Оглавление
Mark Thomas. Criminal Law
PREFACE
CONTENTS
TABLE OF CASES
TABLE OF LEGISLATION
ABBREVIATIONS
chapter 1 Introduction to the Criminal Law
1.1Introduction
1.2The purpose of this text
1.2.1 ‘Substantive criminal law’
1.3Defining crime
1.4The need for the criminal law?
1.4.1 Functions of the criminal law
1.4.2 An ‘overuse’ of the criminal law?
1.5Principles of criminal law
1.5.1 Principle of ‘fair warning’
1.5.2 Principle of ‘fair labelling’
1.5.3 Principle of ‘welfare’
1.5.4 Principle of ‘autonomy’
1.6Sources of criminal law
1.6.1 Common law
1.6.2 Legislation
1.6.2.1 Case law and legislation
1.6.3 International influences
1.6.3.1 European Union
1.6.3.2 European Convention on Human Rights (ECHR)
Convention rights
Obligation on the courts
1.6.3.3 International law
1.6.3.4 The law of other jurisdictions
1.6.4 Reform
1.6.4.1 Law Commission
1.6.4.2 Draft Criminal Code
1.6.4.3 Judicial law making
1.7Criminal procedure, evidence and sentencing: an overview
1.7.1 Criminal procedure
1.7.1.1 Charge
1.7.1.2 Classification of offences
1.7.1.3 Conviction and sentencing
1.7.2 Evidence
1.7.2.1 Principles of evidence
1.7.2.2 Types of evidence
1.7.2.3Burden and standard of proof. Burden of proof
Standard of proof
1.7.3 Sentencing
1.7.3.1 Purposes of sentencing
1.7.3.2 Sentencing Council
1.7.3.3 Sentencing powers
1.8Nature of criminal liability
1.8.1 Actus reus
1.8.2 Mens rea
1.8.3 No defence
1.9Further reading
chapter 2 Actus Reus: The External Element of Crime
2.1Introduction to actus reus
2.1.1Finding the actus reus
2.1.2Identifying the ‘three Cs’
2.1.3‘Guilty thoughts’
2.1.4Actus reus committed by a third party
2.2Defining the actus reus
2.3Conduct and result crimes
2.3.1Conduct crimes
2.3.2Result crimes
2.4Voluntary and positive conduct
2.4.1Voluntary and involuntary conduct
2.4.1.1Voluntary conduct
2.4.1.2Involuntary conduct
2.4.1.3Distinguishing between the two
2.4.2Positive acts
2.4.2.1Distinguishing positive acts from voluntary conduct
2.5State of affairs cases (‘situational liability’)
2.6Omissions
2.6.1The position in other jurisdictions and conflicting views
2.6.1.1The ‘social responsibility’ view
2.6.1.2The ‘conventional’ view
2.6.2Classifying omissions
2.6.3Imposition of a duty
2.6.3.1Capable of commission
2.6.3.2Legally recognised duty to act
Legal duty
Duty to act, not duty of care
2.6.3.3Unreasonable failure to act
2.6.4The established duties
2.6.4.1Official duty
2.6.4.2A duty imposed by statute
2.6.4.3Contractual obligations
2.6.4.4Duty by relationship
2.6.4.5Duty by assumption of care (voluntary undertakings)
Express duty
Implied duty
2.6.4.6Duty by creation of a dangerous situation
2.6.4.7Are the categories ‘closed’?
2.6.4.8Who decides whether there is a duty to act?
2.6.4.9Multiple duties
2.6.5Can an individual be ‘released’ from his duty?
2.6.5.1Duty passing to another
2.6.5.2Duty is absolved
2.6.6Act or omission?
Withdrawal of life support: act or omission?
2.7Causation
2.7.1Factual causation
2.7.2Legal causation
2.7.2.1What is the difference between legal and factual causation?
2.7.2.2Substantial cause
Multiple or ‘concurrent’ causes
2.7.2.3Blameable cause
2.7.2.4Operative cause
2.7.3New and intervening acts
2.7.3.1General principles
2.7.3.2Act of a third party
Development
‘Free, deliberate and informed’
Operating and substantial cause
(i) Driving cases
(ii) Medical intervention cases
Omissions and intervening acts
2.7.3.3Act of the victim
Fright and flight
Drug-dealing cases
Further acts of the victim
2.7.3.4Act of God
2.7.3.5Summary of intervening acts
2.7.4Applying causation
2.8Thin skull rule
2.9Putting it all together
2.10Further reading
Omissions
Causation
chapter 3Mens Rea: The Mental Element of Crime
3.1Introduction to mens rea
3.1.1Classifying mens rea
3.1.2Mens rea and motive
3.1.3Mens rea and proof
3.1.4Forms of mens rea
3.2Intention
3.2.1Types of intention
3.2.1.1Direct intent
Relevance of a person’s ‘desire’?
3.2.1.2Oblique intent
Issues involving oblique intent: (i) Status of foresight
Issues involving oblique intent: (ii) Extent of foresight
DPP v Smith
Criminal Justice Act 1967, s 8
Hyam v DPP
R v Moloney
R v Hancock; R v Shankland
R v Nedrick
R v Woollin
Re A
R v Matthews and Alleyne
The present state of oblique intent
3.2.1.3Directing the jury
3.2.1.4Basic and specific intent
3.2.1.5Ulterior intent
3.2.2Duration of intention
3.3Recklessness
3.3.1Element (i): appreciation of the risk
3.3.1.1The origins of recklessness: Cunningham
D must personally foresee a risk
What is not relevant to D’s awareness?
R v Parker: an extension of Cunningham
3.3.1.2The move towards an objective standard: Caldwell
3.3.1.3Returning to the subjective standard: G
3.3.1.4An attempt to return to Caldwell?
3.3.2Element (ii): unjustified taking of the risk
3.4Negligence
3.4.1Comparing negligence with recklessness
3.4.2Negligence as a form of mens rea
3.4.3Culpability of negligence
3.5Other forms of mens rea
3.5.1Knowledge
3.5.1.1Comparing knowledge with other forms of mens rea
Knowledge vs wilful blindness
Knowledge vs belief
Knowledge vs suspicion
3.5.2Maliciously
3.5.3Wilfully
3.5.4Dishonestly
3.6Strict liability
3.6.1Need for voluntariness
3.6.2Common law strict liability offences
3.6.3Statutory strict liability offences
3.6.3.1Presumption of mens rea
3.6.3.2Truly criminal offences
3.6.3.3Necessary implication
Words used
Penalty
Defences
3.6.3.4Social concern or public safety
3.6.3.5Encouraging vigilance and compliance
3.6.4Strict liability and human rights
3.6.5Justifying strict liability
3.6.5.1Arguments for strict liability. Protection of the public
Deterrent value and encouraging compliance
Ease of proof and cutting court time
3.6.5.2Arguments against strict liability. Injustice
Human rights
Ineffectiveness
3.7Correspondence of actus reus and mens rea
3.8Coincidence of actus reus and mens rea
3.8.1Continuing act
3.8.2Chain of events
3.9Transferred malice
3.9.1The basis of the doctrine
3.9.2Limitations on transferred malice
3.9.2.1Transferred defences
3.9.2.2The rule in Pembliton
3.10Further reading. Intention
Recklessness
Knowledge
Negligence
Contemporaneity
Strict liability
Transferred malice
chapter 4 Parties to a Crime:Principal and Secondary Offenders
4.1Introduction to principal and secondary offenders
4.1.1Terminology used
4.1.1.1Single principal offender
4.1.1.2Joint principal offender
4.1.1.3Secondary offender
4.1.1.4Innocent agent
4.1.1.5Uncertainty as to the party status
4.1.1.6Directing the jury
4.1.2Nature of liability
Derived from conduct, not guilt
4.1.3Scope of liability
4.1.4Accessorial liability and strict liability offences
4.1.5Distinguishing offences of complicity and inchoate offences
4.1.6R v Jogee
4.2Elements of complicity
4.2.1Actus reus: (i) an offence
4.2.2Actus reus: (ii) aid, abet, counsel or procure
4.2.2.1Defining assistance
4.2.2.2Aid and abet
Time of the aiding or abetting
Need for causation
Requirement of participation
Mere presence
Mere association
Commission by omission
4.2.2.3Counsel
Need for causation
4.2.2.4Procure
Need for causation
Troubled cases of procurement
4.2.2.5Summarising the actus reus
4.2.3Mens rea: (i) knowledge of essential matters
4.2.3.1Defining ‘essential matters’
4.2.3.2Extent of the knowledge
4.2.3.3Specificity of knowledge
Relevance of a weapon?
4.2.3.4Understanding the requirement of knowledge
4.2.4Mens rea: (ii) intention
4.2.4.1Intention to assist or encourage
Inferring intention from foresight
Conditional intent
4.2.4.2Intention that the principal has the requisite mens rea
Principal commits a more serious offence
Principal commits a less serious offence
‘Overwhelming supervening event’
Transferred malice
4.2.4.3Understanding the requirement of intention
4.2.5Defences
4.2.5.1Withdrawal
Distinguishing withdrawal cases
Spontaneous violence
Planned violence
Withdrawal and inchoate liability
4.2.5.2Merely a thing of the past
4.2.5.3The victim rule
4.2.5.4Acting under a legal duty
4.2.6Charging accessories
4.2.6.1Mode of trial
4.2.6.2Sentencing
4.3Joint enterprise
4.3.1Defining a case of ‘joint enterprise’
4.3.1.1Legal basis for joint enterprise
4.3.2Development of the law. 4.3.2.1The early principle of joint enterprise
4.3.2.2The principle in Chan Wing-Siu
4.3.2.3The fundamental change in Jogee
4.3.2.4The situation post-Jogee
Impact on convictions pre-Jogee
4.4Assistance after the fact
4.4.1Impeding an arrest (CLA 1967, s 4)
4.4.2Compounding an offence (CLA 1967, s 5)
4.5Further reading
chapter 5 Inchoate Offences
5.1Introduction to inchoate offences
5.1.1Rationale for inchoate liability
5.1.2Terminology and common themes
5.2Attempts
5.2.1Defining attempts
5.2.2Elements of attempt
5.2.2.1Actus reus: (i) an offence which can be attempted
5.2.2.2Actus reus: (ii) an act
5.2.2.3Actus reus: (iii) more than merely preparatory
Interpreting ‘attempt’ – pre-1981
Interpreting ‘more than merely preparatory’ – post-1981
Relevance of the offence charged?
Bringing together cases on ‘more than merely preparatory’
Role of judge and jury
5.2.2.4Mens rea: intention
Recklessness
Conditional intention
Oblique intention
5.2.3Limitations
5.2.3.1Attempting the impossible
Legal impossibility
Factual impossibility
Inadequate means
5.2.3.2A defence of withdrawal?
5.2.4Charging attempt. 5.2.4.1Can D be convicted of an ‘attempt’ if the offence has been completed?
5.2.4.2Mode of trial
5.2.4.3Procedure
5.2.4.4Jurisdictional issues. Attempts to commit an offence outside the jurisdiction
Attempts to commit an offence inside the jurisdiction whilst abroad
5.2.4.5Sentencing
5.2.5Putting together attempts
5.3Conspiracy. 5.3.1Defining conspiracy
5.3.2Elements of statutory conspiracy
5.3.2.1Actus reus: (i) an agreement
Can the agreement involve multiple offences?
Extent of the ‘single design’
5.3.2.2Actus reus: (ii) between two or more people
Persons who cannot be conspirators
5.3.2.3Actus reus: (iii) to pursue a course of conduct which amounts to a criminal offence
Does the offence actually have to be committed?
Meaning of ‘necessarily’
5.3.2.4Mens rea: (i) intention as to the agreement
5.3.2.5Mens rea: (ii) intention as to the offence
No need to intend for the offence to be carried out
A need for D to ‘play some part’ in the agreed course of conduct
5.3.2.6Mens rea: (iii) intention or knowledge of the facts
Conditional intent
5.3.3Common law conspiracy
5.3.3.1Conspiracy to defraud
5.3.3.2Conspiracy to do acts tending to corrupt public morals or outrage public decency
5.3.4Conspiring the impossible
5.3.5Charging conspiracy. 5.3.5.1Mode of trial
5.3.5.2Procedure
Where the co-conspirator enters a guilty plea
Where the co-conspirator is acquitted
5.3.5.3Jurisdictional issues
5.3.5.4Sentencing
5.3.6Putting together conspiracy
5.4Assistance or encouragement
5.4.1Defining assisting or encouraging
5.4.1.1Complexity of provisions
5.4.2Elements of intentionally encouraging or assisting an offence (SCA 2007, s 44)
5.4.2.1Actus reus: (i) an act
5.4.2.2Actus reus: (ii) capable of encouraging or assisting
Capability
Encouragement
Assistance
Indirect encouragement/assistance
5.4.2.3Actus reus: (iii) the commission of an offence
5.4.2.4Mens rea: (i) intention to encourage or assist
Intention, not foresight
5.4.2.5Mens rea: (ii) state of mind regarding the mens rea
5.4.2.6Mens rea: (iii) state of mind regarding the actus reus
5.4.3Elements of encouraging or assisting an offence believing it will be committed (SCA 2007, s 45)
5.4.3.1Actus reus
5.4.3.2Mens rea: (i) belief that the offence will be committed
The offencewillbe committed
Belief
Conditional belief
5.4.3.3Mens rea: (ii) belief that the act will encourage or assist its commission
5.4.4Elements of encouraging or assisting offences believing one or more will be committed (SCA 2007, s 46)
5.4.4.1Actus reus: (i) and (ii)
5.4.4.2Actus reus: (iii) the commission of one or more offences
5.4.4.3Mens rea: (i) belief that one or more of the offences will be committed
5.4.4.4Mens rea: (ii) belief that the act will encourage or assist the commission of one or more of them
5.4.4.5Sadique and further confusion
R v Sadique: The first appeal
R v Sadique: The second appeal
5.4.4.6Compatibility with the ECHR
5.4.5Limitations to liability
5.4.5.1Encouraging or assisting the impossible
5.4.5.2Defence of reasonableness
Defence under SCA 2007, s 50(1)
Defence under SCA 2007, s 50(2)
5.4.5.3Victim rule
5.4.6Charging assistance or encouragement
5.4.6.1Mode of trial
5.4.6.2Jurisdictional issues
5.4.6.3Sentencing
5.4.7Putting together assistance or encouragement
5.5Common law incitement
5.5.1Defining incitement
5.5.2Elements of incitement
5.6Bringing together inchoate offences
5.6.1The running track
5.6.2Impossibility and inchoate offences
5.6.3Double inchoate liability
5.7Substantive inchoate liability
5.8Further reading. Inchoate offences generally
Attempts
Conspiracy
Assisting or encouraging
chapter 6 Vicarious and Corporate Liability
6.1Introduction to vicarious and corporate liability
6.2Vicarious liability
6.2.1Distinguishing vicarious and corporate liability
6.2.2Justifying vicarious liability
6.2.3Vicarious liability in criminal law
6.2.3.1Attribution
6.2.3.2Delegation
6.2.4Putting together vicarious liability
6.3Corporate liability
6.3.1Defining ‘corporations’
6.3.2Capability of criminal liability
6.3.2.1Circumstances where a company cannot be liable
6.3.2.2Liability of the individual
6.3.3Finding liability
6.3.3.1Corporate offences
6.3.3.2Identification doctrine
The classic test: ‘directing will and mind’
A new approach: statutory construction
6.3.3.3Vicarious liability
6.3.4Putting together corporate liability
6.4Corporate offences
6.4.1Offences under the Companies Act 2006
6.4.2Offences under the Health and Safety at Work Act 1974
6.4.3Offences under the Bribery Act 2010
6.4.4Offence under the Corporate Manslaughter and Corporate Homicide Act 2007
6.4.4.1Development of the offence
6.4.4.2Defining corporate manslaughter
6.4.4.3Elements of corporate manslaughter
Actus reus: (i) qualifying organisation
Actus reus: (ii) duty of care
Actus reus: (iii) breach of duty
Actus reus: (iv) breach is gross
Actus reus: (v) causes death
6.4.4.4Charging corporate manslaughter
Mode of trial
Sentencing
6.5Further reading. Vicarious liability
Corporate liability
Corporate manslaughter
chapter 7 Defences to Liability
7.1Introduction to defences
7.1.1Nature of criminal defences
7.1.1.1 Defences negating liability
7.1.1.2 Defences excusing/justifying liability
Defences excusing liability
Defences justifying liability
Is the distinction really necessary?
7.1.2 Complete vs partial defences
7.1.3 General vs specific defences
7.1.4 Burden of proof
7.2 Infancy
7.2.1 The conclusive presumption
7.2.2 The old rebuttable presumption
7.2.2.1 A special presumption
7.2.3 Confusion caused by s 34
7.3 Mistake
7.3.1 Elements of the defence
7.3.1.1 Element (i): the mistake must be of the ‘right kind’
7.3.1.2 Element (ii): the mistake must be honestly held
7.3.2 Mistake in specific cases
7.3.2.1 Cases of negligence
7.3.2.2 Cases of strict liability
7.3.2.3 Cases involving a defence
7.3.3 Should the law excuse mistakes of law?
7.3.4 Procedural matters and the burden of proof. 7.3.4.1 Procedure
7.3.4.2 Burden of proof
7.3.5 Result of a successful plea of mistake
7.4 Intoxication
7.4.1 Basis for the defence
7.4.2 Rationale for the defence
7.4.3 Establishing the defence
7.4.4 Voluntary intoxication
7.4.4.1 Distinguishing basic and specific intent offences
Interpretation (i): focus on the presence of recklessness
Interpretation (ii): focus on the presence of a purposive intent
A pragmatic approach
7.4.4.2 Type of drug
‘Dangerous’ drugs
‘Non-dangerous’ drugs
Certainty of ‘types’ of drugs
7.4.4.3 Lack of mens rea and Dutch courage cases
7.4.5 Involuntary intoxication
7.4.5.1 Ignorance of alcohol quantity
7.4.5.2 Non-dangerous drugs
7.4.6 Procedural matters and the burden of proof. 7.4.6.1 Procedure
7.4.6.2 Burden of proof
7.4.7 Result of a successful plea of intoxication
7.4.7.1 Voluntary intoxication and specific intent crimes
7.4.7.2 Voluntary intoxication and basic intent crimes
7.4.7.3 Involuntary intoxication
7.4.8 Intoxication and other defences
7.4.8.1 Mistake
7.4.8.2 Self-defence
7.4.8.3 Automatism
7.4.8.4 Insanity
7.4.8.5 Duress
7.5 Insanity
7.5.1 Basis for the defence
7.5.1.1 A ‘plea’ of insanity; not a defence
7.5.1.2 Insanity or unfitness to plead?
7.5.2 Elements of the defence
7.5.2.1 Presumption of sanity
7.5.2.2 Element (i): at the time of the committing of the act
7.5.2.3 Element (ii): suffered from a defect of reason
7.5.2.4 Element (iii): caused by a disease of the mind. Meaning of ‘disease of the mind’
Must the disease of the mind be permanent?
Requirement of an ‘internal’ cause
Diabetes
Epilepsy
Sleepwalking
Post-traumatic stress
Arteriosclerosis and brain tumours
Uncontrollable impulse
Alcohol and drugs
7.5.2.5 Element (iv) first limb: not knowing the nature and quality of the act
7.5.2.6 Element (iv) second limb: not knowing what he was doing was wrong
7.5.3 Procedural matters and the burden of proof
7.5.3.1 Procedure
7.5.3.2 Burden of proof
7.5.4 Result of a successful plea of insanity
7.6 Automatism
7.6.1 Basis for the defence
7.6.2 Elements of the defence
7.6.2.1 Element (i): total loss of voluntary control
7.6.2.2 Element (ii): caused by an external factor
7.6.3 Self-induced automatism
7.6.4 Procedural matters and the burden of proof. 7.6.4.1 Procedure
7.6.4.2 Burden of proof
7.6.5 Result of a successful plea of automatism
7.6.6 Comparing automatism with insanity
7.7 Consent
7.8 Private and public defence
7.8.1 Basis for the defence
7.8.2 Private defence: self-defence
7.8.2.1 Element (i): trigger
(a)When is it necessary to use force?
(b)How imminent must the danger be?
(c)What factors can be taken into account when considering whether force was ‘necessary’ in the circumstances?
Circumstances unknown to the accused
(d)Who can you act in defence of?
(e)May pre-emptive force be used?
(f)What about ‘provoked’ attacks?
(g)Can D rely on a mistaken belief as to the need to use force?
(h)Can D rely on an intoxicated mistaken belief as to the need to use force?
(i)Is there a duty to retreat?
7.8.2.2 Element (ii): response
(a)What is the meaning of ‘reasonable force’?
(b)What does it mean to say that D acts ‘in the heat of the moment’?
(c)When is force considered as being ‘excessive’?
(d)What factors can be taken into account when considering whether force used was ‘reasonable’ in the circumstances?
7.8.2.3 The householder provisions
(a)Is D a ‘householder’?
(b)Is force used in a ‘dwelling’?
(c)Is forced used in self-defence or defence of another?
(d)Was D a trespasser?
(e)Did D believe that V was a ‘trespasser’?
(f)Was force necessary?
(g)Was force reasonable?
7.8.3 Private defence: protection of property
7.8.4 Public defence: prevention of crime
7.8.4.1 Element (i): reasonable force
What is the requirement of ‘force’?
7.8.4.2 Element (ii): prevention of a crime, etc
What is a ‘crime’?
What does it mean to ‘prevent’ a crime?
When is an arrest ‘lawful’?
7.8.4.3 Which defence do I use?
7.8.5 The use of force and the right to life
7.8.6 Procedural matters and the burden of proof. 7.8.6.1 Procedure
7.8.6.2 Burden of proof
7.8.7 Result of a successful plea of self-defence
7.9 Duress
7.9.1 Basis for the defence
7.9.2 Distinguishing threats from circumstances
7.9.3 Duress by threats
7.9.3.1 Element (i): crime is one where the defence is available
Murder
Attempted murder
Some offences of treason
7.9.3.2 Element (ii): threat of death or serious injury
Where must the threat emanate?
Must the threat be ‘directly relayed’ to D?
7.9.3.3 Element (iii): threat is made to the relevant person
7.9.3.4 Element (iv): reasonable belief in threat and response
Question (i): reasonable belief as to a good cause to fear
Question (ii): sober person of reasonable firmness
7.9.3.5 Element (v): conduct is caused by threat
Must the threat be the sole cause?
7.9.3.6 Element (vi): threat is immediate (ie no evasive action can be taken)
‘Imminent’ not ‘immediate’
Returning to a requirement of immediacy
Opportunity to escape/seek police protection
7.9.3.7 Element (vii): D has not voluntarily laid himself open to the threat
Early developments
The current approach
7.9.4 Duress of circumstances. 7.9.4.1 Existence of the defence
7.9.4.2 Elements of the defence
Element (i): circumstances involved a threat or demand
Element (ii): defendant responded reasonably
7.9.5 Procedural matters and the burden of proof. 7.9.5.1 Procedure
7.9.5.2 Burden of proof
7.9.6 Result of a successful plea of duress
7.9.7 Other cases of coercion
7.10 Necessity
7.10.1 Basis for the defence. 7.10.1.1 Does a defence of necessity actually exist?
7.10.1.2 Scope of the defence
7.10.2 The leading cases
7.10.2.1 R v Dudley and Stephens
7.10.2.2 R v Howe
7.10.2.3 Re A
7.10.2.4 Nicklinson v Ministry of Justice
7.10.3 Further cases to consider. 7.10.3.1 Cases which found the defence to exist
7.10.3.2 Cases which found the defence not to be made out
7.10.4 Where does the law stand?
7.10.5 Procedural matters and the burden of proof
7.10.5.1 Procedure
7.10.5.2 Burden of proof
7.10.6 Result of a successful plea of necessity
7.10.7 Comparing necessity and duress
7.11 Further reading. Defences in general
Infancy
Mistake
Intoxication
Insanity
Automatism
Public and private defence
Duress
Necessity
chapter 8 Fatal Offences
8.1Introduction to fatal offences
8.2Murder
8.2.1Defining murder
8.2.2Elements of murder
8.2.2.1Actus reus: (i) ‘unlawful’
Withdrawal of life support – a lawful or unlawful act?
8.2.2.2Actus reus: (ii) ‘killing’
Death
Causation
8.2.2.3Actus reus: (iii) ‘of a human being’
When does life begin?
Is it possible to kill a foetus?
8.2.2.4Actus reus: (iv) ‘under the Queen’s peace’
8.2.2.5Mens rea: malice aforethought, express or implied
Malice aforethought
Express malice
Implied malice
8.2.3Charging murder. 8.2.3.1Mode of trial
8.2.3.2Sentencing
8.2.4Putting together murder
8.3Manslaughter
8.3.1Distinguishing murder from manslaughter
8.3.2Distinguishing voluntary and involuntary manslaughter
8.4Voluntary manslaughter
8.4.1Diminished responsibility
8.4.1.1Elements of diminished responsibility
8.4.1.2(i) An abnormality of mental functioning (HA 1957, s 2(1))
From ‘mind’ to ‘mental functioning’
Use of medical evidence
Uncontested defence evidence
8.4.1.3(ii) A recognised medical condition (HA 1957, s 2(1)(a))
8.4.1.4(iii) A substantial impairment of mental ability (HA 1957, s 2(1)(b))
Meaning of ‘substantially’
Impairment of mental abilities
To understand the nature of his own conduct (HA 1957, s 2(1A)(a))
To form a rational judgment (HA 1957, s 2(1A)(b))
To exercise self-control (HA 1957, s 2(1A)(c))
8.4.1.5(iv) Provides an explanation for D’s acts and omissions in doing or being a party to the killing (HA 1957, s 2(1)(c))
Effect of intoxication on diminished responsibility
8.4.1.6Procedure and sentencing
Sentence
Burden of proof
8.4.2Loss of self-control
8.4.2.1Elements of loss of self-control
8.4.2.2Killing resulted from the loss of self-control (CAJA 2009, s 54(1)(a))
D must actually lose his self-control
Subjective nature of the test
Must the loss of control be ‘total’?
Must the loss of control be ‘sudden’?
‘A considered desire for revenge’
8.4.2.3The loss of self-control had a qualifying trigger (CAJA 2009, s 54(1)(b))
Fear of serious violence (CAJA 2009, s 55(3))
Distinguishing loss of self-control and self-defence
Things said or done (CAJA 2009, s 55(4))
Attributable to things said or done (s 55(4))
Extremely grave character (CAJA 2009, s 55(4)(a))
Justifiable sense of being seriously wronged (CAJA 2009, s 55(4)(b))
Combination of triggers (CAJA 2009, s 55(5))
8.4.2.4Degree of tolerance and self-restraint (CAJA 2009, s 54(1)(c))
‘A person of D’s sex and age’
‘Normal degree of tolerance and self-restraint and in the circumstances of D’
‘Might have reacted’
‘In the same or similar way’
8.4.2.5Exclusions to the defence (CAJA 2009, s 55(6))
Inciting the thing said or done (s 55(6)(a) and (b))
Sexual infidelity (s 55(6)(c))
8.4.2.6Procedure and sentencing
Sentence
Burden of proof
8.4.3Suicide pact
8.4.3.1Elements of suicide pact
8.4.4Infanticide
8.4.4.1Elements of infanticide (as an offence)
8.4.4.2Elements of infanticide (as a defence)
8.4.5Putting together voluntary manslaughter
8.5Involuntary manslaughter
8.5.1Unlawful act manslaughter
8.5.1.1Defining unlawful act manslaughter
8.5.1.2Elements of unlawful act manslaughter
Actus reus: (i) an act (base offence)
Actus reus: (ii) which is unlawful
Civil wrongs insufficient
Proving the base crime in full
Actus reus: (iii) which is objectively dangerous
Necessity that the risk would have been foreseen
What harm must be foreseen?
Dangerousness of base offence
Relevance of D’s state of mind and characteristics
Facts available to the reasonable and sober person
Actus reus: (iv) the act caused the death of the victim
Mens rea: intention
8.5.2Gross negligence manslaughter
8.5.2.1Defining gross negligence manslaughter
8.5.2.2Elements of gross negligence manslaughter
(i) Duty of care owed
(ii) Duty of care negligently breached
(iii) Serious and obvious risk of death was reasonably foreseeable
(iv) An actual serious and obvious risk of death
(v) Breach of duty caused death
(vi) The negligence was ‘gross’
8.5.3Subjectively reckless manslaughter
8.5.4Putting together involuntary manslaughter
8.6Putting it all together
8.7Further reading. Murder
Voluntary manslaughter
Involuntary manslaughter
chapter 9 Non-Fatal Offences
9.1Introduction to non-fatal offences
9.1.1Interference with autonomy
9.1.2Coronavirus offences
9.1.3Charging non-fatal offences
9.1.4Alternative verdicts
9.2Common assault
9.2.1Defining common assault
9.2.1.1Common law or statutory offence?
9.2.1.2Causation and common assault
9.2.2Elements of a technical assault
9.2.2.1Actus reus: (i) an act
Assault by omission
Assault by words alone
Negating an assault (a qualified threat)
Reinforcing an assault (a conditional threat)
Threats to kill
9.2.2.2Actus reus: (ii) which causes another person to apprehend
Causes
Apprehend
9.2.2.3Actus reus: (iii) immediate (or perhaps ‘imminent’)
Meaning of immediacy
Immediate apprehension vs apprehension of immediate force
9.2.2.4Actus reus: (iv) unlawful personal violence
Unlawfulness
Personal violence
9.2.2.5Mens rea: intention or recklessness
Intention
Recklessness
9.2.3Elements of battery
9.2.3.1Must the battery be preceded by apprehension?
9.2.3.2Actus reus: infliction of unlawful force on another
Amount of force
Need for injury?
Need for hostility?
Need for physical contact
Direct and indirect force
Force applied via an object
Battery by omission
9.2.3.3Mens rea: intention or recklessness
Is the mens rea of assault interchangeable with the mens rea of battery?
9.2.4Charging common assault
9.2.4.1Mode of trial
9.2.4.2Sentencing
9.2.5Putting together common assault
9.3Defence of consent
9.3.1Consent to common assault (and to ABH/GBH where activity ‘recognised in law’) 9.3.1.1Consent and the level of harm
9.3.1.2Is consent truly a ‘defence’?
9.3.1.3Forms of consent
Express consent
Implied consent
9.3.1.4Requirements for consent
Capacity to consent
Freedom to consent
Informed consent
9.3.1.5Recognised categories in law
Sports
Surgery
Body modification
Religious flagellation
Horseplay
Sexual activity
Sexual activity involving a risk of sexually transmitted infection
Non-sadomasochistic sexual activity (‘accidental injury’)
Sadomasochistic sexual activity
9.3.2Lawful chastisement
9.3.2.1Position at common law
9.3.2.2Legislative reform
9.3.2.3Chastisement in schools
9.4Assault occasioning actual bodily harm
9.4.1Defining ABH
9.4.2Elements of ABH
9.4.2.1Actus reus: (i) an assault or battery
9.4.2.2Actus reus: (ii) which occasions
9.4.2.3Actus reus: (iii) actual bodily harm
Extent of the harm
Types of harm covered
9.4.2.4Mens rea: intention or recklessness
Must D intend/be reckless as to ABH?
9.4.3Charging ABH. 9.4.3.1Mode of trial
9.4.3.2Sentencing
9.4.4Putting together ABH
9.5Malicious wounding and inflicting grievous bodily harm
9.5.1Defining wounding and inflicting grievous bodily harm
9.5.2Elements of wounding
9.5.2.1Actus reus: unlawful wounding. Unlawfulness
Wounding
9.5.2.2Mens rea: malice (intention or recklessness)
Meaning of malice
Kind of harm intended
9.5.3Elements of inflicting grievous bodily harm
9.5.3.1Actus reus: unlawful infliction of really serious bodily harm. Unlawfulness
Meaning of ‘really serious’
‘Inflict’
‘Bodily harm’: types of harm covered
Serious psychiatric injury
Biological harm
9.5.3.2Mens rea: intention or recklessness
9.5.4Charging wounding and GBH
9.5.4.1Mode of trial
9.5.4.2Sentencing
9.5.5Putting together wounding and GBH
9.6Wounding and causing grievous bodily harm with intent
9.6.1Defining wounding and causing grievous bodily harm with intent
9.6.2Elements of wounding and causing grievous bodily harm with intent
9.6.2.1Actus reus: unlawful wounding/unlawfully causing infliction of really serious bodily harm
‘Any person’
9.6.2.2Mens rea: intention
Level of harm intended
Will an intention to wound suffice?
Meaning of maliciously in s 18
9.6.3Charging wounding and grievous bodily harm with intent. 9.6.3.1Mode of trial
9.6.3.2Sentencing
9.6.4Putting together wounding and GBH with intent
9.7Coronavirus and non-fatal offences
9.7.1Common assault
9.7.2ABH and GBH
9.8Aggravated forms of non-fatal offences. 9.8.1Aggravated offences
9.9Further reading. Offences against the person
Consent
Transmission of infection
chapter 10 Sexual Offences
10.1Introduction to sexual offences
10.1.1Sexual offences, myths and stereotypes
10.1.2A brief history
10.1.3Charging sexual offences
10.1.4Offences against children
10.1.5General principles
10.1.6Practical considerations
10.1.7Rationale behind sexual offences
10.2Rape
10.2.1Defining rape
10.2.2Elements of rape
10.2.2.1Actus reus: (i) penetration
10.2.2.2Actus reus: (ii) of the vagina, anus or mouth
Vaginal penetration
Penetration of the anus or mouth
Penetration of more than one orifice
Uncertainty as to the penetrated orifice
10.2.2.3Actus reus: (iii) with a penis
Age of the man
Transgender defendants
Can a woman commit rape?
10.2.2.4Actus reus: (iv) without the complainant’s consent
General meaning (SOA 2003, s 74)
Capacity
Free choice (distinguishing consent from mere submission)
Conditional consent and deception
Intoxicated consent
What happens if the complainant does not remember what happened?
Evidential presumptions (SOA 2003, s 75)
Relevant act
The circumstances
Defendant knew of those circumstances
Conclusive presumptions (SOA 2003, s 76)
Nature or purpose (SOA 2003, s 76(2)(a))
Person known personally (SOA 2003, s 76(2)(b))
10.2.2.5Mens rea: (i) intentional penetration
10.2.2.6Mens rea: (ii) without reasonable belief in consent
(i) The circumstances
(ii) Steps taken
Relevance of mental illness?
Relevance of voluntary intoxication?
10.2.3Charging rape. 10.2.3.1Mode of trial
10.2.3.2Sentencing
10.2.4Putting together rape
10.3Assault by penetration
10.3.1Defining assault by penetration
10.3.2Elements of assault by penetration
10.3.2.1Actus reus: (i) penetration
10.3.2.2Actus reus: (ii) of the vagina or anus
10.3.2.3Actus reus: (iii) with a part of his body or anything else
10.3.2.4Actus reus: (iv) the penetration is sexual
Unambiguously sexual (SOA 2003, s 78(a))
Ambiguously sexual (SOA 2003, s 78(b))
10.3.2.5Actus reus: (v) without the complainant’s consent
10.3.2.6Mens rea: (i) intentional penetration
10.3.2.7Mens rea: (ii) without reasonable belief in consent
10.3.3Charging assault by penetration. 10.3.3.1Mode of trial
10.3.3.2Sentencing
10.3.4Putting together assault by penetration
10.4Sexual assault
10.4.1Defining sexual assault
10.4.2Elements of sexual assault
10.4.2.1Actus reus: (i) the touching of another person
10.4.2.2Actus reus: (ii) the touching is sexual
10.4.2.3Actus reus: (iii) the complainant does not consent to the touching
10.4.2.4Mens rea: (i) intentional touching
10.4.2.5Mens rea: (ii) without reasonable belief in consent
10.4.3Charging sexual assault. 10.4.3.1Mode of trial
10.4.3.2Sentencing
10.4.4Putting together sexual assault
10.5Causing a person to engage in sexual activity without consent
10.5.1Defining causing a person to engage in sexual activity without consent
10.5.2Elements of causing a person to engage in sexual activity without consent
10.5.2.1Actus reus: (i) causing a person to engage in an activity
10.5.2.2Actus reus: (ii) the activity is sexual
10.5.2.3Actus reus: (iii) without the complainant’s consent
10.5.2.4Mens rea: (i) intention
10.5.2.5Mens rea: (ii) without reasonable belief in consent
10.5.3Charging causing a person to engage in sexual activity without consent. 10.5.3.1Mode of trial
10.5.3.2Sentencing
10.5.4Putting together causing a person to engage in sexual activity
10.6Putting together sexual offences
10.7Further reading
chapter 11 Theft and Related Offences
11.1Introduction to property offences
11.1.1Purpose of property offences
11.1.2The meaning of property
11.1.3A brief history
11.2Theft
11.2.1Defining theft
11.2.2Elements of theft
11.2.2.1Actus reus: (i) appropriation (TA 1968, s 3)
Meaning of ‘appropriation’
Appropriation of ‘a’ right
Appropriation and consent
Appropriation of gifts
Secondary appropriations (later assumptions)
Appropriation by omission?
Bona fide purchasers
A need for ‘physical appropriation’?
A need to gain?
11.2.2.2Actus reus: (ii) of property (TA 1968, s 4)
Money
Real property
Personalty (chose in possession)
Personalty (chose in action)
Other forms of property
11.2.2.3Actus reus: (iii) belonging to another (TA 1968, s 5)
Trust property (TA 1968, s 5(2))
Property received for a purpose (TA 1968, s 5(3))
Mistaken property (TA 1968, s 5(4))
11.2.2.4Mens rea: (i) dishonesty (TA 1968, s 2)
Honest appropriations
Belief of right in law (TA 1968, s 2(1)(a))
Belief of owner’s consent (TA 1968, s 2(1)(b))
Belief that owner cannot be found (TA 1968, s 2(1)(c))
Willingness to pay (TA 1968, s 2(2))
The test for dishonesty
The present state of law
(i)Pre-Ghosh: development of the test for dishonesty
(ii)A settled test in Ghosh
(iii)The fundamental change in Ivey
(iv)The effect of Ivey and subsequent cases
11.2.2.5Mens rea: (ii) intention to permanently deprive (TA 1968, s 6)
Disposal of the property as one’s own (TA 1968, s 6(1))
Parting with the property at risk of non-return (TA 1968, s 6(2))
Temporary deprivation
11.2.3Charging theft. 11.2.3.1Mode of trial
11.2.3.2Sentencing
11.2.4Putting together theft
11.3Robbery
11.3.1Defining robbery
11.3.2Elements of robbery
11.3.2.1Actus reus: (i) actus reus of theft
11.3.2.2Actus reus: (ii) force or fear of force
Actual infliction of force
Fear of force
11.3.2.3Actus reus: (iii) on any person
11.3.2.4Actus reus: (iv) in order to steal
‘Immediately before or at the time of’
‘In order to steal’
For some other purpose
In order to steal or escape?
11.3.2.5Mens rea: (i) mens rea of theft
11.3.2.6Mens rea: (ii) intention to use force
11.3.3Assault with intent to rob
11.3.4Aggravated/armed robbery
11.3.5Charging robbery. 11.3.5.1Mode of trial
11.3.5.2Sentencing
11.3.6Putting together robbery
11.4Burglary and aggravated burglary
11.4.1Defining burglary
11.4.2Elements of burglary
Burglary contrary to s 9(1)(a)
Burglary contrary to s 9(1)(b)
11.4.2.1Actus reus: (i) entry
May a defendant ‘enter’ a building by use of an innocent agent?
May a defendant ‘enter’ a building via an instrument?
11.4.2.2Actus reus: (ii) any building or part of a building
Building
Part of a building
11.4.2.3Actus reus: (iii) as a trespasser
Mistaken permission
Going ‘beyond’ permission
Factors determining trespass
11.4.2.4Actus reus: (iv) commission of theft or GBH (TA 1968, s 9(1)(b) only)
11.4.2.5Mens rea: (i) intention or recklessness to enter as a trespasser
11.4.2.6Mens rea: (ii) intention to commit one of the ulterior offences
The s 9(1)(a) offence
The s 9(1)(b) offence
11.4.3Aggravated burglary
11.4.3.1Actus reus: (ii) at the time has with him
11.4.3.2Actus reus: (iii) one of the aggravating articles
11.4.4Charging burglary. 11.4.4.1Mode of trial
11.4.4.2Sentencing
11.4.5Putting together burglary
11.5Going equipped
11.6Further reading. Theft
Robbery
Burglary
chapter 12 Other Theft Act Offences
12.1Introduction to other Theft Act offences
12.2Blackmail
12.2.1Defining blackmail
12.2.2Elements of blackmail
12.2.2.1Actus reus: (i) makes a demand
Express and implied demands
Must the demand be made in England and Wales?
Must the victim be aware of the demand?
12.2.2.2Actus reus: (ii) with menaces
12.2.2.3Mens rea: (i) a view to make a gain or cause a loss
Property
Examples of ‘gain or loss’
12.2.2.4Mens rea: (ii) the demand is unwarranted
12.2.3Charging blackmail. 12.2.3.1Mode of trial
12.2.3.2Sentencing
12.2.3.3Charging attempted blackmail
12.2.4Putting together blackmail
12.3Handling stolen goods
12.3.1Defining handling
12.3.2Elements of handling
12.3.2.1Actus reus: (i) handles
Receiving
Undertaking
Assisting
Arranging
12.3.2.2Actus reus: (ii) otherwise than in the course of stealing
12.3.2.3Actus reus: (iii) stolen goods
Goods
Stolen
Restored goods
12.3.2.4Mens rea: (i) knows or believes them to be stolen
Recent possession
Previous convictions
12.3.2.5Mens rea: (ii) dishonestly deals with them
12.3.3Charging handling. 12.3.3.1Mode of trial
12.3.3.2Sentencing
12.3.4Putting together handling
12.4Making off without payment
12.4.1Defining making off
12.4.2Elements of making off
12.4.2.1Actus reus: (i) makes off
D must fully depart from the spot
Departing with permission
12.4.2.2Actus reus: (ii) goods supplied or service done
Goods
Services
Excluded goods and services
12.4.2.3Actus reus: (iii) without payment that is required or expected
No payment
Requirement or expectation of payment
12.4.2.4Actus reus: (iv) on the spot
12.4.2.5Mens rea: (i) dishonesty
12.4.2.6Mens rea: (ii) knowledge that payment on the spot is required or expected
12.4.2.7Mens rea: (iii) intention to avoid payment of the amount due
12.4.3Charging making off. 12.4.3.1Mode of trial
12.4.3.2Sentencing
12.4.4Putting together making off
12.5Further reading. Blackmail
Handling
Making off without payment
chapter 13Fraud and Related Offences
13.1Introduction to fraud and related offences
Complexity of fraud
13.2Fraud
13.2.1Defining fraud
13.2.2Elements of fraud by false representation
13.2.2.1Actus reus: (i) making of a representation
Meaning of representation
Need for the representation to be conveyed to another
Timing of the representation
Forms of representation
Express representations
Implied representations
Representation by omission
Representations to machines
Use of agents to make a representation
13.2.2.2Actus reus: (ii) that is false
Untrue
Misleading
13.2.2.3Mens rea: (i) knowledge that the representation was false
13.2.2.4Mens rea: (ii) dishonesty
13.2.2.5Mens rea: (iii) intention to make a gain or cause a loss
Making a gain or causing a loss
No need for an actual gain or loss
Alternative intentions
Money or other property
Temporary gains or losses
‘As a result of’
13.2.3Elements of fraud by failing to disclose information
13.2.3.1Actus reus: (i) failure to disclose information
Failure to disclose
Information
13.2.3.2Actus reus: (ii) legal duty to disclose
13.2.3.3Mens rea: (i) dishonesty
13.2.3.4Mens rea: (ii) intention to make a gain or cause a loss
No requirement of knowledge
13.2.4Elements of fraud by abuse of position
13.2.4.1Actus reus: (i) occupation of a position
13.2.4.2Actus reus: (ii) expectation to safeguard
13.2.4.3Actus reus: (iii) abuse of position
13.2.4.4Mens rea: (i) dishonesty
13.2.4.5Mens rea: (ii) intention to make a gain or cause a loss
13.2.5Charging fraud
13.2.5.1Mode of trial
13.2.5.2Sentencing
13.2.6Putting together fraud
13.3Obtaining services dishonestly
13.3.1Defining obtaining services dishonestly
13.3.2Elements of obtaining services dishonestly
13.3.2.1Actus reus: (i) by an act obtains for himself or another
An act
Obtains
For himself or another
13.3.2.2Actus reus: (ii) services
13.3.2.3Actus reus: (iii) without payment when payment is expected
13.3.2.4Mens rea: (i) dishonesty
13.3.2.5Mens rea: (ii) knowledge that the services are provided on the basis of payment
13.3.2.6Mens rea: (iii) intention to avoid payment in full or in part
13.3.3Charging obtaining services dishonestly. 13.3.3.1Mode of trial
13.3.3.2Sentencing
13.3.4Putting together obtaining services dishonestly
13.4Preparation offences
13.5Further reading
chapter 14Damage to Property
14.1Introduction to damaging property
14.2Criminal damage
14.2.1Defining criminal damage
14.2.2Elements of basic criminal damage
14.2.2.1Actus reus: (i) destroys or damages
‘Destroy’
‘Damage’
Time, expense and effort to rectify
Impairment of value or usefulness
A third category – denial of use?
So, what is ‘damage’?
Damaging computer programs
Relevance of the type of property
Damage or improvement?
14.2.2.2Actus reus: (ii) property
14.2.2.3Actus reus: (iii) belonging to another
Property must belong ‘to another’
Extent of belonging to another
14.2.2.4Actus reus: (iv) without lawful excuse
Honest belief in consent (CDA 1971, s 5(2)(a))
Other property in need of protection (CDA 1971, s 5(2)(b))
The objective test
The subjective test
Cresswell v DPP
Operation of general defences
14.2.2.5Mens rea: (i) intention or recklessness as to damage/destruction
14.2.2.6Mens rea: (ii) knowledge or belief that property belonged to another
14.2.3Elements of aggravated criminal damage
14.2.3.1Actus reus elements
14.2.3.2Mens rea: (ii) intention or recklessness as to endangering life
No need foractualharm to be caused
Endangering life ofanother
Endangering lifeby the damage or destruction
14.2.4Elements of basic arson/aggravated arson
14.2.4.1Destroy or damage by fire
14.2.4.2Intention or recklessness regarding the fire
14.2.4.3Lawful excuse and arson
14.2.5Charging criminal damage
14.2.5.1Mode of trial
14.2.5.2Sentencing
14.2.6Putting together criminal damage
14.3Further reading. Basic criminal damage
Aggravated criminal damage
INDEX
