Key Cases: Non-Fatal Offences PDF

 KEY CASES NON-FATAL OFFENCES Offence Case Legal Principle Assault R V Ireland silence or words can amount to assault Assault Logdon V DPP apprehension of immediate force is...

 KEY CASES NON-FATAL OFFENCES Offence Case Legal Principle Assault R V Ireland silence or words can amount to assault Assault Logdon V DPP apprehension of immediate force is sufficient, even without ability to carry it out Assault Smith V Chief Superintendent fear of immediate future can amount to assault Assault Tuberville V Savage words can negate assault if indicate no threat Assault R V Constanza threatening letters can amount to assault Assault R V Lamb if victim doesn’t believe risk of immediate harm, there’s no assault -mmmu Battery Collins V Wilcock minor touching without consent can amount to battery Battery R V Thomas touching clothing can be battery Battery Fagan V Met Police continuing act can amount to battery Battery DPP V K indirect acts can amount to battery Battery R V Martin indirect application of force can amount to battery Battery Haystead V Chief Constable battery can be committed through indirect force Battery Wilson V Pringle battery requires intentional touching -mmmu ABH R V Chan Fook harm can’t be trivial as to be wholly insignificant ABH R V Roberts defendant doesn’t need to foresee ABH ABH R V Savage mens rea for ABH is same as assault and battery ABH T V DPP ABH can include temporary consciousness ABH DPP V Smith ABH includes cutting substantial parts of hair off ABH R V Miller any hurt or injury calculated to interfere with health or comfort - = s20 GBH R V Dica recklessly transmitting a serious disease amounts to s20 GBH s20 GBH R V Burstow serious psychiatric harm amounts to s20 GBH s20 GBH R V Parmenter must foresee risk of some harm but doesn’t have to be serious harm s20 GBH R V Bollom injuries should be assessed based on victim’s age and vulnerability -Mmmmm s18 GBH R V Belfon specific intent must be proven to cause serious harm s18 GBH R V Morrison if resisting arrest, require intent or recklessness for serious harm s18 GBH R V Taylor intention to cause serious harm is necessary not wounding alone s18 GBH R V Cunningham defendant must have acted with direct intention or foresaw harm as virtual certainty  KEY CASES FATAL OFFENCES Offence Case Legal Principle Murder R V Gibbons & Proctor murder can be committed by omission Murder R V Vickers intention to cause GBH is sufficient for mens rea Murder Airedale V Bland withdrawal of life-sustaining treatment & in isn’t murder if in best interests Murder R V Woollin oblique intent applies to murder if death is virtually certain that defendant appreciates -mmmu Loss of control R V Jewell anger or loss of temper is a lack of evidence for loss of control Loss of control R V Dawes can’t rely on loss of control if they incited the violence themselves Loss of control R V Clinton sexual infidelity alone can’t be a qualifying trigger Loss of control R V Camplin age and sex should be considering when assessing level of expected self-control Loss of control R V Asmelash voluntary intoxication isn’t relevant factor when assessing loss of control -mmmu Diminished responsibility R V Byrne abnormality is state of mind so different that reasonable person would term it abnormal Diminished responsibility R V Golds substantial means more than trivial not total Diminished responsibility R V Dowds voluntary intoxication can’t support defence Diminished responsibility R V Dietschmann successful if defendant was intoxicated if abnormality impaired actions Diminished responsibility R V Jama mental disorders e.g. Asperger’s syndrome & c can amount to a successful abnormality -Mmmmm Unlawful Act Manslaughter R V Lamb must be a criminal unlawful act Unlawful Act Manslaughter R V Lowe omission can’t form basis of unlawful act manslaughter Unlawful Act Manslaughter R V Church act must be objectively dangerous so reasonable person foresee risk of some harm Unlawful Act Manslaughter DPP V Newbury & Jones doesn’t need to foresee harm caused Unlawful Act Manslaughter R V Larkin act doesn’t need to be aimed at victim Unlawful Act Manslaughter R V Goodfellow unlawful act can be aimed at property Unlawful Act Manslaughter R V Watson if defendant is aware of victim’s vulnerability or frailty, can make act more dangerous -mmmu Gross Negligence Manslaughter R V Adomako established duty of care, breach and gross negligence Gross Negligence Manslaughter Donoghue V Stevenson owes duty of care if harm is reasonably foreseeable Gross Negligence Manslaughter R V Bateman gross negligence must show disregard of life and safety Gross Negligence Manslaughter R V Evans duty of care can arise from dangerous situation created by defendant Gross Negligence Manslaughter R V Misra & Srivastava must be risk of death from breach of duty Gross Negligence Manslaughter R V Wacker duty of care exists to those engaged in illegal activities with the defendant  KEY CASES PROPERTY OFFENCES Offence Case Legal Principle Theft (appropriation) R V Morris when any of owner’s rights are assumed even if it is partial Theft (appropriation) Lawrence V MPC can occur with consent if it was obtained dishonestly Theft (appropriation) R V Hinks accepting valid gif can be appropriation if defendant acted dishonestly Theft (property) Oxford V Moss confidential information isn’t property and can’t be stolen Theft (belonging to another) R V Turner can steal own property if someone else has proprietary interest Theft (belonging to another) R V Woodman property can belong to another even unaware Theft (dishonesty) Ivey V Genting dishonesty is an objective test 1. dishonest by ordinary standards? 2. defendant’s state of belief? Theft (intent to permanently deprive) R V Velumyl intent to return different money can amount t theft Theft (intent to permanently deprive) R V Lloyd borrowing isn’t theft unless property is returned in diminished value state · Robbery (theft) R V Robinson if belief they have a legal right they can’t be guilty Robbery (theft) Corcoran V Anderton appropriation amounts to robbery even if dropped before escaping Robbery (use of force) R V Dawson & James force doesn’t have to be significant Robbery (use of force) R V Clouden force can be applied indirectly Robbery (time of force) R V Hale occur whenever as theft is continuing act Robbery (time of force) R V Lockley force used to escape after stealing can be robbery Robbery (intent) R V Vinall intention to use force must be connected to theft · Burglary (entry) R V Collins entry must be effective and substantial Burglary (entry) R V Brown entry only needs to be effective Burglary (entry) R V Ryan partial entry constitutes to “entry” Burglary (building) B & S V Leathley structure qualifies if have degree of permanence Burglary (building) R V Walkington entering part of building can qualify Burglary (trespasser) R V Jones & Smith exceeding permission to enter can make defendant trespasser Burglary (intent) R V Collins section 9 (1)(a): intentionally or recklessly trespass and intend to commit theft, GBH or criminal damage at time of theft Burglary (intent) A-G Ref. No.1 & No.2 1979 section 9 (1)(a): conditional intent to steal specific items is sufficient for burglary  KEY CASES MENTAL CAPACITY DEFENCES Offence Case Legal Principle Intoxication (voluntary) DPP V Majewski not a defence for crimes of basic intent as intoxication is reckless act Intoxication (voluntary) R V Lipman can negate mens rea for crimes of specific intent but defendant still guilty of lesser offence Intoxication (voluntary) R V Sheehan & Moore if defendant is so intoxicated they can’t form specific intent then not guilty Intoxication (involuntary) R V Kingston doesn’t excuse liability if defendant still forms necessary mens rea Intoxication (involuntary) R V Hardie if intoxication is caused by non-dangerous drug then not reckless so successful defence Intoxication (mistaken belief) R V O’Grady drunken mistake about need to use self-defence isn’t valid for basic or specific intent Intoxication (mistaken belief) R V Hatton drunken mistake about force can’t provide defence Intoxication (dutch courage) A-G Northern Ireland V Gallagher deliberately intoxicated to gain courage to commit a crime ·mumma Automatism Bratty V A-G Northern Ireland definition: act done by the body without control of the mind Automatism Hill V Baxter wouldn’t apply when falling asleep at wheel due to prior recklessness Automatism R V Quick hypoglycaemia is external so defence is applied Automatism R V Hennessy hyperglycaemia was internal so defence didn’t apply Automatism A-G Ref. No.2 1993 total loss of voluntary control is required Automatism RVT PTSD or exceptional stress caused by external factors may qualify Automatism R V Bailey self-induced automatism is only defence for specific intent ·mumma Insanity M’Naghten test for insanity 1. defect of reason 2. disease of mind 3. inability to understand nature of act or that it was wrong Insanity R V Clarke absent-mindedness o confusion doesn’t amount to defect of reason Insanity R V Kemp disease can include physical conditions affecting mental functioning Insanity R V Sullivan epilepsy amounts to disease of the mind Insanity R V Hennessy hyperglycaemia is internal and defence is applied Insanity R V Burgess sleepwalking caused by internal condition is insanity Insanity R V Windle understands actions are legally wrong, can’t claim defence Insanity Bratty V A-G Northern Ireland act done unconsciously due to internal condition is classified as insanity  KEY CASES GENERAL DEFENCES Offence Case Legal Principle Self defence R V Gladstone Williams mistaken belief in need to use force can form self-defence Self defence Beckford V R pre-emptive strike can be lawful if honest belief that attack is imminent Self defence R V Bird no duty to retreat but evidence of a voiding confrontation is relevant Self defence A-G Ref. No.2 1984 preparing for an attack can be lawful if threat is imminent Self defence R V Clegg using excessive force invalidates self defence Self defence R V Martin judged objectively but psychiatric conditions don’t justify excessive force Self defence R V Collins force used by householder can be disproportionate Self defence R V Hussain using force or revenge or after danger doesn’t qualify ·> Consent R V Donovan defence to battery or assault if no serious harm is intended or caused Consent R V Slingsby lacks mens rea and victim consents, no liability Consent R V Brown no defence to serious harm as not in public interest Consent R V Wilson branding between married couple was consensual Consent R V Dica consent must be informed Consent R V Barnes implied in lawful sports but excessive force beyond rules may lead to liability · Duress by circumstances R V Willer defendant drove recklessly to escape threatening gang is recognised Duress by circumstances R V Martin reasonable belief in imminent danger Duress by circumstances R V Pommell applies to possession offences Duress by circumstances R V Cairns belief in threat must be reasonable but not accurate as long as they act proportionately ·> Duress by threat R V Graham 1. reasonably believe in the theat? 2. sober person of reasonable firmness acted same way? Duress by threat R V Valderrama-Vega threat involves death or serious injury and cumulative threats Duress by threat R V Hasan threat must be immediate and can’t rely if associated with criminals voluntarily Duress by threat R V Cole causal connection between threat and crime Duress by threat R V Hudson & Taylor applies if threat is immediate and unavoidable but not carried out instantly Duress by threat R V Bowen characteristics should be considered when assessing reasonable firmness Duress by threat R V Shepherd duress applies if defendant didn’t foresee violence or threats would occur when joining a group  I RULES THEORY defining crime theory of criminal law 1. act must be prohibited harm to there is only justifiable basis for imposing criminal liability 2. act must attract penal consequences paternalism, state is justified in protecting individuals from harm punished means the state provides a maximum or mandatory sentence to be imposed if convicted of a criminal legal moralism, immoral conduct is criminalised for better social cohesion offence behaviour that is offensive but not harmful could be criminalised individuals are autonomous so are responsible for own actions and consequences, fault-based principle sources of criminal law state creates a crime by passing an Act of Parliament principles of criminal law e.g. Coroners & Justice Act 2009 fair labelling - crimes should be defined to reflect wrongfulness and severity properly describing crime and differentiating crimes from others essential for public crimes can be created by common law using doctrine of precedent confidence and e.g. law on murder developed by judges correspondence principle - result that is intended or foresaw should match result sense of justice elements of liability which occurs 1. actus reus - guilty act Law Commission 2015: ABH and GBH don’t conform to this principle 2. mens rea - guilty mind defences are available to remove liability maximum certainty - decisions are made according to legal rules mental capacity defences = insanity, automatism and intoxication providing public with ability to organise behaviour that doesn’t break the law general defences = self-defence, duress by threats/circumstances, necessity and consent judge no retrospective liability - person isn’t guilty of committing crime before it was criminalised parties involve possible to apply law retrospectively through parliamentary sovereignty when tried on indictment in Criminal Justice Act 2003: allowing retrial of people acquitted of murder if there’s new evidence the Crown Court, it’s tried by judge and jury when tried summarily, functions are carried out by magistrates, and supported by prosecution a clerk defence prosecution team are normally from the CPS and bring the case on behalf of the Crown rules & theory worked closely with police to determine quality of evidence and charges defence team ensure defendant’s rights are adhered to, understand proceedings, appropriate plea, challenge APPLICATION TO EXAM prosecution and mitigate sentence in response to scenario question on advising defendant whether they are: proving liability criminally liable burden of proof = defendant is innocent until proven guilty can raise any defences standard of proof = prosecution proves defendant’s guilt beyond all reasonable doubt higher than civil cases as person’s liberty is at stake in response to a discussion essay question about key topic eleven at to criminal law reverse onus = standard of proof is on defence for balance of probabilities e.g. express statutory provision, implied statutory provision, defence of insanity aims and purposes of criminal law identify, prohibit and prevent behaviour which is threatening, harmful or endangering to life, property or moral welfare purpose of criminal law is protection of society through function of punishment  ! ACTUS REUS MENS REA fault conduct and consequence crimes act without fault is regarded as an accident defendant’s act must cause a consequence different levels of mens rea are attached to crimes indicating level of fault required for guilt can be when the defendant fails to do something resulting in a consequence level of fault reflects how serious the crime is and the sentence most offences against the person result in the consequence being injury or death e.g. murder carries mandatory life but gross negligence manslaughter carries maximum life if consequence isn’t directly caused by defendant’s actions, then rules of causation apply intention and subjective recklessness voluntary acts act can’t be a consequence of involuntary action (R V Larsonneur) intention = decision to bring about criminalised act not liable for a subsequent accident as his actions would be involuntary (Hill v Baxter) direct intent = defendant’s decision to bring about consequence (Mohan) defendant is convicted even though act wasn’t desired but occurred through actions against his will oblique intent = consequence is virtually certain and defendant knows that (Woollin) omissions failure to act - state of affairs subjective recklessness = commits act without knowing risk of consequence (Cunningham) R V Matthews & Alleyne: court isn’t obliged to find intention even if 2 part test for oblique intent is doesn’t amount to an actus reus unless in certain situations: satisfied statutory duty (section 170 Road Traffic ACt 1988) special relationships (Gibbons & proctor) specific intent crimes = only satisfying the mens rea assumption of care (Stone & Dobinson) basic intent crimes = recklessness is sufficient for mens rea employment contract (Pittwood) official position (Dytham) negligence avert danger of one’s own making (Miller) failure to meet standards of reasonable person only used in gross negligence manslaughter (Adomako) causation prosecution has to show factual and legal cause of consequence factual causation = “but for” defendant’s actions, the victim wouldn’t have suffered that consequence general elements I legal causation = theoretical % contribution by defendant to the consequence (Hughes) strict liability considers the thin skull rule and chain of causation offences that don’t require any fault for some or all of the actus reus thin skull rule = defendant takes the victim as they find them exist to regulate society and protect the vulnerable defendant is liable for most serious injury (Blaue) offences are contrary to normal rules of criminal law so judges treat them with caution chain of causation = link between act and consequence that has to remain unbroken for liability Sweet v Parsley: judges inserted word “knowingly” into offence to prevent defendant being guilty defendant can be excused liability if there was a novus actus interveniens, breaking chain of causation judges stated that when determining a strict liability offence, there’s presumption that mens rea is 1. act of a 3rd party required 2. victim’s own act presumption can be rebutted where: 3. natural but unpredictable event crime is regulatory, of social concern, wording of Act indicates strict liability or the offence carries medical treatment is unlikely to break chain of causation as has to be independent of defendant’s act heavy penalty transferred malice mens rea can be transferred from intended victim to actual victim when defendant misses intended target (Latimer) mens rea can only be transferred where actus reus remains the same (Pembilton) contemporaneity rule actus reus and mens rea must occur at the same time (Fagan) judges are flexible in application of the rule in the interests of justice [14 DIMINISHED RESPONSIBILITY LOSS OF CONTROL section 2 of the Homicide Act 1957 --> section 52 Coroners & Justice Act 2009 section 54 and 55 of Coroners & Justice Act 2009 special partial defence reducing murder to manslaughter burden of proof is on defence on balance of probabilities defendant must have lost self-control, must have a qualifying trigger and person of same sex and age would’ve reacted similarly not convicted if suffering from abnormality of mental functioning which arose from recognised medical condition and substantially impaired ability to: understand nature of conduct, form rational judgement, loss of control doesn’t need to be sudden exercise self-control and provide explanation partial loss is not sufficient and jury decides if it was a total or partial loss “state of mind so different from that of an ordinary human that reasonable man would term it abnormal” defendant can’t rely on temper or anger, they must have “lost it” or “snapped” (Jewell) (Byrne) giving in to temptation is insufficient for loss of control (Cocker) recognised medical condition include psychological and physical conditions qualifying trigger is a fear of serious violence or justified sense of being wronged chronic reactive depression (Sears) battered woman syndrome (Hobson) “extremely grave” and “seriously wronged” are judged objectively (Zebedee) sexual infidelity can’t be relied upon (Clinton) “impairment need not be total but more than trivial or minimal” (Lloyd) defendant is expected to show normal degree of tolerance and self-control only age and sex are considered in “normal degree” but mental illness may be considered (Rejmanski) abnormality may be reason for killing but doesn’t have to be sole reason voluntary intoxication can’t be considered (Asmelash) unless sober person would’ve reacted the same intoxication alone can’t support a defence (Dowds) if they have abnormality despite intoxication, defence succeeds (Dietschmann) alcohol dependency syndrome can be an abnormality (Wood) MURDER fatal offences GROSS mandatory life imprisonment NEGLIGENCE 41 “unlawful killing of reasonable being under King’s Peace with malice aforethought, express or implied” UNLAWFUL ACT involuntary manslaughter based on civil rules of negligence legal obligation to ensure % (Lord Coke) defendant must do unlawful act which is objectively dangerous and safety or wellbeing of others leading case is Adomako causes death actus reus = act or omission (Gibbons & Proctor) that causes death actions predicted injury or Caparo’s 3 part test (Caparo V Dickman) a foetus can’t be killed (A-G rEF. nO.3 1994) must be a criminal offence not a tort (Lamb) death 1. defendant owed a duty of care can’t be an omission (Lowe) 2. defendant breached duty Law Reform 1996 = no time unit for death after killing, if more than 3 years 3. breach caused reasonably foreseeable injury or damage then need permission from Attorney-General objective test for dangerous act (Church) sober and reasonable person inevitably realise risk of some harm can be committed by either an act or omission killing an enemy in the course of war isn’t murder but killing a prisoner (Larkin) is sufficient sober and reasonable person would inevitably realise risk of some contractual duty isn’t necessary harm (JM & SM) victim’s involvement in illegal acts is irrelevant killing must be unlawful so not in self-defence, in defence of another duty of care arises when defendant created life threatening state or in prevention of crime unlawful act can be against property (Goodfellow) of affairs (Evans) fear or apprehension isn’t sufficient breach must be factual cause of death mens rea = intent to kill (expressed malice aforethought) or intent to if defendant doesn’t administer drugs not an unlawful act due to cause GBH which is implied malice aforethought (Vickers) free will (Kennedy) reasonably prudent person would’ve foreseen serious and obvious foresight of consequences is evidence of intention (Moloney) risk of death (Broughton) oblique intent if death was virtual certainty and appreciated mens rea = for unlawful act disregard of life and safety amounted to crime (Bateman) (WOollin) didn’t have to realise death or injury may occur no ex turpis causa (wacker) don’t have to realise act is unlawful or dangerous (Newbury & when concerning allergies, defendant is only guilty if knew of Jones) condition (Zaman)  pa COMMON ASSAULT BATTERY section 39 criminal justice act 1988 section 39 criminal justice act 1988 originated from case law 6 months imprisonment or a £5000 fine 6 months imprisonment or a £5000 fine if racially aggravated, 2 years imprisonment in crown court if racially aggravated, 2 years imprisonment in crown court application of unlawful force to another person, intentionally or subjectively recklessness person intentionally or recklessly causes another to apprehend immediate unlawful violence “any touch, however slight” that goes beyond accepted norms of everyday conduct common assault covers both assault and battery (Lynsey) (Collins V Wilcock) positive act, not an omission indirect act (DPP V K) situation where unlawful force can include words (Constanza) which can negate the threat (Tuberville) psychiatric injury (Ireland) and continuing act (Fagan) is applied over a period of time spitting (Misalati) omission (Santa-Bermudez) general awareness of immediate violence from the defendant’s actions mens rea = subjective recklessness (Cunningham) or intention (Mohan) fake pistol can cause apprehension of immediate violence (Logdon) examples pointing an unloaded gun = no apprehension (Lamb) racist letter can cause fear of immediate unlawful violence (Ramos) - grazes or scratches - minor bruising mens rea = subjective recklessness (Cunningham) or intention (Mohan) - superficial cuts - black eye ABH non-fatal offences s18 GBH section 47 offences against the person act I' 1861 section 18 offences against the person act 1861 triable either way offence indictable offence 5 years imprisonment s20 GBH life imprisonment section 20 offences against the person act 1861 “any hurt calculated to interfere with health or comfort” triable either way offence unlawfully and maliciously wound or cause GBH with intent (MilleR) 5 years imprisonment actus reus ABH must not be so trivial as to be wholly insignificant (Chan Fook) unlawfully and maliciously wound or inflict GBH upon another person 1. causing GBH with or without any weapon 2. causing a wound 1. assault 3. resisting arrest (Morrison) 2. occasioning really serious harm (DPP V Smith) 3. bodily harm no difference between serious and really serious (SaunderS) severity is according to health and age (Bollom) unlawful means defences of consent and self-defence are wound is break or cut in the continuity of the first 2 layers of skin wounding is a break or cut in the continuity of the first 2 layers of appropriate internal bleeding isn’t sufficient (Eisenhower) skin internal bleeding isn’t sufficient (Eisenhower) in absence of good reason, victim’s consent is no defence (Brown) inflicting means GBH was caused by direct application of force allowing public to wind each other up without “good reason” is not in includes severe psychiatric injury (Burstow), HIV transmission (Dica) the public interest (R V BM) mens rea = maliciously (Golding) and multiple ABH injuries (Brown V Stratton) only need to intend/be reckless that actions could’ve caused mens rea = subjective recklessness (Cunningham) or intention (Mohan) physical damage mens rea = intention (Mohan) don’t need to foresee level of serious injury examples examples examples - temporary loss of consciousness - injury causing permanent disability or disfigurement - extensive or multiple bruising - inflicting = broken back, broken leg, long stay in hospital - broken or dislocated limbs or bones - broken nose - wounding = deep cut - injuries causing substantial loss of blood - psychiatric injuries - injuries resulting in lengthy treatment  ! THEFT ROBBERY BURGLARY section 1 Theft Act 1968 section 9 Theft Act 1968 section 8 Theft Act 1968 dishonestly appropriate property belonging to another with intention to section 9 (1)(a) and section 9 (1)(b) - entry into building or part of a completed theft with force or threat on any person, immediately before permanently deprive the owner building as a trespasser or at the time of the theft entry must be effective (Brown) section 2 = dishonesty (mens rea) partial entry may be effective (Ryan) theft must be complete for robbery to occur (Waters) section 3 = appropriates (actus reus) entry can be part of a building (Walkington) moment theft is complete with force, there is robbery (Corcoran) section 4 = property (actus reus) using force to escape is considered at the time of theft (Lockley) section 5 = belonging to another (actus reus) building can be any structure of considerable size, that’s permanent robbery is a continuing act (Hale) section 6 = intention to permanently deprive (mens rea) or meant to endure for considerable time (Steven V Gourley) force can include wrenching a bag from someone’s hand (Clouden) appropriation is assuming rights of owner if defendant has permission to be in building then they’re not a accidental force whilst stealing isn’t considered robbery (Forrester) includes taking and abandonment (Vinall), assuming rights to sell trespasser (Collins) (Pitman & Hehl) person can become trespasser if they go beyond what is reasonable must occur in the country (Atakpu & Abrahams) (Smith & Jones) consent is not valid with deception (Lawrence) section 9 (1)(a) - entry into building as trespasser with intent to land can’t be stolen except by trustee or tenant steal, GBH or criminal damage upon entry wild plants can be stolen if for commercial reasons same with wild animals section 9 (!)(b) - entry into building as a trespasser and steal or confidential information can’t be stolen (Oxford) attempt to steal, commit or attempt GBH, with body parts can be stolen (Kelly & Lindsay) intention after entry owner can steal their own property if someone else has proprietary interest (Turner) property offences obligation to return property if someone else has equitable interest (Webster) betting theft isn’t legally enforceable (Gilks) test for dishonesty (Ivey V Genting) 1. what was defendant’s actual state of knowledge? 2. would it be dishonest by ordinary standards? no dishonesty if defendant believes the have the right to deprive (Robinson) no dishonesty if other would have consented or if owner couldn’t be found after taking reasonable steps (Small) no intention to permanently deprive if item is returned in original state (Lloyd) returning exact copy is intention to permanently deprive (Velumyl) -  I It INTOXICATION AUTOMATISM INSANITY voluntary intoxication non-insane automatism burden of proof on defence to prove balance of probabilities if successful, verdict of “not guilty by reason of insanity” defendant has chosen to take intoxicating substance or knows the effect cause of lack of control is external defence to strict liability offences (Loake) will make them intoxicated complete defence as actus reus wasn’t voluntary action or there is an (Coley) external cause (Quick) M’Naghten Rules result of automatism is that defendant didn’t have required mens rea 1. suffering from defect of reasoning S didn’t form mens rea so unable to be guilty for specific intent (Sheehan & 2. result of disease of the mind Moore) cause must be external to defendant 3. defendant didn’t know nature and quality or know they were doing jury has to decide if defendant had mens rea for offences of murder and e.g. a blow to the head, effects of PTSD or self-induced drug was wrong manslaughter (Lipman) taking no fault when defendant was in automatic state through external defect of reasoning means defendant’s powers of reasoning must drunken intent is still intent (Gallagher) cause (Hill) be impaired more than confusion (Clarke) voluntary intoxication is a reckless course of conduct and not a defence has to be a total loss of voluntary control (A-G Ref. 1993) of basic intent crime (Majewski) disease of mind is a legal term if defendant doesn’t realise the potency of intoxicant there can be still a mental disease or physical disease affecting the mind (Kemp) defence (Allen) organic insanity is where the brain is damaged by physical cause e.g. alzheimer’s,diabetes (Hennessy) or sleep walking involuntary intoxication (Burgess) defendant didn’t know they were taking an intoxicating substance functional insanity is where there is no organic reason e.g. soft drink is spiked or prescribed drug has unexpected effect - - I if prosecution proves mens rea, they 2 ways defendant may not nature are guilty even if they wouldn’t have and quality of their act: mental capacity defences committed act without involuntary intoxication (Kingston) 1. when they are unconscious 2. where their mental condition if defendant is mistaken about key causes them to not understand fact because of intoxication, defence or know what they are doing to specific intent offences (Oye) if mistake is about something which - means defendant didn’t have necessary mens rea and it’s a basic self-induced automatism defendant can use the defence if they knew the nature and offence, there is no defence quality but not that the act was wrong (Windle) if mistake is about another aspect e.g. force for self-defence then occurs when defendant knows their conduct is likely to bring on an there’s no defence (O’Grady) automatic state judge can impose hospital order, supervision order or absolute under section 76 (5) mistakes aren’t attributable to intoxication (Taj) discharge automatism results from perfectly appropriate action but with unanticipated consequences, defence to basic and specific intent offences if automotive state results from improper action or defendant’s failure then it’s a defence to specific intent (Hardie) no defence to basic intent if they knew the risk they may engage in dangerous or aggressive conduct (Bailey)  Il DURESS BY THREATS ATTEMPTS common law defence section 1 (1) Criminal Attempts Act 1981 if successful, its a complete defence to find the defendant not guilty charge of attempts can only be brought for offences triable by indictment not a defence for murder (Howe) or attempted murder (Gotts) person tries to commit an offence, has the mens rea, but fails to complete it test for defence: (White) 1. threat to cause death or serious injury can be a cumulative effect (Valderrama-vega) actus reus has to be more than merely preparatory threat should be imminent (Hammon) defendant must have “embarked on crime proper” (Gullefer) effective at the moment the crime is committed (Hudson & Taylor) didn’t need to reach the point of return or performed the last act (A-G Ref. 1993) 2. threat must be directed against defendant, immediate family or someone close to them Court of Appeal: 1. had accused moved from planning or preparation to execution or implementation? 3. reasonableness of defendant’s actions judged objectively 2. had accused done an act showing he was trying to commit full offence? (Geddes) sober person of reasonable firmness sharing same characteristics would have responded in same way (Graham) defendant must normally have same intention as required for full offence (Easom) if defendant had conditional intent he could be charged with an attempt (Court of Appeal) 4. threats must relate directly to crime committed (Cole) mens rea for attempted murder requires intent to kill not cause serious harm (Whybrow) 5. no evasive action could have been taken by defendant (Gill) recklessness is sufficient if it is part of the crime and intention is another part (A-G Ref. 1994) 6. defence can’t be used if defendant voluntarily laid themselves open to threats person intends to commit an offence and do everything possible but offence is impossible (Anderson V knowingly joining a criminal gang (Sharp)(Shepherd) Shivpuri) age, pregnancy, serious physical disability, recognised mental illness or gender (Bowen) CONSENT general defences NECESSITY never a defence to murder or offences with serious injury must be circumstances which force person to act to prevent a “worse consent is strictly not a defence as implies no offence (Donovan) due to other persons consent (Slingsby) DURESS BY evil” from occurring (Dudley V Stephens) not in the public interest to allow members to wound each other CIRCUMSTANCES test for necessity: without “good reason” (Brown) 1. act must be done to prevent an act of greater evil (Shayler) circumstances dictate the crime rather than a person 2. evil must be directed towards defendant or someone they are must be real consent which isn’t affected by identity of defendant responsible for e.g. false medical qualifications (Tabassum) or non disclosure of example: reckless driving on pavement to escape gang (Willer) or spouse 3. act must be reasonably proportionate to evil prevented disease (Dica) threatens suicide unless you do something you’re banned from (Martin) courts are reluctant to use defence in it’s own right courts can imply consent to minor touching e.g. everyday jostling a in crowd of people (Wilson V Pringle) defence to all crimes except murder or attempted murder (Pommell) necessity is lawful if in the best interests of the parties (Re A) applies to contact sports as only criminal prosecution when conduct argued where defendant reasonably perceived threat of serious was sufficiently grave (Barnes) physical injury or death without an actual threat (Cairns) consent to life-saving medical procedures can be presumed but consent can be refused (Blaue) if defendant genuinely but mistakenly believes victim is consenting so might be defence to charge of non-fatal offences (Atiken) submitting to the defendant’s conduct through fear isn’t real consent (Olugboja)  ! OUTLINE ACTUS REUS section 1 (1) Criminal Attempts Act 1981 positive act, not an omission charge of attempt can only be brought if the full offence is triable on indictment act that is “more than merely preparatory to commission of the offence” person does an act which is more than merely preparatory to commission of offence decision for the jury to decide criminal law can punish defendant who tries but fails to carry out crime A-G Ref. No.1 1993: no need to perform last act before the crime proper nor need to have reached point of no require intent to commit the offence return question as to whether defendant has moved from preparatory stage and gone sufficiently towards committing offence merely preparatory 1. has defendant actually tried to commit the offence? R V Campbell: defendant arrested for robbery but didn’t enter the post office or threaten staff so not guilty 2. have they simply got ready, got into position or equipped themselves to commit offence? R V Gullefer: defendant must have “embarked upon actual commission of the offence” R V Geddes: whether defendant has “actually tried to commit offence or only got ready or equipped prosecution has to prove: themselves to do so” actus reus = person does an act which is more than just preparing to commit offence mens rea = intent to commit the offence more than merely preparatory R V Boyle & Boyle: stood outside door with broken lock, more than merely preparatory as all they had to do was enter the building to commit the full offence R V Tosti & White: became more than merely preparatory when examined the padlock MENS REA preliminary offences prosecution must prove intent to commit the full offence FACTUAL & if there is no evidence that defendant intended to permanently deprive, not guilty of attempted theft (Easom) LEGAL IMPOSSIBILITY Court of Appeal ruled on conditional intent to steal some or all contents (A-G Ref. No.1 & No.2 1979) section 1 (2) Criminal Attempts Act 1981: introduced new offence of attempting the impossible prosecution has to prove higher level of intention compared to full offence of murder have to prove intention to kill (Whybrow) person guilty of attempting to commit an offence even if facts suggest commission is impossible reckless is only necessary to prove if life would be endangered (A-G Ref. No.3 1994) offence which is factually impossible which became an offence recklessness to consent is sufficient for attempted rape (Khan) offence which is legally impossible which isn’t an offence factually impossible commission of crime was impossible although defendant believed it to be possible can be convicted of an attempted crime innocent act can be turned into crime if intention was to commit an offence (Shivpuri) legally impossible defendant believes they are committing offence but they aren’t can’t be convicted of offence Taaffe: defendant can’t be convicted of an imaginary offence  = evaluation I NON-FATAL OFFENCES REFORM SUGGESTIONS 1998 - draft bill but no progress was made as little political will to implement proposals 1998 Draft Bill narrowly defines offences some sections create multiple different offences Assault & Battery level of seriousness of offences are unclear physical assault = intentionally or recklessly applies force or causes impact on body, without consent sentencing doesn’t match the offences threatened assault = intentionally or recklessly causes another to think force or impact is imminent, uncommon vocabulary without consent out of date Offences Against the Person Act 1861 Offences Against the Person Act 1861 is over 150 years old Clause 1 = intentionally causing serious injury, max sentence of life imprisonment (replacing section 18) understanding of mental health isn’t included in the perception of “bodily harm” Clause 2 = recklessly causing serious injury, max sentence of 7 years imprisonment (replacing section 20) Chan Fook and Burstow: bodily harm includes mental health Clause 3 = intentionally or recklessly causing injury, max sentence of 5 years imprisonment (replacing misunderstanding of how infecting other people with a disease can be an unlawful act (Dica) section 47) inconsistency Law Commission Report 2015 there’s no clear hierarchy of offences establish clear hierarchy based on harm, culpability and maximum penalty Section 47 ABH has same mens rea for assault/battery but ABH has 5 years imprisonment and common clear and accurate labels defining easy language assault has 6 months imprisonment offences conform to correspondence principle definition of “wounding” means small cut can result in section 20 GBH but not all wounds are classed as GBH strengthen law by recommending highest penalty to protect victims maximum sentence for ABH and section 20 GBH is 5 years imprisonment but there are different levels of blameworthiness and harm Need for modern simplified language under section 18 GBH, minor injuries can be charged with serious offence even if it’s during arrest (Morrison) outdated act which makes it difficult for defendant and juries to understand “maliciously” means deliberate ill will, whereas the act defines it as intention or recklessness correspondence principle definitions of section 20 “inflict” and section 18 “cause” are inconsistent harm required to be intended or foreseen matches harm done under the 1861 Act, defendant can be guilty of section 20 without intending or being reckless defendant can be guilty of section 47 without intending any harm clear breaches of legal principle set out in 2015 report  = evaluation I DEFENCES REFORM SUGGESTIONS intoxication intoxication (Law Commission 2009) definition of intoxication abolish basic and specific intent references distinction between specific and basic intent crimes keep distinction between voluntary and involuntary intoxication + reasonable that getting drunk is reckless and mens rea is proved primary presumption that defendant wasn’t intoxicated and individuals should have to prove they were - mens rea can be formed hours before unplanned criminal conduct which satisfies the actus reus secondary presumption is that defendant was voluntarily intoxicated defendant stating they were involuntarily intoxicated then they would have to prove it operation of intoxication requirement of foresight of a particular risk self-defence + recklessness doesn’t require foresight of risk for public policy (Majewski) otherwise anyone could open to jury to convict of manslaughter depending on amount of force to combat “all or nothing” nature plead the defence for missing the risk whilst intoxicated if defendant lost control, can raise partial defence to murder when self-defence fails, change ruling in - reckless doesn’t require foresight of particular risk (Majewski) which contrasts subjective O’Grady recklessness (Cunningham) consent (Law Commission 1995) self-defence substitute a free and genuine agreement as consent to sexual contacts definition of self-defence law should set a limit to injury which person can consent whilst stating special exempt categories e.g. ear defence is restrictive as to the amount of force allowed piercing and tattoo + restrictiveness prevents unwarranted violence - juries have to be empathetic and in-vision the situation the defendant experienced mistaken use of self-defence mistaken use is allowed + novel situations allow for defendant to make honest mistake as use of self-defence - immoral defendant could argue extreme reaction was an honest belief defendant’s characteristics in self-defence characteristics are not relevant to reasonable force + time consuming as requires extensive medical evidence even amongst similar defendants - characteristics are relevant under section 76 of Criminal Justice Act 2009 relating to self-control consent boundaries of defence autonomy allows serious injury to be caused e.g. tattooing, boxing, martial acts + public should be able to consent to a degree of injury even in non-therapeutic situations - difficult to reconcile criminalising serious and deliberate sports injuries sexual activities consent law condones violent behaviour during alleged sexual activity (Wilson) inconsistency with no consent defence allowed in Brown case + autonomy should be allowed in sexual activity if it provides pleasure even if they’re extreme acts - current opinion allows level of violence that was previously outlawed e.g. sadomasochistic activities euthanasia consent is no defence to intentional killing + no one should be allowed to consent to their own murder - person who is unable to take their own life should be allowed to use another person for that purpose