Criminal_Law_Checklists_Booklet.docx

**A-level Law Paper 1 - Criminal Law Checklists** **Criminal Law Checklists Contents Page** **Concepts of criminal liability** 4 *Actus reus* 5 *Mens rea* 8 Crimes of strict and absolute liability 11 **Offences Against the Person** 15 Assault 16 Battery 17 Assault Occasioning Actual Bodily...

**A-level Law Paper 1 - Criminal Law Checklists** **Criminal Law Checklists Contents Page** **Concepts of criminal liability** 4 *Actus reus* 5 *Mens rea* 8 Crimes of strict and absolute liability 11 **Offences Against the Person** 15 Assault 16 Battery 17 Assault Occasioning Actual Bodily Harm, s.47 OAPA 1861 18 Grievous Bodily Harm, s.20 OAPA 1861 20 Wounding, s.20 OAPA 1861 22 Grievous Bodily Harm, s.18 OAPA 1861 24 Wounding, s.18 OAPA 1861 26 **Homicide I: Involuntary Manslaughter** 28 Unlawful and Dangerous Act Manslaughter (UDAM) 28 Gross Negligence Manslaughter (GNM) 30 **Homicide II: Murder and Voluntary Manslaughter** 33 Murder 33 Voluntary Manslaughter I: Diminished Responsibility 35 Voluntary Manslaughter II: Loss of Control 38 **Offences Against Property** 41 Theft 42 Robbery 45 **Attempts** 47 **General Defences** 49 Insanity/insane automatism ("capacity") 50 Automatism ("capacity") 51 Intoxication ("capacity") 52 Self-defence/defence of another/prevention of crime ("necessity") 53 Duress by threats/by circumstances ("necessity") 56 **Sentencing (non-substantive -- but linked to offences)** 58 **Theory of Criminal Law -- Final reminders** 61 **Concepts of Criminal Liability** **Meaning of crime** A crime is an act or failure to act that is regarded by **statute law** (made by Parliament) or **common law** (developed by judges) as a "public wrong" and therefore punishable by the state in criminal proceedings. Crime and punishment in English law is informed by **J.S. Mill's "harm principle"**: "The only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to **prevent harm to others**." Crimes are categorised, for the purposes of criminal proceedings, as: - Indictable -- most serious crimes - Triable either way -- crimes of intermediate seriousness - Summary -- least serious crimes **Glanville Williams** drew a valuable distinction between types of crimes: some, he said, were ***mala in se*** (i.e. wicked in themselves, thus overlapping with morality, e.g. murder and rape), whereas others were ***mala prohibita*** (i.e. prohibited for the public good, to ensure the smooth running of society, e.g. road traffic, consumer protection, health and safety, and environmental offences). Crimes *mala in se* will always require the *actus reus* plus a specified *mens rea*, whereas crimes *mala prohibita* might only require an *actus reus* -- these latter are known as **strict liability** offences, where the defendant's action remains voluntary, or **absolute liability** offences, where the offence can even be committed involuntarily. Crimes may receive the following punishments, according to the **sentencing** framework: - Custodial sentence -- up to whole life imprisonment - Community Order - Fines - Discharges (Conditional or Absolute) Some crimes may also be civil wrongs, for which the victim may claim damages (e.g. torts of assault, battery, criminal damage, types of theft/fraud), but some wrongs are almost always likely to be regarded as public wrongs and prosecuted under criminal law, e.g. rape. A victim of a crime may be entitled to publicly-funded compensation via the **Criminal Injuries Compensation Scheme**. ***Actus reus*** The *actus reus* is the physical element of the crime. The defendant's conduct must be **voluntary** -- a conscious exercise of will (*cf* involuntary actions, as hypothetically suggested by a judge in *Hill v Baxter*: a driver attacked by a swarm of bees would not be liable for a driving offence) Can be committed by a physical **act**: e.g. a defendant commits battery if he inflicts unlawful personal violence on another person Can be committed by an **omission** where there is a duty to act, such as: - Contractual duty to act (e.g. *R v Pittwood*) - Assumed responsibility (e.g. *R v Stone and Dobinson*) - Statutory omissions (e.g. Fraud Act 2006, s.3 -- failing to disclose info where there is a legal duty to do so) - Creation of dangerous situations (e.g. *R v Miller*) - Requirement to protect others (e.g. *R v Dytham*) Can be committed by **state of affairs**, where absolute liability is imposed: e.g. *R v Larsonneur; Winzar v Chief Constable of Kent* The rules of **causation** should be discussed for the *actus reus* of result crimes. (No need to discuss these rules for Assault/Battery or for Property Crimes -- Theft and Robbery.) **[Factual causation]** The test for factual causation is the ***But for* test**, which asks: *But for* the defendant's action, would the harm to the victim have occurred? If the harm would have happened anyway, the defendant is NOT the factual cause (*R v White*). However, if the harm only occurred because of the defendant's action then they will be the factual cause (*R v Pagett*). Establishing factual causation does not, on its own, determine liability (*R v Hughes*): we must therefore turn to the rules of legal causation. **[Legal causation]** There are three main rules of legal causation, which all relate to the idea that there is a **"chain of causation"**, which clearly links the defendant's conduct to the resulting injury suffered by the victim. For the defendant to have liability, this chain must be capable of justification in policy terms (i.e. in the message being sent to society) and remain intact. 1. The defendant's conduct must make a **significant contribution** to the harm. A "significant contribution" must be a **more than minimal contribution**, based on the principle *de minimis non curat lex* (the law does not deal with trivial/trifling matters). This can be illustrated by the case of *R v Pagett*, where the Police were technically the main cause of the death of the victim, but the defendant had significantly contributed to her death by using her as a "human shield" during a shoot-out. The defendant does *not* have to be the only cause, as further illustrated by *R v Benge* and *R v Kimsey*. 2. The defendant must take the victim as he finds him, under the **thin skull rule**. If a victim has a particular vulnerability or acts against their own interests, the chain of causation will remain intact, and the defendant's is liable for the more serious results. This maintains the **policy position** that those who commit violent acts should take responsibility for their actions. The thin skull rule is usefully illustrated by a series of cases in which the victim refuses the medical treatment available and makes matters worse -- e.g. *R v Blaue* (stabbing victim refuses a blood transfusion on religious grounds and dies); *R v Dear* (wounded victim neglects to be treated and opens own wounds, leading to death); *R v Holland* (wounded victim refuses to have a finger amputated and subsequently dies). The reasonableness of the victim's conduct is [not] a relevant issue when looking at causation. 3. Has the chain of causation remained intact, or has a **new intervening act** **(*novus actus interveniens*)** broken the chain? To break the chain of causation, the new intervening act must be a new and independent cause that is "so potent" in causing the injury to V that the original actions of D are rendered insignificant (see, e.g., *R v Jordan*). Breaks in the chain of causation are rarely established. a. **Acts of a third party, such as medical intervention cases** If D stabs (*R v Smith*; *R v Malcherek and Steel*) or shoots (*R v Cheshire*) V, it is likely that they will be regarded as the **"operating and substantial cause"** of the injury V suffers (death in these cases). The chain will only be broken if the medical intervention is regarded as a wholly independent, "palpably wrong", and an overwhelming cause of the injury/death: e.g. if D stabs V but as V is recovering the doctors give drugs to which V is allergic, thus causing a reaction that leads to V's death, there will be a break in the chain of causation (*R v Jordan*). N.B. If D stabs V and V is placed on life support, doctors who decide to withdraw such support on medical grounds will NOT break the chain of causation (*R v Malcherek and Steel*). b. **Victim's own acts** If **V's response** to D's actions (such as D's unwanted sexual advances, or D chasing and assaulting V) is a **reasonably foreseeable consequence of these actions** then D remains the **["operating and substantial cause"]** of any injuries that V suffers, e.g. V jumping out of moving car and suffering injury (*R v Roberts*) or V jumping out of a building if fearing attack in an upstairs room (*R v Marjoram*). However, if V's response is NOT proportionate to the threat and could be considered a "daft" and unreasonable response, this will **break** the chain of causation (e.g. jumping out of a moving car when there is no clear threat, *R v Williams and Davis*). N.B. If V freely and voluntarily, as an adult, takes a syringe of heroin from D and injects it into their own body, D will not be liable for V's subsequent death from an overdose: V's free and informed voluntary act breaks the chain of causation (see, e.g. *R v Kennedy, No 2*). **Natural events** may also break the chain of causation if they are **unforeseeable**, e.g. D attacks V and leaves her lying on a street but V is then killed by lightning -- D will not be liable for the death. However, if D attacks V on a beach, and V subsequently drowns when the tide comes in, D will be the **operating and substantial cause** because **the tides are foreseeable**. ***Mens rea*** The *mens rea* is the mental element of the offence. It expresses the **degree of fault** that can be attributed to D, e.g. the *mens rea* indicates the dividing line between Murder and Involuntary Manslaughter, and between the non-fatal offences. We study three types of *mens rea*: intention; recklessness; and negligence. *Mens rea* is assessed *subjectively* (what D intended or foresaw) **[except for negligence]**, which is assessed *objectively* (measured against the actions of a reasonable person). a. **Intention** In crimes of **basic intent** (i.e. those crimes that require intention *or* recklessness as to the commission of the offence), the intention you need to look for is **direct intent -- D's aim, purpose or plan to cause a result to V** (*Mohan*). Intention only becomes difficult in crimes of **specific intent** (i.e. those most serious crimes where only intention will be required), where **direct *or* indirect/oblique intention** may apply. For direct intent, the principle in *Mohan* applies. For indirect/oblique intent, the law struggled to find a principle -- see discussion in cases such as *Moloney*, *Hancock and Shankland*, and *Nedrick* -- but the *Woollin* test now applies: a jury may find intention **if D could foresee the result to V as a virtually certain consequence of his actions.** This test was applied, in the context of Murder, in *R v Matthews and Alleyne*. N.B. In *theory*, oblique intention could apply to crimes of basic intent, but in *practice*, there is no need for it, as the prosecution can argue for intention or recklessness, the latter being easier to prove than oblique intention. **(b) Recklessness** Recklessness is a lesser degree of *mens rea* than intention and is associated with crimes of basic intent. Recklessness refers to D's unjustified risk-taking -- **D foresees** **the risk** of committing the prohibited result, **yet still takes the risk**. D goes ahead regardless. Recklessness is assessed **subjectively** (see, e.g. *R v Cunningham*; *R v G*). N.B. The law briefly considered recklessness to be measured against the risk that an ordinary reasonable person would have regarded as obvious (*R v Caldwell*), but this was overruled by *R v G* and subjectivity prevails. **(c) Negligence** This form of *mens rea* has parallels with civil law negligence (in the law of tort) and is measured **objectively**: has D's conduct fallen below the standard of the reasonable person? Negligence may apply to relatively **minor crimes** (e.g. driving without due care and attention) but also to **serious crimes**, such as gross negligence manslaughter. For gross negligence, D's conduct must have fallen so far below the standards of the reasonable person that it is a matter that goes beyond "mere compensation" and shows a "disregard for the life and safety of others" (*Bateman*; *Adomako*). Gross negligence will therefore apply in cases such as *R v Adomako* and *R v* *Wacker*. ***Mens rea* and the transferred malice rule** This rule applies to situations where **D aims to kill or injure X but instead kills or injures Y**, and in such cases **D's malice towards X transfers to Y**. There are many examples but the landmark case is ***R v Latimer*** (D aims to injure X with a belt but instead injures Y; D's malicious intent transfers to Y). If there is a shoot-out in a public place between two men (D1 and D2) and a passer-by (V) gets shot and dies, both D1 and D2 will be guilty of Murder, despite the fact that they were trying to kill each other and nobody else (*R v Gnango*). If D pushes V1 into V2, and V2 dies as a result, D's malice towards V1 will transfer to V2 and make them liable for unlawful and dangerous act manslaughter (*R v Mitchell*). There are **[two main exceptions]** to the rule: 1. It will not apply if the MR is not sufficient or appropriate for the AR, e.g. a D who threw a stone intending to injure V, was not liable for criminal damage when the stone instead broke a window -- the MR was not sufficient for the actual crime committed (*R v Pembliton*). 2. If V, a pregnant woman, is attacked by D, the malicious intent towards the mother does not transfer to the foetus in the womb, and nor does it transfer from the foetus in the womb to the child that the foetus will become. Thus, D cannot be liable for Murder when the foetus becomes a child born (prematurely) alive but who dies shortly afterwards -- *A-G's Reference (No 3 of 1994)*. **The "coincidence" or contemporaneity rule** The general rule is that the *actus reus* (AR) and *mens rea* (MR) must coincide for a crime to be committed. However, where these do not coincide precisely, but a **single sequence of events/a single transaction** or a **continuing act** can be detected, the courts will still find criminal liability. This is illustrated by several cases: a. **Where the MR is developed before the AR of a crime is achieved** Where Ds, intending to, and believing they have, killed V, throw his body over a cliff, only for V to die later from exposure -- here the MR was present, with AR catching up, over a **single sequence of events**, for Murder to be established (*Thabo Meli v R*). Where D attacks V, panics when he thinks she is dead, and throws her in a river when she is actually still alive, and she subsequently drowns -- here manslaughter was established, and murder considered, where D's MR subsequently leads to the achievement of the AR in a **single sequence of events/transaction** (*R v Church*). See also, e.g., *Le Brun*, where D, after an attack on V, had dropped her body accidentally, thus causing her death, while in the process either of moving V against her will or seeking to dispose of her body -- again a **single transaction** amounting to manslaughter. b. **Where the AR is developed before the MR of a crime is achieved** Where D drives on to V's foot (AR of battery), but only establishes the MR when D chooses not to move the vehicle -- the liability of D for battery is based on a **continuing act**, with which the MR catches up (*Fagan v Metropolitan Police Commissioner*). **Crimes of strict and absolute liability** **Meanings** **Strict liability offences** are those in which the *mens rea* does not have to be proved for one or more elements of the *actus reus.* Therefore, for these particular elements of the *actus reus* no fault (in the *mens rea* sense) needs to be proved. This means that for some crimes, no *mens rea* will be required (e.g. selling a lottery ticket to a child under the age of 16 -- *Harrow LBC v Shah*). Crimes that require no *mens rea* at all, and may even be involuntarily committed, contrary to the voluntary principle of the *actus reus*, are referred to as **crimes of absolute liability** (e.g. state of affairs cases such as *Larsonneur*). **Theory** Strict liability offences reflect **Mill's harm principle** in that they prohibit acts that may cause harm to the public (e.g. protecting consumers against unfit food; protecting society from pollution of natural resources; protecting motorists by ensuring that vehicles are safe on the road and operated safely by other drivers) and they therefore seek to safeguard **public welfare**. However, there are two controversial issues about these types of offences: 1. **Are they really crimes at all?** Glanville Williams made the point that strict liability offences are *mala prohibita* crimes rather than crimes of moral wickedness. It has been argued that these are "not truly criminal in character" (Mitchell, J, in *Harrow LBC v Shah*) or "quasi-crimes", carrying neither the disgrace of a "real" crime or the stigma in society. However, in *Harrow LBC v Shah*, the crime of selling a lottery ticket to a child under the age of 16 was **clearly intended to be a crime** -- it was punishable on indictment with a maximum sentence of 2 years' imprisonment! 2. **Are they about fault?** As Glanville Williams, a criminal law scholar, and some notable judges (e.g. Lord Reid), have pointed out, these offences are not about *moral* guilt or blameworthiness. It is true that a person can be convicted without being at any *moral fault* at all (e.g. *Harrow LBC v Shah*). However, a person who commits a harm to occur in society, one which the criminal law protects the public against, can be said to be *blameworthy* in some way. Would we truly say that if D, a business owner, allows a river to be polluted (*Alphacell Ltd v Woodward*), or sells unfit food (*Callow v Tillstone*), or enables a child to gamble (*Harrow LBC v Shah*), they would not be regarded as at fault? The stigma may be less than for other crimes, but D is still regarded as at some fault for committing the act. The same argument can even be applied to crimes of absolute liability: the apparently involuntary action for which *Larsonneur* was convicted, for example, can still be traced back to the act of overstaying a visa. Strict and absolute liability offences show that there are **levels of blameworthiness** below the moral blameworthiness that attaches to "real" crimes directly against the person or directly against property. N.B. Note that some crimes have parts of the *actus reus* that are strict, and parts that have *mens rea* requirements. For example, under **s.5 of the Sexual Offences Act 2003**, on rape of a girl under the age of 13, the commission of the sexual conduct must be intentional (with *mens rea*) whereas the fact of the age is strict liability. Thus, in ***R v G***, D is liable under this section for intentionally having sex with a girl (*mens rea* in place) who was actually under 13 but had told him she was 15 (strictly liable on the fact of age). D's genuine belief that she was older does not affect his liability under this offence. A much older crime that posed problems for the courts on this point was unlawfully taking an unmarried girl under the age of 16 out of the possession of, and against the will of, her father, mother or other legal guardian (**s.55 of the Offences Against the Person Act 1861**). Some parts had strict liability ("under the age of 16") and some required *mens rea* (intending to take the person out of possession of a legal guardian). Cases turned on these aspects: in ***Prince***, D was guilty both on strict liability and *mens rea* grounds, but in ***Hibbert***, D was not guilty of the offence as *mens rea* could not be established. **The main source of strict liability offences** Whereas the common law is the source of a very small number of strict liability offences (e.g. outraging public decency), **Parliament is the main source of strict liability offences**, producing thousands of them as **statutory crimes**, with many of them prosecuted in the Magistrates' Court and some in the Crown Court. Most statutes will be drafted to identify these offences as ones of strict liability. **What happens if a statute is silent about the nature of the crime?** If a statute is silent about a crime, the **courts will presume** that the offence has a *mens rea* element. This occurred in the case of *Sweet v Parsley*, where a teacher, who let her premises to students without any knowledge that they had been smoking cannabis, successfully appealed -- she **lacked the *mens rea*** for the drug-related offence. In *B v DPP*, similarly, a 15-year old boy who had incited a 13-year old girl to perform a sex act was able to show that he **lacked the necessary *mens rea*** for this particular sexual offence -- he genuinely believed the girl was over 14. The Privy Council in the case of *Gammon Ltd v A-G of Hong Kong* -- about the nature of liability relating to some Hong Kong building regulations -- said that the **presumption in favour of *mens rea*** was [affected by the following factors]: - The **clear words of the statute** -- which could *rebut* the presumption; - The **nature of the crime** -- the **presumption is strongest for "truly criminal" acts**; - The **purpose of the statute** -- which might *rebut* the presumption if it showed that the matter was one of public safety or welfare; - The **value of strict liability** -- which might *rebut* the presumption if strict liability would encourage the enforcement and prevention of the prohibited act. As we have seen, **if the wording of the statute is clear**, the crime is one of strict liability on all or a key part of the *actus reus*, even though the act may be "truly criminal" in nature -- see **s.5 of the Sexual Offences Act 2003** and the case of ***R v G*** on statutory rape of a girl under 13, with the age part of the offence being specifically of strict liability. **Pros and cons of strict liability** [Pros] - Strict liability offences are in line with Mill's "harm principle" -- they prevent harmful acts and protect public welfare. - They also achieve social utility -- we all benefit from regulation by strict liability. - Strict liability raises commercial, industrial and general standards, and has a deterrent effect. - These offences are relatively easy to enforce, compared to other crimes, as there is no need to prove *mens rea* for all, or at least one part, of the *actus reus*. - Owing to ease of enforcement and lack of social stigma with most of these offences, a defendant is more likely to plead guilty, thus saving time in the courts. - Although crimes of absolute liability allow for no defences at all, statutory strict liability offences sometimes have "due diligence" (no negligence) defences in the same statute. - If a defendant clearly lacks blameworthiness, this can be considered at the sentencing stage. [Cons] - Strict liability (and certainly absolute liability) is too harsh on defendants -- think of the shopkeepers in *Harrow LBC v Shah*, who had done their best to ensure that their staff did not sell lottery tickets to under-16s. They were still liable, even if not blameworthy. - A defendant can even be liable for a risk of which they were unaware -- e.g. in water pollution cases, leaks of pollutants owing to problems with equipment rather than arising from a human act. - Not all strict liability cases are free from social stigma -- consider the statutory rape case of *R v G*. - Due diligence defences are not available for all strict liability offences and so there is not a consistent approach to these offences in statute law. - The imposition of strict or absolute liability breaches human rights: although appeals on Art.6 ECHR (the presumption of innocence principle) have failed, these offences certainly breach Art.7 ECHR (certainty in criminal law) if the nature of the offence is not clear. **Offences Against the Person --** **Non-Fatal; and Fatal (Homicide)** **Assault** **Source/context** This is a distinct offence, on a statutory footing by **s.39** of the **Criminal Justice Act 1988** but has actually been defined and shaped by **common law** (i.e. by judicial precedents in the courts). Assault is a summary offence. It carries a maximum sentence of 6 months' imprisonment and/or a fine not exceeding level 5 on the standard scale (usually up to £5,000, but may now be unlimited). Assault is a crime of **basic intent** -- i.e. the *mens rea* comprises intention or recklessness, as confirmed by *R v Venna*. **Definition** An assault is any act by which D, intentionally or recklessly, causes V to apprehend immediate and unlawful personal violence. (Smith & Hogan -- the authoritative textbook.) ***Actus reus* elements** Any act that causes another person to apprehend immediate and unlawful violence. The act can take several forms, e.g.: Acts alone -- *Smith v Chief Superintendent of Woking Police Station* Acts and words -- *R v Logdon* Words alone -- *R v Constanza* Silence -- *R v Ireland* The *actus reus* will [probably not apply] if: The words negate the threat (e.g. "I would hit you if the courts are not in town") *Tuberville v Savage* V did not apprehend immediate and unlawful violence (e.g. D points a gun at V during a game and neither think it will go off when D pulls the trigger) *R v Lamb* V acknowledges that they are afraid of a future harm rather than an "immediate" harm, though note that, following *Constanza*, a fear of attack at any time, including the immediate future, could be an assault. ***Mens rea* elements** **Direct intention** (*Mohan*: aim, purpose or plan) to cause V to apprehend immediate and unlawful violence OR **Cunningham recklessness**, i.e. that D foresees the risk of causing V to apprehend immediate and unlawful violence and goes ahead anyway. *R v Venna* **Exam tips** No need for causation here -- just evidence that V expected harm. The courts have been flexible on "immediacy". Apprehend means expect not fear. If a result caused, **[then ABH]**. **Battery (aka "Assault by beating")** **Source/context** This is a distinct offence, on a statutory footing by **s.39** of **the Criminal Justice Act 1988** but has actually been defined and shaped by **common law** (i.e. by judicial precedents in the courts). Battery is a summary offence. It carries a maximum sentence of 6 months' imprisonment and/or a fine not exceeding level 5 on the standard scale (usually up to £5,000, but may now be unlimited). Battery is a crime of **basic intent** -- i.e. the *mens rea* comprises intention or recklessness, as confirmed by *R v Venna*. **Definition** "A battery is any act by which D, intentionally or recklessly, inflicts unlawful personal violence upon V." (Smith & Hogan.) N.B. Unlawful personal violence here includes any unlawful touching. ***Actus reus* elements** The infliction of unlawful personal violence, or application of unlawful force, by D upon V. This can take several forms: Unwanted touching (e.g. the hem of a person's skirt) - *R v Thomas* Hostile conduct - *Fagan v Metropolitan Police Commissioner* (not initially hostile, but became so -- car on police officer's foot). Indirect force -- (e.g. acid in the hand-dryer, *DPP v K*; hitting mother, so that she drops baby, V, *Haystead v CC of Derbyshire*) Battery by omission (e.g. not revealing a source of harm) -- *R v Santana-Bermudez* Unlike an assault, which needs to be apprehended/expected, a battery [can] be committed when V was unaware that it was coming (*R v Nelson*). It will [not] be a battery when D has no control over the contact he makes to another (e.g. if he is riding a horse and it unexpectedly runs away with him, thus bringing him to a physical collision with V -- *Gibbons v Pepper*). It will [not] be a battery if V has given valid consent to the touching (e.g. a contact sport, a medical procedure, a beauty treatment) or it is a part of everyday life (e.g. accidental physical contact in a busy train carriage or lift). ***Mens rea* elements** D has **direct intention** (*Mohan*: aim, purpose or plan) to apply force to the body of another OR ***Cunningham* subjective recklessness** whether force be so applied. **Exam tips** -- no need for causation as no result required. If result, **consider ABH**, etc. **Assault Occasioning Actual Bodily Harm** **Source/context** This offence should be the **starting point for any assault/battery that has led to [a result] on the victim**, which includes **physical and recognised psychiatric harm** (*R v Ireland; R v Chan Fook*) that has a ***temporary impact*** on V and is ***less than serious harm***. It is on a statutory footing at **s.47** of the **Offences Against the Person Act 1861** but once again the defining and shaping of the law has been carried out by **judges** in developing the **common law.** This is an **either way** offence. It is also a **basic intent** offence (i.e. the *mens rea* comprises intention or recklessness) and a **constructive liability** offence (i.e. the *actus reus* requires the causing of actual bodily harm, yet the *mens rea* only requires intention or recklessness relating to the initial assault or battery, [not] its result). **Definition** Actual bodily harm has been defined as: "**any hurt or injury calculated to interfere with the health or comfort of the victim" (*Miller*, 1954);** "the word 'actual' indicates that the injury...should not be so trivial as to be wholly insignificant" (*Chan-Fook*, 1994: on psychiatric injury it must also be more than ordinary fear or anxiety); Injury is **"...more than merely transient and trifling" (*Donovan*, 1934)** s.47 itself simply says: "...whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable to **imprisonment for not more than five years**." ***Actus reus* elements** There are three elements of the AR of assault occasioning actual bodily harm: **Assault** (e.g. chasing, threatening or otherwise putting V in expectation of serious violence) or **battery** (e.g. punching, kicking, pushing, etc) form the basis of the offence. See earlier coverage of individual offences. Note that the battery offence includes acts or omissions, as in *R v Santana-Bermudez*). Actual bodily harm needs to be "occasioned" (caused). The usual **rules of factual and legal causation** apply (see earlier coverage of these rules). The result must fall into the category of "bodily harm". The definitions of "actual bodily harm" are provided above. Cases may test the meaning of actual bodily harm: e.g. on a point of law, the Divisional Court confirmed that the cutting of hair could amount to "bodily harm" (*DPP v Smith*). Actual bodily harm includes a temporary loss of consciousness (*T v DPP*). ***Mens rea* elements** It only needs to be proven that D had the ***mens rea* for an assault or battery**, depending on the starting point for the offence (see earlier coverage for *mens rea* of these specific offences). D does not have to foresee that V will suffer actual bodily harm (see *R v Savage*). **Exam tips** You will need **causation** for this offence, though only go into detail on causation if there is a matter of causation in issue in a problem scenario (e.g. whether the V's own act broke the chain of causation, or was it a reasonably foreseeable response to D's action -- *R v Roberts*). You will also need knowledge of the earlier offences of **assault** and **battery**. You should consider this offence for any assault or battery that causes resulting harm, providing that the **harm is less than serious on V** -- if there is doubt about the seriousness of the harm, consider this offence alongside ss.20 and 18. This is a **constructive liability** offence. Therefore, the *mens rea* is for the conduct, not the result. As a crime of **basic intent**, it does **[not] allow for a defence of voluntary intoxication** (a point that also applies to assault and battery above, and s.20 below), as being voluntarily intoxicated is itself a reckless act. The CPS Charging Standard, which is a guide rather than the law, suggests the following injuries will amount to ABH -- note the temporary nature of many of these: Loss or breaking of tooth/teeth Temporary loss of functions Extensive/multiple bruising Displaced broken nose Cuts requiring treatment Recognised psychiatric injury ***Depending*** on the severity, some of these could overlap with serious harm or wounding (see ss20-18 below). **Grievous Bodily Harm s.20** **Source/context** Grievous Bodily Harm (GBH) is on a statutory footing in **s.20** of the **Offences Against the Person Act 1861** but once again the defining and shaping of the law has been carried out by **judges** in developing the **common law** via precedents in their decisions on cases**.** This is an **either way** offence. It is also a **basic intent** offence (i.e. the *mens rea* comprises intention or recklessness) and a **constructive liability** offence (i.e. the *actus reus* requires the infliction of serious harm, yet the *mens rea* only requires intention or recklessness as to the infliction of **some harm**, [not] its actual result). **Definition** The definition of Grievous Bodily Harm is "serious harm" (*R v Saunders*). The statute merely says the following at s.20 about the GBH offence: "Whosoever shall unlawfully and maliciously wound or **inflict any grievous bodily harm upon any other person**, either with or without any weapon shall be guilty of (an offence triable either way) and being convicted thereof shall be liable to imprisonment for five years." ***Actus reus* elements** Following the case of *R v Burstow --* about a D's campaign of harassment against a woman, V, that led to a severe depressive illness -- the main *actus reus* element of **infliction of serious harm** now means the same as causing serious harm. Thus, **causation** may be an important part of the *actus reus*. Inflict also can be caused **directly** (e.g. physically attacking somebody) or **indirectly** (e.g. by means, such as harassment, that do not apply physically to V but may nevertheless cause serious harm to V). An attack on a child or vulnerable elderly person may be seen as **serious harm** even though such an assault on an adult would not be: the personal characteristics of V will be important considerations for this offence (*R v Bollom*). N.B. Unlike s.47, there is no need to identify a starter offence for GBH -- we do [not] say "battery inflicting/causing GBH" -- we would just consider the infliction of harm by D on V, whether with a weapon or without, and taking into account the factual and legal rules of causation, where these are relevant. ***Mens rea* elements** D has **direct intention** (*Mohan*: aim, purpose or plan) to inflict some harm OR ***Cunningham* subjective recklessness** whether some harm is inflicted (*Mowatt*). The *mens rea* clearly shows **constructive liability**: while the *actus reus* clearly requires the infliction of serious harm, the *mens rea* only requires **some harm** to be foreseen by D. Foresight of **some harm** can be illustrated by the following cases: D blocks the exit of a cinema and shouts 'fire' -- Vs suffer injury when trying to escape. (*R v Martin*) D pushes a beer glass into V's face (*R v Grimshaw*) D sleeps with V even though he knows he is infected with HIV (*R v Dica*) **Exam tips** The ***actus reus* for s.20 GBH is the same as s.18 GBH**, aside from the words inflicting (s.20) and causing (s.18), which are now understood to have the same meaning! The **difference between these two sections can be found in the respective forms of *mens rea***, with s.18 seen as a more serious offence only because it is committed with intent. When analysing a problem scenario, **[start with the injury]**. If D inflicts any form of severe long-term injury on V, start with GBH -- there is no point going through battery, or ABH, first, as we know from the injury that this is a case of GBH. If you are unsure about the severity of an injury, and it is not entirely clear what D had in mind, you might wish to consider **s.47 or s.20** and assess the merits of each -- the judges in the House of Lords entered in a similar exercise about which of these offences applied in the joined appeals of *Savage and Parmenter* (concluding s.47 in both appeals). By the same token, if there is a suggestion that D certainly intended some harm and may have intended serious harm, you should consider **s.20 or s.18 GBH**. There may also be an **overlap with the wounding offence at ss20 or 18**, e.g. if D stabs V. The main tip is to **explore alternatives** if you are not sure about the severity of the injury and/or the mental element of the offence. The CPS Charging Standards, which are guidelines rather than law, suggest the following are examples of GBH (serious harm -- *R v Saunders*): Severe injury (leading to permanent disability/disfigurement) Broken bones/displaced limbs Dislocated joints (e.g. knee, shoulder) Severe loss of blood from injuries Injuries/harm requiring lengthy treatment or incapacity **Wounding s.20** **Source/context** Wounding is on a statutory footing in **s.20** of the **Offences Against the Person Act 1861** but once again the defining and shaping of the law has been carried out by **judges** in developing the **common law** via precedents in their decisions on cases**.** This is an **either way** offence. It is also a **basic intent** offence (i.e. the *mens rea* comprises intention or recklessness) and a **constructive liability** offence (i.e. the *actus reus* requires the infliction of a wound, yet the *mens rea* only requires intention or recklessness as to the infliction of **some harm**, [not] its actual result). Please note the *mens rea* for Wounding is the same as that for s.20 GBH above -- there is [not] a specific *mens rea* for Wounding. **Definition** The definition of a wound is a **break in the continuity of the whole skin** (*Moriarty v Brooks*); if there is no breaking of the skin, there is no wound (*C (A Minor) v Eisenhower*). **s.20** of the **Offences Against the Person Act 1861** states: "Whosoever shall **unlawfully and maliciously wound** or inflict any grievous bodily harm upon any other person, either with or without any weapon shall be guilty of (an offence triable either way) and being convicted thereof shall be liable to imprisonment for five years." ***Actus reus* elements** The key *actus reus* element of unlawful wounding is a break in the continuity of the whole skin (see above). The infliction of this can be **direct** (e.g. a stabbing) or **indirect** (e.g. D allowing their dog to savage V's leg -- *R v Marsh*). As wounding is a result crime, **factual and legal causation will be relevant**, though only focus on this if the facts raise an issue of causation. D fired an air pistol and the pellet hit V in the eye, causing internal rupturing of blood vessels but no break in the skin. It was held that this was [not] a wound. (*C(A Minor) v Eisenhower*) Nor was it a wound where V was subject to such violence that his collarbone was broken, yet the skin had remained intact (*R v Wood*). It will be a wound if an internal injury is caused, leading to external bleeding (*R v Waltham*). ***Mens rea* elements** D has **direct intention** (*Mohan*: aim, purpose or plan) to inflict some harm OR ***Cunningham* subjective recklessness** whether some harm is inflicted (*Mowatt*). There is [no] need for any reference to wounding. "Malicious" wounding just means that D must intend or be reckless as to the infliction of some harm for s.20. **Exam tips** Rather confusingly, given their position in ss.20 and 18, wounds do not have to amount to serious harm/GBH -- in theory, a pin-prick will do, so long as it breaks the continuity of the skin -though they usually they will (e.g. a stabbing; a deep cut). **Wounding is often worth discussing as a charge alongside GBH** if the skin has been broken and bleeding was likely. A scratch or graze may be inadequate for a wound (as noted by the Court of Appeal in *R v Morris*), and it will all depend on whether there is any indication that the continuity of the skin was broken and not just the surface of the skin. **Grievous Bodily Harm s.18** **Source/context** Grievous Bodily Harm (GBH) with intent is on a statutory footing in **s.18** of the **Offences Against the Person Act 1861** but once again the defining and shaping of the law has been carried out by **judges** in developing the **common law** via precedents in their decisions on cases**.** It is an indictable offence and a crime of **specific intent** (i.e. the *mens rea* is intention only). **Definition** The definition of Grievous Bodily Harm is "serious harm" (*R v Saunders*). It is stated in s.18 that "Whosoever shall unlawfully and maliciously by any means whatsoever wound or **cause any grievous bodily harm to any person with intent to do some grievous bodily harm** or **with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an (indictable) offence**, and being convicted thereof shall be liable to imprisonment of life." ***Actus reus* elements** As per the s.20 offence, as repeated here, but with the language of **"causing GBH"**. **Factual and legal causation** will therefore be relevant to this crime, which is based on the **result of "serious harm"** (*R v Saunders*), but only focus in detail on causation if the facts suggest an issue. Examples of serious harms include: D, embarrassed by his transsexual father (V), attacked V, breaking his nose, knocking his teeth out and causing concussion and bruising (*R v Brown and Stratten*). D, a husband, attacked his wife, V, by throwing sulphuric acid in her face, causing severe burns to her face (*R v Mandair*) The definition also includes **serious psychiatric injury** (such as severe depression arising from a sustained campaign of stalking -- *R v Burstow*); and **'biological GBH'** (such as passing on the HIV infection -- *R v Dica*). An attack on a child or vulnerable elderly person may be seen as **serious harm** even though such an assault on an adult would not be: the personal characteristics of V will be important considerations for this offence (*R v Bollom*). Unlike s.47, there is no need to identify a starter offence for GBH -- we do [not] say "battery inflicting/causing GBH" -- we would just consider the causing of harm by D on V and taking into account the factual and legal rules of causation, where these are relevant. N.B. D may also commit the s.18 offence by causing GBH in the course of preventing or resisting arrest -- see also the N.B. in the *mens rea* section below. ***Mens rea* elements** As s.18 GBH is a crime of specific intent, **D must intend to cause serious harm/GBH**. D's intention may be **direct intention** (*Mohan*: aim, purpose or plan) or **oblique intention** (*Woollin*: D can foresee serious harm as a virtual certainty of their actions) as to the causing of serious harm. N.B. If D causes serious harm/GBH in the course of preventing or resisting lawful arrest, they must also have shown malice by foreseeing that some harm would occur in addition to intending to evade arrest. This will rarely be an issue but it is part of s.18 so it cannot be ignored. Confusingly it appears to add a basic intent element to a specific intent crime, though [only] in the context of preventing or resisting lawful arrest. "Where the D is trying to resist or prevent arrest or detention then the level of intention regarding the injury is lower." (Year 1 textbook, at p200.) **Exam tips** The ***actus reus* for s.18 GBH is the same as s.20 GBH**, aside from the words inflicting (s.20) and causing (s.18), which are now understood to have the same meaning! The **difference between these two sections can be found in the respective forms of *mens rea***, with **s.18 seen as a more serious offence only because it is committed with intent**. (N.B. s.18 also contains an additional way of carrying out the offence: in the course of resisting or preventing lawful arrest.) When analysing a problem scenario, **[start with the injury]**. If D inflicts any form of severe long-term injury on V, **start with GBH** -- there is no point going through battery, or ABH, first, as we know from the injury that this is a case of GBH. However, when the **CPS charge s.18**, they include alternatives of s.20 and s.47; and when they charge s.20, they include an alternative of s.47. However, whether the lesser charges go before the jury is at the discretion of the trial judge and will depend on the presentation of the evidence. If they have been discussed in the case, then the jury should be left with alternative offences to consider, provided that they have correctly directed as to each offence. If you are considering **transferred malice**, there is flexibility in how you interpret the *mens rea* -- so if D throws a heavy object at target V when her back was turned, which misses and instead hits the actual V -- you can consider whether D intended to cause serious harm to target V under s.18 (given that you can rely on the *easier* standards of intending to inflict some harm or being reckless as to such harm under s.20, or intending to apply unlawful force or being reckless as to its application under s.47). Whichever malice you identify will transfer to the actual V. **Wounding s.18** **Source/context** Wounding with intent is on a statutory footing in **s.18** of the **Offences Against the Person Act 1861** but once again the defining and shaping of the law has been carried out by **judges** in developing the **common law** via precedents in their decisions on cases**.** It is an indictable offence and a crime of **specific intent** (i.e. the *mens rea* is intention only). **Definition** The definition of a wound is a **break in the continuity of the whole skin** (*Moriarty v Brooks*); if there is no breaking of the skin, there is no wound (*C (A Minor) v Eisenhower*). It is stated in **s.18** that "Whosoever shall **unlawfully and maliciously by any means whatsoever wound** or cause any grievous bodily harm **to any person with intent to do some grievous bodily harm** or **with intent to resist or prevent the lawful apprehension or detainer of any person**, shall be guilty of an (indictable) offence, and being convicted thereof shall be liable to imprisonment of life." ***Actus reus* elements** Largely as per s.20 above, and repeated here. The key *actus reus* element of unlawful wounding is a break in the continuity of the whole skin (see above). The **causing** of this can be **direct** (e.g. a stabbing) or **indirect** (e.g. D allowing their dog to savage V's leg -- *R v Marsh*). As wounding is a result crime, **factual and legal causation will be relevant**, though only focus on this if the facts raise an issue of causation. D fired an air pistol and the pellet hit V in the eye, causing internal rupturing of blood vessels but no break in the skin. It was held that this was [not] a wound. (*C(A Minor) v Eisenhower*) Nor was it a wound where V was subject to such violence that his collarbone was broken, yet the skin had remained intact (*R v Wood*). It will be a wound if an internal injury is caused, leading to external bleeding (*R v Waltham*). N.B. D may also commit the s.18 offence by unlawful and malicious wounding in the course of preventing or resisting arrest -- see also the N.B. in the *mens rea* section below. ***Mens rea* elements** As s.18 Wounding is a crime of specific intent, **D must intend to cause serious harm/GBH**. D's intention may be **direct intention** (*Mohan*: aim, purpose or plan) or **oblique intention** (*Woollin*: D can foresee serious harm as a virtual certainty of their actions) as to the causing of serious harm. There is no need to refer to intending or foreseeing a wound -- only serious harm is referred to in the *mens rea*. N.B. If D unlawfully and maliciously wounds V in the course of preventing or resisting lawful arrest, they must also have shown malice by foreseeing that some harm would occur in addition to intending to evade arrest. This will rarely be an issue but it is part of s.18 so it cannot be ignored. Confusingly it appears to add a basic intent element to a specific intent crime, though [only] in the context of preventing or resisting lawful arrest -- see *R v Morrison* (1989, see Year 1 textbook at p200: D was grabbed by a police officer, V, and dived through a window to evade arrest, causing V to suffer a wound on the broken glass -- the test would be whether D intended or foresaw some harm when seeking to evade arrest. As the textbook states at p200, "Where the D is trying to resist or prevent arrest or detention then the level of intention regarding the injury is lower." **Exam tips** The ***actus reus* for s.18 Wounding is essentially the same as s.20 Wounding**. The **difference between these two sections can be found in the respective forms of *mens rea***, with **s.18 seen as a more serious offence only because it is committed with intent**. (N.B. s.18 also contains an *additional* way of carrying out the offence: in the course of resisting or preventing lawful arrest.) Whilst, under s.20, the point was made that a breaking of the skin did not have to amount to serious harm under the *actus reus*, bear in mind that **for s.18 serious harm -- rather than some harm - must be intended**. Therefore, while a pin-prick might be justified as Wounding under s.20, it is unlikely to be under s.18 -- unless, for example, D knew that V had a condition like *haemophilia* (a condition in which the blood does not clot properly and slight wounds could cause serious harm from uncontrolled bleeding) and deliberately caused them to bleed, knowing that the result would be severe for V. **Wounding is often worth discussing as a charge alongside GBH** if the skin has been broken and bleeding was likely. A scratch or graze may be inadequate for a wound (as noted by the Court of Appeal in *R v Morris*), and it will all depend on whether there is any indication that the continuity of the skin was broken and not just the surface of the skin. However, when the **CPS charge s.18**, they include alternatives of s.20 and s.47; and when they charge s.20, they include an alternative of s.47. However, whether the lesser charges go before the jury is at the discretion of the trial judge and will depend on the presentation of the evidence. If you are considering **transferred malice**, there is flexibility in how you interpret the *mens rea* -- so if D throws a sharp object at target V when her back was turned, which misses and instead hits the actual V, breaking the continuity of his skin -- you can consider whether D intended to cause serious harm to target V under s.18 (given that you can also rely on the *easier* standards of intending to inflict some harm or being reckless as to such harm under s.20, or intending to apply unlawful force or being reckless as to its application under s.47). Whichever malice you identify will transfer to the actual V. **Homicide 1: Involuntary Manslaughter** Involuntary Manslaughter means "...all varieties of homicide which are unlawful at common law but committed without the *mens rea* for murder." **Ormerod (2008)** **Lord Mackay** summarized the area in ***R v Adomako*** as comprising two main forms: Unlawful and Dangerous Act Manslaughter (UDAM) and Gross Negligence Manslaughter (GNM). **Unlawful and Dangerous Act Manslaughter (UDAM)** **Source/context** UDAM is a **common law form** of involuntary manslaughter, that has been wholly developed by **judges** via the **precedents t**hey have set in the courts (usually the higher appeal courts). This is a crime of **basic intent** (i.e. the *mens rea* can include intention or recklessness) and a crime of **constructive liability** (i.e. the *actus reus* involves unlawful killing, but the *mens rea* does not require D to foresee death to V at all -- consider "one punch killings" as an example, where the *mens rea* might only amount to the mental element for a battery). UDAM is sometimes referred to as **constructive manslaughter**. **Definition** **Lord Hope** provides the most cited definition from *A-G's Reference (No 3 of 1994)*: "The crime comprises: 1. An unlawful act; 2. Intentionally performed;\* 3. In circumstances rendering it dangerous; 4. Causing death." \*Intentionally performed can be interpreted as voluntarily performed here, as the *mens rea* for the crime can be one of intention or recklessness. As legal scholar **Jonathan Herring** points out "It is called **constructive manslaughter** because liability for manslaughter is built up from a baseline of another crime." ***Actus reus* elements** D is guilty of manslaughter if he kills by an unlawful and dangerous act. 1. The **unlawful act must be a crime, e.g. assault or battery** (cf *R v Lamb*, where there was no crime as the base offence of assault could not be established: V did not apprehend immediate unlawful violence). A tort would not suffice (*R v Franklin*). 2. The unlawful act must be **objectively dangerous**, as per the *Church* test: "...the unlawful act must be such as **all sober and reasonable people** would inevitably recognise must subject the other person to, at least, **the risk of some harm**..." The *Church* test was clarified in *DPP v Newbury*: "the test is [not] did the accused recognise that it was dangerous but **would all sober and reasonable people recognise its danger**." (Lord Salmon) This latter point highlights the problem of the *Church test* and the **peculiarity of the victim**: *Watson* -- if V is an elderly frail man, sober and reasonable people would recognise the danger of D's actions towards him - compared with *Dawson* -- in which V died from a latent (hidden) condition, which would not have given sober and reasonable people cause to recognise dangerous circumstances arising from D's actions. So, if the circumstances are not dangerous to a reasonable observer, **there can be no manslaughter**. The *Church* test raises three points of interest: There must be a **'likelihood of harm'**, i.e. harm is more likely than not; The type of harm that has been envisaged is only **some harm**, not serious harm; There is no requirement that D foresees any risk of harm, as the test is **objective**, not subjective. 3. The unlawful and dangerous act must **be the factual and legal cause of death**. Normal rules of causation apply, provided that an unlawful act that is dangerous has been identified. If a situation like *Dawson* occurs, where there is an unlawful act but it is not regarded as dangerous, it will not be possible to use a rule of legal causation, such as the thin skull rule, to establish D's liability; this is because a key part of the *actus reus* has not been met, so the offence could not be established. ***Mens rea* elements** The **mental element is only required for the unlawful act**, which acts as a base for the offence (e.g. intention or recklessness as to the assault or battery); **transferred malice** may apply (*Mitchell* -- Post Office queue case). As pointed out above, UDAM is a crime of **basic intent** and a **constructive liability** offence **Exam tips** Exam questions on involuntary manslaughter may require coverage of both UDAM and GNM (e.g. an unlawful act for UDAM, and negligent act or omission to act for GNM), [or] where there are several offences just one of these that would have to be identified. If two victims die, and for one you have to consider Murder, and for the other it just says liability for death, it is likely that the second will be involuntary manslaughter. To be fair, usually the question will specify the type of homicide required -- **read the question carefully**. For homicide, **V has to die** (which is sometimes expressed as V having suffered **fatal injuries**). In UDAM watch out for the **peculiarity of the victim** re. the *Church* test. Watch out for cases in which **V has committed suicide** following D's unlawful and dangerous act. For D to have caused V's death, it needs to be established that the injury inflicted by D remains an **"operating and substantial cause of the death"** (as in *R v Blaue*). If V's attempts to escape, or indeed to commit suicide, are **foreseeable to a reasonable observer**, the chain of causation will not be broken and D will have to take responsibility for V's subsequent death (see *obiter dicta* in the case of *R v Dhaliwal*). However, third party acts clearly can break the chain of causation (see *Kennedy, No 2*). **Gross Negligence Manslaughter (GNM)** **Source/context** GNM is a **common law form** of involuntary manslaughter, that has been wholly developed by **judges** via the **precedents t**hey have set in the courts (usually the higher appeal courts). This is a crime of **basic intent** (i.e. in this case, because the *mens rea* involves negligence). The landmark precedent is *R v Adomako* (House of Lords decision: D, an anaesthetist, fails to spot that V's oxygen tube had become detached during an operation, with the result that V dies: D liable for GNM). However, the offence has been refined and developed by the Court of Appeal (Criminal Division) over a series of three decisions: *R v Rose* (D, an optometrist, missed signs of V's fatal illness; D convicted of GNM but quashed on appeal); *R v Kuddus* (D, a restaurant owner, gave an allergy sufferer, V, a takeaway with nuts and V subsequently died; D convicted of GNM but quashed on appeal); and *R v Broughton* (At a festival, D and V took drugs, but when V started overdosing, D filmed her rather than seeking medical assistance and V died; D convicted of GNM but quashed on appeal). It is better to think of this crime as comprising of 6 elements (clarified in *Rose, Kuddus* and *Broughton*) rather than divided into *actus reus* and *mens rea* elements. That said, as there is clearly a fault element, evidenced by a breach that is so bad that it is regarded as one of **gross negligence**, there are clear *mens rea* elements to accompany the act or omission that breaches the duty. At the trial stage, much is left to the **jury**, who will usually have to hear **expert evidence**. **Definition** **Lord Mackay** in *Adomako* outlined some of the key elements of the offence: D must have been in breach of a duty of care; The negligence must have caused the death; The negligence must, in the eyes of the jury, amount to 'gross negligence' -- "having regard to the risk of death involved, (was) the conduct of the D...so bad in all the circumstances as to amount (in the jury's judgement) to a criminal act or omission?" **Sir Brian Leveson**, in *Rose*, provides a fuller definition: "The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission." **Elements of the offence** **There are 6 elements to gross negligence manslaughter: ** **a) the defendant must owe a duty of care to the victim** -- the duty of care overlaps with existing forms of duty of care in the **law of tort** -- e.g. **"neighbour" relationships** such as a motorist to other road-users; doctor to patients; employer to employee; parent to child, etc -- but also includes duties arising from the **creation of a dangerous situation** (e.g. *Miller*; *Evans*) or from the **voluntary assumption of responsibility** (e.g. *Stone and Dobinson*). **N.B. Not all elements of tort overlap with criminal law** -- see *R v Wacker* and *R v Willoughby* on the failure of the tort *ex turpi causa* defence (no legal claims arise from a joint criminal enterprise) in criminal law cases. **b) the defendant must negligently breach that duty of care** -- so, D falls below the reasonable standard expected of a duty of care by negligent act or omission (e.g. *Litchfield*), or D omits to act when there is a duty to act (e.g. *Adomako; Evans; Singh*). **c) at the time of breach, there must be a serious and obvious risk of death** -- this is the objective *Singh/Misra test*: "The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death." **d) at the time of breach, it must be reasonably foreseeable that the breach gives rise to a serious and obvious risk of death** -- this has been added by the Court of Appeal in *Rose*, as explained in Smith and Hogan: "the prosecution must prove that a reasonable person in D's position, possessed of the information available to D, would have foreseen a serious and obvious risk of death." **e) the breach must cause the death of the victim** -- the usual rules of **factual and legal causation** apply, but in *Broughton,* on the **issue that often arises when D fails to call for prompt medical assistance for V**, it could not be shown that she would have lived had she received that medical aid, and therefore he was not the cause of her death -- this indicates the significance of expert evidence in GNM cases and the difficulty of establishing causation of death, especially in the context of omissions. **f) in the view of the jury, the circumstances of the breach must justify criminal sanction (i.e. there is gross negligence)** - Negligence is not enough for a conviction -- it must be "gross"! **Gross** means going **beyond a matter of mere compensation**; showing **such a disregard for life and safety that it amounts to a crime** (*Bateman*, 1925, approved in Adomako, 1994) Determining **gross negligence is left to the jury as an objective test** -- "did D's conduct depart from the standard of care incumbent upon him" (Lord Mackay, *Adomako*) -- so jurors will have to measure the D against other reasonable persons in his profession/situation. **Exam tips** Exam questions on involuntary manslaughter may require coverage of both UDAM and GNM (e.g. an unlawful act for UDAM, and negligent act or omission to act for GNM), [or] where there are several offences just [one of these] that would have to be identified. If two victims die, and for one you have to consider Murder, and for the other it just says liability for death, it is likely that the second will be a form of involuntary manslaughter. To be fair, usually the question will specify the type of homicide required -- **read the question carefully**. Usually, you can distinguish GNM from UDAM in past paper questions -- the latter usually has, at the very least, an identifiable battery or assault as the unlawful act -- and the GNM, by contrast, often arises from the omission of leaving a person without medical assistance/leaving them for dead (usually based on creation of a dangerous situation or voluntary assumption of responsibility). That said, negligent acts (as opposed to unlawful acts) based on an existing duty of care will sometimes appear -- e.g. a food supplier at an event who does not keep raw and cooked meats separately and negligently causes food poisoning to occur, leading to the death of a guest -- for which GNM would of course be appropriate. For homicide, **V has to die** (which is sometimes expressed as V having suffered **fatal injuries**). **Homicide II: Murder and Voluntary Manslaughter** **Murder** **Source/context** Murder is a **common law** offence, deriving from Coke's seventeenth century definition (see below). The crime is one of **specific intent** (i.e. intention only). The crime creates **constructive liability** in the sense that D can commit Murder while only intending to cause grievous bodily harm (GBH). This indicates a problem with **correspondence** between *actus reus* and *mens rea*: the former requires killing, whereas the latter allows for a mental element that falls short of intending to klll. The **sentence for Murder is mandatory: life imprisonment**, with a tariff set for the number of years set before release can be considered by the Parole Board. **Definition** **Sir Edward Coke's** common law definition, which can usefully be shortened to the following -- where D "unlawfully killeth...any reasonable creature in rerum natura under the (King or Queen's) peace, with malice aforethought." ***Actus reus* elements** These can usually be dealt with relatively quickly, with **causation** being the issue most often in question. In short: **D's killing of V must be unlawful** -- there can be no lawful justification for it. **V must be a human being.** This will be obvious from the problem but it is still worth pointing out. (N.B. a foetus in the womb only becomes a human being when it has been born as a child and has an existence independent of its mother - *A-G's Reference (No 3 of 1994)* -- and it seems that when a person is medically brain-stem dead, they will be regarded as dead for the purposes of turning off artificial life support -- *Malcherek and Steel*). **D's killing of V must have occurred in peacetime (i.e. under the King's peace)** -- this rule prevents the law of Murder applying to the killing of enemy combatants during a time of war, but note that the rules of Murder may still apply in war-time to the killing of prisoners of war and civilians (*R v Page*). **D must cause V to die** -- the [most likely *actus reus* focus] of a question: the **rules of factual and legal causation apply** (please see earlier coverage of *actus reus* causation). ***Mens rea* elements** Coke's definition tells us that the *mens rea* for Murder is "malice aforethought", but the common law has since indicated that splits into four forms of mental element that may apply: **Direct intention to kill --** D has an aim, purpose or plan to kill V (*Mohan*). **Direct intention to cause serious harm/GBH** -- D has an aim, purpose or plan to cause serious harm/GBH to V (*Mohan; Vickers; Moloney*). **Indirect/oblique intention to kill** -- D could foresee death to V as a virtual certainty of D's conduct (*Woollin; Matthews and Alleyne*). **Indirect/oblique intention to cause serious harm/GBH** -- D could foresee serious injury to V as a virtual certainty of D's conduct (*Woollin*). Note that this is a **specific intent crime**, with its focus entirely on intention to kill or cause GBH. **Exam tips** For homicide offences such as Murder, **V has to die** (which is sometimes expressed as V having suffered **fatal injuries**). **Causation** is usually the area of focus for the *actus reus* -- though some past paper Murder questions require very short coverage of the *actus reus* (e.g. D kills V, a human being, by stabbing her directly in the heart during peacetime, meaning that the *actus reus* can be covered very quickly and efficiently). The *mens rea* often provides plenty to talk about, especially if direct intention is not clear-cut, thus giving opportunities to **discuss oblique intention**. (However, even if D is likely to argue that he did not directly intend to kill, it is often possible to argue that he did directly intend serious harm/GBH; the oblique intention discussion is led by cases such as *Matthews and Alleyne* where D's may well say that they did not directly intend death or serious harm but such outcomes were a virtual certainty of Ds throwing V, who made it clear he could not swim, off a bridge and into fast-flowing water.) As a **specific intent crime**, intoxication may be pleaded to Murder but it may be difficult to show that (a) the drinking/drug-taking truly negated the *mens rea*, which may have formed earlier (*Gallagher v A-G for N.I.*), and (b) **public policy** would accept a defence on such grounds for this most serious offence (see the attitudes to intoxication in the partial defences which follow below). Note that the following **general (full) defences** may be available to a charge of Murder: insanity; automatism; intoxication; and self-defence. Note also that duress is NOT a defence to Murder (*R v Howe*). **Voluntary Manslaughter I -- Diminished Responsibility** **Source/context** **Diminished responsibility (DR)** is one of the two partial defences to Murder you study at A-level (the other one is 'loss of control': see later coverage). D has the *actus reus* and *mens rea* of Murder, on the face of it, but these partial defences may lessen the degree of fault that D has for the killing and accordingly provide flexibility as to the sentence given. DR is a **special, partial defence** -- ONLY relates to **Murder**, not attempted murder or any other offence. DR is provided for in **s.2 of the Homicide Act 1957**, as modified by **s.52 of the Coroners and Justice Act 2009.** A charge of Murder will be reduced to one of **voluntary manslaughter by reason of DR** under **s.2(3) of the Homicide Act 1957.** There is a **mandatory life sentence for Murder** *but* judges have **discretion on sentencing** for Manslaughter. The evidential **burden of proof is on D** to prove DR on a **balance of probabilities** - this standard of proof is the **civil** rather than criminal standard. D's burden of proof is compatible with **Art.6 ECHR** (*R v Foye*). Medical expert evidence will feature heavily in court proceedings relating to this defence. **Main elements of this partial defence** **1.D must suffer from an abnormality of mental functioning which is recognised medically** Prior to the 2009 Act, "abnormality of mind" was defined as a ***"state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal"*** (Lord Parker in *Byrne*). This definition is still used but **"abnormality of mental functioning" (AOMF)** is now preferred to "abnormality of mind" -- which keeps the law up-to-date with medical knowledge and language -- and the "reasonable man" would today be regarded as a reasonable medical practitioner. The AOMF must arise from a **recognised medical condition (RMC)**. This wide phrase replaces a set of criteria in the Homicide Act 1957. No definition or examples are given in the Coroners and Justice Act 2009, s.52(1) but **previous case law provides examples** of relevant psychiatric, psychological and physical conditions: - **Mental deficiency/low IQ** (*Speake*) - **Schizophrenia** (*Moyle*: D punched V to death outside a pub while suffering from paranoid schizophrenia; his murder conviction was reduced to manslaughter on the grounds of DR) - **Paranoia** (*Martin*: D shot a burglar dead, but his murder conviction was reduced to manslaughter on grounds of DR) - **Chronic depression** (*Gittens*: D killed wife with hammer and then raped and killed his daughter; his murder conviction was reduced to manslaughter on the grounds of DR) - **Battered woman syndrome** (*Ahluwalia*) and **pre-menstrual syndrome** (*Smith*) - **Psychopathy** (*Byrne*) - **Autism spectrum disorder** (*Conroy*: D had Asperger's Syndrome, which is an autism spectrum disorder, and strangled V to death when she refused to have sex with him; his conviction was upheld, though the Court of Appeal confirmed that ASD was a recognised medical condition for the DR defence) - **Epilepsy** (*Campbell*: D battered a female hitch-hiker to death with a hockey stick whilst in the grip of an epileptic episode: DR) Medical evidence will be needed in support of an RMC A jury will consider the medical evidence to decide whether an AOMF arose from an RMC **2.Must substantially impair D's ability to: form a rational judgement; exercise self-control; or understand nature of conduct** The AOMF, arising from an RMC, must substantially impair one of more of the factors listed above. In ***Golds*, the Supreme Court defined "substantial" impairment as of some importance, amounting to a serious degree of impairment** -- "more than trivial" impairment would not on its own be sufficient to trigger the defence. This leaves **substantial impairment somewhere between "less than total and more than trivial"** (*Squelch*, following *Golds*). This will be a **question of fact** for the **jury**, based on expert evidence. **3.Abnormality of mental functioning provides an explanation of D's conduct, if a significant cause of it** There should be a causal connection between the AOMF, arising from an RMC, and the killing. This causal connection explains why D acted the way that they did. In practical terms, establishing such a connection is very important when D has an RMC and there is an argument about whether their conduct was caused by an AOMF, arising from the RMC, or voluntary intoxication. The **AOMF must remain the significant causal factor** for DR to be established (*R v Joyce*: D's paranoid schizophrenia was the major cause of a stabbing incident, compared to the minor cause of his drug-taking at the time of the killing, so DR defence allowed). **Brief rules on intoxication and DR** - If D kills while acutely intoxicated from voluntary binge-drinking/drug-taking, and claims an AOMF on this basis, there will be **no defence of DR**: *Dowds; Bunch*. - If D kills while suffering from an RMC and while being voluntarily intoxicated, **there may be a defence** if the RMC and its associated **AOMF remain the significant causal factor for D's conduct**: *Dietschmann* (the "aunt's watch" case)*; Joyce.* - If D kills while suffering from a chronic substance abuse condition (e.g. Alcohol Dependency Syndrome) **there may be a defence**: *Wood* (the "breakfast club" case); *Stewart*. **Exam tips** In a Murder scenario, read the problem carefully for hints that D might have a **recognised medical condition** -- even if they had not previously sought medical help for it (e.g. *Hobson*) -- to decide whether DR is a suitable partial defence. Some words about D to watch out for are depression, anxiety, despair, paranoia, etc; or to consider whether a female D has been subject to prolonged and repeated abuse from a male partner. The general rule of thumb is that if a 30-mark question is just about one Murder, then DR *and* loss of control will be required, whereas if there are two Murders, or one Murder and other offences, you will have to look very carefully to see if there are hints suggesting the relevance of DR as a potential partial defence to one Murder For circumstances in which D suffered an AOMF, arising from an RMC, at the time of the killing, both **DR** (partial defence: Murder reduced to Voluntary Manslaughter on grounds of DR) *and* **Insanity** (full defence: not guilty by reason of insanity) are available, but **Ds prefer DR to Insanity** because they tend to get a sentence of imprisonment with a definite end-point rather than an *indefinite* stay in a mental health institution. That said, Ds can be sent for treatment (hospital order) rather than prison for DR -- see recent controversy over the sentencing of paranoid schizophrenic **Valdo Calocane** after killings in Nottingham. A judge has discretion in sentencing for Manslaughter, with the maximum sentence being life imprisonment but with sentences beginning at around 2 years (or even a suspended sentence) up to a 25-year tariff. As we have seen, judges will impose hospital orders where these are more appropriate than prison. **Voluntary Manslaughter II -- Loss of Control** **Source/context** Loss of control (LoC) is one of two partial defences that reduce a conviction for Murder to one of Voluntary Manslaughter -- the other is diminished responsibility (DR): see earlier coverage. D has the *actus reus* and *mens rea* of Murder, on the face of it, but these partial defences may lessen the degree of fault that D has for the killing and accordingly provide flexibility as to the sentence given. Loss of control is a **special, partial defence** -- ONLY relates to **Murder**, not attempted murder or any other offence. Loss of control is a **new partial defence** that *replaces* the defence of provocation. Loss of control is set out in **s.54** of the **Coroners and Justice Act 2009**, with the **qualifying triggers** detailed in **s.55(3)** and **(4)**. If D raises the defence, it is for the **prosecution to disprove** -- D does not have the burden, unlike DR. In raising the defence D must put forward sufficient evidence, which **must go beyond a "bare assertion" of the defence** (*R v Jewell*: D kills workmate but there is evidence of pre-planning, so no LoC -- see also the provocation case of *Ibrams and Gregory*; *R v Gurpinar*: D kills other teenager in a pre-arranged fist fight, to which he secretly brought a knife and then killed V, so no LoC). The trial judge has to be satisfied that a jury, properly directed, could reasonably conclude that such a defence might apply. **Definition of Loss of Control** Loss of control will ultimately be a **matter for the jury** to decide. A **partial loss of control will not be enough** (e.g. temper, acting out of character, or bad temper e.g. *Mohammed*): **D must have "lost it" or "snapped"** in **response to one of the qualifying triggers**. It must be more than ordinary anger and go beyond D's control. A definition given in the Smith & Hogan textbook has survived judicial scrutiny: ***"has D lost his ability to maintain his actions in accordance with considered judgement or...(has he)...lost normal powers of reasoning?"*** (referred to in the cases of Jewell, 2014; and Gurpinar, 2015) N.B. **The loss of control does NOT have to be sudden (s.54(2))**, which differs from the old law of provocation (see *Ahluwalia*, who was denied the provocation defence but could use DR for battered women's syndrome; but see *Baillie*, where a delay between the provoking behaviour and the act of killing did not invalidate the applicability of the defence). **The two Qualifying Triggers** - **The fear trigger in s.55(3)** -- the **fear of serious violence from V against D** or **another identified person** **Subjective test:** D will need to show that they lost control because of a genuine fear of serious violence against them or another person (e.g. a family member). e.g. *R v Lodge*: D could show a genuine fear of serious violence from a drug dealer, V, who had already attacked him, and when he killed V he was allowed the loss of control defence. e.g. *R v Ward*: D was allowed the loss of control defence after killing V, who had attacked D's brother at a house party. **However, if D incites the violence** -- such as by starting an argument with V for being too close to D's wife (*R v Dawes*) -- **D will** **not be able to claim that they had a genuine fear** of serious violence from V - **The anger trigger in s.55(4)** -- a **thing/things done**, or **said (or both)**, which were of an **extremely grave character**, and caused D to have a **justifiable sense of being seriously wronged**. This trigger is similar to the old law of provocation but it is considerably *narrower* because of the qualifying language (e.g. "extremely grave", "justifiably", "seriously wronged"). It is also a **subjective test** but note that a thing done or said that angers or upsets D may not always fall under the trigger -- e.g. the ending of a relationship (not sufficiently grave according to Lord Chief Justice Judge in *Dawes*); or the challenging demands of a seriously ill dependant (e.g*. Zebedee* -- loss of patience/tolerance *not* loss of control, compare with the old law and cases like *Doughty*). **The two excluded triggers** There are two triggers that are **explicitly excluded** from the loss of control partial defence. - A **considered desire for revenge** (s.54(4)) -- if D plans their revenge on V, there is no loss of control as we have seen (*Ibrams and Gregory*) but you have to **reconcile this with the fact that the loss of control does not have to be sudden** s.54(2): the fact that the D paces, waits, or broods, before attacking may be evidence of a considered desire for revenge or it may simply be the process of losing control. You can discuss this in an essay. - Where D's loss of control is attributable to V's **sexual infidelity**. However, as the Court of Appeal recognised in the case of *Clinton*, sexual infidelity may be integral to the facts and an essential part of the context of a case, and therefore it may be just to take it into account when evaluating whether another trigger should apply here (usually the "anger trigger"). **And finally, the objective test on loss of control** Whichever qualifying trigger is relied on, the **jury** must also be persuaded that: "a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D". The jury can consider the circumstances D was in when deciding how much of an impact the qualifying trigger might have had (*Rejmanski*), but those circumstances cannot affect the levels of tolerance and self-restraint expected by the test -- e.g. if D has been drinking or taken drugs (voluntary intoxication) that is not a factor the courts would consider (*Asmelash*). Jurors are asked to put themselves in D's shoes -- would an ordinary person have acted as the defendant did, considering the circumstances, the method of killing, etc? The defence fails if the jury take the view that **the "normal person" might have lost control** *but* **simply would not have reacted in the same way** e.g. *Van Dongen* -- where Ds brutally attacked V, inflicting 30 injuries, many being kicks to the head; *Goodwin* -- where D also brutally subjected V to repeated attacks. **Exam tips on loss of control** The general rule of thumb is that if a **30-mark question is just about one Murder, then LoC *and* DR will be required**, whereas if there are two Murders, or one Murder and other offences, you will have to look very carefully to see if there are hints suggesting the relevance of loss of control as a potential partial defence to one Murder. **Read problem scenarios carefully** and **look for evidence** that V has threatened D or one of his/her associates or relatives with serious violence, or V has done or said things that are of an extremely grave character. Consider threats for the fear trigger and abusive comments about D's looks, family, circumstances for the anger trigger, but note the qualifying comments in s55(4) (e.g. "extremely grave", "justifiably", "seriously wronged"). When jurors put themselves in D's shoes when considering the objective test, **the method of killing is worth focusing on** -- if this was the thrust of a kitchen knife in hot blood, jurors might perhaps see the ordinary person/themselves doing that *in extreme circumstances*, but brutal, repeated attacks (as in *Von Dongen*, or *Goodwin*) seem far distant from the reaction of an ordinary person. As mentioned above, there is a problematic aspect in the rules about **the LoC not having to be sudden (s.54(2)) but it also cannot be a considered desire for revenge (s.54(4))** -- this provides a nice opportunity for discussion if, in a problem scenario, D pauses, broods, or is delayed, prior to a killing. There are no right answers, only a legal framework, so keep the conclusion open to both possibilities -- LoC, or no LoC because of an excluded trigger/planning on Ds part. **Offences Against Property (Theft and Robbery)** **Property Offence I -- Theft** **Source/context** Theft is a statutory offence -- ss1-6 of the **Theft Act 1968** - though common law statutory interpretation has illuminated some of the sections of the statute. The common law test of *Ivey v Genting Casinos* is an important addition to the offence because the statute does NOT define dishonesty. Theft is a **crime of specific intent** -- intention to permanently deprive. **Definition** This is provided by **s.1 of the Theft Act 1968**: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly. \(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit. For s.2 of the Theft Act 1968, please see *mens rea* section below. ***Actus reus* elements** **s.3 Appropriation** **In short: *any* assumption of the rights of an owner and can be the *assumption of just one right*. Taking property out of the owner's possession is the most obvious example.** Rights of an owner include: to sell (*Pitham and Heil*; *Morris*), possess, consume, use, lend, hire, abandon (*Vinall*), destroy (*DPP v J*). *More than one* of D's actions in relation to V's property **may be regarded as an appropriation** (e.g. taking, as appropriation 1, and abandoning, as appropriation 2, as in *Vinall*) but an **appropriation is not generally regarded as a continuing act** (*Atakpu*). An appropriation can occur **with the consent of V** (*Lawrence*; *Gomez*; *Hinks*). An appropriation can occur when **D acquires property without stealing it but keeps and deals with it as an owner** -- e.g. taking ownership of borrowed property, as in *Velumyl* (money borrowed from safe), *Lavender* (doors borrowed from council) and *Marshall* (tickets taken and resold on London Underground). **s.4 Property** Property is defined as: **Money** (coins and bank-notes of any currency) **Real property** (property relating to land: land itself cannot be stolen but things severed from the land can be) **Personal property** (all other physical property) **Things in action** (this is **the stealing of a right**: e.g. the right to payment by a bank on money in a bank account; the right to expect the person who wrote a cheque to pay out on it, as supported by a bank) **Other intangible property** but **NOT confidential information** (*Oxford v Moss* cf *Akbar*) Some additional points on property: Some **wild things** are **NOT property** (s.4(3) flowers, fruit, foliage, mushrooms; s.4(4) wild creatures) ***UNLESS*** they are taken for commercial purposes. Corpses are not property but **body parts** (*Kelly and Lindsay*) and **fluids** (*Welsh*) *can be* in certain circumstances. **s.5 Belonging to another** **s5(1) provides a wide definition: possession or control of property; or any proprietary interest in the property.** For this reason, an owner can be guilty of stealing his own property **if V is in rightful possession or control of it**: *Turner (No.2)* V can be regarded as **having possession or control even if not aware of it** (*Woodman* -- scrap metal stolen by D from Co site, though Co did not know about it) If **V retains a proprietary interest in an item that D sells, there will be theft** (*Webster* - MoD retained such an interest in D's medal, who was guilty of theft when he tried to sell it) **Ownerless property cannot be stolen**: *Small* cf *Rostron* (golf balls case: theft, as still owned) If property is **received under an obligation (s.5(3))** the property is regarded as **belonging to another**: e.g. *Klineberg and Marsden* cf *Hall* (re: money invested into timeshares, theft; and holiday deposits, not theft on facts); *Davidge v Bunnett* If property is **received by mistake (s.5(4))**, D is **under an obligation to restore the property and it will be regarded as belonging to another**: *A-G Ref No 1/1983* cf *Gilks* **Mens rea elements** **s.2 Dishonesty plus *Ivey v GC*** There are two aspects to establishing dishonesty. First look to see if D has a reason to argue that they were not dishonest under s.2(1). If so, this might be strong evidence for a jury of D's honesty. However, if not or there is uncertainty about the matter, dishonesty remains an issue within the case and the judge will direct the jury to consider the test in *Ivey v Genting Casinos*. It will NOT be a dishonest appropriation if D had a belief that: **s.2(1)(a) they had a right in law to deprive the other of property** (e.g. *Robinson*, secured a debt with force, not theft if D had an honest belief the property was his; see also *Holden* below) **s.2(1)(b) they would have had the other's consent** (e.g. *Holden*, took scrap tyres from employer, following others, as believed that permission had been given; not theft) **s.2(1)(c) the person to whom the property belongs could not be discovered by taking reasonable steps** (e.g. *Small*, took an abandoned car, believing the owner could not be found: no theft, though may really be an e.g. of s2(1)a) N.B. s2(2) "a person's appropriation of property belonging to another may be **dishonest notwithstanding that he is willing to pay** for the property" Consider also the **common law test** in *Ivey v Genting Casinos*: \(1) The **D's knowledge or belief** (his mental state) as to the **facts** (his conduct). **(2) Whether D was dishonest according to the standards of ordinary decent people?** Dishonesty is a **question of fact** for a jury**.** **s.6 Intention to permanently deprive** The **intention** must be to **permanently deprive, not to temporarily do so** (e.g. dumping V's property a short distance away -- *Zerei* cf *Vinall*, where such an act was regarded as intending to permanently deprive, taking the broader view in *Fernandes*). Intention is shown by **D treating V's property as his own regardless of V's rights** (as in *Fernandes*, where Ds took risks with V's property -- a solicitor making a risky investment with client's funds; or *Lavender*, where D dealt with the council's property as his own). If D takes V's cash and spends it, this will be an intention to permanently deprive even if D offers to pay it back (*Velumyl*, money borrowed from Co safe = theft). **Borrowing is not theft unless it is for a period and in circumstances where it amounts to an outright taking or disposal**: *Velumyl* cf *Lloyd*, where the "goodness, virtue and practical value" had not gone from the copied films, so no intention to permanently deprive. If **D picks up V's property to see whether there is anything worth stealing** he has **conditional intent** -- this will amount to attempted theft, but not theft (*Easom*, confirmed by *A-G's Ref Nos1/2 of 1979*). **Exam tips** Theft is a gift for problem questions but as you can see from this coverage, you have to be able to **focus in on key issues** -- by way of examples, watch out for appropriations with consent; s.5(3) and s.5(4) on belonging to another; s.2(1)a-c on dishonesty and the application of the *Ivey v Genting Casinos* test for juries; and the debate about what will amount to an intention to permanently deprive. Theft's overlap with Robbery may also raise issues, such as whether a full theft has been committed, and the timing of force in relation to the theft (see *Vinall* as an example: see comment on p92 of the Year 2 textbook). **Property offence II - Robbery** **Source/context** Robbery is a statutory offence -- s8 of the **Theft Act 1968,** which draws also on ss1-6 of the Theft Act 1968 (se Theft offence) - though common law statutory interpretation has illuminated some of the elements of the offence. **Definition** **s.8 (1)** A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. In short, this is Theft (AR + MR) with force or threat of force immediately before or at the time in order to steal! Timing of the offence is important, though the courts may use a "continuing act" approach to get around this. ***Actus reus* elements** - **Theft (completed, i.e. all elements in place )** If there is no theft, then there is no robbery e.g. *Robinson*, where D attacked V to receive payment on an outstanding debt: no theft, and therefore no robbery, as D was not dishonest under s.2(1)(a) of the Theft Act 1968. *Corcoran v Anderton* illustrates a full theft, giving rise to a robbery, even though Ds did not get away with the loot: Ds tugged at V's bag (an appropriation of property belonging to another, with dishonesty and an intention at the time to permanently deprive); V's bag fell to the floor in the struggle, but D ran off when V started screaming! - **Force or putting or seeking to put any person in fear of force, + two conditions as to the force:** **Must be immediately before or at the time of the theft but:** "Immediately before" raises questions: what time delay will be deemed acceptable? (No cases on this point) "At the time of" raises questions: do the force and theft have to coincide? If they don't, how much of a gap will the law allow? The courts have taken a **"continuing act" approach** where D's actions may not have coincided precisely with the theft: e.g. *Hale*, where D1 held V downstairs while D2 stole property upstairs = robbery However, the courts went further in *Lockley*: D might be thought to have used force to escape rather than to steal -- he had appropriated the property (cans of beer) before using force to get past the shopkeeper. Had V been a passer-by on the street outside the shop, it would not have been robbery but two separate offences: theft + a non-fatal offence N.B. **This "continuing act" approach** contradicts the view on theft in *Atakpu* that an appropriation is NOT a continuing act **Nature of force and used in order to steal** The force can be **small/minor** (e.g. *Dawson and James*, a push by D1 to allow D2 to take V's wallet). The force can involve wrenching a bag from V's grasp (e.g*. Corcoran v Anderton*, a hand-bag; *Clouden*, a shopping basket) -- hence force on the property can amount to force on V if V experiences this. However, if force on property does not actually touch V then there will be no robbery (e.g. *P v DPP*, snatching a cigarette from V's hand, without touching V; **pickpocketing = theft but not robbery)** D seeking to **put V in fear of being then and there subjected to force will** amount to robbery. There is **no need to prove that V was actually frightened** (e.g. *B and R v DPP*, where V said he had not been frightened by Ds demands, with threats and pushing, for money and his phone; robbery convictions upheld). D's threat **does not have to be aimed at V** as it can be aimed at any person. The **force or threat of force must be used in order to steal** -- so if D attacks V, and then afterwards decides to take V's wallet, this will not be robbery, but two separate offences: a non-fatal offence + theft. **Mens rea elements** **MR for Theft -** D must have the MR for Theft -- dishonesty, with the rules in s.2(1) and *Ivey v Genting Casinos*; intention to permanently deprive in s.6. **Intention to use force in order to steal -** D must intend to use force in order to steal. **Exam tips** There are several obstacles that may get in the way of a conviction for robbery, which you will need to consider when analysing a problem scenario: Was there a theft? Was force or the threat of force used in order to steal? Was force or the threat of force used immediately before or at the time of stealing? *Hale* and *Lockley* are particularly useful precedents, but note the apparent contradiction with the theft case of *Atakpu*. The defence that most often appears with theft and robbery problems is **duress by threats** but **other defences can apply** (e.g. insanity, automatism and intoxication). **Attempts** **Source/context** Attempts is a form of **inchoate offence** (i.e. one where the full offence is not completed). Attempts is a **statutory offence**, in the **Criminal Attempts Act 1981**, but as this is a **highly fact-specific area of law**, judges have developed approaches to attempts in the course of their **interpretation of the statute** when hearing cases in the courts. **Definition** The definition of attempts can be found in **s.1(1)** of the **Criminal Attempts Act 1981**: "If, **with intent to commit an offence** to which this section applies, a person **does an act which is more than merely preparatory to the commission of the offence**, he is guilty of attempting to commit the offence." In addition, s.1(2) states: "A person may be guilty of attempting to commit an offence...even though the facts are such that the commission of the offence is impossible." ***Actus reus* elements** D does an act which is **more than merely preparatory** to the commission of an offence. As what is more than merely preparatory is a **question of fact**, and cases are **highly fact-specific**, there is a degree of inconsistency in the case decisions. However, based on common law interpretation of the meaning of "more than merely preparatory" cases tend to divide on the following grounds. 1.D is still at the planning/preparation stage, with steps still to be taken towards the full offence -- **no attempt, on the facts.** (N.B. Test devised by Court of Appeal in *Geddes*) e.g. D wishes to steal from a bookmaker by disrupting a dog race and getting his money back on a "cancelled" race -- **no attempted theft**, as other steps were still required for him to achieve his goal (*R v Gullefer*) e.g. D was found, equipped and hiding, in school lavatories, but as he had taken no further steps there was **no attempted kidnap** (*R v Geddes*) e.g. D was found, prepared, with imitation gun and a disguise, outside a Post Office but he had yet to enter the premises and told the Police he had changed his mind -- **no attempted robbery** (*R v Campbell*) OR 2.D had gone beyond mere planning/preparation and had **"embarked on the crime proper"** -- this **would be an attempt, on the facts** (N.B. Test devised by Court of Appeal in *Gullefer*) e.g. Ds were found, equipped, by a door with a broken lock and hinge -- **attempted burglary** (*R v Boyle and Boyle*) e.g. D dragged a girl, V, to a shed and started a sexual attack on her, as a prelude to intercourse -- **attempted rape** (*A-G Reference (No1 of 1992)*) e.g. D pointed a sawn-off shotgun directly at V in a confined space but V managed to wrestle it out of D's hands -- **attempted murder** (*R v Jones*, 1990 -- date given to distinguish this case from the other *Jones* case in the Attempts topic) e.g. D drove with child, travel documents and belongings, from Stoke towards Dover Ferry Terminal, and was stopped 85 miles from Dover -- **attempted child abduction** (*R v MS*) **Impossible crimes (s.1(2))** In the situation of impossible crimes, D commits a more than merely preparatory act to a crime, with intent, but is **m