Sourcebook Criminal Law
Sourcebook Criminal Law
Edition 1st Edition
First Published 1996
eBook Published 9 August 1996
Pub. location London
eBook ISBN 9781843143093
Hungerford Welch. (1997). Sourcebook Criminal Law. London: Routledge-Cavendish, https://doi.org/10.4324/9781843143093
TABLE OF CONTENTS
are occasions where the judges feel that, given the failure of Parliament to take the initiative, they have little choice but to act. A good example is provided by the House of Lords’ ruling in RvR  3 WLR 767 to the effect that a husband could be guilty of raping his wife. Faced with the choice of either being pilloried for upholding the husband’s immunity or usurping the function of Parliament and altering the law, their Lordships opted for the latter. When accused of such judicial activism judges will, of course, insist that, under the theory of the common law, they are ‘discovering’ the law rather than making it. Where the issue is the correct interpretation of a statute, judges will claim that they are simply giving effect to the intention of Parliament. These answers mask the fact that, parliamentary sovereignty notwithstanding, judges in the higher courts have considerable discretion as to whether or not they will intervene and develop the law in new and bold directions. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG  AC 591 (at 613):
• Indictable offences – such as rape, robbery and murder; • Summary offences – such as insulting behaviour, common assault and indecent exposure; • Offences triable either way – such as theft, criminal damage (depending on the value of the property damaged), assault occasioning bodily harm contrary to s 47 of the Offences Against the Person Act 1861, and indecent assault. Indictable offences are triable only in the Crown Court before a judge and jury. Summary offences are triable only in the magistrates’ court. Offences triable either way may be tried before either court, depending on the circumstances, in particular the seriousness of the offence and the preferences expressed by the prosecution and defendant; see further s 14 of the Criminal Law Act 1977, as re-enacted by ss 17–25 of the Magistrates’ Courts Act 1980. Classification by reference to police powers
For the purposes of the powers given to police officers and citizens to effect the arrest of suspects, the Police and Criminal Evidence Act 1984 distinguishes between those offences where a power to arrest is provided without an arrest warrant having been issued (arrestable offences – see s 24), and those offences that are ‘non-arrestable’, that is, where a warrant would
For these purposes an arrestable offence is one: • in relation to which the sentence is fixed by law (for example, murder); • in relation to which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (such as theft and robbery); • otherwise specifically cited as coming within the scope of the s 24 powers, for example indecent assault, going equipped for stealing, s 60(8)(b) of the Criminal Justice and Public Order Act 1994 – failing to comply with requirement to remove a mask, etc. Under s 25 a police constable may arrest a suspect on suspicion of having committed a non-arrestable offence if satisfied that any of the general arrest conditions specified in that section are satisfied. These largely relate to circumstances that make the issuing of a summons to attend court impracticable, such as the suspect having no fixed abode, or failing to supply plausible personal details. THE DECISION TO PROSECUTE
The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be re-considered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron  Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights with the result that the denial of a fair trial contrary to Art 6 would now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gave effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity that rendered the trial a mistrial occurred. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. Appeal by the prosecution: against over lenient sentences
that a miscarriage of justice had occurred. The significance of this discretion lay in the fact that it could be exercised notwithstanding that the time limits for lodging an appeal to had expired long ago. Following criticisms of the involvement of politicians in this aspect of the criminal justice process the 1995 Act withdrew the Home Secretary’s powers of referral and instead vested them in an independent body, the Criminal Cases Review Commission. Under s 5 of the 1995 Act (amending s 23 of the Criminal Appeal Act 1968) the Court of Appeal can ask the Criminal Cases Review Commission to investigate a particular case on its behalf:
When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’
contra bono mores was too vague to satisfy the ‘prescribed by law’ test, and could not be relied upon to justify detention under Art 5. In R v Hinks  4 All ER 835 (considered in Chapter 18) Lord Hobhouse (dissenting) was concerned that the effect of the majority view in that case was to create an offence where liability hinged entirely on the issue of whether or not the accused had acted dishonestly. He was particularly concerned at the prospect of a criminal conviction based upon conduct:
having relied on reasonable chastisement in the circumstances. The court concluded that there had been a violation of Art 3 on the basis that existing domestic law on the defence of lawful chastisement had failed to provide the applicant with adequate protection. Whilst the question of whether, in any given case, the treatment suffered by an applicant reached the minimum level of severity necessary to trigger the operation of Art 3 would depend on the circumstances, where the victim was a child the minimum threshold would be more easily attained. It should be noted that, whilst the court accepted that the United Kingdom could not be held responsible for the actions of a private individual, such as the applicant’s stepfather, it was responsible for a system of criminal law that allowed a person inflicting serious harm upon a child to be acquitted on the grounds that the harm was justifiable chastisement. There has been no legislative response to this decision, but the courts have attempted to alleviate the shortcomings of the domestic law by offering guidelines on the availability of the defence; see RvH (Reasonable Chastisement) (2001) The Times, 18 May. Where a parent raises the defence of lawful chastisement the jury ought to be directed to consider: (i) the nature and context of the defendant’s behaviour; (ii) the duration of that behaviour; (iii) the physical and mental consequences in respect of the child; (iv) the age and personal characteristics of the child; (v) the reasons given by the defendant for administering the punishment. Article 7: Non-retrospectivity
would not allow him to do so till Saturday 31 December. He did not tell the receptionist at the surgery of the full circumstances of the illness and the doctor did not come. In the afternoon of the same day S phoned again. A locum called, but the deceased died of puerperal fever before he arrived. Medical evidence was that she could have been saved had a doctor been called before that Saturday. S was charged with (1) manslaughter of his wife on 31 December; (2) concealment of birth on 28 December. On the second count his defence was that they did not intend to conceal the birth permanently but would have told the police when they felt up to it. The judge directed the jury that this amounted to a defence to the charge. The judge in his summing-up directed that it had to be proved that in reckless disregard of his duty to care for the deceased’s health, S failed to get medical attention, and that as a direct result of that failure she died. ‘Reckless disregard’ meant that, fully appreciating that she was so ill that there was a real risk to her health if she did not get help, S did not do so, either because he was indifferent, or because he deliberately ran a wholly unjustified and unreasonable risk. It was accepted that he was not indifferent – the evidence was that they were a devoted couple and that he stayed with her all the time when she was ill. It was also accepted that she did not want a doctor called, and the jury had to balance the weight that it was right to give to this wish against her capacity to make rational decisions. In addition it had been proved that the ‘reckless disregard’ led to the death and that had S acted differently on 31 December, his wife’s life would have been saved. The jury convicted on the second count but could not agree on the charge of manslaughter and were discharged from giving a verdict. Airedale National Health Service Trust v Bland  1 All ER 82 (HL) Anthony Bland was injured in the Hillsborough Stadium disaster. He suffered irreversible brain damage and was diagnosed as being in a persistent vegetative state (PVS). Expert medical evidence was to the effect that there was no hope of recovery. The Airedale NHS Trust, with the support of Bland’s parents, sought a declaration that the doctors treating Bland might lawfully discontinue all life-sustaining treatment and medical treatment except that required to enable Bland to die without unnecessary distress. The Official Solicitor appealed to the House of Lords against the granting of the declaration on the basis that the withdrawal of life support treatment would amount to murder.
appeal that the recorder should not have used the expression ‘a substantial cause’, but should have directed the jury in accordance with the test in Roberts (1971) 56 Cr App R 95. Held: (1) The case was on all fours with Hennigan (considered below). In that case it was said that the expression ‘a substantial cause’ was convenient to indicate to the jury that the cause must have been more than just de minimis, which was the only necessary qualification. It also avoided the necessity to go into the details of legal causation and remoteness. (2) The test set out in Roberts (considered below: was the injury the natural result of what the assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying and doing?) did not invalidate the simple direction given by the trial judge in that case (was the harm ‘as a result’ of the assailant’s act?). The test in Roberts is not one always to be applied and about which there should always be a direction. What constitutes a ‘substantial’ cause?
R v Kimsey  Crim LR 35 (CA) Facts: The appellant was convicted of causing death by dangerous driving. A close friend of the appellant overtook him and the two engaged in a high-speed chase with the appellant driving a few feet from the rear of his friend’s car. Both cars had just overtaken another car at 75 mph, when the friend’s car swerved on to the verge. The prosecution evidence was that the appellant overtook his friend at that point and struck her car, either because she swerved back to the right, or because he pulled to the left as he overtook. The friend, not in control of her car, struck an oncoming car, and was killed. One of her tyres was underinflated, which could have led to the car being difficult to control. The appellant’s case was that the friend had lost control before his car hit hers and the first collision did not have any effect on her loss of control, which in turn led to the second, fatal collision. The prosecution case was that the appellant’s driving had caused the friend’s loss of control and the first collision, which in turn led to the fatal collision, or alternatively that his driving encouraged her to drive too fast and lose control; or that by driving so closely behind, when she did lose control, the first collision occurred, occasioning further loss of control. The recorder told the jury that they did not have to be sure that the appellant’s driving ‘was the principal, or a substantial, cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a trifling link’. On appeal, it was argued that it was wrong to say that the cause did not have to be a substantial cause. Held, dismissing the appeal, that the test in Hennigan (1971) 55 Cr App R 262 was whether the contribution of the dangerous driving to the death was more than minute. To use the expression ‘a substantial cause’ is no doubt a convenient way of putting the test to the jury, as was suggested in that case. But the jury may well give the word ‘substantial’ a larger meaning. The recorder’s reference to a ‘slight or trifling link’ was a permissible and useful way to avoid the term de minimis. His direction was faithful to the logic of Hennigan. NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF THE VICTIM? Refusing medical treatment
his actions and the death because the deceased had committed suicide either by reopening his wounds or, the wounds having reopened themselves, by failing to take steps to staunch the consequent blood flow. It was argued on the appeal that the suicide of the deceased would have been a novus actus interveniens and that the judge had misdirected the jury on the issue of causation. Held, dismissing the appeal, that the real question in the case was, as the judge had correctly directed the jury, whether the injuries inflicted by the appellant were an operating and significant cause of the death. That had been enunciated as the correct approach in Smith  2 QB 35; Blaue  1 WLR 1411; Malcherek  1 WLR 690; Cheshire (1991) 93 Cr App R 251, and Smith and Hogan, Criminal Law, 7th edn. It would not be helpful to juries if the law required them to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but former not breaking the chain of causation between the defendant’s wrongful act and the victim’s death. It would be a retrograde step if the niceties of apportionment of fault and causation in the civil law, and the roles which the concepts of novus actus interveniens and foreseeability did or should play in causation, were to invade the criminal law. In the present case the cause of the deceased’s death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the appellant’s conduct made an operative and significant contribution to the death. A positive supervening voluntary act by the victim
Held, upholding the submissions: (1) that if the expert could not be sure that heroin caused the deceased’s death, the jury could not be and (2) that the alternative submission was well-founded. Regard was had to Cato (1976) 62 Cr App R 41 and Dalby (1982) 74 Cr App R 348: the facts proved were closest to Dalby. Notes and queries 1 In R v Dalby  1 All ER 916, the defendant supplied drugs to the deceased who consumed them with fatal consequences. The Court of Appeal allowed Dalby’s appeal, inter alia, on the ground that the act of supply did not cause ‘direct harm’ to the deceased. This aspect of the decision was subsequently approved by the Court of Appeal in R v Goodfellow (1986) 83 Cr App R 23. For extracts from these cases see further Chapter 15. 2 In R v Kennedy  Crim LR 65 the defendant, at the request of the deceased, supplied the deceased with a syringe containing heroin. The deceased proceeded to injected himself with the mixture and died from the effect of the drug shortly afterwards. The defendant’s appeal against his conviction for manslaughter, based on the contention that the deceased has caused his own death by self-injection, was dismissed. The Court of Appeal sought to distinguish the case from Dalby on the basis that the defendant had not simply supplied the drug but had also prepared the syringe and handed it to the deceased. The decision is, with respect, highly questionable. What the deceased did was to deliberately risk his own life – this is not an unlawful act. Hence the defendant could not be said to be assisting or encouraging an unlawful act. 3 In determining whether self-administration of drugs by the deceased is a novus actus interveniens to what extent should the courts take into account the knowledge of the deceased? How should the courts view the self-administration where the deceased is a child, a mental defective, or an adult who has been misled as to the nature of the substance? The victim’s actions in seeking to escape from the defendant
clothes off, he would let me walk home, so I asked him to let me do that. He said, that if he did, he would beat me up before he let me go. He said that he had done this before and had got away with it and he started to pull my coat off. He was using foul language.’ And then she said that she told him, ‘I am not like that’, and he said something like, ‘You are all like that’. Then he drove on. ‘Again’, said the girl, ‘he tried to get my coat off, so I got hold of my handbag and I jumped out of the car. When I opened the door, he said something and revved the car up and I jumped out. The next thing I remember he was backing towards me and so I ran to the nearest house. He backed and shouted and then he drove off’, and then she remembered being in the lady’s house. She said she was taken to hospital, where she was treated for some concussion and for some grazing, and was detained in hospital for three days. The defendant was charged with assault occasioning actual bodily harm.
it is the later case; (ii) the ‘take your victim as you find him or her’ doctrine is part of the ratio of Blaue; (iii) Blaue is preferable as a matter of public policy (ie the defendant should not be absolved because of the unforeseen ‘peculiarities’ of the victim). NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF A THIRD PARTY? Police officers
R v Malcherek; R v Steel  1 WLR 690 (CA) In these conjoined appeals both appellants had attacked women causing their victims serious injuries. In both cases the victims were placed on life support machines. In both cases doctors treating the victims decided to switch off the machines on the basis that there was no prospect of recovery. The appellants contended that the actions of the doctors in each case should have been regarded as a novus actus interveniens breaking the chain of causation in law between the attacks and the deaths.
Southern Water Authority v Pegrum and Pegrum  Crim LR 442 (DC) Facts: The respondents were charged with an offence contrary to s 31(1) of the Control of Pollution Act 1974, causing polluting matter (pig effluent) to enter a stream. The respondents reared pigs; effluent produced by the pigs was held initially in tanks and then transferred by gravity into a lagoon constructed for the purpose. The lagoon itself was emptied of liquid content for use as manure several times a year and of sediment annually. In the winter of 1987, after heavy rain, a blocked drain resulted in rain water flowing into the lagoon. A fissure developed at the top of one side of the lagoon and polluting liquid escaped, finding its way into a stream and eventually into a river. The magistrates found that the overflow from the lagoon was caused by an act of God – the ingress of rainwater – and that it was unnecessary to consider whether the respondents were negligent either in not inspecting the drain or discovering the overflow promptly enough or in not providing an adequate drain. They further found that the blocked drain causing the ingress of rainwater was an intervening event ‘breaking the chain of causation’. They dismissed the information and the prosecutor appealed by way of case stated. Held, allowing the appeal and remitting the case with a direction to convict, the following principles applied: (1) where the defendant conducts some active operation involving the storage, use or creation of material capable of polluting a river should it escape, then if it does escape and pollute, the defendant is liable if he ‘caused’ that escape; (2) the question of causation is to be decided in a common sense way; (3) a defendant may be found to have caused that escape even though he did not intend that escape and even though the escape happened without his negligence; (4) it is a defence to show that the cause of the escape was the intervening act of a third party or act of God or vis major which are the novus actus interveniens defences to strict civil liability referred to in Rylands v Fletcher (1868) LR 3 HL 330; (5) in deciding whether the intervening cause affords a defence the test is whether it was of so powerful nature that the conduct of the defendant was not a cause at all, but was merely part of the surrounding circumstances. On the facts of the present case, the active operations or positive acts of the respondents were the storage and re-use of the effluent which resulted in the formation of the toxic sediment which polluted the stream. The magistrates erred in finding that the ingress of rainwater was an act of God; an act of God is an operation of natural forces so unpredictable as to excuse a defendant all liability for its consequences. The quantity of rain could not properly be regarded in itself as an act of God and in any event the ingress of rainwater into the lagoon was the result of the overflow from the blocked drain. Although unpredictable and unforeseeable operation of animate forces can amount to an act of God (see Carstairs v Taylor (1870) LR 6 Exch 217), there was no factual basis for such finding in the present case. The respondents submitted that the blocked drain was an effective intervening cause relegating the respondent’s effluent operation to a mere surrounding circumstance; it was sought to distinguish Alphacell Ltd v Woodward  AC 824 on the basis that in
that case the blockage and breakdown was within the system of the ‘active operations’ which led to the creation and storage of the pollutant, while in the present case the drainage system was nothing to do with the system for storing and using the effluent. That factual difference made no difference in law. The submission must fail on a proper understanding of the strict liability established by s 31. It would defeat the object of the legislation if a landowner who chooses to keep on his land matter capable of polluting should it escape is liable for the non-negligent breakdown of the system for dealing with the matter but is not liable for the non-negligent breakdown of another system (in the present case drainage) within his control and utilised for his purpose. CODIFICATION AND LAW REFORM PROPOSALS
Notes and queries 1 What is the difference between inferring intention and finding intention? 2 What is to be made of Lord Steyn’s observation that he approached the issues arising on the appeal ‘on the basis that it does not follow that “intent” necessarily has precisely the same meaning in every context in the criminal law’? Does he mean that some offences require ‘purpose’ type intent? Or does he mean that intent might have a different meaning when used, for example, in the context of offences against the person? Is it conceivable that intent, in the context of intention to do grievous bodily harm contrary to s 18 of the Offences Against the Person Act 1861 (see further Chapter 16), would have a different meaning to that enunciated in Woollin? Given that intent to do grievous bodily harm will suffice for murder this (one hopes) seems unlikely. Codification and law reform proposals
obvious risk that property would be damaged and that life would thereby be endangered? The ordinary prudent bystander is not deemed to be invested with expert knowledge relating to the construction of the property, nor to have the benefit of hindsight. The time at which his perception is material is the time when the fire is started.’ 4 Why is a man who drives his car whilst distracted by the sight of a ‘pretty girl’ (see R v Reid) not reckless? 5 Parliament has since replaced the offence of causing death by reckless driving with the offence of causing death by dangerous driving. What is the significance of the substitution of the word ‘dangerous’ for ‘reckless’? Will it make convictions easier to come by? Does it make clear that the fault element is totally objective? Does it suggest that the House of Lords in Lawrence was trying to achieve a laudable result by the wrong means (that is, judicial activism to bring careless drivers within the scope of the offence of reckless driving)? 6 It seems fair to assume that Lord Diplock was attempting, in Caldwell and Lawrence, to send out a message that failure to advert to an obvious risk could give rise to criminal liability. Is there any deterrent effect to such decisions? Do members of the general public know about these rulings? If so do they alter their behaviour as a result, or are defendants only aware of the scope of recklessness when they find themselves convicted of offences where Caldwell applies? 7 Significantly, Caldwell recklessness has now effectively been confined to the offence of criminal damage. In W (A Minor) v Dolbey (1989) 88 Cr App R 1 (DC), Robert Goff LJ (on the issue of whether or not the Lawrence (1981) and Caldwell (1981) approach to recklessness was appropriate in relation to offences that could be committed ‘maliciously’ such as malicious wounding contrary to s 20 of the Offences Against the Person Act 1861) observed:
cable had been left entirely exposed for a period of six minutes. He did not believe there was any risk of endangering life at any stage, and he would not have undertaken the work if he had not been competent to do so. The judge ruled that as a matter of law, any precautions designed to eliminate the risk of endangering life must, to provide a defence, be taken before the damage was caused. As a result of the ruling the appellant changed his plea to guilty. On appeal, it was argued that the defendant fell outside the definition of recklessness set out in Caldwell  AC 341. He had not failed to consider the risk (he had thought about it), and nor had he acted recognising the existence of a risk (he had decided there was no risk). Counsel relied on Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7. Held, dismissing the appeal, there is a clear distinction between avoiding a risk and taking steps to remedy a risk which has already been created. If a defendant is to successfully contend that the taking of certain steps has prevented him from falling within the definition of recklessness, then those steps must be directed towards preventing the risk at all, rather than at remedying it once it has arisen. The appellant accepted that he had created a risk by exposing the cable, and that it remained exposed for six minutes. Although he said he took reasonable precautions to eliminate the danger, by then he was inevitably remedying a risk that he had already created rather than preventing the risk which arose when the live wire was exposed. R v Reid  1 WLR 793 (HL)
from hypoglycaemia and was unaware of his actions. The judge refused to leave that defence to the jury. Held, allowing the appeal, the arguments put to the judge failed to distinguish between hyperglycaemia and hypoglycaemia, the former being too much sugar in the blood, and the latter too little. Hyperglycaemia might raise difficult problems about the M’Naghten Rules and verdicts of not guilty by reason of insanity. Hypoglycaemia was not caused by the initial disease of diabetes, but by the treatment in the form of too much insulin, or by insufficient quality or quantity of food to counterbalance the insulin. Generally speaking, that would not give rise to a verdict of not guilty by reason of insanity but would, if it were established and showed that the necessary intent was or might be lacking, provide a satisfactory defence to an alleged crime such as theft, due to lack of mens rea. Those simple facts would be plain to anyone who troubled to read Quick (1973) 57 Cr App R and Hennessy  1 WLR 287. In the present case, the problem was hypoglycaemia and the judge had to decide whether, on the evidence, there was a prima facie case for the jury to decide whether the defendant was suffering from its effects and, if so, whether the Crown had shown that he had the necessary intent under the Theft Act. It was not doubted that the defendant was a diabetic and there was evidence that he might have been suffering from the effects of a low blood sugar level at the relevant time. That evidence should have been left to the jury. Notes and queries 1 In RvT  Crim LR 256, the court accepted evidence that post-traumatic stress disorder could give rise to automatism. By contrast, in R v Sandie Smith  Crim LR 531, evidence of severe pre-menstrual tension was not accepted as giving rise to automatism. Aside from the issue of whether there was sufficient evidence of automatism in the latter case, the determining factor was the court’s desire to exercise some jurisdiction over the accused. If a plea of automatism is successful the defendant is free to go – the courts cannot compel him or her to receive treatment for the condition giving rise to the automatism. Self-induced automatism
Suppose D claims he was ordered by God to commit an offence of theft or criminal damage – does this amount to a plea of insanity? See further R v Bell  Crim LR 685. 4 To what extent does the defence of insanity provide a defence based on ignorance of the criminal law? Codification and law reform proposals
not, of itself, give rise to the defence of intoxication. A drunken intent was nevertheless an ‘intent’; see further R v Kingston, considered below. 3 Intoxication is regarded as voluntary if the defendant knowingly took alcohol or other intoxicating drugs. It is irrelevant that he might have misjudged the extent to which he would become intoxicated; see R v Allen  Crim LR 698, below. THE BASIC INTENT/SPECIFIC INTENT DICHOTOMY
intoxication, he is not entitled to rely on self-defence. In this respect the court further held that no distinction was to be made between offences of basic or specific intent – see further Chapter 14). 3 Can R v Richardson and Irwin be reconciled with R v Woods and R v Fotheringham? Why should a an intoxicated mistake as to consent to rough play be any different from an intoxicated mistake as to consent to sexual intercourse? INVOLUNTARY INTOXICATION MISTAKE AS TO THE NATURE OF THE SUBSTANCE CONSUMED
ruling that involuntary drunkenness could not be a defence to a crime of non-specific intent. Held, dismissing the appeal, the judge was correct in ruling that there was no evidence before him that the drinking was other than voluntary. Further, where an accused knows that he is drinking alcohol, such drinking does not become involuntary for the reason alone that he may not know the precise nature or strength of the alcohol that he is consuming. INVOLUNTARY CONSUMPTION OF INTOXICANTS FALLING SHORT OF INTOXICATION
defendants charging them with aiding and abetting him in the commission of that offence. On 5 July 1949, the builder was convicted, but the justices dismissed the three informations against the other defendants as they were of opinion that mens rea was a constituent of the offence of aiding and abetting an offence under s7(1) of the Act of 1945. They found that the third defendant honestly believed the explanation given to him by the builder regarding the £250. The prosecutor appealed.
In practice it will be for the jury to determine whether the weapon used by the principal is sufficiently different from that contemplated by the accomplice for there to be a departure from the joint enterprise, but it can be imagined how difficulties might arise where, for example, the agreement is to hit the victim with bare fists and the principal kicks him whilst wearing steel-capped boots. Are the boots a fundamentally different type of weapon? 5 P may use the weapon contemplated by A, and with intent contemplated by A, but in a way that causes more life threatening injuries than those contemplated by A. For example A and P agree that P will attack V with a baseball bat and cause grievous bodily harm by breaking P’s arms. In the event P attacks V with the baseball bat, intending to cause V grievous bodily harm, by striking V on the head. V dies from his injuries. P may be convicted of murder, and A (in theory) could be convicted as an accomplice, given his mens rea. Can it not be argued, however, in the light of Gamble (see above) that by choosing to attack V and causing more life threatening GBH, P deliberately departed from the common design? See further R v Bamborough  Crim LR 744, where the Court of Appeal proceeded on the basis that it would be sufficient, in order to substantiate A’s conviction for murder as an accomplice, that he had contemplated grievous bodily harm as a possible incident of the common design, the court not being overly concerned at how A might have foreseen the grievous bodily harm being caused by P. Residual liability for manslaughter where the principal is convicted of murder
scope of that design and used the extreme violence which was intended to cause grievous bodily harm or death. The judge’s direction in the appellant’s case did not deal with that situation (or with) the appropriate verdict of not guilty should the jury find the second and/or third defendant went beyond what was contemplated by the appellant. On the facts of the case there were only two verdicts open to the jury, guilty or not guilty of murder. If, as the Crown contended, she was a party to an agreement to kill, she was guilty of murder. If she was a party to an agreement to inflict some harm, short of grievous bodily harm, then she was guilty of neither murder nor manslaughter. The victim’s killing and the manner of the killing could not be within the ambit of the agreement to which the appellant was a party, if the ambit was confined on her part to an intention that only some harm should befall the deceased, albeit not death or really serious injury. The issues involved could not be distinguished from those adumbrated by Widgery LJ in Lovesey and Peterson (1969) 53 Cr App R 461. The judge failed to remind the jury of the law as laid down in Anderson and Morris (1966) 50 Cr App R 216 and followed in Lovesey and Peterson (1969) 53 Cr App R 461. The result of that non-direction was that the jury returned a verdict which was not open to them. R v Stewart and Schofield  3 All ER 159 (CA)
R v Millward  Crim LR 527 (CA) Facts: The appellant was convicted of aiding, abetting, counselling or procuring another person to cause death by reckless driving. The prosecution case was that the appellant had given one of his employees instructions which involved him using a tractor belonging to the appellant to tow a trailer on a main road. The tractor’s hitch was poorly maintained and during the journey the trailer became detached and hit a car, causing the death of a passenger. The recklessness alleged was confined to the state of the hitch mechanism, and the appellant was said to have procured the offence by his instructions to his employee. It was argued on appeal that there was no reported case of a procurer being convicted following the acquittal of a principal offender. Further, in the instant case, the word ‘reckless’ imported a mental element into the actus reus of the offence. The acquittal thus implied that the actus reus had not been committed. Held, dismissing the appeal: 1 A passage in Blackstone’s Criminal Practice was approved, to the effect that an accessory can be liable provided that there is the actus reus of the principal offence even if the principal offender is entitled to be acquitted because of some defence personal to him. Procuring does not require a joint intention between accessory and principal. The procurer may, therefore, be convicted where the principal lacks the necessary mens rea. 2 In the instant case, the actus reus was taking of the vehicle in its defective condition on to the road so as to cause the death. It was procured by the appellant. 3 The ratio of Thornton v Mitchell  1 All ER 339 was that the driver did not commit the actus reus of careless driving, the offence in that case. He relied on the conductor’s signals. 4 Cogan and Leak  QB 217 was, contrary to the submissions of the defence, essentially a case of procuring rather than aiding and abetting, and could not be distinguished from the present case. Principal offender has a defence not available to the accomplice
R v Baker  Crim LR 444 (CA) Facts: A man with the same name as the deceased had earlier been robbed in his own home and there was evidence that the deceased had paid the robbers to commit the offence. He was called out one night and killed with two knives belonging to the appellant. Witnesses said that the appellant had said that he had done the killing. At trial, a co-defendant gave evidence in his own defence which implicated the appellant. He said that on the night of the killing, the appellant said he wanted to see Sam, which was the nickname of the deceased, because, he said, the appellant had been a party to the robbery. They went to waste ground where he expected the appellant to have a word with Sam but instead he attacked him and went mad, stabbing him repeatedly. Death was caused by 48 stab wounds, each of which was fatal. The appellant’s evidence was that he knew that his co-defendant was a violent man who had kicked and punched him previously and threatened to finish him off. He and others had told him that Sam was going to the police about the robbery and wanted him to go with them to see Sam. He went out of fear, and they took his knives. Once on the open ground, the co-defendant handed the appellant a knife and told him to kill Sam. He then went berserk and was waving the other knife at the appellant, who was petrified. The appellant swung the knife which penetrated Sam somewhere near the shoulder or the throat, Sam staggered back and the co-defendant went on screaming for the appellant to kill Sam and so he swung the knife twice more. He did not know where it went in. The appellant then passed the knife back to the co-defendant and said ‘I’m not doing it’. He did not touch Sam again but moved a short distance away and turned his back. He then heard more thuds caused by the others continuing to stab Sam. He then saw him on the ground. The defence was that insofar as he was involved in any joint enterprise, it was a joint enterprise to do serious harm to Sam but not to kill him, and he did it under duress. It could not be proven that any of the three stab wounds he had inflicted would have killed Sam or that they did kill him. That he passed over the knife and thereafter disassociated himself from what the others did meant that the joint enterprise had come to an end. The witnesses were tainted by their close relationship with the co-defendant. Held: It would be considered how far in practice a direction to the jury to consider a s 18 count would have benefited or might have benefited the appellant. The defence would have relied on duress by the co-defendant but if that had succeeded there would have been a complete acquittal. The risk that the jury might be unwilling to acquit him completely and should therefore have been allowed to consider convicting on a lesser charge presupposed that they would convict him after satisfying themselves that he did not act under duress. In that situation, according to his story, the appellant was told by the co-defendant to kill Sam and stabbed him three times before turning away and saying that he wasn’t doing it. He then stayed there until Sam was on the ground dead or dying, whereupon he left with the other two. If that account
were accepted by the jury the court was far from confident that the appellant, by his words and actions, had effectively put an end to the joint enterprise so that he had no criminal responsibility for what happened after the three stab wounds which he inflicted. The words ‘I’m not doing it’ and the turning around and moving a few feet away were far from unequivocal notice that the appellant was wholly disassociating himself from the entire enterprise. The words were quite capable of meaning no more than ‘I will not myself strike any more blows’. They were not an unequivocal indication that he did not intend to take any further part in any further assault on Sam and indeed he did no more than withdraw by a few feet (see Becerra (1976) 62 Cr App R 212; Rook  1 WLR 1005). Notes and queries 1 In R v Mitchell  Crim LR 496, the Court of Appeal held that a distinction was to be drawn between pre-planned and spontaneous violence, in the sense that where violence was pre-planned, communication of withdrawal from the planned violence was necessary for that withdrawal to be effective. Where the violence was spontaneous communication of the intention to withdraw was not necessarily required. Is this distinction justifiable? CODIFICATION AND LAW REFORM PROPOSALS
committing offences against them. As Laws J observed: ‘The reasons for the presumption, however they may have been articulated in the old cases, cannot begin to justify its application in a case where the boy is not the perpetrator of the offence, but its victim. Accordingly, the appellant in the present case would rightly have been found guilty of inciting the mother to have intercourse with her son, even if it were plain beyond argument that he was under 14 at the time ...’ 2 In DPP v Armstrong (above), A had contended that the offence he had incited was impossible to carry out as the incitee (unknown to A at the relevant time) was an undercover police office who would never have supplied the pornography requested by A. This argument was rejected by the Divisional Court on the basis that the incitee could have had access to and supplied the material if he had wanted to. J could have supplied the material had he so wished. 3 As part of the government’s response to concerns over ‘sexual tourism’ – principally the sexual exploitation of children in countries overseas facilitated by individuals in the United Kingdom – Parliament enacted the Sexual Offences (Conspiracy And Incitement) Act 1996. Section 2 of the Act applies where:
If these conditions are satisfied, what the defendant had in view is to be treated as that listed sexual offence for the purpose of any charge of incitement brought in respect of that act, and any such charge is accordingly triable in England and Wales (s 2(2)). Under s2(3) any act of incitement by means of a message (however communicated) is to be treated as done in England and Wales if the message is sent or received in England and Wales. 4 The scope of the domestic courts’ jurisdiction over incitement to commit offences abroad was further extended by the coming into force of provisions of the Criminal Justice Act 1993, on 1 June 1999. Under the 1993 Act courts in England and Wales have jurisdiction over what are referred to as ‘Group B’ offences – this includes incitement to commit a range of offences abroad involving dishonest and fraudulent conduct – provided the conduct incited would amount to an offence triable by the courts in England and Wales were the conduct incited to be carried out within the jurisdiction. CODIFICATION AND LAW REFORM PROPOSALS
his spouse; a child under the age of 10; or the intended victim; see further s 2 of the 1977 Act. 2 In Practice Note  2 All ER 540, Lord Widgery CJ at the sitting of the court announced the following practice direction made after consultation with the judges of the Queen’s Bench Division:
working. Thus, the CF8s were successfully introduced into the system and the risk of the applications being turned down avoided. Held, on appeal, dismissing the appeals, in by-passing the system, they were practising a deception on the department by causing the CF8s to enter the system as though they had been properly processed. It was clear that they intended that the department should treat the applications as regular in form and in compliance with procedure. They recognised that had the proper procedures been followed there was at least a chance that the applications would fail. This was a conspiracy to defraud. Officers of the department who played a part in processing the applications which, on their true facts, ought not to have been processed, were acting contrary to their public duty, and where the intended victim of a conspiracy to defraud was a person performing public duties, it was sufficient if the purpose was to cause him to contravene that duty, and the intended means of achieving it were dishonest. The purpose need not involve causing economic loss to anyone (see the dictum in Scott (1974) 60 Cr App R 124 at 131). The department was entitled to decide how the National Insurance contributions scheme should be administered, both locally and nationally, and it was not accepted that it was not defrauded by the circumvention of the system. R v Landy  1 WLR 355 (CA)
did not consent or was reckless as to whether she consented). In the offence of attempted rape, must the prosecution prove that the defendant intended the act to be non-consensual or should the jury be directed to consider two different states of mind, intent as to act and recklessness as to the circumstances? A similar problem may also arise where the additional matters to be proved relate not to some additional circumstance but to the method by which the result is achieved. An obvious example was causing death by reckless driving. Is it logically possible to attempt to commit the offence? Mohan  QB 1 provided a partial answer; that intent bears its ordinary meaning and that the intent must be directed to the ‘result’ and not solely to the means of bringing about the result. R v Khan  1 WLR 813 (CA)
different concerns than arose here. Meanwhile, this was not the time to give duress any wider ambit than had hitherto been recognised. Until all aspects of the defence had been put on a statutory footing, including as presently envisaged, shifting the burden of proof from the Crown to the accused, duress should be rigidly confined to its established present limits. The nature of the threat directed at the defendant The imminence of the threat
psychiatric illness. In refusing to admit the evidence the judge considered Graham and Howe and said that if the word ‘characteristics’ was given the natural wide meaning it would include personal mental characteristics and if these were included the objective test would be undermined completely. Therefore, there must be a limited meaning in this context and it seemed to the judge it would include such things as age, sex, and serious physical disability, but he did not consider it included mental characteristics such as inherent weakness, vulnerability and susceptibility to threats. The history was inadmissible as hearsay and the doctor could not say whether the appellant was in fact threatened nor could he say whether he was affected by any threats which might have been made. The psychiatrist’s opinion that the appellant was by nature pliable or vulnerable could not concern the jury because that would circumvent the objective test. The death of his father a year or more before the offences was something within the ordinary scope of human experience (see Turner (1974) 60 Cr App R 80). In support of his argument that the judge was wrong, counsel relied on a passage from the Law Commission Report (No 83, para 228), which said that the personal characteristics of a defendant were most important. Threats directed against a weak, immature or disabled person might well be much more compelling than against a normal healthy person. However, that recommendation was not enacted by Parliament and did not represent the law. The court was bound by Graham and Howe, and Lord Lane’s judgment in Graham did not comply with the suggestion of the Law Commission. The second limb of the test, which passed an objective test, required the jury to ask themselves whether a person of reasonable firmness, otherwise sharing the characteristics of the defendant, would or might have responded as he did to the threats to which he was subjected. If the standard for comparison was a person of reasonable firmness it must be irrelevant for the jury to consider any characteristics of the defendant which showed that he was not such a person, but was pliant or vulnerable to pressure. It would be a contradiction in terms to ask the jury this question, and then to ask them to take into account, as one of his characteristics, that he was pliant or vulnerable. For the purposes of this appeal, evidence of personal vulnerability or pliancy falling short of psychiatric illness was not relevant. R v Hegarty  Crim LR 353 (CA) Facts: At the appellant’s trial for robbery, and possession of an imitation weapon, his defence was duress. He claimed that some Asian men who accommodated him when he was on the run later attacked him and threatened violence against his family unless he carried out the robberies. The Crown challenged the existence of the Asians or the threats. In support of the plea of duress the appellant sought to put before the court the evidence of two medical witnesses who would testify to his mental instability. He had a conviction for manslaughter of his wife on grounds of diminished responsibility, and the
reports described him as ‘emotionally unstable’ and in a ‘grossly elevated neurotic state’. The judge refused to admit the evidence, and on appeal following conviction it was contended that he was wrong. The primary contention was that the appellant’s pre-existing mental condition made him vulnerable to threats. Held, dismissing the appeal, the duress relied upon was duress by threats, but in some cases a defendant might be able to rely on ‘duress by circumstances’ (see Conway  QB 290; Martin  1 All ER 652), and although not argued in this way it was proposed to consider whether the medical evidence could have been introduced on the basis that Hegarty might have been able to set up such a defence. Duress by threats provided a defence to a charge of any offence other than murder (see Howe  AC 417), attempted murder (see Gotts  2 AC 412) and some forms of treason. It was founded on public policy considerations (see AG v Whelan  IR 518). The fact that the defendant’s mind had been ‘overborne’ by the threats did not mean that he lacked the requisite intent to commit the crime (see DPP for Northern Ireland v Lynch  AC 653, 703B). It followed that the law might have developed on the lines that, when considering duress, a purely subjective test should be applied, and it might well develop in this way in the future (see Law Com 218, para 29.14, November 1993, Cmnd 2370 and draft Criminal Law Bill, cl 25(2)). As the law stood however the test was not purely subjective but required an objective test to be satisfied (Howe). The jury had to consider the response of a sober person of reasonable firmness ‘sharing the characteristics of the defendant’. They could take account of age, sex and physical health, but it was open to consideration whether the shared characteristics could include a personality disorder of the kind suffered by the appellant. His counsel argued that the expert evidence was relevant to explain the reaction of a man like him to threats of violence to himself and his family, and admissible because the pathological aspects of his personality and the effect of his disorder on his behaviour were matters which lay outside the knowledge and experience of a judge and jury. Counsel referred to a passage in Emery (1993) 14 Cr App R (S) 394, 398 where Lord Taylor CJ said that: ‘... The question for the doctors was whether a woman of reasonable firmness with the characteristics of [the appellant], if abused in the manner which she said, would have had her will crushed so that she could not have protected her child.’ It was accepted that for the purposes of the subjective test medical evidence was admissible if the mental condition or abnormality was relevant and its effects lay outside the knowledge and experience of laymen. In the present case, the reports before the judge did not go that far, and the judge had to decide on the material before him. There were no grounds for disturbing his decision. As the evidence was not admissible to explain the reaction of the appellant himself, it was clearly not admissible on the objective test. The passage cited could not be read in isolation,
and it was not considered that Lord Taylor CJ intended to throw any doubt on the general rule which presently applied to cases of provocation and duress that the application of the objective test was a matter for the jury (see the speech of Lord Simon in Camplin  AC 705). The medical evidence was not admissible as the law stood on the objective test in a case of duress. Further, as that test predicated a ‘sober person of reasonable firmness’ there was no scope for attributing to that hypothetical person as one of the characteristics of the defendant a pre-existing mental condition of being ‘emotionally unstable’ or in a ‘grossly elevated neurotic state’. That left consideration of whether the position would have been different had ‘duress by circumstances’ been asserted. It was plain from Martin that an objective test applied, and one of the questions to be addressed was whether a sober person of reasonable firmness, sharing the accused’s characteristics, would have responded to the situation confronting him by acting as he did. The medical evidence in this case did not address that question. The judge was right to exclude it as inadmissible. R v Flatt  Crim LR 576 (CA) Facts: The appellant was convicted on four counts of possession of drugs with intent. His defence was duress. He was addicted to crack cocaine and owed his supplier £1,500. Some 17 hours before the police searched his flat, the drug dealer told him to look after the drugs found, saying that if he did not, he would shoot the appellant’s mother, grandmother and girlfriend. On appeal, it was argued that the judge should have told the jury that, in assessing the response of the hypothetical person of reasonable firmness to the threats, they should have invested that person with the characteristic of being a drug addict. Held, dismissing the appeal, that drug addiction was a self-induced condition, not a characteristic. There was no evidence that the appellant’s addiction (or indeed that of anyone else) would have had an effect on a person’s ability to withstand a threat from a drugs dealer. It was not sought to adduce psychiatric or other evidence to say that the appellant’s ability to withstand threats was in any way weakened. It may well be that he felt under some obligation to look after the supplier’s drugs. R v Bowen  1 WLR 372 (CA)
R v Ali  Crim LR 303 (CA) Facts: The appellant was convicted of robbery, having an imitation firearm with intent and possessing an imitation firearm when committing an offence. The appellant robbed a building society of £1,175, in the course of which he threatened cashiers with a gun. At trial he gave evidence that he had gone to Pakistan in 1987 and had become a heroin addict. One of the suppliers to whom he resorted was X, whom he refused to name but whom he knew to be a very violent person. He said the arrangement was that he would sell on the heroin he received from X and hand on the proceeds to him, as well as taking a certain amount for his own use. One day instead of selling on the bulk of the heroin, he used it all for his own purposes. That put him in debt to X, who threatened him and told him on several occasions that he would be shot. The appellant moved house, but X caught up with him, gave him a gun and told him he wanted the money the following day. The appellant was to get it from a bank or building society, otherwise he would be killed. The appellant was scared that X would return for him if he went to the police and so he committed the robbery. X took the money from him. On appeal, it was argued that the judge had not directed the jury correctly on the defence of duress, which was the burden of the appellant’s case. The judge had posed four questions for the jury, the last of which was whether the appellant, in obtaining heroin from X and supplying it to others for gain, after he knew of X’s reputation for violence, voluntarily put himself in a position where he knew that he was likely to be forced by X to commit a crime. It was submitted that it was not sufficient for the appellant knowing of X’s reputation for violence, voluntarily to put himself in a position where he knew he was likely to be forced by X to commit a crime; the judge should have said ‘forced by X to commit armed robbery’. Held, dismissing the appeal, the jury could not have read the words ‘a crime’ as referring back to the drug dealing, as opposed to some crime other than that which was the common currency of the relationship between the appellant and X. The crux of the matter was knowledge in the defendant of either a violent nature to the gang or the enterprise which he had joined, or a violent disposition in the person or persons involved with him in the criminal activity he voluntarily joined. If a defendant voluntarily participated in criminal offences with a man ‘X’, whom he knows to be of a violent disposition and likely to require him to perform other criminal acts, he could not rely on duress if ‘X’ does so. The judge’s summing up had expressed that proposition accurately. He had made it clear that, if there was no reason for a defendant to anticipate violence, then he would be entitled to rely on duress. But if he knew of a propensity for violence in those with whom he was working, then he could hardly rely on duress if they had threatened him with violence to make him do their bidding.
Notes and queries 1 Suppose D, a former member of a violent and ruthless criminal gang who has been ‘going straight’ for the last few years, is approached by X, a former partner in the criminal gang. X tells D that he must commit a burglary or D’s family will be killed. Would D be able to avail himself of the defence of necessity? 2 It is not just membership of a criminal association that can prevent D from being allowed to rely on duress where he is threatened by fellow gang members. R v Heath (1999) The Times, 15 October indicates that D may be prohibited from relying on the defence where there is evidence that he voluntarily exposed himself to the risk of being subjected to such threats, for example by becoming indebted to a drugs dealer. The prosecution would need to provide evidence that D was aware that he might be have been putting himself at risk of being threatened with violence if he did not carry out specified offences (such as being a drugs courier) in order to ‘clear his debt’. There is no need for the prosecution to prove that D knew what type of crime he might be compelled to commit. DURESS OF CIRCUMSTANCES
reversing he accidentally drove over one of his own passengers who had failed to get into the car in time. The magistrates’ court convicted him of driving with excess alcohol but the Crown Court allowed his appeal against conviction on the basis of duress. The prosecutor appealed against the Crown Court decision by way of case stated. Held, dismissing the appeal, it was clear that the defence of duress was made out where fear engendered by threats caused a person to lose complete control of his will (see Willer (1986) 83 Cr App R 225; Ortiz (1986) 83 Cr App R 173, 176, per Farquharson J). On the facts found by the Crown Court the appellant was in terror when he drove off and it was a hypothetical question whether he might have driven in the same way if he had not been in fear from the threats. A further important finding of fact was that he drove off only ‘some distance’ down the road and not, for example, all the way home so that the defence of duress/necessity continued to avail him. (DPP v Jones  RTR 33 distinguished.) The prosecution had failed to negative the defence of duress. DPP v Davis; DPP v Pittaway  Crim LR 600 (DC) Facts: The respondents were charged separately with driving with excess alcohol, contrary to s5(1)(a) of the Road Traffic Act 1988. Magistrates dismissed the charges finding that, in each case, the defence of duress had been proved. The DPP appealed by way of case stated. Davis: Magistrates found Davis had been suffering stress and anxiety when he had accepted an invitation to go for a meal with a male acquaintance. After the meal he returned to the other man’s flat where he became the subject of an unwelcome homosexual advance. Magistrates found he feared for his life and had run from the flat. After breaking free from the other man’s clutches, he had driven away. Magistrates applied a subjective test in deciding it was more likely than not that events had caused Davis to lose complete control of his will. Pittaway: Pittaway had recently divorced her husband who had been violent towards her. Magistrates found that, as a result of the violence she was frightened of men. She formed a new relationship with the appellant. At a party, she and the appellant had a row, leading to an angry exchange of words outside the party and unspecified threats being made by the appellant. Magistrates found the respondent believed she would suffer immediate violence from the appellant and, although she ran to her house which was about 200 yards from the party, she decided instead to hide in her car. After five minutes or so, she drove 200 yards before being stopped. The appellant was not in the vicinity at the time. Held, allowing both appeals and remitting the cases to the magistrates with a direction to convict, there was not evidence raising the defence of duress. Davis: Although the defence of duress was subjective, it also had objective elements to it, namely whether there was good cause to fear death or serious injury would occur unless the respondent acted as he had done, and whether a sober person of reasonable firmness, sharing the respondent’s characteristics,
would have responded in the same way (Graham and Howe). The magistrates had focused on loss of will at the invitation of the prosecution, and this may have led them to overlook the objective elements. There was no finding that the respondent had been in fear of his life or serious injury at the moment he drove off, or that he continued to be frightened during the two miles he drove before being stopped. The only finding was that the respondent feared for his life when still in the flat. The magistrates did not consider whether there was good cause for the fear. Had they done so, it would have been impossible to conclude that the other man drawing near and undoing the respondent’s shirt buttons could provide cause for such fear. Neither did the other man’s attempts to pull the respondent from his car, which were accompanied by unspecified abuse but no actual blows. The magistrates had also erred in deciding that it was not unreasonable for the respondent to drive two miles as it would have been difficult for him to stop. They should have considered whether it was necessary for him to continue driving. Pittaway: The magistrates had again applied a subjective test, concerning themselves with the effect on the respondent of a man behaving violently towards her. They had not found that the threats amounted to threats of death or serious injury. They were wrong to apply a subjective test, and also wrong in considering whether the distance driven was reasonable, rather then necessary. Neither did they consider the significance of the respondent sitting in her car for five minutes, unpursued by the appellant, before driving off. They should have considered whether there was good cause for her to fear, which there was not. R v Pommell  2 Cr App R 607 (CA)
The defence put forward was that, in the circumstances of the case, the operation was not unlawful. The defendant was called as witness on his own behalf and stated that, after he had made careful examination of the girl and had informed himself of all the relevant facts of the case, he had come to the conclusion that it was his duty to perform the operation. In his opinion the continuance of the pregnancy would probably cause serious injury to the girl, injury so serious as to justify the removal of the pregnancy at a time when the operation could be performed without any risk to the girl and under favourable conditions.
used to denote the mens rea required for murder – see the classic definition of murder set out in Coke’s Institutes (3 Co Inst 47): ‘Murder is when a [person] ... unlawfully killeth ... any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought ... so as the party wounded or hurt, etc dies of the wound or hurt’ – but it is submitted that, in the modern context, this phrase is likely to mislead. The defendant charged with murder does not need to have displayed any ‘malice’ towards his victim – it may, for example, be a mercy killing. Further, there is no need for the prosecution to prove that the killing was in any way premeditated or planned. All in all the phrase is best avoided. Chapter 4 provides lengthy extracts from the key cases illustrating the development of the mens rea of murder in the modern era, through R v Hancock  1 All ER 641, R v Nedrick  1 WLR 1025 and R v Woollin. The following extracts concentrate on the extent to which the current law relating to the mens rea is considered rational and justifiable by the judiciary. AG’s Ref (No 3 of 1994)  3 All ER 936
accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind ...’ Whilst this is a useful starting point, it will seen from the extracts that follow that this statement has since been modified in certain important respects by both statute (s 3 of the 1957 Act set out below) and judicial intervention.
R v Ball  Crim LR 730 (CA) Facts: The defendant shot a neighbour. At his trial, the defendant’s defence was lack of intention to kill or cause harm: he thought he had loaded the gun with a blank cartridge. It appeared that he had previously attempted to fire two such blanks to scare and frighten the deceased from his land. For reasons which were not clear they had not detonated. He said that he kept live and blank cartridges together in the pocket of his overalls in the house. He had grabbed a handful when he had picked up the gun, intending only to frighten the deceased. Held, dismissing the appeal: R v Daweson (1985) 81 Cr App R 150 went no further than showing that the sober and reasonable man must look at the unlawful act to see if it was dangerous and not at peculiarities of the victim; in that case the victim had a heart condition. In cases of involuntary manslaughter, there was a distinction between unlawful and lawful acts resulting in death. Where the act was unlawful, the question for the jury was whether it was also dangerous in the sense that all sober and reasonable people would inevitably realise that it would subject the victim to the risk of some harm, albeit not serious harm. Questions of gross or criminal negligence were not material. In many cases the judge might have to give a direction on the question of a lawful act and gross or criminal negligence because the jury might not accept that an accused deliberately did an unlawful act. But in this case it was accepted on behalf of the appellant that he had unlawfully assaulted the deceased. His act in firing at the deceased was ‘an act directed at the victim’ (per Waller LJ in R v Dalby (1982) 74 Cr App R 348 at 352), with ‘no fresh intervening cause between the act and the death’ (per Lord Lane CJ in R v Goodfellow (1986) 83 Cr App R 23). He had used his own cartridges and loaded the gun himself; no other agency was involved. In manslaughter arising from an unlawful and dangerous act, the accused’s state of mind was relevant only to establish (a) that the act was committed intentionally; and (b) that it was an unlawful act (DPP v Newbury (1977) 62 Cr App R 291). Once (a) and (b) were established, the question of whether the act was dangerous was to be judged not by the appellant’s appreciation but by that of the sober reasonable man, and it was impossible to impute into his appreciation the mistaken belief that what he was doing was not dangerous because he thought he had a blank cartridge in the chamber. At that stage, his intention, foresight or knowledge was irrelevant. Does the dangerous criminal act have to be directed at the victim?
intravenously twice more with the help of another person. When the appellant returned to O’Such’s flat, O’Such was asleep in the living room; in the morning he could not be woken. At 3 pm O’Such’s wife called an ambulance. When the ambulance attendants arrived they found that he was dead.
indicated a precise spot. The appellant drove forward towards him and stopped the car with the offside wheel on Morris’s left foot. ‘Get off, you are on my foot’, said the officer. ‘Fuck you, you can wait’, said the appellant. The engine of the car stopped running. Morris repeated several times ‘Get off my foot’. The appellant said reluctantly, ‘OK, man, OK’ and then slowly turned on the ignition of the vehicle and reversed it off the officer’s foot. The appellant had either turned the ignition off to stop the engine or turned it off after the engine had stopped running. The justices at quarter sessions on those facts were left in doubt as to whether the mounting of the wheel on to the officer’s foot was deliberate or accidental. They were satisfied, however, beyond all reasonable doubt that the appellant ‘knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot after the officer said, ‘Get off, you are on my foot’. They found that on those facts an assault was proved.
said that they were going to Runcorn. They took a curious route to Runcorn, and eventually, she said, they stopped on what seemed like a big cinder track. The time by then was apparently about 4 am. Then, she said, ‘He just jumped on me. He put his hands up my clothes and tried to take my tights off. I started to fight him off, but the door of the car was locked and I could not find the catch. Suddenly he grabbed me and then he drove off and I started to cry and asked him to take me home. He told me to take my clothes off and, if I did not take my clothes off, he would let me walk home, so I asked him to let me do that. He said, that if he did, he would beat me up before he let me go. He said that he had done this before and had got away with it and he started to pull my coat off. He was using foul language’. And then she said that she told him, ‘I am not like that’, and he said something like, ‘You are all like that’. Then he drove on. ‘Again’, said the girl, ‘he tried to get my coat off, so I got hold of my handbag and I jumped out of the car. When I opened the door, he said something and revved the car up and I jumped out. The next thing I remember he was backing towards me and so I ran to the nearest house. He backed and shouted and then he drove off’, and then she remembered being in the lady’s house. She said she was taken to hospital, where she was treated for some concussion and for some grazing, and was detained in hospital for three days. The defendant was charged with assault occasioning actual bodily harm.
said that there was no problem, the appellant said that he would give him one and punched him in the face. The victim suffered a broken nose and other injuries. The appellant desisted when a passer-by approached. The appellant was tried on, inter alia, a count of inflicting grievous bodily harm, contrary to s 20 of the Offences Against the Person Act 1861. The judge directed the jury that grievous bodily harm meant ‘serious injury’. The appellant was convicted. He appealed on the ground that the judge had misdirected the jury failing to direct them that the injury had to be ‘really serious’. Held: The question had already been considered by the Court of Appeal in R v McMillan (1984) unreported, 8 October. The conclusion reached in that case was equally applicable to the present case, in which there was no need to use the phrase ‘really’ serious harm; the omission of the word ‘really’ was not significant. The victim had suffered a broken nose, which was clearly grievous bodily harm. ‘Infliction’ and ‘causing’: a distinction without a difference?
S Shute, ‘The Second Law Commission Consultation Paper on Consent: something old, something new, something borrowed: three aspects of the project‘  Crim LR 684 DC Omerod, ‘The Second Law Commission Consultation Paper on Consent: consent – a second bash’  Crim LR 694 M Gunn and DC Omerod, ‘The legality of boxing’  15 Legal Studies 181 P Roberts, ‘Consent to injury: how far can you go?’ (1997) 113 LQR 27 P Roberts, ‘The philosophical foundations of consent in the criminal law’ (1997) 17 OJLS 389
separate bank account. When asked by Yorkshire Television for the money he made a number of excuses. Eventually the company gave him permission to pay the money into his own bank account. The appellant then handed the company a cheque drawn on that account. The cheque was not met. Meanwhile, the appellant withdrew cash from that account. At trial, it was submitted on the appellant’s behalf that, under s5(3) of the Theft Act 1968, the debt owed to the charity could not be said to be the proceeds of the money which he had been paid, because the proceeds were the things purchased with the money. This submission was rejected by the trial judge and the appellant was convicted. His appeal to the Court of Appeal was dismissed.
the likelihood of the victim coming to terms and of the time for which the machinery would have to be retained. This was one of the rare cases where it was right for the judge to bring s6(1) before the jury. The judge could usefully have illustrated the first part of s6(1) by the expression ‘equivalent to an outright taking or disposal’. If they thought that the appellant might have intended to return the goods even if the victim did not do what he wanted, they would not convict unless they were sure that he intended that the period of detention should be so long as to amount to an outright taking. Even if they did conclude that the appellant had in mind not to return the goods if the victim failed to do what he wanted, they would still have to consider whether the appellant had regarded the likelihood of this happening as being such that his intended conduct could be regarded as equivalent to an outright taking. R v Lloyd, Bhuee and Ali  QB 829 (CA)
The elements of the offence under s 12 of the Theft Act 1968 are that the defendant: (a) takes (b) a conveyance (as defined in s 12(7)(a)) (c) for his own or another’s use (d) without the owner’s consent or (a) knowing that the conveyance has been taken without the owner’s consent (b) drives it or allows himself to be carried in it. For an offence under s 12A to be committed, it must be proved that: (a) an offence under s 12(1) of the Theft Act 1968 has been committed; (b) the conveyance must be a ‘mechanically propelled vehicle’; (c) one of the following has also occurred: (i) the vehicle was driven dangerously; (ii) as a result of the driving of the vehicle, injury has been caused to someone; (iii)as a result of the driving of the vehicle, property other than the vehicle has been damaged; or (iv)the vehicle has been damaged. ‘Taking’
defendant filled up the tank of his car with petrol at a garage and then drove off without paying. The prosecution failed to secure a conviction under s 15 of the Theft Act 1968 because they were unable to prove that the defendant had intended from the outset not to pay for the petrol. For s 15 to apply, the deception must occur before the property is handed over. Hence the need for s 3 of the Theft Act 1978, to cover cases where the defendant says that he formed the intention not to pay for the goods or services after he had obtained them. This section therefore has the potential to cover situations such as: • the diner who leaves the restaurant without paying; • the passenger who fails to pay his taxi fare at the end of the journey; • the motorist who fills up his petrol tank and leaves the garage without paying for the petrol. Payment on the spot
confirmed that the fare was £15 but the passengers still refused to pay. The driver started to drive them back to the address from which he had collected them but, en route, decided to drive to a police station. However, the two passengers forced the car to stop and ran off. The taxi driver managed to catch one of the men. The defendant argued that the requirement for payment had ceased because the driver had announced his intention of taking the passengers back to the place from where the journey had started. Held: ‘On the spot’ means ‘there and then’. The words ‘makes off’ involve a departure without paying from the place where payment would normally be made. In the case of a taxi, payment might be made while sitting in the taxi or standing by the window. In the present case, payment was requested while the passengers were still in the taxi. It became apparent to the driver that they were disputing the fare. The fact that the driver, realising that there was a prospect that they would not pay their fare, drove off somewhere else, did not mean that when the defendant ran off he could not, as a matter of law, be making off without payment. It was the time at which he made off which was critical. When this defendant made off, he had formed the intention to avoid payment of a fare which was still due and owing. Making off
without paying for the meal but that he decided to stay on being told about the police being summoned. He was subsequently indicted under s 3 of the Theft Act 1978 with making off from the restaurant without paying for the food and wine which had been consumed. On a submission of no case to answer: Held: ‘Makes off’ refers to making off from the spot where payment is required or expected. What is the spot depends on the circumstances of each case. In this case the spot was the restaurant. The jury would be directed that it was not open to them to find the defendant guilty of the offence on the indictment but that it was open to them to find him guilty of an attempt to commit the offence. R v Brooks and Brooks (1982) 76 Cr App R 66 (CA) Facts: The appellants, father and daughter, along with a person named Smith, had a meal together one evening in the upstairs room of a restaurant. At 10.30 pm the daughter was seen leaving the premises in haste. The manager went upstairs and saw the two men were not there but found Smith downstairs waiting outside the men’s lavatory. Nearby was a door inside the premises which led into the yard. Smith made no comment when asked about the unpaid bill but, after entering the lavatory, later made off through the outer door. The manager chased after him and asked him to come back. While they were re-entering the restaurant, the father came out of it. All three then went back inside. All the father could offer for payment for the bill of £8.52 was a cheque for £130 in his favour, which later turned out to be valueless. Smith said in the father’s hearing that the payment was not due from him, Smith. When the daughter was later interviewed by the police she maintained that Smith had met them earlier that night for the first time and had generously offered to treat her and her father to a meal. Both father and daughter were charged with making off without payment contrary to s3(1) of the Theft Act 1978.
held not to be a building (Norfolk Constabulary v Seekings  Crim LR 167); but a freezer which was 25 feet long, weighed three tons, was connected to the electricity supply and had been in place for at least two years, was held to be a building (B v Leathley  Crim LR 314). The test is that laid down by Byles J in Stevens v Gourley (1859) CBNS 99 at 112, that the structure must be ‘of considerable size and intended to be permanent or at least to endure for a considerable period’. That entry into part of a building may amount to burglary means that a person may become a burglar (if the other elements of the offence are satisfied) by going from a part in which he is lawful visitor to a part in which he is not: see R v Walkington (extracted below). R v Walkington  1 WLR 1169 (CA)
clearing out their bungalow. It was agreed that the appellant should visit the bungalow to see if there was anything he wished to purchase. The appellant and Tony went to a bungalow in Broadstairs and the appellant took some jewellery. He said that he did not realise that Tony had told him a pack of lies.
R v Clouden  Crim LR 56 (CA) Facts: The appellant was seen to follow a woman who was carrying a shopping basket in her left hand. He approached her from behind and wrenched the basket down and out of her grasp with both hands and ran off with it. He was charged in two counts with robbery and theft respectively and convicted on the first count of robbery. He appealed on the grounds (i) that there was insufficient evidence of resistance to the snatching of the bag to constitute force on the person under s 8 of the Theft Act 1968; and (ii) that the learned judge’s direction to the jury on the requirement of force on the person was inadequate and confused. Held, dismissing the appeal: the old cases distinguished between force on the actual person and force on the property which in fact causes force on the person but, following Dawson and James (1978) 68 Cr App R 170, the court should direct attention to the words of the statute without referring to the old authorities. The old distinctions have gone. Whether the defendant used force on any person in order to steal is an issue that should be left to the jury. The judge’s direction to the jury was adequate. He told the jury quite clearly at the outset what the statutory definition was, though thereafter he merely used the word force and did not use the expression ‘on the person’. Theft
deception, persuades P to wait longer for payment than had originally been agreed or even to forgo payment altogether. Note that s2(3) says that, for the purpose only of s2(1)(b), inducing a creditor to accept a cheque (which is a way of postponing payment) is to be regarded as inducing the creditor to wait for payment. This is the only one of the three offences where an intention to make permanent default has to be proved. The fact that s2(1)(b) covers situations where the creditor is induced to forgo payment means that there is an overlap with s2(1)(a), securing the remission of an existing liability. This overlap was considered in R v Jackson (above) and R v Holt (below). R v Holt and Another  1 WLR 1000 (CA)
There can be no conviction under s 23 unless the prosecution can prove that the goods have been stolen. However, where all of the other requirements of handling are satisfied (ie the only one missing is that the goods are stolen), the defendant may be convicted of attempted handling under s 1 of the Criminal Attempts Act 1981 (cf R v Shivpuri  AC 1), or the handling may amount to a fresh appropriation (and so theft) of the goods. See also Walters v Lunt  2 All ER 645, where the defendants were charged (under legislation which preceded the Theft Act 1968) with receiving stolen goods. The goods in question had been taken by a child aged seven, ie below the age of criminal responsibility. The Divisional Court held that since the person who took the goods could not be guilty of theft, the goods were not stolen goods. It followed that the defendants could not be guilty of receiving stolen goods. Lord Goddard CJ pointed out, however, that the defendants, by taking possession of the goods and keeping the goods (and thereby appropriating them), could have been charged instead with theft of those goods. AG’s Ref (No 4 of 1979) (1980) 71 Cr App R 341 The defendant had received a cheque for £288.53 from a fellow employee. The defendant’s fellow employee (that is, the thief) had obtained cheques (totalling over £800) by deception from her employer. The cheques had been paid into her bank account, along with payments from legitimate sources. The trial judge ruled that as the bank account on which the cheque for £288.53 had been drawn had received credits from a variety of sources, some legitimate and some illegitimate, it was impossible for the prosecution to prove that the payment made to the defendant was in law stolen goods. The following point of law was referred to the Court of Appeal:
Petition: The Appeal Committee of the House of Lords (Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich) dismissed a petition by the appellant for leave to appeal. Ryan and French v DPP  Crim LR 457 (DC) Facts: A month after a dinghy had been stolen, the loser saw it in the possession of the appellants. They claimed that the appellant French had bought it a year previously. They were charged with both theft and handling of the dinghy. Justices convicted them of the handling and acquitted them of the theft. On appeal by way of case stated it was argued: (1) that the justices would have had to have found as a fact that the appellants were not the thieves, which they could not have done, as the evidence was equally consistent with theft as handling; (2) the justices should have directed themselves to withdraw the count of handling, the evidence being more consistent with theft. The question certified was: ‘Can a conviction of handling be justified on the evidence given, having regard to the fact that the appellants were acquitted on the count of theft?’ Held, dismissing the appeal: (1) It was well understood that the prosecution did not have to prove that handlers were not thieves. (2) There are cases where it is appropriate to withdraw a count or charge of handling when both theft and handling are charged. This was not such a case. There was sufficient evidence to support a prima facie case on each charge and it was for the justices to decide on the basis of their assessment of the witnesses and the inferences they were prepared to draw if either charge were made out. R v Fernandez  1 Cr App R 123 (CA)
property ‘belonging to another’, it is possible to be guilty of an offence under s1(1) even though the property damaged belongs to the defendant, provided that someone else also has a proprietary right in the property. For the offence of aggravated criminal damage under s1(2) of the Criminal Damage Act 1971 it does not matter to whom the property belongs. DAMAGE OR DESTROY
Crim LR 577. A razor which can be used for shaving has an innocent purpose and so is not offensive per se: see R v Petrie  1 WLR 358; the same applies to an ordinary penknife: see R v Humphreys  Crim LR 225. Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319 (CA) Facts: The plaintiff, a former airport police officer, went to a fancy dress party dressed in a police constable’s uniform and wore, as part of that uniform, a police truncheon. On his way home from the party he was stopped by two police officers. At trial, the prosecution offered no evidence against him and the plaintiff was acquitted and he was awarded costs. He brought a civil action claiming damages, inter alia, for unlawful arrest.