumped out of a moving car as a result of the defendants unwanted sexual advances -- the defendant was held liable for assault of actual bodily harm despite the injuries caused by the victims own conduct -- FRIGHT OR FLIGHT CASE: victims act not free, deliberate or informed (they are forced) so chain of causation NOT BROKEN. HOWEVER -- defendant not always liable for consequences of victim's escape -- AUTHORITY: Roberts, Stephenson -- LJ stated if the victim's act was 'so daft as to make it their own voluntary act' then chain of causation would be broken. When determining the issue of causation, the court will take into account: 1. \(a)  whether the escape is within the range of reasonable responses to be expected of a victim in that situation; 2. \(b)  if the victim's response is proportionate to the threat; or 3. \(c)  whether it is so 'daft' as to be a voluntary act; and 4. \(d)  the fact that the victim is acting in 'the agony of the moment' without time for thought or deliberation. - **Suicide:** Victims suicide may be covered by the principle that the defendant must have taken their victim as they find them -- HOWEVER: AUTHORITY: R v Wallace \[2018\] EWCA Crim 690 -- the defendant threw sulphuric acid upon their partner Mark Van Dongen whilst he was sleeping. His injuries were life changing -- full thickness burns, loss of sight, loss of leg, coma, and paralysis. He applied for euthanasia, and it was granted. The court of Appeal rejected that the act of doctors broke the chain of causation and that euthanasia was a free, deliberate and informed decision to count as an intervening event -- as under all the relevant facts and circumstances of the case, euthanasia fell into the range of response expected by the victim -- defendant found guilty of murder. HOWEVER -- in principle euthanasia does not necessarily break the chain of causation. - **Third Party Intervention** An act by a third party can qualify as an intervening event that breaks the chain of causation if it is a **VOLUNTARY ONE THAT CONTRIBUTES TO THE RESULT**. If successfully pleaded, the original defendant is not liable for the crime/death. EXAMPLE: an ambulance driver crashes their vehicle whilst driving the victim of a stabbing to hospital -- resulting in the victims death. General principle: - A defendant will not be liable if a third party's intervening act is either **FREE, DELIBERATE** **AND INFORMATED**, or is **NOT REASONABLY FORESEEABLE.** AUTHORITY: R v Pagett (1983) 76 Cr App R 279 -- defendant held his girlfriend hostage and then used her as a human shield when the police fired back at him. He was found guilty of manslaughter -- the victim's death was caused by the action of the police officer in firing at the defendant. Here, the officer's response was not free, deliberate and informed as he was acting instinctively in self-defence; and it was reasonably foreseeable in the circumstances because the defendant was shooting at the officer at the time. As a consequence, the police officer who shot the victim was absolved of all criminal liability. Furthermore, because his action did not break the chain of causation, the defendant, who used his girlfriend as a human shield, was found guilty of causing her death. - **Intervening Events:** When a natural event occurs to become the immediate cause of a victims result/death -- no direct binding authority but general view is that the some **'REASONABLE FORESEEABILITY'** test would apply. EXAMPLE: victim is shot in the legs and the defendant runs out the building, which is then demolished by an earthquake -- the defendant could argue that the chain of causation between their act and the death of the victim had been broken, because it was not **REASONABLY FORESEEABLE** for the earthquake to occur. The chain of events may also be broken by events other than natural ones, for example, where the victim is left in a house that is subsequently blown up in a gas explosion. - **Causation in cases of medical negligence:** There have been several cases in which defendants have argued that a victim has died not because of their actions, but because of negligent treatment by the medical profession. Effectively, the defendant is arguing that it was the poor medical treatment (intervention by a third party) that caused death and broke the chain of causation and thus the defendant should be absolved from liability. EXAMPLE: Josephina attacks Kirit who suffers an injury to his leg as a result of the attack. He is taken to hospital where a junior doctor wrongly gives Kirit a dose of antibiotics to which he is allergic. Kirit's medical notes clearly indicate that he suffers from this allergy,\ but the doctor fails to spot this. Kirit dies as a result of an allergic reaction to the medication. It is clear that Josephina satisfies the 'but for' test of factual causation: if she had not injured Kirit, he would not have been a patient at the hospital and would not have suffered the negligent medical treatment. Turning to legal causation, the question to consider is whether the chain of causation has been broken. Josephina will argue that the injury inflicted by her to Kirit's leg was not an operating and substantial cause of death. Furthermore, that it was not foreseen by her, nor reasonably foreseeable, that Kirit would receive negligent or bad medical treatment. She would therefore submit that the chain of causation between her initial act and the subsequent death of Kirit has been broken by the intervening event of the poor medical treatment. It is fair to say that, although some jurors might be persuaded by such an argument, equally, others would still want to hold Josephina criminally liable for Kirit's death. To avoid such an easy escape by defendant -- courts have developed a line of authorities to deal with such situations: - AUTHORITY: R v Jordan (1956) 40 Cr App R 152 -- victim died in hospital 8 days after being stabbed by defendant who was convicted of murder on the grounds he caused the death. HOWEVER -- there was evidence that the victim had been given poor medical treatment in hospital and that at the time of death, the original defendant caused wounds were largely healed -- on appeal the defendants conviction was **QUASHED** -- Court of Appeal help the medical treatment received was 'palpably wrong' and died as a result of poor care therefore not normal or treatment expected to treat the original injuries -- EXTREME EXAMPLE LIMITED TO THE FACTS. - - AUTHORITY: In R v Smith \[1959\] 2 QB 35, the victim died at an army medical centre shortly after being stabbed by the defendant. There was evidence that the medical treatment the victim received had been 'thoroughly bad' and might have affected the victim's chances of recovery. On appeal against a conviction for murder, the defendant argued that the trial court had not properly addressed the question of causation, specifically the defendant's claim that the medical treatment given had acted as an intervening event to break the chain of causation between the defendant's act and the subsequent death of the victim. The appeal was dismissed by the Courts-Martial Appeal Court (broadly speaking, the military equivalent of the Court of Appeal). In his judgment, Lord Parker CJ set out the following guidance in determining whether the defendant could be said to have caused the victim's death: \... if, at the time of death, the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death did not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. Defendant's conduct need not be the sole or main cause of death -- as long as it is a **substantial cause**, with 'substantial' simply meaning **'more than minimal'**. (SMITH CASE -- AUTHORITY) In medical treatment cases -- following Smith -- the defendant will find it difficult to argue a break in the chain of causation if the injury they inflicted is still operating at the time of death. As a result, even cases of quite serious medical negligence may not be enough to enable the defendant who inflicted the initial injury to escape liability. LEADING AUTHORITY: R v Cheshire \[1991\] 1 WLR 844 -- the defendant shot a man who underwent surgery, including a tracheotomy, as a result of the gunshot wounds. The victim died two months later due to scar tissue at the tracheotomy site obstructing his breathing. The defendant argued that he should not be responsible for the victim's death, as the negligent medical treatment broke the chain of causation. This issue was considered by the Court of Appeal and Beldam LJ: - When the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim's death to the exclusion of the defendant's acts \... - \... In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the defendant was the cause of death \... the defendant's acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is clear from the words of Beldam LJ that the Court of Appeal would be extremely reluctant to allow a defendant to escape liability because of poor medical treatment received by the victim except in the most exceptional cases. This applies whether the victim's death is due to positive (and wrong) action by doctors or by their inaction. The only point that can be made with certainty, therefore, is that the test established in Cheshire will be applied by the court where a question of causation falls to be determined in a medical case, and that the court will decide cases on the particular facts. Application of the rules of causation when the victim -- because of the defendant -- cannot receive medical treatment for a pre-existing condition, because of injuries: AUTHORITY: R v McKechnie \[1992\] Crim LR 194 -- Court of Appeal held that the defendant was guilty on manslaughter following his attack on a victim who -- due to the injuries sustained by the defendants conduct -- could not receive surgery for a duodenal ulcer which later burst, causing his death -- the chain of causation had not been broken as the decision to not operate was reasonable. Further follows the principle that defendants should 'take their victim as they find them'. **OVERVIEW:** In order to establish actus reus, prosecution must prove factual and legal causation. **[Chapter 3: ]** **[Mens Rea:]** Three components are required to establish liability for a criminal offence, namely, guilty conduct by the defendant (actus reus), **a guilty state of mind (mens rea)**, and absence of any valid defence. The defendant must be shown either to have **intended** something to happen, or to have been **reckless** as to whether certain circumstances would exist or whether certain consequences would follow from their conduct. Mens rea can typically be established from the formal definition of an offence. EXAMPLE -- the statutory definition of criminal damage makes it clear that prosecution must prove the defendant has a criminal state of mind of intention or recklessness before they can be convicted. **Intention:** Most culpable type of mens rea. As long as the defendant killed someone and intended to do so, or intended to cause really serious injury, they have the actus reus and mens rea of murder regardless of their reasons for acting in this way. In such a case, the defendant will be guilty of murder unless they have a defence. - **Direct Intention:** The defendant intended something to happen (or intended a particular circumstance to exist) -- their aim, purpose, goal or desire. Where the issue of intention is clear, the jury will be given no direction as to the meaning of intention -- AUTHORITY: R v Moloney \[1985\] 1 AC 905 (HL) -- Lord Bridge stated: the judge should avoid any elaboration on what is meant by intent and leave the matter to 'the jury's good sense'. - **Indirect Intention: (oblique)** Where the defendant argues that the outcome was not their main aim but an unfortunate by-product of what they did set out to achieve. Occur most frequently in murder cases - In murder cases, which cannot be committed recklessly, there has been frequent disagreement about what the accused **must foresee and how certain they must be of the consequences to be said to have \"intended\" them**. This issue of indirect or oblique intent has led to differing interpretations in various legal cases: 1. R v Moloney -- involved a defendant who accidentally shot his stepfather. The House of Lords stated that guidance on indirect intent was needed only in rare cases and suggested the jury ask whether **death or serious injury was a natural consequence of the defendant\'s act and whether the defendant foresaw this.** If so, intention could be inferred, but it was not required. 2. R v Hancock and Shankland \[1986\] 1 AC 455 (HL) -- two striking miners dropped a concrete block onto a taxi, killing the driver. They did not intend to harm or kill but to scare miners not striking. The House of Lords criticized followed the ruling in the *Moloney* case however on appeal decided the guidelines as misleading and **introduced the idea that probability must be considered, causing confusion about what constitutes a \"natural\" or \"probable\" consequence.** 3. *R v Nedrick* -- refined the test for indirect intent by asking if death or serious injury was **virtually certain** **to occur as a result of the defendant\'s actions, and if the defendant foresaw death or serious injury as a virtual certainty.** The jury could only infer intent if both questions were answered affirmatively, but they were not obligated to. 4. LEADING AUTHORITY: R v Woollin \[1999\] 1 AC 82 (HL) -- involved a defendant who threw his baby, causing death. The House of Lords upheld the *Nedrick* test, with Lord Steyn approving it but replacing \"infer\" with \"find.\" The jury could **find intent if death or serious harm was virtually certain and the defendant appreciated that fact**. In *Woollin*, the murder conviction was reduced to manslaughter due to a misdirection in the trial. \(a)  Did the jury consider that death or serious injury was virtually certain to occur as a consequence of the defendant's actions? \(b)  If so, did the jury believe that the defendant foresaw death or serious injury as a virtual certainty? -- what did the defendant foresee? **Criminal Justice Act 1967, s 8:** Section 8 of the Criminal Justice Act 1967 provides some assistance. When determining whether a person has committed an offence, the court: - shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but - 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. In other words, the test is what the defendant themselves foresaw, not what a reasonable person would have foreseen; but what a reasonable person would have foreseen is a good indication, which a jury can take into account, in deciding what this particular defendant did foresee. -- don't use objective as it is based off of what the defendant foresaw (going through the mind of) at the time. **Recklessness:** Recklessness used as a measure to determine mens rea. - In criminal law, 'reckless' -- involves examination of the **risks involved in the defendant's behaviour and the state of mind of the defendant when they took that risk.** **Justification of risk:** A requirement for recklessness is that the risk taken by the defendant is **UNJUSTIFIED --** much depends on the facts of the case including: - Why the defendant took such risk - What the risk was - And what was the consequence of taking such risk... HOWEVER -- justification of risk will always be assessed according to the standards of the **reasonable person** -- an objective test. The courts will consider social utility or benefit of taking the risk when deciding if it is justified. In most situations, the taking of a risk that an illegal circumstance will exist or that an illegal consequence will follow from the defendant's actions will be unjustified -- therefore most cases will involve obviously unjustified conduct. Recklessness alone is not enough to satisfy mens rea -- prosecution must also prove defendant had a particular state of mind when taking said risk. **Recklessness -- subjective or objective:** **The courts took the view that a defendant was reckless if they foresaw a risk that something might happen as a result of their behaviour and, with that foresight, they went on, without justification, to take that risk.** R v Cunningham \[1957\] 2 QB 396, Byrne J -- gave the leading judgment agreeing with the definition of 'malice' first expounded by Professor Kenny in 1902: Malice must be taken not in the old vague sense of wickedness in general but as was done; or (2) recklessness as to whether such harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). Following the case -- recklessness was regarded as requiring **proof** that the defendant foresaw risk and went on to take it. Metropolitan Police Commissioner v Caldwell \[1982\] AC 341 -- decided that an objective standard should be imposed when assessing recklessness in context of criminal damage. **Current position -- recklessness - SUB** Following a reconsideration of these issues in the case of R v G \[2004\] 1 AC 1034, the meaning of recklessness was clarified, with the House of Lords overruling the decision in Caldwell and returning to the 'traditional' interpretation. Lord Bingham set out four reasons for overruling the objective test of recklessness as set out in Caldwell: a. It is a basic principle that conviction of serious crime should depend on proof not only of the actus reus of the offence but also that the offender's state of mind whilst doing the act (or omission) was culpable. It is not blameworthy to do something involving a risk of injury to another if the defendant genuinely does not perceive the risk. b. The decision in Caldwell was capable of leading to obvious unfairness as it was neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if the defendant had no such apprehension. c. Criticism of Caldwell expressed by academics, judges and practitioners should not be ignored d. In Caldwell, the majority's interpretation of s 1 of the Criminal Damage Act 1971 was a misinterpretation which was offensive to principle (of criminal law which requires subjective recklessness) and apt to cause injustice. Hence, the need to correct it was compelling. The effect is that there is now one test for recklessness, and this is subjective. A defendant is reckless if they foresee a risk that something may happen as a result of their behaviour (or a particular set of circumstances might exist) and, with that foresight, go on without justification to take that risk. An awareness of any level of risk, however small, is sufficient.  **Negligence:** A diagram of a system Description automatically generated with medium confidence For crimes where the mens rea may be satisfied by negligence: - A person is punished simply for failing to measure up to the standards of the reasonable person - Although both recklessness and negligence involve the taking of an unjustifiable risk, there is a key difference: - recklessness is the conscious taking of an unjustifiable risk; -  negligence is the inadvertent taking of an unjustifiable risk -- in other words, negligence can be proved simply by showing that the defendant's conduct fell short of an objective standard. - Although the defendant may also have acted intentionally or recklessly, this is not required to establish criminal liability; it is what the defendant did that is relevant. -  Because the test is objective, individual considerations are not taken into account. Where the mens rea only requires negligence, the defendant is judged on an **objective standard** that can be satisfied even if the defendant is unaware of the risk, provided it is an obvious one. **Negligence and common law offences:** Only rarely does negligence give to rise criminal liability in the common law, but an offence where negligence satisfies the mens rea is gross negligence manslaughter. **Negligence and Statutory Offences:** Appear more often in statutory offences -- driving without due care and attention contrary to s 3 of the Road Traffic Act 1988: If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence. As this is a crime of negligence the prosecution need not prove that the defendant intended to drive this way, nor that they behaved recklessly. To be guilty -- all that is required is that the defendant did drive without due care and attention -- state of mind is irrelevant -- a measure against a reasonable driving standard. Examples: 1. Daisy drove at 30 miles per hour in the outside lane of a motorway to get a better view of an accident that had just occurred on the opposite carriageway. 2\. Krishnan failed to give way when entering a major road. He passed his driving test the day before this incident occurred. 3\. Gwyn drove through a red traffic light because he was anxious to get his pregnant wife to hospital. - no account is taken of the person's experience or the reason why they drove in this way, so it is irrelevant that Krishnan had only just passed his test and Gwyn was trying to help his wife. Although it might be submitted that those who are inexperienced at driving should be assessed against the standards of the reasonable newly qualified driver, this argument would fail. In McCrone v Riding \[1938\] 1 All ER 157, the test to be applied in assessing whether an individual would be guilty of an offence of careless driving was discussed by Lord Hewart CJ: \[The\] standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver. Hence, even if a driver has a very good excuse for acting as they did, this will be disregarded. In the examples (above), any information about what happened as a result of the careless driving has deliberately been omitted. There are no references to accidents, damage to property or personal injury to any individuals, and this is because such matters are not taken into account in deciding liability under s 3. It is the manner of the driving that is important, not the consequences of it. Serious incompetence on the part of a motorist can lead to a more serious charge under s 2 of the Road Traffic Act 1988, namely the offence of dangerous driving. In order to secure a conviction, the prosecution would have to establish that the defendant drove 'a mechanically propelled vehicle dangerously on a road or other public place'. Under s 2A(1), the defendant must have driven in a manner which fell far below what would be expected of a careful and competent driver, and it would be obvious to the careful and competent driver that driving in such a way would be dangerous. Alternatively, under s 2A(2), the defendant will be driving dangerously if the condition of their vehicle is such that it would be obvious to a careful and competent driver that driving it in that condition would be dangerous. In all cases under s 2A, therefore, the defendant is being assessed by the standards of the reasonable person (the careful and competent driver). They will only be guilty of an offence under s 2, however, if their behaviour has fallen far below what would reasonably be expected of a such a driver. Something more than the simple negligence required for careless driving is necessary. **Strict Liability Offences:** Offences where prosecution are not required to prove mens rea or negligence -- can be found guilty regardless of mindset. Types of offences: - majority created by statute - designed to regulate certain types of behaviour to discourage incompetence and unsafe actions - whilst encouraging greater vigilance and safety EXAMPLES: Smedleys Ltd v Breed \[1974\] AC 839, a small caterpillar was found in one of millions of tins of peas sold by the defendant. The company was found guilty under the Food and Drugs Act 1955 despite the difficulties of preventing such an event and the fact they had taken all reasonably practical steps to do so. The justification for the offence being strictly liable was the importance of consumer protection -- a matter of social concern. Strict liability may also result in injustice where the defendant inadvertently commits the actus reus without any criminal intent. In Pharmaceutical Society of Great Britain v Storkwain Ltd \[1986\] 2 All ER 635, a pharmacist supplied prescription drugs after being presented with a fraudulent prescription. The pharmacist was not involved in the fraud, had no knowledge that the doctor's signature was forged and believed the prescription was genuine. However, despite being entirely blameless in the situation, because the offence under s 58(2) of the Medicines Act 1968 is one of strict liability, the pharmacist was convicted. - Not having to prove mens rea makes criminal prosecution much simpler from a evidential point - Removes significant line of defence from the accused - Trials are cheaper and quicker - Conviction rate higher **Determining Strict Liability Offences:** The courts will look at statutory definition -- if clear indication in legislation that a particular type of mens rea is proof or negligence is required, then the offence is not one of strict liability. Sections 1 and 2 of the Contempt of Court Act 1981 are rare examples of statutory provisions which specify, within the statutory definition, that the offence is one of strict liability. Section 1 states: In this Act 'the strict liability rule' means the rule of law, whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. Section 2(1) provides that the strict liability rule applies only in relation to publications. In some statutes, however, Parliament has omitted any reference to whether mens rea or negligence is required. Example: Section 5 of the Road Traffic Act 1988 states: (1) If a person--- a. drives \... a motor vehicle on a road or other public place \... after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence. The actus reus elements of the crime are: driving (1); a motor vehicle (2); on a road or other public place (3); and with an excess amount of alcohol (above the prescribed limit) in the driver's blood, breath or urine (4). However, there is nothing in the definition that suggests any mens rea or negligence requirements; for example, there is no mention of words such as 'with intent', 'recklessly' or 'without due care'. This could mean that the offence is one of strict liability, but absence of a reference to mens rea or negligence in the definition is not conclusive proof to that effect. - Therefore the offence is of strict liability -- under s 5 of the Road Traffic Act 1988. Thus, the defendant can be convicted even if they lack mens rea. AUTHOIRTY FOR DETERMINING A STRICT LIABILITY OFFENCE: House of Lords guidance in Sweet v Parsley \[1970\] AC 132: 1. \(a)  If the words of the statute make it clear either that the offence is one of strict liability, or that mens rea is required, that is the end of the matter: the court will proceed accordingly. 2. \(b)  If there is no indication, there is a presumption that 'Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did': and so there is a presumption that the courts should 'read in words appropriate to require mens rea' in order to give effect to the will of Parliament. 3. \(c)  However, this presumption can be overturned if 'some reason can be found for holding that (mens rea) is not necessary'. 4. \(d)  The fact that other sections of a statute do require mens rea is not conclusive proof that a section which is silent on mens rea is intended to impose strict liability. 5. \(e)  Where a section is silent as to mens rea, the courts will need to go outside the wording of the Act to establish the intention of Parliament, specifically, to decide if the crime is one of strict liability. 6. \(f)  Lord Reid felt that a distinction should be drawn between 'quasi-criminal acts' and 'truly criminal acts'. In the former, the courts may easily decide to infer strict liability where the statute is silent. However, in the latter type, the court should be more reluctant to\ do so having regard to the stigma attached to a criminal conviction and the potential undermining of confidence in the judicial system if 'manifestly unjust' convictions are publicised. AUTHORITY: R v Brown (Richard) \[2013\] UKSC 43 -- Supreme Court emphasised importance of presumption of mens rea -- 'constitutional principle' that it should only be displaced when the statutory wording it clear. **Transferred Malice:** When a defendant commits a crime that impacts the wrong person they intended. The outcome is achieved through **the doctrine of transferred malice**. This confirms that if a defendant has the 'malice' (intention or recklessness) to commit a crime against one victim (or one particular piece of property), the malice is transferred so that the mens rea they had in relation to their original victim is transferred to the actus reus they commit against another, unintended victim. - The mens rea of the crime for the intended victim will be transferred to the actual victim and combined with the actus reaus of the crime. AUTHORITY: R v Latimer (1886) 17 QBD 359 -- defendant was arguing with C in a public house and struck a blow which ended up striking D who was then badly injured. The defendant was charged with an offence of unlawfully and maliciously wounding D contrary to the s 20 of the offence Against the Person Act 1861. He argued that it was accident to hit D therefore, no mens rea -- in dismissing his appeal Lord Coleridge CJ said: conviction must be sustained, he is guilty of what the law deems malice against the person injured, the unlawful act of general malic is enough. Limitations on the doctrine of transferred malice: - The transferred malice has to be a crime of the same nature (ACTUS REUS) to what was initially intended (had planned) AUTHORITY: R v Pembliton (1874) LR 2 CCR 119 -- defendant fighting in the street when he threw a rock with broke a window, yet he intended to hit a person with it. He was charged with 'unlawfully and maliciously' causing damage to property -- but SUCCESSFULLY APPEALED -- the doctrine of transferred malice will only apply is the actus reus committee is the same type of crime as the original. Transferred malice is a useful vehicle by which (apparently deserving) defendants can be convicted of the appropriate offence. However, most offences may be committed recklessly and, in such circumstances, the doctrine is unlikely to be required at all. **Coincidence of Actus Reus and Mens Rea:** Concepts are linked -- for there to be criminal liability the actus reus and mens rea need to coincide -- defendant must have the required mens rea when committing the actus reus. - **Continuing Act:** - **Single Transaction:** In the event of a combination of events which leads to an unlawful outcome, the coincidence of actus reus and mens rea is determined as a 'single transaction'. AUTHROITY: Thabo-Meli v R \[1954\] 1 All ER 373 -- Privy council rejected that AR and MR did not coincide -- 'impossible to divide up what was really one series of acts' -- the defendant had the mens rea when he set out and should not avoid liability just because he thought that his plan had already been achieved LATER AUTHORITY IN WHICH PRECEDENT OF ABOVE CASE WAS APPLIED: R v Le Brun \[1991\] 4 All ER 673 -- defendant assaulted his wife unconscious, when he attempted to move her, he dropped her resulting in her death as her head hit the pavement -- it was established: Lord Lane said that where the unlawful application of force (hitting his wife) and the eventual act causing death (dropping her) were part of the same sequence of events, the fact there was a lapse in time between the two did not enable the defendant to escape liability. **Basic, Specific and Ulterior Intent:** Most offences are crimes of '**basic intent'**. These are traditionally defined as those offences where a lesser form of mens rea is required than intention. Thus, criminal damage and most assaults will fall within this category as either intention or recklessness will satisfy the mens rea. In contrast, '**specific intent'** offences are those where the only mens rea that will suffice to convict a person of the crime is that of intention. Examples are murder, assault under s 18 of the Offences Against the Person Act 1861 and theft. Reference to **ulterior intent** also appears in relation to some criminal offences, for example, burglary. When this term is used it means that the prosecution must prove an 'extra' element of mens rea against the defendant before it can secure a conviction. Essentially, in addition to establishing that the defendant committed the actus reus of an offence with the appropriate mens rea, in offences of ulterior intent, the prosecution must also prove that the defendant had an additional mens rea, namely, that they intended to produce some consequence which went beyond the actus reus of the crime (even though they might not have actually succeeded). Although this sounds complicated, the concept is straightforward when applied to a concrete example such as burglary. Under s 9(1)(a) of the Theft Act 1968, a person is guilty of burglary\ if: 'he enters any building or part of a building as a trespasser and with intent to commit theft or inflict grievous bodily harm or criminal damage'. The actus reus of the offence is entering a building or part of a building as a trespasser. The basic mens rea is that, on entry, the defendant must either know they are entering as a trespasser or foresee the risk that they may be trespassing. However, proving these two elements will not be enough to convict a defendant of burglary under s 9(1)(a). In addition, the defendant must be shown to have an ulterior intent to steal, to inflict grievous bodily harm, or to cause criminal damage once they are in the building. They do not actually have to do any of these but the extra state of mind (an intention to do so) must be established if the defendant is to be convicted of burglary under s 9(1)(a). **Ignorance of the Law:** Never a defence -- even it was impossible for the defendant to have known the law. **Mistake of Fact:** Made by defendant which causes them to believe they are innocent -- defendant lacks some knowledge which is needed for the mens rea. EXAMPLE: ripping up a text book thinking it was yours but is your friends -- if believed, you lacked the mens rea for criminal damage and not liable. Alternatively, a defendant may consider a risk and, as a result of a mistake, wrongly conclude that there is none. Here the defendant would escape liability if the crime in question required the mens rea of either intention or recklessness. It is important to note that there is no separate defence of mistake. It is simply that the mistake may prevent the prosecution from proving the necessary mens rea for the offence or provide the basis of a defence, for example that of self-defence. A genuine, albeit unreasonable mistake may be sufficient to negate the mens rea requirement of an offence, as mens rea depends on what this particular defendant thought. Inevitably, however, the more unreasonable the defendant's mistake is, the less likely the court is to believe that it was an honest one (see s 8 of the Criminal Justice Act 1967 considered earlier). **Chapter 4:** **[Assaults:]** **Tutorial -- introduction to common law assaults** Assaults -- generic term relating to a category of offences rather than one singular offence. Least serious common law assaults: Unlawful -- police officer using reasonable force/use of reasonable force by someone in self-defence or protecting damage to themselves or their property. 21^st^ century assault: - Domestic violence - Pub nightclub brawls - Football violence - Gang violence Social policy means assault should be an offence. Common law assault: - Simple assault: technical assault -- accused need not make any physical conduct with victim (raising on a fist) - Battery: physical assault -- usually occur with simple assault Major legal principles: Simple assault -- AR: causing the victim to apprehend immediate and unlawful personal force. MR: intention or recklessness to cause such (immediate threat of arm). Battery -- AR: application of unlawful personal force. MR: intention to apply such force or reckless. **Hierarchy of assaults:** Sliding scale of offences dependent upon degree of harm caused to the victim -- to a more limited extent, the mens rea of defendant. **Last serious to most serious offences:** - Simple and physical assault - Assault occasioning actual bodily harm - Maliciously wounding or inflicting grievous bodily harm - Wounding or causing grievous bodily harm with intent **[Common law assaults:]** - Simple assault: the accused need not make any physical contact with the victim - Physical assault: accused makes physical contact Occur together -- for example: defendant raises a fist as a threat before hitting the victim. Referred in statue -- but s 39 of the Criminal Justice Act 1988 confirms them as summary only offences triable in Magistrates' court with maximum sentence of 6 months imprisonment, and or a fine. **[Simple assault:]** Any act that intentionally or recklessly causes another person to apprehend immediate and unlawful personal force -- Fagan v Metropolitan Police Commissioner 1969 -- s 39 of the Criminal Justice Act 1988 **Actus Reus of simple assault:** - Causing the victim to apprehend immediate and unlawful personal physical\ force. The actus reus of simple assault consists of: - **Must be unlawful** -- for example not a police officer using reasonable force to make an arrest or self-defence. - **Apprehensions of immediate unlawful force**: the victim must believe that force will occur right away, rather than at some indefinite time in the future. For example, threat at a future date "I will come next week to beat you" -- no simple assault. - **Sufficient if victim has fear that immediate force could occur**: reasonable fear that the force could occur immediately. This applies even in modern contexts where communication technology (like mobile phones) is involved - In *R v Burstow* \[1997\] -- the court held that stalking and harassment causing fear of immediate harm satisfies the actus reus of assault. - **Verbal Threats**: The House of Lords in ***R v Ireland* \[1997\] 3 WLR 534** established that words alone can constitute an assault, especially if they convey an immediate threat of violence. An example would be someone aggressively stating they will beat someone up, even without physical gestures. - **Silent calls**: ***R v Ireland* \[1997\] 3 WLR 534** -- The court ruled that silent telephone calls could also amount to assault, depending on the context and psychological impact on the victim. A pattern of silent calls could lead to a reasonable fear of imminent harm. **Mens rea simple assault:** - Intention or recklessness as to the apprehension of immediate unlawful force The mens rea for simple assault is that the defendant must **intend** to cause the victim to apprehend immediate unlawful personal force, or be **reckless** as to whether such apprehension is caused (R v Venna \[1976\] QB 421). **Intent:** The defendant must have a specific intent to make the victim apprehend immediate unlawful force. This means that the actions or words of the defendant must clearly convey this intention. **Recklessness:** Recklessness is defined as a subjective test, meaning it focuses on the defendant's own awareness of the risk. The defendant must foresee the risk that their actions will cause the victim to apprehend immediate unlawful force but continue with those actions anyway (R v Spratt \[1991\] 2 All ER 210). It is not sufficient that a reasonable person would foresee the risk; the defendant must personally recognize it. **[Physical assault - battery: s.39 CJA 1988]** Infliction of force -- does not need to be serious; any unlawful touching (with mens rea). **Actus reus of physical assault:** - The use or application of unlawful personal physical force. Requires infliction of unlawful personal force -- applied in: - **Direct physical contact:** pushing, hitting. Can involve use of weapon). - **The application of force may not necessarily be direct:** throwing an object or spitting. - **The application of force can be indirect:** deliberately placing an obstacle behind a door so victim falls over -- DPP v K 1990 and releasing a dog to attack victim. **Haystead v Chief Constable of Derbyshire** \[2000\] 3 All ER 890: The defendant punched a woman, causing her to drop her baby. The court ruled that he was guilty of physical assault against the baby even though there was no direct contact with the child. This case reinforces that physical assault can occur through indirect actions. **Mens rea physical assault:** - Intention or recklessness as to the use of unlawful force Intention or recklessness as to the infliction of unlawful force on another person; there is no need to show intent or recklessness as to causing any injury. As with simple assault, the subjective standard of recklessness applies. **Practical applications of simple and physical assault:** Example: a. Craig tells his teenage daughter, Fay, that if she continues to see her girlfriend, Tilly, he will break every bone in Tilly's body. In this instance, Craig has not committed simple assault. Although there is a clear threat, Fay does not apprehend any violence against her as the threat is directed against her girlfriend; and neither does Tilly as she was not present when the words were spoken. b. If Craig speaks these words to Tilly, it will not be simple assault because his threat is a conditional one -- he will only attack Tilly if she continues to see Fay. In these circumstances, Tilly does not apprehend immediate unlawful force and so Craig is not guilty of simple assault. This is an unusual example and most common law assaults are much more straightforward, with a clear threat by the defendant to the victim causing them to fear immediate violence. c. Fay ignores her father. In anger, Craig seeks out Tilly and punches her in the face. Now Craig has committed an offence -- that of physical assault -- because he has actually inflicted unlawful force on Tilly. **[Statutory assaults:]** All offences found in the **Offences Against the Person Act (OAPA) 1861.** **Assault occasioning actual bodily harm (OAPA 1681 s 47):** "Whosoever shall be convicted upon an indictment of **any assault** **occasioning actual bodily harm** shall be liable \... to be imprisoned for any term not exceeding five years". This offence carries a maximum sentence of five years' imprisonment and is triable either way -- either in the magistrates' court or the Crown Court. Section 47 states: - **Actus reus OAPA:** Assault occasioning actual bodily harm. - **An assault**: either simple or physical assault -- unlawful personal force - **Which occasions** (causes) - **Actual bodily harm**: any hurt or injury that interferes with the health or comfort of the victim, must be more than 'transient or trifling' and does not need to be serious or permanent -- R v Miller 1954 Examples of ABH: split lip, significant bruising, temporary loss of consciousness, cutting substantial piece of hair -- no minor injuries of small bruise, scratch or fast fading mark **(T v DPP)** -- brief loss of consciousness could amount to actual bodily harm -- could amount to GBH if prolonged period of unconsciousness. The Crown Prosecution Service follows a Charging Standard Code in order to decide what offence to charge. Examples in the Code of actual bodily harm that would lead to a s 47 charge include those where there has been significant medical intervention and/or permanent effects have resulted. **R v Ireland 1997** -- Lord Steyn: actual bodily harm can include psychiatric injury, provided it is a recognisable clinical condition -- anxiety, neurosis, depression. - **Mens rea OAPA:** **Mens rea** for s 47 requires **intention or recklessness** only in relation to the **assault**, not the resulting harm -- established this by House of Lords in **R v Savage; R v Parmenter 1991** -- Savage intended to throw beer at the victim, but the glass slipped from her hand, breaking and cutting the victim's wrist. Even though she did not intend to cause harm, she was convicted because the intent to commit the assault was sufficient. **Mens rea** for **s 47** requires only that the defendant intended or was reckless regarding the **assault**, not the harm. **R v Savage; R v Parmenter (1991)** established that the causing of **actual bodily harm** is part of the **actus reus** and does not require any additional mens rea. Example: Vijay hits Blake and injures him by giving him a black eye. In his police interview, he states: 'I admit I intended to hit Blake, but I never meant to injure or harm him and the thought never entered my head that I might.' Vijay has satisfied the requirements of an assault under s 47 of the OAPA 1861 because: Actus reus: Vijay hit Blake (the assault) which caused (occasioned) a black eye (the actual bodily harm). Mens rea: The mens rea is to intend or be reckless as to the assault. Vijay admits that he intended to assault Blake. The fact he did not intend or foresee the risk of any harm or injury is irrelevant as this is not required. **Wounding of inflicting grievous bodily harm (OAPA 1861, s 20):** "Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person \... shall be liable \... to imprisonment for a term not exceeding five years" Triable either way, maximum sentence of 5 years imprisonment -- even though more serious than s 47, **as wounding or grievous bodily harm must be established rather than just actual bodily harm**. - **Actus reus:** Unlawfully wounding or inflicting grievous bodily harm (GBH)**.** - **Unlawfully:** the wounding or infliction of grievous bodily harm must be without lawful justification, such as delf-defence -- confirmed in R v Horwood 2021. - **Wounding:** a wound requires the breaking of both layers of the skin**,** resulting in visible blood -- Moriarty v Brookes (1834)**.** - **Grievous bodily harm GBH:** "really serious harm" -- DPP v Smith 1961 -- no case law and for jury to decide qualification of "really serious". Examples would be: fractured skull; severe internal injuries and broken limbs. - **Mens rea:** Section 20 of OAPA 1861 -- **defined in "maliciously"** -- intention or recklessness as to actual bodily harm -- R v Cunningham 1957 (does not require will or motivation just intent or recklessness). R v Savage; R v Parmenter 1991 -- The House of Lords ruled that for OAPA s 20 -- the defendant need only **intend or be reckless** as to causing **some bodily harm** (such as Actual Bodily Harm, ABH). Not that the defendant foresaw GBH or the precise harm resulted. Example: Clint is involved in a fight with Bill and punches him in the face. Bill stumbles backwards, falls over and hits his head on the corner of the table fracturing his skull. Clint is charged under s 20 of the OAPA 1861. When questioned, Clint came up with the following responses -- are these sufficient to establish the mens rea for s 20? \(1)  'Bill was asking for it, I hit him really hard and wanted him to really suffer.' This is clearly adequate mens rea for s 20 as it appears that Clint wanted to inflict really serious harm. Clint has a higher level of intent than required for a s 20 assault, so he would satisfy the mens rea for this offence. \(2)  'OK I hit him really hard. I thought I would break his jaw, but I never intended he should fracture his skull. I'm really sorry about that.' Clint is liable for s 20 because, again, he intended grievous bodily harm. The fact that he envisaged a broken jaw and not a fractured skull is irrelevant. It is not necessary for the defendant to intend the precise injury that actually occurred. (Note: in the two examples above, although Clint satisfies the mens rea for s 20, because he intended really serious harm, he would also be liable for the more serious offence under s 18 of the OAPA 1861.) \(3)  'Look, I never meant to really harm Bill. I suppose I realised I might, but I didn't want it to happen.' This is different from the previous examples as Clint did not intend grievous bodily harm. However, by saying that he realised he might really harm Bill, Clint is admitting that he foresaw the risk and went on to take it. His words indicate that he is reckless as to grievous bodily harm and provide adequate evidence of the mens rea for s 20. This is because Clint need only be reckless as to some bodily harm for a s 20 assault. \(4)  'I suppose when I think about it now I ought to have realised the risk of really hurting Bill, but it never crossed my mind at the time. I thought the worst thing I would do is give him a black eye.' The first sentence establishes that Clint did not intend, nor was he reckless as\ to causing, grievous bodily harm. The fact that others might think the risk was entirely obvious is irrelevant as it is subjective recklessness -- Clint must foresee the risk. However, the second sentence clearly shows he was at least reckless (if not intending) to cause some harm, and this is an adequate mens rea for s 20. Remember the defendant does not have to foresee grievous bodily harm or the actual injury that occurred, only some harm. \(5)  'OK, I intended to hit him, but it honestly never entered my head that there was any chance of causing him any injury.' What Clint is saying here is that he intended the assault but did not foresee the risk of any harm. Therefore, in this example, there is no mens rea for s 20 as it is a crucial element that the accused foresees the risk of some harm or injury. (However, this mens rea -- an intention to assault -- is enough to charge him under s 47.) **Wounding or causing grievous bodily harm with intent (OAPA 1861, s 18):** Most serious non-fatal offence against the person -- maximum sentence of life imprisonment -- indictable offence -- Crown Court before judge and jury. There are four ways to commit a section 18 offence: 1. Causing GBH with intent to cause GBH 2. Wounding with intent to cause GBH 3. Causing GBH with intent to resist/prevent lawful apprehension 4. Wounding with intent to resist/prevent lawful apprehension - **Actus Reus:** **Same AR as s 20 -- an assault or battery causing a wound or grievous bodily harm.** Wounding -- both layers of skin Moriarty v Brookes 1834 GBH -- "really serious harm" -- DPP v Smith 1961including severe psychiatric harm -- R v Burstow 1997 - **Mens rea:** Intention to cause GBH / really serious harm -- DPP v Smith \[1961\] Intention to resist or prevent arrest AND intention or recklessness as to ABH. - an intention to cause lesser harm or a wound will not suffice, and nor will recklessness. To be convicted under **section 18**, the prosecution usually needs to prove that the person **intended** to cause **serious harm** (GBH) or a **wound**. However, there is one **exception**: If the person **did not intend to cause serious harm** but was at least **reckless** about causing **some** harm, they can still be convicted under **section 18** **if** the prosecution proves that they **intended to resist or prevent an arrest**. In other words, if their main goal was to stop an arrest, and they were reckless about causing harm, they could still face the more serious **section 18** charge. **Section 18** is normally reserved for cases where someone **intended** to cause serious harm. If they were just reckless about harm (but had no intent to cause serious injury), a **lesser charge** like **section 20** or **section 47** would usually be used instead.  **[Consent:]** **Valid consent:** General position: The consent does not have to be fully informed for it to be considered valid -- the person must know the **identity of the assailant** and the **nature of the act they are agreeing to**. Controversial results -- fraud and deception: R v Clarence 1888 -- a husband infected his wife with an STD and charged under s 20 of the OAPA 1861. Despite her ignorance of his condition, the court held that her consent was valid because she knew his identity (her husband) and the nature of the act (sexual intercourse). R v Richardson (1999) -- **The Court of Appeal confirmed** -- a suspended dentist continued to practice, and although the victim didn\'t know of her suspension, the court ruled the consent valid because the victim knew the nature of the procedure (dentistry) and the person (the dentist). Deception about qualifications was not considered relevant to the validity of consent -- Prosecution tried to extended "identity" to cover qualifications and attributes but was rejected by the Court of Appeal. **Revaluation of consent** R v Tabassum 2000 -- took stricter view on deception. The defendant falsely claimed to be medically qualified to perform breast examinations. The court ruled that consent was invalid because the victims were deceived about the **quality** of the act---they thought it was for medical purposes when it was not. The court emphasized that victims must understand both the **nature** and **quality** of the act for their consent to be valid -- if RICHARDSON was applied, the women's consent would be considered valid, and the defendant not convicted of indecent assault as identity and nature was understood. -- consent needs to be fully informed. **Consent and sexual infection:** Departure from R v Clarence 1888 which previously held consent to sexual intercourse implied consent to any risk associated with it -- infection: R v Dica 2004 -- the prosecution argued that the defendant inflicted GBH upon victim (actus reus) and was reckless because he knew he had HIV and foresaw the risk of infecting his partners but did not inform them (mens rea) -- emphasisng that consent to sex is different from consent to the risk of contracting a serious infection. Whether the victims consented to the risk was a question for the jury. R v Konzani 2005 -- HIV and did not inform sexual partners where all 3 contracted afterwards. He argued that by consenting to sex, the victims had also consented to all the associated risks, including infection. The court rejected this argument, holding that **consent to the risks of sex does not equate to consent to the risk of contracting a fatal disease like HIV**, unless the consent is **informed**. The decisions in Dica and Konzani confirm that Clarence is no longer good law, and **valid consent is only given if both the identity of the defendant and the nature and quality of the act are known**. **Consent as deference to the common law assaults:** Consent can be a defence to simple and physical assault (common assaults), provided no harm was caused or intended. People impliedly consent to the inevitable physical contact that occurs as a part of everyday life -- bumping into someone on the tube Cannot consent to ABH and above -- some exceptions, as seen below. **Consent as a defence to the statutory assaults -- ABH and above:** General rule -- consent does not serve as a valid defence for statutory assaults that involve intended or actual harm -- rooted in public policy (if harm is intended or actually caused, the victim\'s consent typically does not excuse the act) -- Attorney-General's Reference (No 6 of 1980) \[1981\] -- consent was no defence to a charge under s 47 of the OAPA 1861 as 'it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason' -- Lord Lane CJ. Attorney-General's Reference (No 6 of 1980) \[1981\] -- identified exceptions to this general rule -- examples when consent would be a valid defence: - **Surgical operations:** protect healthcare providers from criminal liability for performing operations or examinations that may cause harm. - **Dangerous exhibitions:** circus acts - **Properly conducted sports --** boxing: R v Barnes 2005 -- the court ruled that consent is valid in sporting contexts unless the conduct exceeds the norms of the sport. Factors such as the nature of the sport, level of competition, degree of force used, and the context of the act are considered to determine if the actions reached a level of criminality. - **Lawful activities:** consent can be a defence ritual circumcision, tattooing and ear-piercing even is harm caused -- R v Brown 1994 confirmed. - **Rough and ill-disciplined behaviour (horseplay):** R v Jones 1987 -- highlighted this controversial exception, where defendants were acquitted of grievous bodily harm after they playfully threw school friends into the air, leading to injury. The court recognized that such activities are often part of youth culture, although societal perceptions of these behaviours have evolved, potentially categorizing them as bullying. - **Discipling children** - **Self-mutilation -- religious reasons** **Harm is independent from the actual purpose of the act.** **Development in case law:** Consent does not provide a defence -- generally individuals cannot consent to serious bodily harm or violence inflicted upon them in the context of sadomasochistic activities. The law prioritizes public interest and safety over the autonomy of individuals to engage in such practices. **R v Brown 1994** -- a group of homosexual men engaged in consensual sadomasochistic acts. They were charged under sections 47 and 20 of the **OAPA 1861**, which relate to actual bodily harm and grievous bodily harm, respectively. The House of Lords ruled that the victims' consent did not provide a defence against the charges. The majority held that such activities were not in the public interest, citing concerns over potential harm, including the risk of corrupting young people, the possibility of excessive violence and spread of injection. **Judicial Opinions**: - **Majority View (Lord Templeman)**: Argued that sado-masochism involved violence and was therefore not protected by the consent defence. He believed there was no good reason to allow a defence for such acts. - **Minority View (Lord Mustill and Lord Slynn)**: Argued for the right to privacy in consensual adult activities and expressed concern about the court overstepping its boundaries into private matters. The case taken to the European Court of Human Rights by appellants,