Criminal law

Giliker and Beckwith tort (2nd ed 2004)

Lunney and Oliphant, tort law test and materials 3rd 2007
14th January 2008
Introduction to criminal law - Criminalising behaviour
Criminal law is about setting a framework and a set of rules to decide
what is acceptable in the eyes of the law and what is not. See lecture
handout. In criminal law, we talk about people being prosecuted rather
than being sued. The outcome in a civil court is liability and
compensation, whereas in criminal the outcome is about the punishment
the state gives to the criminal on your behalf. There are differences
because the state is involved on the individuals behalf, whereas in private
law (eg. Contract) individuals/companies are involved.
What is wrongful conduct?
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In Lord Devlin and Harts argument over homosexuality being uncriminalised, Lord Devlin argued that homosexuality should stay as
a criminal offence and that all behaviour that was immoral ought to
be criminalised. However, who can dictate what is moral and what is
immoral.
Hart argued that homosexuality should be decriminalised and Hart
has become synonymous with the harm principle/individual
autonomy.
Legal Paternalism to criminalise an idea because it protects one
from harming themselves.

18th January 2008

-Sources of criminal law
The idea of criminal law comes from an offence that has been committed.
Offences can be created through legislation and statutes
The second way offences can be made is through judge made law. Eg.
Homicide, murder.
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Principles of legality

Cant punish somebody without the offence, once the offence has been
committed the state can intervene.
Elements of this principle of legality are:
1. Only be tried for an offence at the time it is committed, cant be
tried retrospectively.
2. certainity-need to know what behaviour is right and what behaviour
is wrong, so law should be clear and certain.
3. strict construction- law will be interpreted in a way that is in favour
for the defendant like innocent before proven guilty.
Proving of a crime
Burden of proof-construing the law narrowly and in favour of the
defendant. This has to be beyond reasonable doubt. Related to this,
who has the burden of proof? As a general rule it is normally always the
prosecution who has the burden of proof to a standard of beyond
reasonable doubt.

Actus Reus
The physical element of the offence. Eg in murder the causing of the
death.
Mens rea guilty state of mind. Eg in murder the intention to cause
murder
Will have liability if you have actus reus and plus some kind of mens rea
and you dont have an offence that is applicable.
The actus reus consists of 3 different things:
1. Your conduct
2. Omission - where you fail to do something
3. Status offences
Sometimes the conduct and the omission causes a result to happen which
are called result crimes. A good example is murder; the conduct element
is causing death. Stabbing someone can cause death or neglecting a child
can kill them-so the failure to do something.
A status offence is that your behaviour, your state of being is an offence.
Eg. Being part of a terrorist organisation, in the past just merely being
homosexual was an offence.

Omission to be penalised for failure to act

These can occur in conduct crimes or within certain result crimes.

In this country there is no general duty to act in a good way. Eg if you see
someone drowning, you have no general duty of care legally to help them.
Prioritising individual autonomy. However, theres liability of omission, this
list for these people is on the handout, where you do have a general duty
of care ;
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Special relationships will be between parents and child upto the

age of 18.
R v Downes [1875]
The father was bringing up his child adn the child got sick. The
father was religious belonging to the the peculiar people. Part of
the group was the belief to use prayer instead of medicine. He
refused to give medicine and consequently the child died. The
father was convicted of manslaughter.
This shows the child is dependant of the father, so parents hold a
reasonable duty of care.
This special relationship also extends to spouses.
R v Smith [1979]
Smith and his wife and 2 children. Mrs. Smith was nearing the end of
her 3rd pregnancu, she had had complications before with her
children and she wanted no medical help due to a phobia. Her 3rd
born was stillborn and she became seriously ill, she was still
conscious therefore told her husband not to get medical help.
Husband gets charged with manslaughter as he owed a duty of
care. The case was discharged because the jury couldnt come to
any decision because he was still reasonable enough to listen to his
wife as she was still conscious.

Assumption of responsibility

R v Instan
The niece, Instan, was looking after her aunt which she got paid for and
she lived with her, and had complete responsibility. Instan fails to feed her
aunt over a number of days and completely neglects her. The aunt
consequently dies. Instan is charged with manslaughter as she has
assumed responsibility of her aunt.
R v stone and dobinson [1977]
These 2 were parters and living together. Stone was 67years old, and the
court described him as having a below average level of intelligence. He
was also partially deaf and nearly blind. Stone lived with Dobinson who

was in her 40s, she was also considered of low level intelligence. Stones
sister comes to live with these two she had a number of problems too,
one of which was anorexia. The sister become very sick and ultimately the
others trying to help werent successful. The sister dies and Stone and
Dobinson find themselves with charge of manslaughter. At their trail they
were convicted of manslaughter, they appealed. The court said when the
sister came to live with them, they had taken the assumed responsibility
to look after her. This case is quite controversial due to the
reasonableness of the outcome, looking at the characters of the 2
involved.
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Contractual Duty

For example, your employment can create a duty of care upon you
R v Pittwood
Pitwood was a railway gate keeper so it was his job to lower and rise the
vrrier for the local rail track. One day he left the barrier up and goes for
his lunch and some guy with a hay track goes onto it and dies. Pitwood is
charged by manslaughter because it was his responsibility to lower and
raise the barrier and therefore has a duty of care.
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Statutory duty

Certain legislation can give you a duty of care and responsibility.

R v Lowe [1973]
Lowe was looking after his 9 week old baby. The baby becomes ill and
Lowe doesnt call for medical help and the child dies as a result. Lowe was
charged with wilful neglect, manslaughter. He was convicted on wilful
neglect; his conviction for manslaughter was quashed on appeal because
he was of low level of intelligence therefore may not have been able to
provide that sort of care for the child.
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Creates dangerous situation

R v Miller [1983]
Miller was a squatter. He found a house that wasnt occupied and finds a
mattress. He lights a cigarette and falls asleep, and everything sets alight.
He doesnt do anything. Miller gets charged with criminal damage, arson.
He was convicted with arson. You have to show that you intended to cause
the fire, he appealed to CA on the grounds that he didnt intend to cause
the fire and his appeal was dismissed. His failure to act caused the arson.
Fagan v metropolitan police commissioner [1968]

Fagan parked his car accidently on a police officers foot purely by

accident. Fagan fails to do anything about it. Charged with actual bodily
harm, assault. It was held that despite the fact that it was an accident, his
failure to do anything about it leads to the result of the duty of care.
If you come within any of the 5 exceptions above, then you have a duty of
care, otherwise legally you hold no duty of care to act helpfully towards
someone.
Why does this country have no duty of care apart from the five
exceptions?
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The difference between act and omission?

Airedale NHS trust v bland [1993]

Bland was in a vegetative state and therefore he was reliant on a
breathing machine etc. the family wanted to be able to withdraw his
treatment. If the doctors withdrew the treatment, would the doctors be
liable? The doctors asked the court. HL said if they see it as a positive act,
it becomes more difficult, but if you see turning of the machine as an
omission, eg failing to provide the patient with the relevant machinery.
The court then looks as if you have a duty. The court then sees that it is in
the patients best interests to turn the machines off.

Actus Reus: Causation

This comes up in result crimes. However you cause the result to happen,
the causation is important.
There are 2 aspects of causation: (always go through both)
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Factual causation

When you looking at when someone caused the result to happen, has the
person actually caused the result? Looking at just factual causation is
never enough. Whether in effect the person caused the result to happen.
but for test.
R v Dalloway [1847]
Dalloway was driving a horse and cart in a way that was quite negligent
because he was not holding the reigns of the horse. A child ran out in front
and died. Dalloway was charged with manslaughter. What happened at
court was that he was not convicted of manslaughter because regardless
of him holding the reigns, the child would still have ran in front which was

the cause of the death. Today they would say that not holding the reigns
means that you cant take defensive action.
R v white [1910]
White decided he wanted to inherit his mothers fortunes and devised a
plan to kill his mother for the fortune. The mother always used to have a
night time drink, and he put poison in the drink in the expectation that it
would kill her. The mother dies of heart failure rather than from the drink.
White finds himself charged with murder but at trial they found out that
he wasnt causily or factually responsible for her death.
R v Cato [1976]
A case where defendant and his girlfriend were taking drugs. She asked
her boyfriend to fill the syringe so she could inject herself, she couldnt do
it so asked her boyfriend so he injects it for her. She gets an infection and
dies. The boyfriend gets charged with manslaughter, he gets convicted
but appeals. By the girlfriend asking him to inject her, does that shift the
responsibility? Court concluded no.
Factual causation in necessary but NOT SUFFICIENT. Do second part of
legal causation too, look at these 3 things:
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1. Legal aspects/terms
Legal causation
If there are more than one causes or not. When looking at legal
causation the following Legal tests should be applied:

Operating and substantial cause

If there is more than one cause, which cause is responsible?
R v Smith
Smith was a soldier who got into a fight with another soldier ended up
stabbing the other soldier. The victim was put on a stretcher to take him
to hospital, but he was dropped of the stretcher a couple of times, and
when he gets to the hospital the doctor fails to realise that he had a
punctured lung, so given the wrong kind of medical treatment. So there
are many causes which lead to his death. At the trial, smith is convicted of
murder, on appeal he argues that the stab was not the main cause of
death therefore he is not legally responsible. But the court dismissed this
and upheld murder and say that is was the operating and substantial
cause of death.
Beyond the de minimis range

Sometimes the court feels that a persons actions do More than minimal
damage.
See R v Cato [1976] case above. It was held his contribution was more
than minimal.
Operative cause
R v Malcherek [1981]
Involved a husband and wife. The husband hurts the wife by stabbing her
and the wife ends up on a life support machine, when she was brain dead
the machines were turned off. Husband was convicted of murder but he
appeals on the ground that it wasnt his initial stabbing that killed her but
the turning off of the life support. They dismissed this and murder was
upheld.
Contributed significantly
R v Cheshire
Involved an argument in a fast food restaurant, Cheshire shot the victim,
so went into hospital where he has difficulty breathing so they inserted a
tube into the trachea to help. Was in hospital for nearly 2 months, at the
end when he had nearly recovered from his wounds, he got an infection in
his trachea. Evidence at trial was that there was poor healthcare. He is
convicted of murder, he appeals on the fact that his initial action had been
broken by bad medical treatment. But he contributed significantly to the
situation. The length of time is pretty significant because the victim had
recovered pretty well. CA didnt agree and murder was upheld. Was
heavily criticised at the time.
Reasonable foresight
Was what happened reasonably foreseeable?
R v Roberts [1972]
Involved with assault. The person who was assaulted was taking a lift
home with Roberts, and claimed that he tried advances and tried to
remove her clothing etc, she was frightened for her safety and felt no
other choice but to jump out of the moving car and got injured. Roberts
charged and convicted for assault. What he argues successfully was that it
wasnt reasonably foreseeable that she would take such a drastic action
as moving out the moving car and that once the woman had decided to
jump out, it broke the cause. CA dismissed this and his conviction for
assault was upheld. Judge said it was reasonably foreseeable.

2. Take your victim as you find them thin skull rule

You run a risk when attacking someone, as you take them as you find
them. If they have some sort of condition that could make your assault
worse, that is the bad luck you risk.
R v Blaue
The victim is injured by blaue. He stabs the victim and she goes to
hospital and she requires a blood transfusion. The victim was a Jehovah
witness so she refused to have a blood transfusion. So she dies, and blaue
is convicted of her murder, on appeal he tries to argue that her voluntary
decision not to have the transfusion took over and became the operating
factor of her death. HL disagreed and upheld murder on the grounds of
the think skull rule.
3. Novus actus interveniens
A new intervening act.
Will the following break the chain of causation?
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Conduct of victims

(a) Victim refuses medical treatment. See R v Blaue [1975]

(b)Victim escaping see R v Roberts and William and davis
(c) Voluntary acts of the victims
R v Kennedy [1999]
Kennedy is the defendant who fills a syringe full of heroin and
passes it to the victim who injects themselves. Person dies as a
result, so Kennedy is convicted of manslaughter. His appeal was
dismissed. Court said the fact that the victim had injected
themselves didnt break the chain of causation.
A lot of criticism on the decision because she has injected herself so
that was a voluntary action.
R v Dias [2001]
Similar case to above and overruled R v Kennedy and said it was
bad law. The victim injected themselves although Dias filled up the
syringe. His manslaughter conviction was quashed on the grounds
that the victims actions of injecting themselves broke the chain of
causation.
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Acts of God

Do natural events break the chain of causation? In natural events that

you cant predict ( eg. Storm out of nowhere as opposed to tide coming
in and out) there is a possibility that the chain of causation is broken.
Actus reus: Status offences
Eg. The crime of being homosexual. Just the state of being homosexual
would create a liability and would create an offence.
R v Larsonneaur [1933]
Larsonneaur was a French woman who came from France and ended up in
Kent. Not long after she came to England, her right to stay here was
evoked so she goes over to Ireland where she gets deported back to
England against her will. When she landed in England she got charged
under the aliens order and was convicted under that order for illegally
being in England which is a status offence, her being in England created
the offence.
Winzar v Chief constable of Kent The times [1983]
Winzar had drunk a lot one night and was found and taken to hospital,
where they thought he was ill, but when they realised he was just drunk ,
they asked him to leave. He refused to leave and then later that evening
he was found in one of the hospital corridors and police hae to remove
him forcibly from the hospital and take him outside and charged him with
being drunk and disorderly in public. It is a status offence because his
liability is created by him being dunk, through his state of being drunk.
21st January 2008
Mens Rea: Blame and Responsibility
Examples of mens rea include; dishonesty, belief, knowledge, intention,
maliciousness and recklessness. Mens rea helps define the difference
between murder and manslaughter, for example.
Intention is the most serious offence in mens rea as murder, GBH etc all
require intention to cause the harm.
Actus non fit reus nisi mens sit rea = Act isnt guilty unless the mind in
guilty.
Regulatory offences strict liability - are those where you can be found
guilty without the prosecution having to prove the guilty mind. You can be
prosecuted on your conduct alone. Eg, parking fines are strict liability as it
does not matter if you have the intention/recklessness or not. The
majority of crimes are strict liability.

Subjective approach

To see if somebody intended to kill somebody or whether they did it

recklessly. To look at it from the viewpoint of the defendant them self.
Judge recklessness from a subjective viewpoint. Did they know there was
a risk? Did they foresee the consequence of murder? understand it from
the defendants point of view.
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Objective approach

The reasonable persons test. The objective assessment is about asking

what the reasonable person would have seen/intended/planned not what
the defendant would have.
Every offence will have its own mens rea.
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Capacity/choice theory

One has to have the capacity to understand what they are doing and have
to be in control of their actions. Everybody has the capacity to choose
between right and wrong. In order to be liable under criminal law, you
have to be aware of the nature of your actions, know the relevant
circumstances and be aware of the possible circumstances.

Intention
The mens rea required for murder is intention to kill or intention to kill
grievous bodily harm. Sometimes the intention is the essence of the
offence - attempt liability. For attempted murder you have to have the
intention to kill. Sometimes intention is the way to grade the seriousness
of the crime. The legislation called offences against the person 1861
there are 2 different forms of assault, section 18 and 20 which both deal
with the actus reus wounding or GBH, what differs them is the mens rea.
For section 18, you need to have had the intention to cause unlawful
wounding or GBH. For section 20, you could just be reckless.
There is not statutory definition of intention; it has been up to the courts
to decide. Intention is a question of fact for the jury. A legal definition for
intention is different from motive.
Direct intention - Intention in criminal law is direct intention that it is
the aim, the object, the purpose, the plan, to calculate and meditate.
Indirect/Oblique intention - Can intention be when you foresee a result
happening? Where you looking at circumstance when there hasnt been a
pre meditated plan. Has the criminal foreseen the consequences to a
virtual certainty?

R v Hyam [1975]
Mrs. Hyam had been having an affair with somebody who left her and
started having an affair with someone else. She was not pleased so she
poured petrol through the letterbox of her rival. There were people inside
the house sleeping and she ignites the petrol. Consequently someone in
the house dies. She is convicted for murder, and she appeals that she
didnt have the state of mind for intention, she had not intended to kill
anybody through her actions, she hadnt even intended to cause anyone
harm, she was just being reckless. HL dismissed her appeal because her
foresight of the death was highly probable and that was all she had to see.
This shows your foresight does not have to be to a critical extent, just to a
highly probably extent.
R v Moloney [1985]
There was a father and his stepson and they had both been drinking
heavily. The father had guns in the household. In their drunken game they
failed to see that the safety hatch isnt on and the son ends up shooting
the father dead. He is on trial for murder; the jury says that son should
see that that result was highly probable. HL allowed his appeal and
quashed his conviction for murder and substituted a manslaughter
conviction. This overturned the Hyam conviction, and said that if you left it
at being highly probable, many people would be on trial for murder. You
have to foresee the consequence as a natural consequence.
R v Hancock and Shankland [1986]
These were 2 guys who were miners and during the strike they were
trying to stop their colleagues from going to work so they stand on a
motorway bridge and throw boulders onto the road, one falls on a taxi
which kills the driver. They are convicted for murder, they appeal to CA.
They argued that it wasnt their plan to kill anybody; court agreed that
there was no direct intention, was there oblique intention? The CA allowed
the miners appeal, and quashed the conviction for murder and
substituted manslaughter. The Crown appeals the case to the HL, they
dismiss the crowns appeal and uphold manslaughter conviction.
R v Nedrick [1986]
Very important case as this is the case where they start talking about
virtual certainty.
The defendant, Nedrick has a grudge against the victim and pours lighter
fuel in the letterbox of this persons house and sets it alight and the house

burns down and the victim dies as a result. At trial Nedrick is convicted of
murder, but the jury felt that Nedrick should have seen that as a result of
his actions, death was highly probable. This is a CA case; Nedrick appeals
and CA quash murder and substitute manslaughter. Judge comes up with
virtual certainty and gets rid of probability. If the defendant foresees the
consequence to be virtually certain, then that could be enough for the
defendant to be inferred of intention.
R v Woollin [1998]
The father lost his temper with his 3 month old son, he threw his son
against a wall, which fractured his skull and the baby dies. He is charged
with murder, at trial the judge explained to the jury that you should
convict woollin if he foresaw the consequences and can then infer
intention. He also says, it not just about foresight of virtual certainty that
is important but you can also convict him if you say he appreciated there
was a substantial risk that through his actions the baby would die or be
seriously harmed. He was convicted for murder, he appealed, CA
dismissed it, appeals again to the HL, the HL say that the trial judge had
been wrong to depart from the virtual certainty and so allow his appeal
because the judge had blurred the distinction between murder and
manslaughter. Quashed murder conviction and upheld manslaughter. As
nedrick was only a CA case, it could be used by jurys, so in this case of
Woollin, Lord Steyn copies the judgment from Nedrick to this case so as to
approve of it in HL except changes the word infer to find.
There is a 2 part test that comes from the Woollin case.
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Was the death or serious harm virtually certain as a result of the

defendants actions?

Are the jury sure that the defendant appreciated that the
consequences were virtually certain?

This judgement is now open to 2 interpretations;

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Definitional interpretation

When Steyn changed the word, it actually made a difference. If you find
intention, then it amounts to intention itself. Under this definition they
have no choice but to find someone liable if there in intention. The change
takes away the jurys discretion, if they can find virtual certainty it
amounts to intention.
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Evidential interpretation

This approach is for people who say that the change has not made much
of a difference, this definition puts weight on the word entitled the jury
are entitled (but not required) to find the intention and therefore leaves
the discretion that even if there is virtual certainty, they can find intention
or not.
Re A (conjoined twins: surgical serparation) [2000]
Conjoined twins where the hospital and the doctors wanted to find out
from criminal law if they separated the twins, would it amount to murder
because it would be certain that the weaker twin would die as a result.
The doctors would not be guilty of murder if they separated the twins. A
couple of the judges followed a definitional approach to Woollin, where
they said that if it was a virtually certainty that the operation would result
in the death of one of the twins, then there is an intention to kill. One of
the judges said post woollin you can look at intention from an evidential
approach, foresight of virtual certainty means that you can find intention
but you are equally entitled not to find intention and in this case they
didnt find intention. This was however CA and we are waiting for a HL
case.
R v Matthews and Alleyne [2003]
The defendants had deliberately thrown a person that they knew couldnt
swim into the river and he dies as a result. They are convicted to murder
and the appeal, but the CA dismisses this and upheld murder.

25th January 2008

Recklessness
This used to be an area of law that was fairly convoluted but now it has
been simplified after R V G.
Recklessness is the taking of an unjustified risk, it is an interesting form of
mens rea, taking a substantial unreasonable risk. There are two ways in
which the courts have looked at this;
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Subjective recklessness; was the defendant aware of the risk? And

then made a conscious decision to take that risk. Also called
advertant recklessness.

Objective recklessness; inadvertent recklessness. Not concerned of

what the defendant saw or took the risk but would the ordinary
reasonable person have seen that risk and taken it.

Courts have normally always looked at recklessness subjectively but now

have moved towards the other too. These are subjective cases:
R v Cunningham [1957] (very authoritative case)
Cunningham was a squatter and he went into an unoccupied house where
he was staying which had a coin operated gas meter. He tried to get the
money out of it and the gas started leaking out and made a neighbour
was really ill. He was charged with maliciously administrating obnoxious
substance. The judge said malicious meant wickedness, at trail he was
convicted of this offence and went on to appeal to CA that this
terminology was old fashioned. CA said the malicious meant you could
mean intentionally or recklessly. So quashed the decision?
R v Stephenson [1979]
Was a tramp and he suffers from schizophrenia. He finds himself in the
countryside and finds refuge in someones barn. He has a lighter on him
and starts a fire to warm and the barn ends up burning down. At trial he is
convicted of arson because the trial judge told the jury you have to
convict him if he closed his mind to an obvious risk. He appeals his
conviction and goes to the CA, they allow this and quash his conviction
and they so do because the trial judge misdirected the jury because he
applied an objective approach to recklessness.
Objective recklessness cases;
R v Caldwell [1982]
Caldwell had done some work fo a hotel owner and he goes and had some
drink at the hotel and gets in a fight with him. Caldwell gets into a temper
and sets fire to the hotel as revenge. Caldwell is convicted with
arson/criminal damage pleaded guilty. The second charge he is
convicted with is recklessly/intentionally endangering life and he disputed
this charge. At his trial he is convicted of the second charge. The trail
judge said drunkenness is not an excuse. HL looked at 2 things,
intoxication,...crown appealed... this was seen as a basic intent offence so
his drunkenness could not be used as a defence, court said because it is a
basic intent offence, if you get so drunk you have no idea what you are
doing then you are acting in a reckless manner.
Specific intent eg. Murder, because only intention suffices. A crime of
specific intent, the only form of mens rea that is required in intention. For
crimes of specific intent, drunkenness can work as a defence.

Basic intent all other offences, which can be committed recklessly by

any other mens rea except intention. Drunkenness is never going to be a
defence for a basic intent crime.
Elliot v C [1983]
There was a girl who was lower levels of intelligence, maturity for a 14
year old. She fought with her parents, and she sets fire to the next door
neighbours shed. She said she didnt realise the consequences of what
would happen. She was convicted at trial because of caldwells approach
to recklessness. The court reaffirmed that when you are looking at
criminal damage, you take an objective approach. For the next 20 years,
court always looked at recklessness is an objective approach
Caldwells approach can be seen as quite harsh and over inclusive.
Subjective recklessness could be criticised as being under inclusive.
R v G [2003]
The case involved criminal damage. 2 boys, 11 and 12 years who set fire
to newspapers in a wheelie bin near a supermarket and it catches fire to
the building and the supermarket suffer losses of over 1 million. They are
convicted of arson/criminal damage, they appeal on the fact that they
didnt understand the full consequences of the risk they were taking.
Appeal is dismissed because they took the Caldwell approach. HL decided
to quash the boys conviction to arson and allow their appeal, and
reinstate a subjective view for recklessness.
They wanted to bring the subjective approach back because the objective
approach leads to unfair decisions. Conviction for serious crime should
depend on proof of culpable state of mind of the defendant.
In order to be liable for an offence, you have to have the mens rea for the
offence, the atus reus and mens rea have to coincide. However, there are
some instances where mens rea and mens rea do not coincide, 2;
Continuing offence; the Fagan case shows that the conduct (vehicle on
the foot) did not require the mens rea, but when he did not remove the
vehicle, he developed the mens rea. This shows the mens rea coming
after the actus reus and is an example of a continuing offence.
One transaction approach; the difference to the above is that this
approach the mens rea comes first and then the conduct or actus reus
comes after.
Thabo Meli v R

thabo Meli and the other appellnanstahd a pre conceived a plan to kil
someone they had a disagreement with. The idea was that they were
going to take the victim to a hut in the woods and strike him over the
head and kill them. They do this and knock him unconscious, at this point
they have the intention to kill him. They think the guy has died, so to
dispose of his body they throw him over the cliff and then he later dies of
exposure. They argued that they didnt have the mens rea to kill when the
guy actually died, only before, this appeal was dismissed and murder was
upheld.
The judge said that even if the actus reus and mens rea do not coincide, it
will be seen as a one transaction. It does not have to be a pre conceived
plan;
R v Church
The defenadant does not have a pre meditated plan. Church attacks a
woman (spur of the moment) he assaults her and strikes her, and then he
panics because he thinks he has killed her although she is only
unconscious. He disposes in the river and she dies of drowning. He is
convicted of murder, he appealed on the grounds that the only time he
had the intention was when he attacked her not when he died. This is
seen as the one transaction approach.
28th January 2008

Inchoate offences and Attempt

When you dont end up doing the whole offence. Punished for your attempt to do
the offence. These offences have their own actus reus and mens rea
requirements. Examples of inchoate offences;
i)

Conspiracy where u conspire to commit an offence, where 2 or more

people get together and make an agreement. There has to be an
agreement.

ii)

Incitement where you pressurise and incite an offence. Somebody

who incites the offence.

iii)

Attempt liability- this is where you have to know the actus reus and
mens rea. In 1981 pariliament passes the criminal attempt act.

Atus reus element of attempt liability

The key to attempt liability is about the actus reus and the idea have you actions
gone beyond mere preparation. The first of these approaches is the objectivist
view and the second is the subjectivist view

Objectivist view; prioritise defendants actions and think have they gone farther
than mere preparation
Subjectivist; look at the defendants mind, did they intend to cause the actual
result.
Case law post 1981:
R v Gullefer (1990)
Gullefer bet on dogs and put down a stake and then regretted it so he tried to
stop the race, and he jumps up and down furiously to try and distract the dog
which doesnt work. He is convicted for attempted theft, he appeals, and the CA
allow this appeal and dismiss his conviction on the ground that waving your arms
around did not go far enough to more than merely prepatory. This is quite an
objectivist view
R v Jones [1990]
Jones was a married man who was having an affair, however the mistress gets
bored and she leaves for another man. So jones wants to get revenge on the new
guy, he applies for a shot gun licence which he gets given, then he test fires the
guns. He goes out to try and kill, he knows he takes the kids to school ever
morning and he decided to jump in the car after hes dropped them off. He jumps
in the car and pulls out the gun and yells your not going to like this but safety
hatch was on ,they fight and the gun flies out the window. He was convicted for
attempted murder, he appeals that he had not got to the last point to kill.
Dismiss and attempted murder upheld.
R v Campbell [1991]
Attempted to rob a post office. On the day he gets ready he drives to the post
office and parks his car near buy, he only had an imitation gun. He has a note
written to give to the people to give them the money. He walks towards the post
office but gets stopped as police have had a tip off. Convicted at trial of
attempted robbery, appeals which is allowed and quash his conviction becacuase
he had not got far enough into actions which were more than mere preparation,
it was just preparation.
8 feb 08

Automatism
- a fully automatic state
When the person has no control over their actions, no deliberate control of the
mind
Bratty v atorney general [1963]

Charged with murder but he claimed as if he felt really strange when he did it
and pleaded insanity and automasin. Criminal law and culpability is based
primarily based around choices and what one chooses to do.
Hill v baxter [1958]
The defendant drove his van through a stop sign and hit a car. He claimed he
couldnt remember and expert witnesses were unable to say if he had lost
consciousness. Judge raised 2 issues
Attorney
Defendant in attorney general reference and was charged with 2 accounts of
death dy dangerous driving. Over a 12 hour period the defendant had been
driving for 6 hours and hadnt exceeded the max number of hours for driving per
day. He drove onto the hard shoulder for 40 mph and continued for a mile and
ran into a stationary van. The prosecution argued that the defendant was asleep,
he was driving without awareness therefore was in a state of automatism, he was
acquitted but the attorney general sent the case to CA, the defence of
automatism needs a full automatic state, a complete destruction of voluntary
control, not partial.
There is a big overlap between automatism and insanity.
Broome v. Perkins (1986)
Defendant was charged under the road traffics act. Drive very erratcly when
driving home and drove into the mini. He said he has no recollection of getting
into the car and the only thing he can remember is getting home because his
wife gave him a mars bar.

Quick [1973]
Admitted in a mental hospital and hit a patient. He was a diabetic who had taken
his insulin and then had gone to the prub hd a few drinks but not eaten properly.
Quick claimed he did not know what he was doing because he was
hypoglycaemic.
Charlson [1955]
The defendant had been a normal parent until he hit his son across the head with
a mallet and threw his son in the river. He went to the doctor and was diagnosed
with a tumour that can cause violent outbursts. He did have some memory of
hitting his son, but even though it went to the jury who acquitted him by reasons
of insanity.
Self induced automatism
Self induced automatism will not be accepted if the person should or could have
reasonably have foreseen that automatism would be the result of their actions.

Quick [1973]
See handout
Bailey [1983]
He was diabetic and was living with someone. She left him and went to live with
the victim. Bailey went to visit the victim claiming he was unwell where he was
given sugar. He said he was hyperglycaemic ?
Maridon [1996]
Was a diabetic suffered a hyperglycaemic event when driving, crashed into a car
and killed someone. In the pervisous months he had suffered a gfew of these
once where he crshed into a car. Although it was not a self induced state, it was
not a case of automatism even if h was automatism when he crashed. He knew
that he was prone to attacks and that could lead to losing control of the car
therefore he was reckless and couldnt rely on his automatic state
Hardie [1984]
Was charged with arson. He claimed he was in a automatic state when he did
this because he had been taking valium. CA said that it was not known to the
person that taking this amount of valium would result in aggressive behaviour.
Drew a distinction between dangerous drugs or non dangerous drugs.
Other Automatism
Sane and insane atomatism
Eg. Concussion, or if a swarm of bees comes into the car when driving.
Where automatism arises from an internal factor, then the relevant law is that of
inanity due to insanity, because if it in an internal cause then it is dangerious so
it is necessary to keep them under the law.
The correct classification is essential because if it is an internal cause/insanity
then it
If it is an external cause, the person is entitled to a full acquittal.
Hennessey [1989]
Was diabetic and was charged with taking a car and driving it when he was
disqualified. He pleaded not guilty because he failed to take is insulin because of
the stress he was under. However the courts said no and that this was diabetes
and he had not taken his insulin and it was the disease itself that caused the
automatism so it is insanity.
Burgess [1991]
Burgess went to the victim house and confessed undying love to he victim, the
victim did not feel the same way but agreed to let him stay and watched a video,

but he picked up the video recorder and hit her over the head. When she shouted
at him he came to his senses and called an ambulance and was quite remorseful.
He claimed he was sleepwalking, the trail judge said this was a internal cause
and therefore it must be treated as insanity but it has to be an external cause for
it to be considered as sane automatism. Also explained about the reason for
treating these things as insanity see handout.
Sullivan [1983]
Epileptic
Hennessy (1989)
Diabetic
Smith [1982]
PMS
Mixed internal and external causes
Rabey
Was a geolpgy student who became attached to the victim and chanced upon a
letter on the victim that hewas a nobody and he preferred someone else. He
picked up a rock and found the victim and asked her what he thought of this
other student, she said o hes just a friend just like you, he hit her with the rock,
unsprisingly he ends up before the courts. He claimed he had felt strange when
he had done this. Psychiatrist said he was in a dissociative state that was caused
by shock. Courts unimpressed, the said if it was a disease of the mind.
R v T (1990}
Robbed the victim and threatened him with a Stanley knife. T was arrested but
was passive and was
unaware of what was going on around her. She had injuries from rape and had 3
days earlier had
gone to the police to tell them about this. She was suffering from post traumatic
stress disorder.
Rape was taken as the external cause.

Intoxication
Where someone claims that they were so drunk that they didnt form the
relevant mens rea for the
offence.
The question is a question of fact, did they form a mens rea?
Sheehan and Moore 1975

They were both very drunk and felt the victim had stolen a pound from them. In
response to this stealing they poured petrol all over the victims house and burnt
it down and did the same with the victim. When they came to trial they claimed
they were so drunk they couldnt remember it. Trail judge said that the
intoxication was only relevant if they were so drunk that they couldnt form the
intent, CA said that this was misdirection and that it was about the fact that they
were so drunk they didnt form the mens rea.
There is one exception to this attorney general of NI v glallagher
A case of someone who got drunk to do something. cannot be used as a defence.
Lipman [1970]
Lipman and his girlfriend took lsd. Lipman thought he was gong to hell and was
bitten by snakes, in defence he strangle his girlfriend. He was convicted of
manslaughter, CA upheld this, intoxication is no evidence for manslaughter.
Stripp (1978)
Strip was drunk, he fell over and got concussion, he had never driven before, and
then went and drove a bus for a mile and was convicted of various driving
offences. Convicted.
Voluntary or involuntary intoxication
If intoxication is involuntary you may raise evidence that you didnt form the
mens rea according to the intoxication, the question is simply, did you have the
mens rea?
Kingston [1994]
Was a paedophile but had always kept his urges under control, people drugged
him and a 15 year old boy so they managed to do this and videotaped him
insulting the boy. He was convicted and he claimed involuntary intoxication.CA
quashed the conviction because there was no moral fault as he had only done it
because of the intoxication. HL convicted again.

Voluntary intoxication
Self induced so the defendant has done something wrong. The law balances this
by divding crimes of specific intent and basic intent up.
Majewski [1977]
Him and his friends had been drinking all day and taking barbiturates and
became abusive in a pub and try to throw them out they refused so called the
police. They kicked and punched the police. Got arrested and claimed they had
no idea what they were doing. He was convicted and HL said that had to draw
the distinction between specific and basic intent.

Beard [1920]
Raped a girl and when she tried to escape put his hand over her mouth
suffocating her. He said he wouldnt have done it if he wasnt so intoxicated.
Cole [1993]
Someone lost an eye because of cole. He said he didnt foresee what would
happen because he was so drunk. He was charged with intentional wounding and
GBH.
Basic intent
The dividing line between a basic intent and specific intent is very vague. Certain
things are clear though, if recklessness is the mens rea it is a basic intent
offence.
Murder is specific intent. Manslaughter is basic intent. Rape is basic intent. Theft
is a specific intent offence. Criminal damage -depends if it is charged as
intentional, it is specific intent, if it is charged recklessness, it is basic intent.
Richardson [1999]
Richardson and his friends were at uni and they had been drinking, they took the
victim and dangled him over the balcony at their halls. They dropped him 12 feet
and he sustained injuries. In state of intoxication have to see that if they were
sober would they have foreseen the harm? Ie whether they would have been
reckless if they were sober.
Dangerous and non dangerous drugs
Dangerous drugs are those that people know are likely to cause unpredictability
or aggression. Illegal drugs are usually simply taken as being dangerous.
Eg. Lipman [1970]
Majewski
Hardie [1984]
Intoxication and defences
The basic rule is you lose the defence if it based on a mistake on voluntary
intoxication. It applies to both basic intent and specific intent offences.
Beckford v R [1988]
O grady[1987]
Ogrady and his friends went out and got exceptionally drunk, had an argument
and killed the victim. He claimed honestly but mistakenly believed that the
victim was going to attack him, the CA said that there is no case to decide this
one so they held that there is no defence when there is voluntary intoxication.

O connor [1991]
The defendant had been drinking and argued with the victim in a bar. He
headbutted the victim until he died. Claimed he was acting in self defence, the
fact that he had formed a mistaken belief means because it was a reult of
voluntary intoxication the delf defence argument failed.
Hatton [2005]
This case accepted Ogradys
Drunk over 20pints, thought he was being attacked by a victim, killed him with a
sledgehammer, convicted of murder and cant rely on self defence because it was
voluntaryintoxication
Jaggard v Dickinson [1981]
Had the permission to treat her friends home as her own. Took a taxi to the
house but went to the neighbours house instead coz she was drunk. Broke the
window to get in and was charged with criminal damage. The defendant in this
claimed even though she was drunk, she believed she had a right to this, and the
provision courts accepted this, because the statue was interpreted subjectively
where it says about the defendant believing something. This case is contrary to
all the other cases due to the interpretation of the criminal damages act.

Self defence and crime prevention

This is more of a pure defence because defendant accepts the mens rea and
acus reus but relies on the justification of self defence, can be split into
justifications and excuses.
Self defence is a justification. Necessity is a form of justification - I did what I did
to avoid a greater evil so in those circumstances it was the right thing to do.
Self defence is available here someone uses force and its reasonable in the
circumstances the person believes to be at the time. Must force be used?
Necessary? Can u engage in pre emptive strikes? Who can be defended, only
yourself? What if the person who started it was acting in self defence? What if
the claim relies on self defence?
Common law allows people to protect themselves and up to some extent their
property.
Blake v DPP
Sdemonstarting outside parliament about Iraq war. Took a felt tip out and put
stop the war on a concrete pillar. Said he was self defence protecting Iraqi
people. Courts said writing with felt pen falls below force and does not constitue
force
DPP v Bayer

Bayer was a protestor was a protestor agaist GM seeds and to prevent tractors
sowing these seeds he chained himself to a tractor. He didnt succeed in self
defence but the courts say that was sufficient force.
Conway
Conway was driving recklessly to save his life. They treated it as duress rather
than self defence.
When is force reasonable?
We have to have some test of reasonableness.
Reed v Wastie [1972]
Have to decide that when might it be that force is reasonable.
Re A - conjoined twins
Whether or not doctors could separate the twins where one would inevitably die.
The subordinate twin was killing the dominant twin therefore self defence could
be argued but obviously there was no criminal responsibility because it was a
little baby.
R v jones olditch et al [2006]
Protestors against the Iraq war, they broke into RAF and took a spanner to a
couple of trucks and was caught just before he was about to set fire to the tyres
of an aircraft. When arrested they came out with a letter with all the defences
they were going to rely on. They were trying to prevent war crimes the British
would commit. However there is no statute that makes aggression a crime in the
UK legal order, war crimes have been brought into UK. So this argument could be
raised but couldnt rely on an attempt to stop aggression because it is not a
crime in the UK.
Is there a duty to retreat? Do you have to show you are unwilling to fight?
There is no duty to retreat as you cant rely on people to walk away, in some
circumstances they are just going to have to react.
R v bird
Bird blasts the victim and pleads self defence.
Kelly
Kelly was a soldier who shot and killed the victim because he believed wrongly
that they were terrorists and would commit offences in the future.
Who may be defended?
R v fennel [1971]

F thought police were manhandling his son and then ended up being arrested for
attacking a police officer. He pleaded self defence.

Defence of property

R v Hussey
He was being evicted from his house but wasnt given enough notice. Hussy shot
the person trying to remove him from his house. It was entitled that he was
allowed to use unnecessary force against the person who was trespassing and
trying to evict him.
Mistakes and self defence

Mistake of fact

There are 2 primary types of mistake the law deals with and a third one has been
added recently. The first set of mistakes are mistakes about facts which trigger
the need of force by the defendant, if mistakes are honestly held the defendant
is entitled to reply on this mistake
The second is the mistake as to the level and extent of force required. The force
must be honest and reasonable
The third is mistakes bout the dangerousness of the situation.
The general test is did the defendant honestly believe the fact? If they did they
are entitled to rely on those facts. Example in case law;
R v Williams (1984)
The victim saw a youth robbing a man. The victim pinned the youth to the
ground. Gladstone Williams arrives on the scene and he hasnt seen the origin al
robbery and only sees him pinning him to the ground, he punches the man.
Williams said that I believe this man was unlawfully pinning him down and LJ said
that he in entitled to this fact.
Beckford v R [1987]
Killed the victim.jamaica ?
R v Hatton (from intoxication)
lost count after 20 pints and then killed someone with a sledgehammer so cant
rely on mistakes which are self induced.

Mistake about level of force

The amount of force that is used has to be objectively reasonable. There have
however been a number of cases where i has been attempted to argue if people
have used excessive self defence, it should only be manslaughter not murder.
This has continuously been rejected.

Palmer v R [1971]
Palmer used too much force in self defence. Privy council rejects the
manslaughter claim, and says the defendants is acquitted of murder
R v Clegg [1995]
Clegg was a soldier serving in Northern Ireland on a checkpoint. Some joy riders
didnt stop at the check point and the soldiers opened fire saying they feared
that there could be a terrorist attack and were preventing crime. It was
accepting that the first 8 shots fired by Clegg were reasonable, but the 9 th shot
killed the passenger and had already passed the checkpoint. Clegg said he
should be entitled to a manslaughter conviction but HL said no and upheld
palmer.
DPP Armstrong brown [1999]
A defendant who came to the conclusion that the main point of his lie was to
protect a newt of something. The habitat of this newt was to be developed so
some JCBs came along to start digging. Armstrong thought it was reasonable to
hit the JCB operator who help protect the newt. Court didnt agree. The level of
force required must be objectionably reasonable.

Mistakes about dangerousness

R v Martin[2003]
Tony martin was a farmer who lived in an isolated farmhouse where he didnt
receive many visitors. He had been burgled on a number of occasions. 2 young
burglars came into tony martins house and he took out his shotgun, and shot
one of them as he was leaving. On appeal, he said he had paranoid personality
disorder therefore would perceive things as more dangerous. CA didnt agree and
said evidence of paranoia is not self defence.
Dangerousness of facts is to be judges objectively. The force used has to be
reasonable in the circumstance. Whether you response is reasonable is also an
objective test.
Reform and human rights commission
Law commissions opinion;
If someone uses excessive self defence they out to be committed of
manslaughter instead of murder. If someone has just made an error in the
amount of force they had to apply they were just as capable as murderers.
Some argue article 2 (2) does not comply with self defence.

Duress

Someone is coerced into doing something by someone. At times even outside of

a threat there may be circumstance which are duressing, these can be
necessary.
Duress by threat has been accepted since the 14 th century. Duress applies to all
offences other than murder, attempted murder and probably treason. The
underlying reason for having this defence is a concession to human frailty. Other
jurisdictions do not have the exemption of murder because it has to be
reasonable, and it will be very rare where murder is reasonable.
Hasan [2005]
Gotts [1982]
R v Howe [1987]
It simply should be the case that it cant be that you are allowed to kill people
because you are threatened therefore duress cant be applied to murder or
attempted murder.
The requirements for duress are quite narrow.
Case of Erdemovic
Was a Bosnian croat who was serving the Bosnian army. He was 23 told to be
part of a firing squad, there will be a line of you with automatic weapons and will
kill people throughout the day. He said he did not want to do it, his officer said do
it or go get killed. It was decided that it couldnt rely on duress controversially
because there was nothing he could do to prevent the crime as there was a firing
squad. At the end of the day he could only have been one more corpse on the
floor, why should i have to lay my life down entirely pointlessly because theyre
going to kill everyone anyway. Recently this has been accepted.
Notably this is not the law here, if you are required to kill or attempt murder you
cannot rely on duress.
15/2/08
Criminal lecture 12

Duress

Looked at fact that duress is a defence to all crimes except murder attempted
murder and some sorts of treason

One of the Conditions is that there has to be a threat which causes someone to
commit a crime. The courts look at what type of threat is given. The House of
Lords in the case of Hasan established that it had to be a threat of death or

serious injury. Hasan was a burglar and claimed he had been coerced into a
number of burglaries by a violent drug dealer.
Lord Bingham quote

An increasing number of claims of duress these days, the courts are sceptical
about allowing acquittals on this basis. They try to keep the law as narrow as
they can. For example, in the case of Quail. The Court of Appeal was faced with a
number of different appellants (cannabis growth and distribution) Raised duress
Pain is not enough; not good enough if threat which they were attempting to
argue is of pain.

The threat does not have to be of death or serious injury it has to be IN THE
NEAR FUTURE
It appears that it now has to be in the immediate future. There are some old
cases which imply that imminence is enough. However, seems that things have
tightened up again.

Case: Hudson v Taylor

H and T witnesses to a crime and they were being tried for perjury and lying to
the courts. They said they had been threatened. The people they had witnessed
said if you did not lie about who they saw they would be hurt. When they were
giving evidence, one of the members of the gang was sitting in court staring at
them. The threat could not be carried out in courtroom so could not be described
as immediate death or serious injury but the court of appeal said imminence was
sufficient. Quote

Defence of duress could have failed if you had gone to the police. It was
accepted that the police could nto give these two girls 24 hour close protection,
they were entitled to acquittal on the grounds of duress.

Case: Abdul Hussain 1999

Spans out the concept of imminence further. Abdul hussain was one member of a
hijacking crew. Hijacked plane and landed it in London. The Hijackers were all
Iraqis but they were Iraqis who been living in Sudan. They feared if they
remained in Sudan they would be remained in Iraq and so would be brutalised by
Sudham Hussains regime. The court of appeal held tht this may be imminent
enough. This may be enough. The possibility of being killed by another regime if

sent there and there were people who were sceptical about whether this struck
the right balance. The house of Lords in Hasan has again signalled the tightening
of defence. This concern with gang related crime and increasing reliance on
duress means we need to tighten up the requirements.
Lord Bingham explained

Requirement: THREAT RELATE TO COMMISSION OF A SPECIFIC CRIME

Example: Case of Cole a man was threatened with violence if he did not repay
some debts. To get the money to pay off the debt he robbed building societies.
Attempted to bring defence of duress. Threatened if did not pay back money he
owed but they said did not say he had to rob.
THREAT MUST CAUSE YOU TO COMMIT THE CRIME
If you were going to commit the crime anyway you cant rely on duress. What
causes you to commit the crime must be the threats of death or serious injury,
For example: Valderama Vega; D threaded with financial loss with the disclosure
of the fact that he was a homosexual
The court of appeal said he could only rely on duress if it was the threat of
violence that caused him to commit the crime. Any other threats were simply
irrelevant.
YOU MUST NOT HAVE KNOWINGLY OR RECKLESSLY PUT YOURSELF IN THE
SITUATION WEHRE YOU MIGHT BE THREATENED
This relates to the fear that the defence of duress could give an excuse to people
who join gangs knowing what sort of gangs they are
Case: Hasan
Driver and minder of E. E ran escort agency but then E took up with somebody
else P. P was known as a violent drug dealer. P persuaded E to sack Hasan. H
kept in contact with P and continued to speak and have contact. P threatened
violence to Hasan if he did not commit a robbery. The courts said that H knew P
but still sought to out his company. He put himself in that situation,
Bingham QUOTE
Dont need to know that you would be compelled to commit crimes; just need to
know or reasonably would have known that might be threatened
Baroness Hail: too harsh? Ought to reasonably have foreseen that would be
compelled to commit crimes, worried about right of women who stay with violent
relationships

Provide for an objective standard? Some form of limitation

Objective standard: threat would have similar affect on reasonable person
Case: graham
G lived with wife and with lover; man called King. G suffered from anxiety
disorder and took valium for this, Said valium make him more susceptible to
threats than other people. K known for violence and violent before to both G and
his wife. One day G and K went out took valium and drank. K suggested kill Gs
wife. G agreed and went home and strangled her with electrical flex
The C of A looked at this and looked at question of whether they took valium
mattered.
QUOTE
Have to reasonably believe what has been said and done
It has to be such that you display the fortitude of a reasonable person
Duress of circumstances
The past 20 years the court shave expanded duress to circumstances.
All the early cases related to driving but in Pummel the C of A said duress of
circumstance is applicable to all offences which duress of threats is applicable.
Case: R v Conway
C was sitting in his car with someone called Tonner. A few weeks before T had
been attacked. Two men walked up to Cs car. C thought they were going to
attack T. It just happened that they were police. Charge of reckless driving,
defence of duress of circumstance or necessity
It did not matter ht you call it. Test is subjective to same sorts of requirements as
duress of threats. The requirements had to relate to death or serious injury/
reasonable person would have done the same thing.
Case: Martin
M son was late for work and if he was late for work again it was likely he was
going to be fired. Martin was disqualified from driving. His wife said to him you
have to drive son to work. He was he cant hes disqualified. She said if you dont
I will kill myself. It was accepted in C of A that there was a duress of
circumstance. English law does in extreme circumstances recognise the defence
of necessity. QUOTE
Case: Pommel
P was found early in the morning with a large gun with him in bed. The police
said why unlicensed gun in bed?

He said- funny thing happened last nigh. Bumped into a man with this gun. He
said he was going to kill someone, P said took gun off him to give to brother to
hand in the next morning. Unlicensed but it was necessary to take gun off him. C
of A accepted that he could rely on duress of circumstances..
Interestingly, threat was no longer operating. Once taken off man there was no
further threat. Reasonable time afterwards to take gun to police.

Case: Pommel number 2

Evidence case- relate to whether or not you could omit evidence where someone
rely on a plea with regards to an evidence

Pommel in bed with a gun again; someone shoot took off him
C of A said could not give evidence of before
NECESSITY

Direct defence of necessity not linked to duress

There are people who question whether there is a general defence of necessity
Requirements for this defence are very uncertain. There are some early cases of
acceptance of necessity; would not be a crime for prisoners to escape from
burning jail. Pull down someone house to prevent spread of fire.
Number of cases, defence of necessity rejected
Case: R v Dudley and Stevens
D and S were sailors and sailing on shop called the Migonet. The M was
shipwrecked and so they cast themselves off in a life boat. After a week without
food and 5 days without fresh water D and S killed the cabin boy and ate him. D
had originally suggested lots be drawn. One who drew short straw be dinner. But
S convinced cabin boy weaker younger should kill him. Tried for murder. Jury
reached whats know as special verdict on the fact. Did not determine whether
this identified a crime. Courts said yes, necessity did not serve to exculpate them
here. In part this was on the basis that they felt there would be too many
practical problems with necessity. Who would QUOTE
6 months imprisonment
not entirely clear why the court rejected necessity; was not clear whether they
meant necessity is never a defence or necessity not a defence to murder or may
just be that necessity was not established on the facts particularly because they
had not drawn lots

Case: Kitson
Necessity had been rejected here. K had been out drinking and rather than drive
home he decided to sleep in his car. He woke up to find his car rolling down a hill
and successfully steered to side of the road and stopped. He was charged with
driving under influence of alcohol.
Case: Bukoke
Court of Appeal
Fire engine would not be entitled to go through red light to get to a fire but
thats what the fire engine should do anyway
Case: Southwark LB v Williams
Reject necessity
Group of Squatters broke into empty council houses and said they had to do this,
they were homeless and these were empty. C of A dismissive. QUOTE

HERBERT PACKER
Quote on page 1
18th Feb 08
Recognition of the defence of necessity
F v. West Berkshire health authority
F was a female inmate of a mental health institution and had formed a sexual
relationship with another patient. Doctors were concerned if she became
pregnant there would be catastrophic consequences. Mother said a sterilisation
would not be unlawful; however F could not consent to this. Necessity meant that
this was a defence for the doctors. This was taken to its illogical conclusion in a
case called
Re S[1994]
S was a mentally competant adult woman, who in order to save the life of her
baby would need a c section, she refused this on religious convictions. At first
instance the court over ruled this extremely controversialSt George health care trust v S
Overulled previous suthority
Borunwill health trust case
Necessity was relied on by HL. Someone was being deatined in amental health
instituuon but they hadnt actually been sectioned because they had wished to

be taken but, but they werent clearly mentally ill so the question arose if they
could actually consent? Because there was not statutory provisions on this case.
It was lawful.
Re A conjoined twins
Conjoined twins J and M. The dominant twin was J was sustaining the subordinate
twin M, she had no effective circulatory system or respiratory system. M was
putting a huge strain on J and was certain that within a matter of months, both
would die unless they were separated. If they were to separate M would
inevitably die. Parents did want operation to occur. CA decided that the children
become wards of court so the court can give their consent and court decided
that operation will go ahead. The basis of this decision is not entirely clear. One
judge relied on self defence of J, the only judge that based himself solely on
necessity was Lord Brook, who said the operation was necessary and would be
lawful of the doctors to do this. He set down 3 criteria for a lawful plea of
necessity:
1) Necessary to avoid an inevitable and irreparable evil.
2) No more should be done than is reasonably necessary for the purpose to
be achieved
3) The evil afflicted should not be disproportionate to the evil avoided.
Lord Brook distinguished this from Dudley v. Stephens by saying M was marked
for death.
There is still doubt about the general principles of the defnce of necessity
R v Quayle and ober appeals
People supplying cannabis to relieve pain to people with long term illnesses.
They took a defence of necessity. they were prepared to go some way to
accepting there were some general principles regarding necessity. this case
doesnt really follow general trend.

Homicide I: Murder
We have dealt with the general parts of general law. Actus reus etc all related to
general parts of criminal law. We will now move onto specific offences, special
offences. The defences relate to killing people. This shows how different parts of
criminal liability interact. The thing to note is that the law relating to one can
often relate to a law affecting another.
The law of murder
This is a common law crime yet there is not statute defining the crime of murder.
It has arisen through common law over the centuries through individual crimes.

The closest thing to a definition is by coke handout. Parts of this are misleading
but it remains the closest thing to a definition.
Actus reus of murder
Unlawfully means without the presence of a justification. Murder is a result crime,
for which there has to be an outcome, death. Other crimes such as conduct
crimes, do not require an outcome, eg possessing drugs. The death has to be
caused. Brain stem death no functionality, brain stem death is irreversible, which
tends to be the test used for death.
Airdale NHS trust v Bland [1993]
Killing and birth
There is no utility now in the word reasonable. The doctrine has not been
invoked since Victorian times which related to births of very seriously deformed
children. The test that is now used is that the child must be independent
separate to the mother, but not necessary the umbilical cord is cut. For almost
every situation, foetuses are not protected by the law of murder, only exception
is if someone hurts a mother with the intention to harm the unborn baby. This
does not mean they are unprotected by the law, there are statutes protecting
them but not protected from the law of murder.
19th February 08
The person who is killed must be under the queens peace.
Soldiers in war kill people intentionally. The idea to be under the queens peace
is so every soldier is not a murderer
Enemies in the heat of battle are not under the queens peace which means
enemy soldiers in battle. If people are captured or enemy civilians/wounded they
are under the queens peace so soldiers killing soldiers in battle are not
murderers. They are protected by other laws eg. Illegal to kill people using
dumdum bullets in battle.
The year and a day rule in cokes definition is now not part of the la. He said this
that if someone did not die within a year and a die it would be very hard to prove
that they died because of the defendants doing. Medical science was not as
advanced then as it is today therefore this rule has now been abolished.
Mens rea of murder
This is where murder and manslaughter differ. They are both types of homicide
but what differentiates them is the mens rea. The malice or forethought is
different in both. Malice or forethought is doubly misleading though; as malice
normally means recklessness but it doesnt here in fact here it means intention.
Forethought is also misleading because it implies that there has to be some form
on pre meditation, but here that is not the case. No pre meditation is required,

only intention is require-wanting something to happen or foreseeing it as a

virtual certainty of your actions and still acting upon in.
Two issues; firstly the intention to do what,
Secondly the intention to do what to whom.
Firstly, intention to do what:
Section 1 homicide act 1957 abolishes what is known as constructive malice. In
some states in the US is that any crime committed which ends up killing
someone is automatically murder, eg robbing someone and they get killed
unintentionally it is considered murder. if they dont intend someone to die then
it isnt fair that you are considered a murderer. This is what the act abolished.
R v. Cunningham
This related to a defendant who attacked a victim in a pub fight. Picked up a
chair and hit him a number of times. CA asked question to HL whether a person
is liable for murder if their intention is GBH not murder and they didnt foresee
murder to a virtual certainty. HL said yes they can be liable for murder. The
intention to cause GBH suffices the mens rea for murder.
Therefore the intention for murder is the intention to kill OR to cause GBH. This
can be quite problematic as if someone only wanted to cause serious bodily
harm, eg breaking an arm and they die as a result, therefore it shouldnt be up to
the courts to decide what the law on point is. Therefore it is up to parliament to
change. But the house of lords refuses to change the rule although they think its
unfortunate and they have changed the rules before but they still refuse to
change this. This is due to the principle of fair labelling- what a crime is tells you
what exactly you have done wrong, and shows you you are responsible for the
crime. So the principle of GBH coming under murder does not come under the
principle of fair labelling as liability should not be held for unforeseeable
circumstances. The law of murder calls people the same name if they are a hit
man/assassin and if someone who breaks someones arm and they die as a
result which is unreasonable, yet as it stands today this is the case. Accepting
the GBH rule
The law commission does agree with the criticism brought about with the GBH
rule. Murder should be that if you intend to kill or cause such harm which could
result in death. Their compromise is that if you cause such harm that COULD
result in death so therefore its the subjective test.
Secondly, to whom this intention must be directed.
This brings us to the issue of transferred malice. If you intend to commit a crime
to one person but it happens to another person, this is referred to as transferred
malice. The identity of the victim does not matter,
R v lattimer

Lattimer lashed out with someone with his belt, he missed but he cut the fact of
an innocent bystander with his face, it was held that if you have malicious intent
towards one person but hit another, the law just thinks that you intended the
harm towards the actual victim
R v pembleton
He threw stones, rather than hitting the intended victim, it hut a window. It was
held that this wasnt enough to transfer malice, as that was a criminal damage.
Therefore malice cant be transferred between different types of crime
Attorney general
Stabbed pregnant woman in the back and as a result she had her baby very
prematurely and as a result of complications, the baby died. There was no
assertion that he intended to kill or harm the child. But it was able to be seen
that he intended to hurt the mother. Went to HL to see whether he could be
liable for murder, HL said no.
Penalties for murder
The penalty for murder is mandatory life sentence. The act that provides this is
the murder abolition 1965, the purpose of this was abolishing the death penalty.
The issue in 1965 was that should they abolish the death penalty for murder. The
compromise was that the death penalty be abolished but the penalty for death
becomes a mandatory life sentence.
However, not always people serve the whole sentence because a judge sets a
tariff.which is the amount of time you have to spend in prison before you can
apply parole. If they get parole they spend the rest of their life of under certain
licence. There are only a few people in the whole of Britain whose tariff is for
their whole life primarily for prison officials as it becomes harder for them.
Three levels for offences to fall into to decide the tariff period:

Exceptionally high: very serious murders, the baseline to decide the tariff
if a full term tariff (pre meditated murders, child murders with a sexual
thought)

Particularly high: murders with firearms/explosives/for payment or

interfere with the course of justice eg. Killing a witness. The baseline tariff
is 30 years.

Other: baseline tariff is 15 years.

There is complete discretion of the judge to decide what the tariff is but the
baseline tariffs are what they start with.
Thomson v venebles

10 and 11 year old who killed a toddler. They were sentences to detention at her
majestys pleasure. The tariff was set which was thought to be too low. The Sun
started a petition to raise the tariff. The home secretary did raise the tariff and
they went to the European high court as they said this interfered with their right
to a fair trial because the judge did not decide. Successful. Therefore very
important for judge to decide.
The reform of the law of murder
The law of murder has received a lot of criticism by others and by judges. Most
recently the law commission came up with a proposal to reform the law of
murder. In this they came up with distinguishing between the different types of
murder. see handout.

One advantage of this would be that it distinguishes between the different

types of murder, fair labelling

On disadvantage is that it does not limit first degree murder to intention to

kill, but compromises with intention to harm where death is foreseeable.

22 Feb 08 am

Homicide II: Voluntary manslaughter

There are three instances when manslaughter is voluntary;

Killing under provocation

Killing when suffering from diminished responsibility

Killing in pursuance of a suicide

These are only partial defences, if someone pleads one of these successfully will
bring the crime from murder to manslaughter.
Some argue that provocation as a whole should be abolished.
Involuntary manslaughter- the relevant mens rea for murder is NOT satisfied.
There is no intention to kill or cause GBH.
The conviction is simply for manslaughter, the verdict does not specify voluntary
or involuntary therefore manslaughter covers a very large area of culpability and
unfair labelling issues.
Historically, the defence of provocation actually developed out of chance medley.
It was thought that the mens rea or murder might be undermined where there
was a chance fight and it was from here that the defence of provocation
occurred. At this time it was only applicable to very specific circumstances.
Normally anger is not an excuse; there are those that question whether we
should have a defence of provocation in murder. In crime there is no concept of
contributory negligence, therefore the victim could not have got on a level what

he deserved. The victim is usually portrayed in a negative light because often at

trail, you find very unfortunate and stereotypical portrayal of victims to find any
possible evidence of provocation. If there is any evidence whatsoever for
provocation, then the judge must leave it for the jury to decide.
Woolington v DPP [1935]
This case made sure that it is for the prosecution to prove all the elements of the
crime beyond reasonable doubt and this includes disproving defences.
Elements of provocation
There are two basic tests for provocation, see handout.
With the first there has to be something said or done and defendant has to lose
control because of it. Words alone may suffice, there is a requirement for
something to said or done. A simple set of circumstances is not enough
R v Acott [1997]
Killed his mother in a serious attack and could not remember what had
happened. Found no provocation. See hand out
Notable other aspects, it does always have to be from the victim themselves,
there has to be no requirement that he behaviour is blameworthy.
R v Doughty (1986)
The father of a new baby, 17 days later he killed it. He claims he was provoked
because he cried all the night the previous night. This can be considered
provocative conduct, as it does NOT have to be blameworthy therefore it should
be lift to the jury.
Self induced provocation
R v Johnson [1989]
Drinking in a club and threatened the victim and his girlfriend. A fight broke out
and he killed the victim. It was held he could still hold the defence of
provocation.
History and Provocation
R v Duffy
She was with an abusive husband. Had an argument and she killed the husband.
Lord Devlins judgement on handout set out the test. There is a requirement for a
sudden and temporary loss of self control.
The psychological evidence on point is that broadly speaking mens anger
reactions are snap whereas women are slow burn reactions.
Slow burn Reactions

R v Thornton
Was married to an alcoholic. Drunk had an argument; she sharpened a knife and
stabbed him. At the first trial they were very clear that the duffy test still applied.
R v Thornton (no. 2)
The CA put something of a gloss on this. Evidence of pre existing acts of abuse
was relevant. A reletavely minor trigger incident may cause a loss of self control
Ahluwalhlia case [1992]
Waited till husband was asleep and then set fire to him.
Therefore there is no rule of law setting a time period saying its too late. The test
remains to say at the time the length of time between the provocation and the
reaction is unspecified. This is reiterated in
Luc thiet thuan v R
Had a mental disease in which caused him so get angry on the slightest of
provocation.
Therefore has to be something said or done and leads the defendant to have a
temporary loss of control.
Retaining control
There has to be a loss of control the provocation must lead someone to actual
lose control.
R v Cocker(1989)
Wife was incurably ill and been looking after her for over a decade. She had
asked him to kill him. One night she continually woke him up and said he was a
bad husband for not killing her so he did. He admitted he did not actually lost
control therefore he couldnt rely on provocation.
The objective part of the test requires a level of control; it is an external standard
so people cant rely on the fact their personal differences that they are
particularly angry.
Why would a reasonable man kill? One of the most difficult thing to determine
what is actually th reasonable person, what characteristics do they have. Prior to
the 1967 act, the law was very strict.
Bedder v DPP [1954]
Man went to prostitute, couldnt perform so she teased him and he killed her.
Was found that the reasonable man couldnt not perform.
DPP v Camplin

Camplin was a 15 year old guy who went to an older guys house who had forcibly
had sex with him and then taunted him about it. He killed him. The age came
into the argument, is the reasonable man 15 years old? HL said yes.
The reasonable person is of the same age and sex of the defendant, if they are
taunted about something specific to them, then the reasonable person would
have had that characteristic too.
R v Marhall
M was a glue sniffer. The deceased along with Ms girlfriend had criticised him for
this. The deceased left to get some food and came back and criticised him again
and head butted him. M hit him on the head with a hammer. Deceased criticised
him again. As a result M stabbed him. HL asked whether the fact that M was a
glue sniffer could be relevant to question of provocation. Lord Goffs statement. If
his friends had called him a glue sniffer, but he wasnt one, it wouldnt have
affected him. Therefore it did matter that he was a glue sniffer.
R v Morgan Smith
HL moved away from Marhall decision. MS was an alcoholic and depressed. He
argued with his friends because he thought he had stolen his tools and killed
him. He said it was because he had a lower ability to maintain control with other
people as he was depressed and alcoholic. He said the reasonable person should
be the reasonable alcoholic and depressed person. The provocation was that he
thought his tools had been stolen. Lord Hoffmann statement. Said dont always
need to talk about reasonable man, but whether it was able to be excused.3-2
decision, HL said factors going to ability to maintain self control can at times be
relevant, therefore depression could be relevant. Battered women syndrome
could also be relevant. If that meant that the person had a lower standard of self
control then jury ought to be able to take this into account into whether
defendant acted reasonably. HL is trying to be helpful to those who have a lower
standard of self control, so they would be judged against standards they could
fulfil. Where someone has some sort of mental problem that affects their
responsibility there is also the defence of diminished responsibility. MS had raised
a defence of diminished responsibility which had been rejected. He cant get his
depression and alcoholism in through the back door! Difficulties with majority
approach. Although it looks a sensible decision it is questionable whether in fact
the legislation intended and whether it would work well. How are the jury meant
to apply this test? How are they meant to determine how the reasonable
alcoholic depressive would have reacted? Although in later cases privy council
have said these problems are exaggerated, how do they know this? Although
they said this decision wasnt consistent with Marhall, it was. Marhall won with a
majority.
Attorney General for Jersey v Holley
Privy council. H was an alcoholic who killed his girlfriend with an axe. Should he
have been compared to a reasonable alcoholic or reasonable person? Privy

council is made up of same people as lords but privy council law is persuasive
rather than binding on lower courts. Privy council sat in a special expanded panel
of 9. They expressly said this appeal was to resolve conflict of Marhall. Objective
standard of self control is standard set by common law to a reasonable man.
Problem with majority judgement in Morgan v Smith. In morgan smith they tried
to create a looser test. But privy council said that is not what the statute said.
Marhall was reasserted. HL decision is binding... do we listen to privy council or
HL? They are able to take privy council view over HL because of the expanded
panel. Other cases have all taken Holley view.
The future of Provocation
R v James; R v Karimi and R v Faqir Mohammad
All took Holley into consideration.
Holley Lord Steyn judgement. People cant say that they have a lower amount
of control than they have. Cant say reasonable person has this lower standard of
care. Defence of diminished responsibility is appropriate way to go for those who
claim they have lack of control.
Reform
Partial Defences to Murder (2004)
Law Commission issued this report. Handout. Said best way forward was reform.
They wanted to keep the Holley judgement.
Diminished Responsibility
Homicide Act section 2
Handout. Companion defence to provocation
R v Byrne
B sexually molested and killed woman in ymca. Although he was not insane
according to the McNoughton rule, he was a sexually psychotic man who was not
able to control his own urges. He didnt have to fall in the McNoughton rules for
the defence of diminished responsibility to apply. An irresistible impulse could
make an abnormality of the mind. This has caused criticism as its too lenient.
Mental evidence is often inconsistent. Juries asked to weigh up complex medical
information which they are not skilled on. Law commission said they couldnt
think of anything better so they had to keep the current defence.
Suicide Pacts
Homicide Act section 4
People of this pact who pursue others would be liable for manslaughter not
murder.

See micelles notes.

25th feb 08

Dalby [1982]
Owing to this drecision the CA said supplying drugs didnt directly cause death
and that it wasnt directed at the victim, some people thought the act was
directed at the victim but this was not necessarily the case. Constructive
manslaughter involves killing therofre all the rules on causation
RvD
A prolonged period of psychological and phsycial abuse of a wife of her husband.
On the night of hr death he had struck her on the head. This was the last straw
and he committed suicide, the medical evidence was that she had been
psychologically affected but didnt rise to the level of being recognised as a
psychiatric illness. obitor they said that where someone is hit and they have a
frailand vulnebarble personality
Gross negligence manslaughter
Normally the criminal law does not intervene. There are times when its been
decided that negligence is suffientlyculpable that crimes should be associated
with it. Gorss negligence that leads to death and so we have in manslaughter a
heading which is labelled with gorss negligence.alot of earlier cases refer to
recklessness.
Anre
Rushing to fix a bus on sat night. He was speeding and overtook on the wrong
side of the road and killed someone, he didnt stop. Convicted of manslaughter.
Seymour
In the period following Caldwell, they starting trying to reshape the law of
recklessness
Adomake prentice and holloway
The CA trying to avoid Seymour, case went to HL. During the operating the
patients ventalative tube became detached. The 6 minutes in which this remain
unnoticed, the patient died. It was clear the patient had stopped breathing, so
was convicted of gross negligence manslaughter.
Misra and stritsava [2004
Two doctors failed to notice after knee surgery developed some disease which
killed him. Convicted of gross negligence manslaughter. They argued that

because the jury had to decide about the extent of negligence it didnt give them
a fair trial.
The fundamental element of the offence, the extent of negligence is left to the
jury. The CA rejected the argument, its not a question of law but a question of
fact.

R v Willoughby
W probably employed the victim to help him burn down his pub. W was in
financial difficulty, so burn down his unused pub to claim insurance. The victim
who was employed to do this died in the fire. Does the man who employed
someone to burn down his pub owe a duty of care to him? He was convicted and
it should have been determined the by judge whether he owed a duty of care or
not. CA said no its up to the jury to decide.
two actors need to be taken into account
R v wacker
agreed to bring 60 illegal immigrants to the UK, the van was a sealed off unit and
left open a very small vent. He left them for 5 hours, and 58 of them died. He
argued on appeal saying he didnt owe them a duty. No action may lie on the
base caused. We were all joined in a joint criminal enterprise to get these people
in the UK. The CA said this was out the scope of the enterprise. HL said no.
29th February 08
Non fatal offences
An assault is an action b which the defendants intentionally or recklessly causes
the claimant to apprehend violence against the person. Doesnt include touching,
only putting fear eg threatening.
A defendant intentionally or recklessly puts violence against the victim
Assault is putting someone in fear of unlawful personal violence; battery is
actually inflicting the unlawful force.

Faulkner v Talbot
As long as there is no lawful excuse or consent, touching suffices for a battery.
Logdon v Dpp
Opening a drawer to show someone a gun sufficed.
Words alone can suffice apprehend immediate unlawful violence.
Ireland v Burnstow [1998]
Made silent phone calls to women over 8 months and resulted in her developing
psychological harm. Convicted. They were willing to accept in certain

circumstances where silent phone calls would suffice. Until 1997 there was very
little protection from stalkers. HL felt that the common law needed to provide
protection from people like Ireland and burnstow.
It might be noted that there is requirement for battery to be an assault too.
Santa Bermudez[2004
Was a drug addict, stopped a policewoman who asked if he had any needled. He
said no, she checked his pockets and hurt herself on the needle. This was
constituted as a battery, because he just left the needle in his pocket.

The mens rea for battery is Intentional recklessness, as to put someone in fear
of immediate unlawful violence.
Venna [1976]
Him and his friends were causing trouble in the street, police came and as he
refused to be arrested broke the police officers hands. He argued that he did not
intend the harm and it does not say anywhere that recklessness only suffices for
the mens rea.

Offences against the person act 1961

Section 47
See handout. This requires initially an assault or a battery. The only mens rea
required for this section 47 is the mens rea for assault or battery. Occasions
means causes.
Roberts (1971)
Tried to escape from the car due to fear. Held her actions were reasonable and
foreseeable.
Savage and Parmenter [1991]
This section is in part a constructive crime. Their is no mens rea required for the
actual bodily harm therefore can be classed as a constructive crime.
What is actual bodily harm?
Miller- any hurt or injury which will interfere with the health of the victim. It can
include a temp loss of consciousness but not necessary. Notably it also covers
psychiatric injury. A distinction is drawn between psychiatric illness and
psychiatric harm, and in this case it needs to be an illness therefore medical
evidence is needed.
Section 20

The mens rea is to intend maliciously (intentionally or recklessly which is used

here in the subjective sense)
R v Cunnigham
Wanted to steal money from the gas heater and his force caused a gas leak. The
CA was asked to determine was malice meant. See handout.
Savage v Parmenter
HL looked at sec 27 and 20 and looked at whether they ought to be constructive.
Savage was in pub and saw woman who she didnt like, she threw a pint over
her. Glass broke n cut victim on wrist. Parmenter had injured young child. He said
his defence was that he didnt know young children were vulnerable and weak.
HL had to look at how sections should be applied. Quote on handout.
Wound or inflict GBH
There has to be a wounding or GBH. For a wound the whole of the skin has to be
broken. A graze is not GBH
Moriarty and Brooks
GBH has to be more than graze
Smith (1961)
What constitutes GBH?
Ireland
Serious psychological illness can be GBH
Wilson
Dica
Infecting someone with HIV is GBH. Before this case, it wasnt GBH to infect
someone with a disease.
Section 18
Definition handout.
Mens rea is a bit complicated. Says maliciously but then says with intent. Its
because section 18 covers more than one type of offence. Covers intentional
affliction of GBH. If you recklessly inflict GBH, that is also covered by section 18.
So section 18 covers 2 different types of situations. You have to intend the
outcome. Where its charged with intent to resist arrest it is constructive extent
to which the result is not quite the same n has element of constructive liability.
Malice and intent
Bryson

GBH
Alternative verdicts
Mandair
Jury is entitled to bring verdict on section 18 or 20.
Wilson
Where someone is charged with section 20, jury is entitled to bring section 20 or
section. The judge if he wants to can bring verdict on either. They dont have to
be separably charged.
Consent and Defences
Where common assault and battery consent is valid. Battery is simply touching
someone. It would be odd if you couldnt consent to someone touching you, e.g.
in doctors.
Collins v Wilcock
In public you may bump in with others, but this doesnt necessarily mean its a
criminal offence. Robert Goff on handout. Consent is implied.
Capacity
Even when there is express consent there are times when it wont be accepted.
E.g. where the person lacks capacity. E.g. children cant consent to certain things.
Paul Roberts handout
Gillick v West Norfolk
G was a prolife campaigner and the mother of girls under 16. She objected that
doctors could give contraceptive advice to girls under 16 without parents
consent. She sought an order that it was unlawful. HL expressly said that wasnt
the case. They said it was in the best interests of the children to receive that
info. They said the childrens consent was fine as long as they were capable of
understanding basic info. They didnt try and set a particular age on this as they
accepted that children mature at different ages. Therefore capacity depends on
ability to understand. There are some exceptions to this. E.g. there are ages of
consent for voting and smoking which are imposed by statute. But generally
speaking if you understand consequences you have capacity to consent.
Informal consent
There can be circumstances of informal consent of HIV transactions.
Konzami
It was determined that although if you dont tell someone you are HIV positive
you could be guilty of section 20 offence, if partner tells partner they are HIV

positive but they still have sex, then informed consent suffices. So sometimes for
consent to be operative there has to be some information given.
Fraud
There can be times where failure to give info or mislead info
Dica
D was HIV positive n didnt tell partners. He recklessly infected partners. People
he had infected had consented to sex. But HIV transmission can be GBH.
Therefore as he didnt tell them, they didnt consent to actual bodily harm of sex.
Handout. If you separate off consent to sex, because he had defrauded them to
HIV status they hadnt consented to that, so it was GBH
R v Richardson
R was a dentist who had been suspended from practice. But, she still opened her
practice and carried on engaging in dentistry. A number of patients complained
as they said she was obviously intoxicated when performing surgery. She was
charged with assault against actual bodily harm. She said they had consented. At
first instance, the judge said that it wouldnt amount to an defence. CA quashed
conviction as said the relevant test was to see if patients were mislead about the
identity of person or nature of force. She fulfilled the requirements of this test, as
she had said who she was and what she was going to do. It was only defrauding
as to the quality.
R v Tabbassum
T was a medical representative. He claimed that he was developing a database
on breast cancer. He persuaded a number of woman to let him examine them.
Indecent assault. He had led them to believe that he was medically qualified but
really he was a sales rep. He had deceived them as to the quality of the act.
Therefore they had consented to a different quality of act. Clearly conflicting with
Richardson. As Richardson was not entitled to practice as licence had been
revoked, and Tabbassum had never been allowed to practice. But in Tabbassum
they said the quality sufficed. So there is a conflict of authority.
Invalid consent
The Law doesnt except the consent. Beyond assault and going into actual bodily
harm, consent is not a defence unless there is some social purpose of activity
being engaged in. The law in this area cannot be explained on the basis of
coherent principle. As soon as you get to actual bodily harm there has to be a
reason for consent to be operative. Autonomy principle allows you to consent to
most things.
David Ormerod quote.
Joel Feinberg quote

Sports and Social Purpose

In most sports it is accepted that there is implied consent
A-Gs Reference quote. People must be able to consent to surgery, otherwise
doctors would be liable for battery or murder. dangerous exhibitions such as
stunt driving. Sports have loads of injuries such as fouls. In boxing there are
loads of injuries.
Jobidon
They accepted that in stunts could consent to injury as for good of people
involved and for wider people too.
Lord Mustill in Brown
Boxing legality quote. There are a number of people who have died as a result of
boxing. A boxer causes death, intends GBH, yet consent is considered to operate
even at risk of death.
Horseplay
Horseplay means rough play such as boys playing about.
Jones
Boys were throwing victims up in air and catching him. He didnt catch him, he
broke his arm and ruptured his spleen. They said he had implied consent.
Aitken
Involved a number of RAF pilots who had been drinking and had come back to
their quarters. They had recently got some new fire proof suits. They decided to
test the suits by setting fire to each other. One of them was seriously burned.
Court marshall appeal said it was horseplay. What public interest is being served
here?
Other permitted areas of consent
R v Brown
For those who religious traditions involved flagitation was acceptable, e.g.
tattoos.
Dica
HIV case.
No social purpose
If its above level of assault there must be some social purpose before law allows
consent
Lord Lane in CJ in A-Gs reference quote. Law is a bit paternalistic.

Unsporting activities: sado-masochism and the law

Brown
HL disapproved strongly of appellants. Police had raided a group of
sadomasochism and found videos. They couldnt be charged with gross
indecency as there is a time bar of one year. Police thought they must be
prosecuted so prosecuted them for section 20 and section of offences. Were
these really acts of violence? Threshold issue was whether this was violence or
just sex? Majority said this was just violence and it can be used for offence
against the person act. Lord quotes handout.
Wilson
Wilson and his wife decided it would be nice if she had his initials on her
buttocks, so Mr W did the tattoo himself with a hot knife. He was charged even
though she had consented. As R v Brown said consent is irrelevant. But CA
changed decision. Mrs W not only consented it was but she also instigated it like
in Brown, there was no aggressive intent like in Brown, but in Wilson victim didnt
enjoy it unlike Brown, but this doesnt make a difference as it Brown they said it
wasnt about sex but was about violence. In Wilson, they looked at public policy.
they werent as concerned with domestic matrimony.
R v Emmett
Question of whether or not Brown was really about moralism and about
defendants being homosexuals. In Emmett it was heterosexuals doing the same
thing. They said Brown was restricted to homosexuals only. But court disagreed
and said the same Brown principle applied to heterosexuals.
Barnes - Why should you be able to consent to boxing but not sado-machocism?
Lord barnes said it was due to public policy.
29.2.08 pm
Reform, Questions and Further Comment
1998 consultation paper on violence see handout the law commission has
suggested that we have one crime act that sets out all the crimes that one could
commit, therefore wouldnt have to have common law crimes anymore which at
the moment tend to be quite vague. There could also be consistency in criminal
law, however this would take a huge amount of time as one would have to sit
there and define every single crime, this would also raise controversial issues eg.
Mercy killings.
This is trying to rationalise the law.
See handout for content of the different clauses;
Cl 1 (1) this is very much an analogue of section 18 as it currently stands.
Cl 4 (1) refers to assault and battery.

Cl 14 (1) different to Woollin. The language here is that it would occur in the
ordinary course of events
(2) defines recklessness- which is similar to Cunningham.
Cl 15 (1) defines injury to mean physical or psychological injury which we have
fro Ireland and burnstow
(2) notably physical injury does not included disease.
(4)...unless it is an intentional causing on harm. This could be seen as
unfortunate because as we can see from konazi, passing on HIV could prove
fatal, it would be a difficult to prove an intentional transfer HIV onto another
person, because the nature of the transmission is not virtually certain. Which is
why in konzani and dica they were charged with reckless transfer of HIV because
they saw the risk and took it rather than did it intentionally.

Property offences: Theft

1968 act was created to completely replace the old act. It was decided that they
would simply replace the old offences with the new ones of theft. The important
thing to note is that the act was drafted by the criminal committee...
The mens rea for theft is dishonesty. The definition of theft is given on the
handout from the 1968 act. There are five different aspects to the offence, 3
actus reus, 2 mens rea. Under section 7 of the act, conviction of theft is
maximum of7 years imprisonment.
Actus reus elements:
1) Appropriation
Pitman and Hehl (1976)
Had a friend who offered to sell them furniture, when they knew the furniture did
not belong to them. They were charged with handling stolen goods.
Broom v Crowther (1984)
The defendant bought a theodalight (a device used by surveyors to measure
edges etc) after he bought this he realised it was stolen yet kept it for a week.
The police found it and at first instance convicted of theft. He argued that after
learning that it was stolen, he hadnt touched it while deciding what to do with it.
The provisional court quashed his conviction saying he didnt appropriate it
because he didnt act as his rights as the owner of it.
Morris[1984]
Defendants had gone into the supermarket, put the cheaper labels on more
expensive goods and took them to the till. The HL said that to price something is

the assumption of the right of the owner. This was expressly approved in HL
again in;
Gomez [1993]
The Hl was abundantly clear that any one of the rights sufficed. The CA didnt
really believe this.
Gallaso [1993]
Was a nurse in a residential care home in a mentally hill home. She opened 3
bank accounts with 3 cheques. ????? CA said that should be some form of
taking to assume the right of the owner for it to be appropriation. It is generally
accepted that Gallaso is wrong and Gomez remains the authority on the point of
law in theft.
Lord keith in Gomez could not have been clearer see handout for his
judgement. The current interpretation of the CA is that if you take something of
the shelf in the supermarket and putting it in a trolley, there is a form of
appropriation. This is a very controversial aspect of the offence.
Consent
Lawrence [1972]
A taxi driver and he picked up a tourist from Victoria station and took him on a
journey which would have cost 10 shillings and 6 pence. When he got to the end
of the journey he asked that the tourist for 1, almost double. Lawrence took 6
out of his wallet instead. The question was whether or not the tourist has
consented to this or not. It was held that consent was irrelevant in this case.
Morris [1984]
Switching supermarket labels, - held that consent was very important which
directly contradicts Lawrence.
Skipp [1975]
The CA simple accepted that consent was important. Defendant picked up three
loads of goods from London to deliver from Leicester. He got to Leicester but
turned off the road with the good instead. The question was did he steal three
times or just the once? It was held that he only stole once when he changed
direction.
Gomez [1993]
He was an assistant manager in an electrical shop. He and his friend decided to
get stereo equipment 17 000 worth. He friend got 2 cheques to that value
stolen. Bought the stuff, Gomez went to manager and said that these cheques
are fine so manager let him take them. He was charged with aiding and abetting
the theft, he argued he couldnt be charged with this because the manager had

consented. Dissenting judge held consent is irrelevant. See handout for

judgements.
3 March 2008
The civil law/criminal law conflict since Gomez
The CA had other opportunities in which it could limit or distinguish Gomez;
Mazo [1997]
She was a maid and she took cheques from her employer amounting 37 000
thousand pounds and it was suggesting the reason for this was that she had
taken advantage of the victim who was in a mental state. The question arose of
whether or not there needs to more detailed notes about the mental state of the
victim. Mazo argued that these are perfectly reasonable gifts, the CA held that
more detailed approaches to the mental state of the victim were needed. See
handout for quote.
John Smith was pleased with the Mazo outcome as it kept criminal and civil law in
line.
Simon gardener said it was perfectly acceptable for the civil and criminal law to
run on different courses on this point of law. The criminal law is about
establishing civil law rights, if they run across purposes; the criminal law here is
running against itself. The whole point is that it is supposed to support the
criminal law. This wasnt the case in:
Hinks [2001]
The defendants befriended a rather naive older man, mr dolphin. She persuaded
him to give her 60000 and a TV. There was the question whether he had the
capacity to give the gifts, it was not found at trial level that she had used duress
or that he did not have capacity. There was no right left in this case, the HL
decided to dismiss the ? look at quote on handout.
Lord stein refereed to a number of hypothetical examples to try and show that
the interpretation of Hinks, that a perfectly valid gift could be an appropriation.
At trial Hinks had found to be dishonest. This shows that the broadness of the
term appropriation means dishonesty is one of the every few limitations left in
theft.
The dissent in this case, Lord Hutton focused on the fact that dishonesty is a very
broad test therefore appropriation ought not to be diluted to include valid gifts.
By accepting the gift you are carrying out the wishes of the person who is giving
it to you, therefore you are carrying out their wishes. It is a necessary part of
property is that you can do with it as you wish. This case is the point on law but it
is deeply flawed.
Property

This includes money, all physical property and also things in action like intangible
objects, but can be seen by the bringing of legal action, eg, bank balance, export
quotas, patents, copyrights these can all be stolen.
Section 4 of the theft act, sets out examples, like cannot steal land, or picking
flowers/mushrooms unless you want to sell them.
Section 44 tells us that wild creatures are considered property, but you cant
steal wild animals unless someone has already taken possession of it. Domestic
animals can be stolen.
Information of secrets
Oxford v moss
Defendants was a student who managed to get hold of an exam paper that he
was going to sit, but there was no evidence he was going to keep the piece of
paper. So they could not prosecute for theft as he was not going to deprive the
University of the Paper. They tried to prosecuted for theft of information, it was
found that information is not a intangible object therefore he could not be
prosecuted under theft of information.
Services
Cant steal services as they arnt property in themselves.
Corpses
Corpses are not property, so you cant be found guilty of stealing a corpse.
Kelly 1988
The CA accepted that parts of corpses can be property for example if used for
teaching or exhibition purposes. Look at handout. This is a very controversial
issue; not least there is a fear that if they are considered property, there could be
a market for transplant organs. This raises far too many issues for the law of
theft, and the law hasnt developed enough to handle this.
Electricity
Lowe v bleeg
Defendant made a phonecall while tresspassig a house. He was charged with
committing theft, by saying he stole the electricity, the answer is it was held he
could be a burlar because electricity is not property in itself. Under section 13,
abstracting electricity, eg. Runbing fridge from streetlights.
7 march 08
Abandonment
These are usually really rare, they must intend to forfit all their possessions and
exclusionary rights over it.

Woodman [1974]
Defendant took some metal from a disused factory which belonged to a company
called English china clays and they had actually sold all the scrap in the factory
to company called bird group who had taken a lot of the scrap but not all of it.
The site itself was locked, as a result of this it was held that woodman had
actually stolen the scrap from English china clays. They were thought to have not
abandoned the property. Abandonment has a very high threshold.
The definition of property belonging to another that upon on occasion people had
been convicted of stealing their own property
Turner (No.2) [1971]
Left his car at the garage to be repaired, browns garage repaired the car and left
it on the road. Turner took it away without paying. CA expressly held it was theft
even though it was his own car. They said the garage had possession of the car
and he took it therefore he stole it.
Meredith [1973]
The above decision can be contrasted. Merediths car was causing a blockage on
the road so the police towed it away. The defendant found this in the police
compound and drove it away and was charged with theft. It was held that he
couldnt be convicted because it was his own car. Crown Court held that he
should have paid because the police had no right to retain the car.
We determine whether the property belongs to someone or not at the time of
appropriation.
Edwards v Ddin [1976]
The defendant went into a garage and asked for petrol and oil and got them put
in his car but then drove off. It was held that it wasnt theft . see handout for
judgement.
Notably the breadth of property belonging to another alongside the breadth of
appropriation means that if all the directors of the company decide to take all the
assets of a company it will be held as theft because the company is held as its
own legal being. This was raised in Gomez saying this was absurd, even idf they
are the only shareholders of the company.
Statutory Extensions
Section 5(2)
See handout.
Section 5 (3)
This is to deal with situation where a person is legally bliged to deal with their
money in a partiucalr way

Davidge v Bunnett [1984]

Victims were all flatmates who all gave the defendant money to pay the gas bill
but instead she spent the money on other things, even though they had given
her the money because the obligation was on her to give the gas bill. This fell
under 5 3 and it was considered theft.
It should be noted that it is a legal obligation not moral as it can be seen in :
Klineberg [1999]
Property agent selling property abroad. He pocketed the money instead of
buying the property.
Notably in this case ti was also determined under section that property can be
regarded as being belonging to another even if it wasnt under civil law. The
obligation must be a legal one and a very speicifc one as the must deal with the
property in a particular way:
Hall [1973]
Was a travel agent. He put the money from people in the firms general trading
account, when the company went bust the clients lost their money. This wasnt
held as theft under section 5 because they simply gave him the money to book
their holiday not specific things
Wain [1995]
Arranged charity discos and then didnt give the money to charity, the CA held
he was a trustee but h e can still be charged under 5 3 beacuse there was an
obligation upon him to give the money to charity.
Section 5(4)
Attorney generals reference {No. 1 of 1983) [1985]
The defendant who was a police officer was overpaid by 74.74, rather than give
this money back, she spent it. There was a legal obligation to restore the money
when a mistake had been made. Again this has to be a legal obligation.
Gilks [1972]
There was an overpayment by a bookmaker. At the time gambling debts were
not legally forcible. Therefore because there was not a legal obligation to restore
money he hadnt stolen the overpayment. See hand out.
Chase Manhattan Bank v Israel British Bank [1981]
The bank paid 2 million dollars to the defendant bank. It was sought to trace in
equity this money.
Shadrokh-Cigari [1988]

The defendant was mean to have 286 dollars to put in to their bank. The bank by
mistake put in 286 thousand, and the defendant spent it all.
See handout for dissenting judgement in Hinks.

Mens Rea of property offences: Theft

There are two elements to this;

Dishonestly
Thee pieces of honesty
- Colour of rights defence
S. 2(1)
Skivington [1968]
Delivering wages to his wifes employers and demanded his wifes wages, it was
held that it was theft because he genuinely believed he had the right to get the
wages. He was simply convicted of assault.

Belief the victim would consent then its not theft

It you believe the owner cant be discovered by reasonable steps. If you

found something on the street and had no idea whose it was, therefore
taking it is not dishonest.

The general test for dishonesty

See handout for two tests in Ghosh.
Ghosh [1982]
He was a consultant who was charged with dishonestly taking payment by
deception. He claimed he thought the money was legitimately owed to him.
There have been huge critiques of this test. This leaves a question of law to the
jury that what is dishonest? This ought to be a matter of law rather than be left
to the jury. This leads to more trials because people are willing to give it a go as
there are no standards. This leads to inconsistency, because there arent clear
standards, it depends on the jury you get. It is also unsuitable in certain
circumstances.
Feeley [1973]
Intention to permanently deprive someone of something
This means borrowing wont amount to theft.

Borrowing
In certain circumstances borrowing can amount to depriving someone.
Describes in section 1(2) substitution is not good enough.
Lloyd [1985]
Substituting
Velumyl [1989]
The defendant borrowed 1050 from his boss bank and said he would give the
same amount of money but would be the same exact notes. But this was
considered theft.
Special cases/statutory extensions
Lloyd [1985]
Defendant was a cinema projectionist. In the evening he took the film reels home
and made copies. He always returned the cinema reels. Was this covered by
section 6? CA said they quashed the convictions in Lloyd but not all the goodness
of the reels was used up therefore it wasnt an outright taking.
What is required is that you treat the stuff as your own, eg, throwing it away,
offering in for sale, pawning the item.
There are two main cases where borrowing is equivalent to taking where it is
returned in a completely altered form.
DPP v J [2002]
Forcibly took headphones, broken them in 2 and gave them back. The
magistrates were wrong in saying there was no question to answer.
Or when the value has been used up completely:
Beecham (1851)
Defendant stole paper tickets and returned them afterwards but then they
wouldnt be valid.
Property offences II: Theft-related offences and criminal damage
Robbery
Robbery is theft by force. It is contrary to Theft Act 1968 section 8 handout.
Robbery is the wrong of theft and the wrong of using force against people. So its
a crime against people and theft. Its a very broad offence, and can be
playground bullying to car jacking and armed robberies. There have been
suggestions by ashworth that the offence should be split up into different
elements. Currently anything from a threat to stabbing someone to get money is

covered as robbery and the same offence, however they are very different.
Assault is dealt with different offences, due to fair labelling it would be more fair
if robbery had different elements too. However the offence is unlikely to develop
The four elements of robbery - handout
Theft
Includes where there is a defence to threat, incl statutory exclusions of
dishonesty.
Skivington
He was indicted for robbery however he was not convicted of robbery because he
wasnt dishonest. He was entitled to rely on section 2. It was simply an assault.
It is necessary to look at when the theft occurs and is complete. This relates to
requirement 3, that the force has be used immediately or before or at the time of
the act. The theft normally occurs when something is taken away. But Gomez
says it can occur soon as something is touched. E.g. when the wallet is touched.
This causes problems for the third requirements. The courts have taken a
common sense view.
Corcoran v Anderson
Defendants tried to grab the handbag, they touched it but didnt succeed and
ran away. They said as soon as they had touched it the robbery was complete
Hale
Hale was upstairs where he came across a jewellery box that he took. His partner
was downstairs tying up home owner. Was the force used before the offence or at
the time? Defendants said it was after. Courts said appropriation was a
continuing act. This was the common sense view. It was all part of the same
transaction. Force simply used to escape is not robbery. E.g. if a bystander
intervenes and is punched this isnt robbery.
Threat or use of force
This is one of the main ways theft is separable from robbery. The law on assault
says it is completed as soon as any touching occurs. This cant be right for
robbery, e.g. a pickpocket who touches would be battery not robbery.
Monaghan
Court decided it was right to use offence of theft but robbery. They said it has to
be some diminist level of force. Matter goes to jury dawson and james
Grant
If they resist force will be used. E.g. if someone takes out knife and demands
money this will be robbery. The force doesnt have to threaten against the

specific person. Another person can be threatened, e.g give me money or il hit
him. If force is threatened to someone other than who goods are to be taken, the
other person must have fear of violence. E.g. if they say they are going to travel
to hit your kids, this will not suffice as kids do not have fear of violence as they
do not know about the robbery.
Clouden
Originally it was thought that force had to be used against the person rather than
in taking the goods. Rejected decision. Someone renched shopping basket from
someone. They didnt use a force directly on the person but on goods. This
sufficed for a robbery.
Force has to be immediately before or at the time of the threat. Force to escape
wont suffice as its after the event. The force has to be in order to commit the
offence. E.g. someone gets involved in fight and knocks someone out, while they
are knocked out they decide to steal their robbery, this isnt robbery, but would
be a theft and against the person. But its not robbery as you didnt use force to
get the goods.
Burglary
Burglary is a compound offence of trespass and theft.
Theft act 1968 section 9 handout
There are two ways of burglary because it is a compound crime. There are
different wrongs. Intrusion is involved in burglary. As soon as someone intrudes
into someone elses house to do a burglary this is an offence.
Entry
Collins
Strange case. Collins climbed a ladder only wearing socks, as he planned to rape
the girl to where the ladder went to. At the time entry to trespass for rape was
burglary. The girl thought he was her boyfriend so invited him into her room. Did
he enter in as trespass? Lord said entry had to be effective and substantial.
Other cases havent taken such a view
Ryan
Ryan became trapped in a window with only his arm and head inside the
building. Had he entered the building? Yes. Even though it cannot be said his
entry was effective or substantial it was held to be sufficient.
Entry into a building as a trespasser. Who is a trespasser and in what
circumstances are you a trespasser? this is part of civil law and trespass. If
there is consent you are not a trespasser.
Jones and smith

If you pursue into a condition you can still be a trespasser if you go beyond the
amount of permission you have. Went into fathers house to steal TV. Father said
it wasnt trespass as father said he was allowed to enter house. Court didnt
believe father.
Mens rea
Have to intend theft or GBH. What about mens rea as to status of trespasser?
you have to intend or are reckless to facts that render you to being a trespasser.
Jones and smith they didnt believe father, surely he must be reckless to facts.
Fraud
Law used to have 8 sections of theft act. But now the law has been overruled by
fraud act. As a result, we have a completely changed regime covering these
offences. There hasnt been much guidance on what it means. There havent
been CA or HL authority. Therefore quite a lot of info on this is based simply on
the act or on law commission reports or what the government have said about it.
The 8 sections of theft act overlapped and were confusing. The law was
becoming far too technical and the charges to offences were becoming too
narrow. One thing that hasnt been abolished is the common law offence of
conspiracy to defraud. This is an exceptionally broad common law offence. It is
complete has soon as 2 people agree to negatively ruin financial interests of a
third person. This is an offence even if they do not plan to do this illegally. Just
the fact that they decide how to financially a ruin another person is an offence in
itself.
Fraud act 2006
Section 1 sets out ways you can commit fraud. The main offence is fraud by false
representation
Fraud by false representation
This is covered in section 2.
Representation
Offence is complete as soon as the representation is made. In the old law,
property or services would have to be obtained before the offence can be
completed.
Silence can be an implied representation. E.g. if someone says silent about a
dodgy car it is implied representation. Subsection 5 says representation can be
made to a machine. Commerce is now done electronically as well therefore the
new act has updated due to the modern time.
The representation has to be false. It has to be untrue or misleading. The home
office has given some guidance on this. But the home office traditionally adopts
very broad meanings. There is no requirement that a person should be deceived.
Its an offence of making a statement. The second part of the test stating its

misleading is again very broad. The reason for this is that if you know something
is misleading or untrue easy, but some things are difficult to examine e.g. only
an expert would know the aucthencity of an art painting.
Mens Rea
Dishonesty isnt defined in the fraud act. Gain and loss extend only to gain or
loss in property temp or permanent and property means real or personal. Gain
includes what one has gaining what one doesnt have. Loss includes a loss
including losing what one has and losing what one might not have. Very broad
ruling.
Fraud by failing to disclose information
This is a less controversial crime than the earlier frauds because there is a
requirement for a legal duty to disclose the information; a moral obligation is not
enough. Have to assume the duty arises when there is a matter of civil law,
there is some assistance from the law commission, in their explanatory notes,
see handout. There are overlaps between this and the next one.
Fraud by abuse of position
This was described as a wooly position in parliament; the main issue is when
exactly is someone in this position? What is the relationship that needs to be
there? The offence refers to abuse of that position but it is not clear from the act
what abuse actually is. It is not defined therefore a huge part of the crime
remains very vague.
Criminal Damage
1. Destroying or damaging property
The main offences are provided in section 1. See handout. For al these crimes
damage is essential but again damage is not defined so it is up to the courts to
decide
Samuel v Stubbs [1972]
A (a Juvenile) v R [1978]
Spitting on a policemans raincoat was not held as criminal damage, it could be
considered if it was a satin wedding dress but this was a raincoat. In this case no
reasonable steps had been made to clean the raincoat. This is an assault. Any
significant alteration to the property provided it rquires no more than the trivial
time and money to repair it?
Depends on the item itself.
Intentionally and recklessly- mens rea
The definition comes from Woollin- subjective recklessness.

Without lawful excuse

Define further in section 5.
If someone believes that someone who owns the property that it a lawful excuse
and this has been broadly interpreted by the courts
Denton [1981]
Defendant set fire to employers cotton mill. The cotton mill was in financial
difficulty and this fire would help and he thought that this meant his employer
would want him to set fire to it. The court said if you honestly believe that then
you can use it as a defence/a lawful excuse.
As long as it is reasonable and as long as its imminent;
Hill (1989)
Was charged under section 3 for possessing hacksaw blades which she admitted
was for if the situation arose for the defence. She said if a nuclear war breaks out
then she would cut down the fence to the naval base so no one would be there
so no one would bomb it so she was protecting her property.