Unlocking Criminal Law (PDFDrive) - 230116 - 182626

U N L O C K I N G T H E L A W UNLOCKING
CRIMINAL LAW
5th edition Jacqueline Martin
Tony Storey
Fifth edition published 2015
by Routledge
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© 2015 Jacqueline Martin and Tony Storey
The right of Jacqueline Martin and Tony Storey to be identified as authors of this work has
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and are used only for identification and explanation without intent to infringe.
First edition published by Hodder Education 2004
Fourth edition published by Routledge 2013
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A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
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ISBN: 978-1-138-78093-4 (pbk)
ISBN: 978-1-315-77037-6 (ebk)
Typeset in Palatino
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Additional materials are available on the companion website at www.unlockingthelaw.co.uk
Contents
Acknowledgements xiv
Guide to the book xv
Preface xvii
List of figures xviii
Table of cases xix
Table of statutory instruments xxxv
Table of legislation xxxvi
Table of European instruments xlviii
PART I CONCEPTS IN CRIMINAL LAW 1
1 INTRODUCTION TO CRIMINAL LAW 3

1.1 Purpose of criminal law 3
1.1.1 Should the law enforce moral values? 4
1.1.2 Example of the changing nature of criminal law 6
1.2 Sources of criminal law 7

1.2.1 Common law offences 7
1.2.2 Statutory offences 8
1.2.3 Codification of the criminal law 8
1.2.4 Reform of the law 10
1.3 Defining a crime 10

1.3.1 Conduct criminalised by the judges 10
1.3.2 Retroactive effect of case law 11
1.4 Classification of offences 12

1.4.1 Classifying law by its source 12
1.4.2 Categories for purposes of police powers of detention 12
1.4.3 Classifying by the type of harm caused by the crime 13
1.4.4 Classification by where a case will be tried 13
1.5 Criminal justice system 14

1.5.1 Trials in the magistrates’ courts 14
1.5.2 Trials in the Crown Court 14
1.5.3 Appeals from a magistrates’ court 15
1.5.4 Appeals from trials in the Crown Court 16
1.5.5 The hierarchy of the courts 18
1.6 Sentencing 18
1.6.1 Purposes of sentencing 18
1.7 Elements of a crime 18
1.8 Burden and standard of proof 19

1.8.1 Presumption of innocence 19
1.8.2 Raising a defence 20
1.8.3 Standard of proof 21
1.9 Criminal law and human rights 21
1.9.1 The right to a fair trial 22
1.9.2 Burden of proof 22
1.9.3 No punishment without law 26
1.9.4 Other human rights 28
1.9.5 Human rights and criminal procedure 30
Further reading 32
2 ACTUS REUS 33
2.1 The physical element 33
2.1.1 Conduct and consequences 34
2.1.2 Circumstances 34
2.1.3 The physical element alone is not a crime 34
iv 2.1.4 Omissions 35
2.2 Voluntary conduct 35

CONTENTS
2.3 Omissions 35
2.3.1 Commission by omission 35
2.3.2 Imposition of a duty to act 36
2.3.3 Breach of duty to act 42
2.3.4 Reform 42
2.4 Causation 43
2.4.1 Factual causation 43
2.4.2 Legal causation 44
Sample essay questions 57
Further reading 60
3 MENS REA 61
3.1 The mental element 61
3.2 Intention 62
3.2.1 Direct intention 62
3.2.2 Oblique intention 62
3.3 Recklessness 67
3.3.1 The Cunningham test 67
3.3.2 The Caldwell years: 1981–2003 68
3.3.3 Back to Cunningham: G and another 69
3.4 Negligence 72
3.5 Dishonesty 72
3.6 Transferred malice 72
3.7 Coincidence of actus reus and mens rea 76
Sample essay question 79
Further reading 81
4 STRICT LIABILITY 83
4.1 Absolute liability 84
4.2 Strict liability 85

4.2.1 No due diligence defence 87
4.2.2 No defence of mistake 87
4.2.3 Summary of strict liability 89
4.3 Common law strict liability offences 89
4.4 Statutory strict liability offences 90

4.4.1 The presumption of mens rea 91
4.4.2 The Gammon criteria 91
4.4.3 Looking at the wording of an Act 92
4.4.4 Quasi-criminal offences 94 v
4.4.5 Strict liability and human rights 96
4.4.6 Issues of social concern 98
4.4.7 Promoting enforcement of the law 99
CONTENTS
4.4.8 Twenty-first century cases 100
4.5 Justification for strict liability 107

4.5.1 Arguments against strict liability 108
4.6 Proposals for reform 109
Further reading 112
5 PARTIES TO A CRIME 113
5.1 Principal offenders 113

5.1.1 Difficulties in identifying the principal 113
5.2 Innocent agents 114
5.3 Secondary parties 114

5.3.1 Actus reus of secondary parties: aiding, abetting, counselling or
procuring 114
5.3.2 Mens rea of secondary parties 120
5.3.3 Joint enterprise 122
5.4 Withdrawal from participation 133

5.4.1 Pre-planned criminal activity 133
5.4.2 Spontaneous criminal activity 134
5.5 Assisting an offender 135
5.6 Reform 136
Further reading 140

6 INCHOATE OFFENCES 141
6.1 Inchoate offences 141
6.2 Attempt 142
6.2.1 Actus reus of attempt 142
6.2.2 Mens rea of attempt 146
6.2.3 Impossibility 148
6.2.4 Excluded offences 150
6.2.5 Successful attempts 151
6.2.6 Reform 151
6.3 Conspiracy 152
6.3.1 Actus reus of statutory conspiracy 152
6.3.2 Mens rea of statutory conspiracy 154
6.3.3 Common law conspiracy 158
vi 6.3.4 Impossibility 160
6.4 Assisting or encouraging crime 161
6.4.1 Background 161
CONTENTS
6.4.2 Liability under the Serious Crime Act 2007 161

6.4.3 Actus reus elements 163
6.4.4 Mens rea elements 164
6.4.5 No requirement for substantive offence to be committed (s 49) 166
6.4.6 Defence of ‘acting reasonably’ (s 50) 166
6.4.7 Defence for victims (s 51) 167
6.4.8 Impossibility 167
6.4.9 Attempt liability 167
6.4.10 Evaluation of the Serious Crime Act 2007 168
Further reading 172
7 CAPACITY 173
7.1 Children 174
7.1.1 Children under the age of ten 174
7.1.2 Child safety orders 175
7.1.3 Children aged ten and over 175
7.2 Mentally ill persons 178
7.2.1 Unfitness to plead 178
7.2.2 Insanity at time of offence 180
7.2.3 Diminished responsibility 180
7.2.4 Sentencing mentally ill offenders 180
7.3 Vicarious liability 181
7.3.1 Extended meaning of words 182
7.3.2 Delegation principle 182
7.3.3 Reasons for vicarious liability 185
7.3.4 Criticisms of vicarious liability 185
7.4 Corporate liability 186
7.4.1 Exceptions to the general rule of liability 186
7.4.2 The principle of identification 187
7.4.3 Vicarious liability 192
7.4.4 Breach of statutory duty 193
7.5 Corporate manslaughter 194
7.5.1 Previous law 194
7.5.2 Reform of corporate manslaughter 196
7.5.3 Corporate Manslaughter and Corporate Homicide Act 2007 197
7.5.4 Is the Act working? 199
7.5.5 Why make organisations criminally liable for manslaughter? 202
Further reading 207
8 GENERAL DEFENCES 209

8.1 Duress 209
8.1.1 Sources of the duress 210
8.1.2 The seriousness of the threat 210
8.1.3 Threats against whom? 211 vii
8.1.4 Imminence of the threat, opportunities to escape and police protection 212
8.1.5 Duress does not exist in the abstract 213
CONTENTS
8.1.6 Voluntary exposure to risk of compulsion 214
8.1.7 Should D have resisted the threats? 217
8.1.8 The scope of the defence 220
8.1.9 The development of duress of circumstances 225
8.2 Necessity 228
8.3 Marital coercion 234
8.4 Mistake 234
8.4.1 Mistakes of fact 234
8.4.2 Mistakes of law 235
8.5 Self-defence and related defences 236
8.5.1 The necessity of force 237
8.5.2 The reasonableness of force 241
8.5.3 Intoxication, mistake and self-defence 244
8.5.4 ‘Grossly disproportionate’ force in ‘householder’ cases 246
8.5.5 Should excessive force in homicide reduce murder to manslaughter? 248
8.6 Consent 250
8.6.1 Consent must be real 250
8.6.2 Consent and fraud 250
8.6.3 The scope of consent 253
8.6.4 The impact of the European Convention on Human Rights (1950) and
the Human Rights Act 1998 263
Further reading 268
9 MENTAL CAPACITY DEFENCES 271

9.1 Insanity 271
9.1.1 Procedure 271
9.1.2 The special verdict 272
9.1.3 The M’Naghten Rules 272
9.1.4 Situations not covered by the rules 279
9.1.5 Criticism and reform proposals 280
9.2 Automatism 285
9.2.1 What is automatism? 285
9.2.2 The need for an evidential foundation 285
9.2.3 Extent of involuntariness required 286
9.2.4 Self-induced automatism 288
9.2.5 Reflex actions 289
9.2.6 Reform 290
9.3 Intoxication 291

9.3.1 Intoxication is no defence if D still formed mens rea 292
9.3.2 Involuntary intoxication 293
9.3.3 Voluntary intoxication 296
9.3.4 ‘Dutch courage’ 303
9.3.5 Intoxication and insanity 303
9.3.6 Intoxication and automatism 305
viii 9.3.7 Intoxicated mistakes 305
9.3.8 Criticism and reform proposals 306
CONTENTS
Further reading 313
PART II SPECIFIC OFFENCES 315

10 HOMICIDE 317
10.1 Actus reus of homicide 317
10.1.1 Human being: birth 317
10.1.2 Human being: death 318
10.1.3 Under the King or Queen’s Peace 318
10.1.4 Within any county of the realm 318
10.1.5 The year and a day rule 319
10.2 Murder 320

10.2.1 Intention 320
10.2.2 Grievous bodily harm 320
10.2.3 Procedure in murder trials 320
10.2.4 Mercy killings and euthanasia 321
10.3 Voluntary manslaughter 323

10.3.1 Diminished responsibility 323
10.3.2 Loss of self-control 335
10.3.3 Suicide pacts 348
10.4 Involuntary manslaughter 349

10.4.1 Constructive manslaughter 349
10.4.2 Gross negligence manslaughter 355
10.4.3 Reckless manslaughter 361
10.4.4 Reform 362
10.5 Causing or allowing the death or serious physical harm of a child or

vulnerable adult 362
10.6 Causing death by dangerous driving 364
10.7 Infanticide 365

10.8 Offences against a foetus 366
10.8.1 Child destruction 366
10.8.2 Procuring a miscarriage 367
10.9 Reform of the law of homicide 368
10.9.1 The structure of homicide offences 368
10.9.2 First-degree murder 368
10.9.3 Second-degree murder 369
10.9.4 Manslaughter 369
10.9.5 Intention 370
10.9.6 Duress 370
10.9.7 A single offence of criminal homicide? 370
Further reading 377
ix
11 NON-FATAL OFFENCES AGAINST THE PERSON 379
11.1 Common assault 380
CONTENTS
11.1.1 Actus reus of assault 380
11.1.2 Actus reus of battery 382
11.1.3 Mens rea of assault and battery 387
11.2 Section 47 388
11.2.1 Actus reus of s 47 389
11.2.2 Mens rea of s 47 390
11.2.3 Consent and s 47 391
11.3 Section 20 393
11.3.2 Mens rea of s 20 395
11.4 Section 18 396
11.4.2 Mens rea of s 18 397
11.5 Reform 399
11.6 Racially or religiously aggravated assaults 401
11.7 Administering poison 402
11.7.1 Administer 402
11.7.2 Noxious thing 402
11.7.3 Maliciously 403
Further reading 406
12 SEXUAL OFFENCES 407

12.1 Rape 408
12.1.1 Penetration of the vagina, anus or mouth of another person, with the penis 409
12.1.2 The absence of consent 410
12.1.3 Intent to penetrate 423
12.1.4 Lack of reasonable belief 423
12.1.5 The marital exception to rape 425
12.1.6 Women as defendants 425
12.2 Assault by penetration 425
12.3 Sexual assault 427
12.4 Causing a person to engage in sexual activity 429
12.5 Other crimes under the Sexual Offences Act 2003 430
Further reading 433
13 THEFT 435
13.1 Background 435

13.1.1 Theft 436
13.1.2 The elements of theft 437
x
13.2 Appropriation 437
13.2.1 Assumption of the rights of an owner 438
CONTENTS
13.2.2 Consent to the appropriation 439

13.2.3 The decision in Gomez 440
13.2.4 Consent without deception 444
13.2.5 Appropriation of credit balances 446
13.2.6 Protection of innocent purchasers 448
13.3 Property 449

13.3.1 Things which cannot be stolen 450
13.3.2 Real property 451
13.3.3 Things in action 451
13.3.4 Other intangible property 452
13.4 Belonging to another 453

13.4.1 Possession or control 453
13.4.2 Proprietary right or interest 455
13.4.3 Property received under an obligation 456
13.4.4 Property got by a mistake 458
13.5 Dishonestly 459

13.5.1 Dishonesty 459
13.5.2 The Ghosh test 461
13.5.3 Problems with the Ghosh test 464
13.6 With intention to permanently deprive 466

13.6.1 Borrowing or lending 468
13.6.2 Conditional disposition 469
Further reading 473
14 ROBBERY, BURGLARY AND OTHER OFFENCES IN THE

THEFT ACTS 475
14.1 Robbery 475
14.1.1 The actus reus of robbery 476
14.1.2 Theft as an element of robbery 476
14.1.3 Force or threat of force 477
14.1.4 Force immediately before or at the time of the theft 479
14.1.5 Force in order to steal 480
14.1.6 Mens rea for robbery 480
14.1.7 Possible reform of law of robbery 481
14.2 Burglary 483

14.2.1 The actus reus of burglary 483
14.2.2 Entry 484
14.2.3 Building or part of a building 484
14.2.4 As a trespasser 485
14.2.5 Mens rea of burglary 487
14.2.6 Burglary of a dwelling 487
14.3 Aggravated burglary 488

14.3.1 Has with him 489 xi
14.4 Removal of items from a place open to the public 490

14.4.1 Actus reus of removal of items from a public place 490
CONTENTS
14.5 Taking a conveyance without consent 491
14.5.1 Actus reus of taking a conveyance 491
14.5.2 Without consent 492
14.5.3 Conveyance 493
14.5.4 Mens rea of taking a conveyance 493
14.6 Aggravated vehicle-taking 494

14.6.1 Dangerous driving 494
14.6.2 Injury or damage 495
14.7 Abstracting electricity 495
14.8 Blackmail 495

14.8.1 Demand 496
14.8.2 Unwarranted demand 496
14.8.3 Menaces 497
14.8.4 View to gain or loss 498
14.9 Handling stolen goods 499

14.9.1 Goods 500
14.9.2 Stolen 500
14.9.3 Handling 501
14.9.4 Undertaking or assisting 502
14.9.5 Mens rea of handling 503
14.10 Going equipped for stealing 504

14.10.1 Actus reus of going equipped 504
14.10.2 Mens rea of going equipped 507
14.11 Making off without payment 507

14.11.1 Actus reus of making off without payment 507
14.11.2 Mens rea of making off without payment 508
Further reading 512

15 FRAUD 513
15.1 Background to the Fraud Act 2006 513
15.2 The need for reform 514

15.2.1 Proposals for reform 515
15.3 Fraud Act 2006 516
15.4 Fraud by false representation 516

15.4.1 False representation 516
15.4.2 False 520
15.4.3 Gain or loss 521
15.4.4 Mens rea of s 2 522
15.5 Fraud by failing to disclose information 524

xii 15.5.1 Legal duty 525
15.5.2 Mens rea of s 3 525
15.6 Fraud by abuse of position 526

CONTENTS
15.6.1 Occupies a position 526

15.6.2 Abuse of position 527
15.6.3 Mens rea of s 4 528
15.7 Possession of articles for use in fraud 529

15.7.1 Mens rea of s 6 529
15.8 Making or supplying articles for use in frauds 530

15.8.1 Mens rea of s 7 530
15.9 Obtaining services dishonestly 531

15.9.1 Actus reus of obtaining services dishonestly 531
15.9.2 Mens rea of obtaining services dishonestly 532
Further reading 536
16 CRIMINAL DAMAGE 537
16.1 The basic offence 537

16.1.1 Destroy or damage 538
16.1.2 Property 540
16.1.3 Belonging to another 541
16.1.4 Mens rea of the basic offence 541
16.1.5 Without lawful excuse 545
16.2 Endangering life 549

16.2.1 Danger to life 549
16.2.2 Life not actually endangered 550
16.2.3 Own property 551
16.2.4 Mens rea 551
16.3 Arson 553
16.4 Threats to destroy or damage property 554
16.5 Possessing anything with intent to destroy or damage property 554

16.6 Racially aggravated criminal damage 555
Further reading 558
17 PUBLIC ORDER OFFENCES 559
17.1 Riot 560

17.1.1 The actus reus of riot 560
17.1.2 Mens rea of riot 561
17.1.3 Trial and penalty 562
17.2 Violent disorder 562
17.2.1 Present together 562
17.2.2 Mens rea of violent disorder 563
17.2.3 Comparison with riot 563 xiii
17.2.4 Trial and Penalty 564
17.3 Affray 564
CONTENTS
17.3.1 Actus reus of affray 564
17.3.2 Mens rea of affray 565
17.3.3 Trial and penalty 565
17.4 Fear or provocation of violence 566
17.4.1 Actus reus of a s 4 offence 566
17.4.2 Threatening, abusive or insulting 567
17.4.3 Towards another person 567
17.4.4 Mens rea of s 4 567
17.5 Intentionally causing harassment, alarm or distress 568
17.5.1 Defences 570
17.6 Harassment, alarm or distress 571
17.6.1 Defences 573
17.6.2 Mens rea of a s 5 offence 574
17.7 Racially aggravated public order offences 574
Further reading 579
Appendix 1 580
Appendix 2 582
Glossary of legal terminology 588
Index 590
Acknowledgements
The books in the Unlocking the Law series are a departure from traditional law texts and
represent one view of a type of learning resource that the editors always felt is particu-
larly useful to students. The success of the series and the fact that many of its features
have been subsequently emulated in other publications must surely vindicate that view.
The series editors would therefore like to thank the original publishers, Hodder Educa-
tion, for their support in making the original project a successful reality. In particular we
would like to thank Alexia Chan for showing great faith in the project and for her help
in getting the series off the ground. We would also like to thank the current publisher
Routledge for the warm enthusiasm it has shown in taking over the series. In this respect
we must also thank Fiona Briden, Commissioning Editor for the series for her commit-
ment and enthusiasm towards the series and for her support.
Guide to the book
Unlocking the Law books bring together all the essential elements for today’s law
students in a clearly defined and memorable way. Each book is enhanced with learning
features to reinforce understanding of key topics and test your knowledge along the
way. Follow this guide to make sure you get the most from reading this book.
AIMS AND OBJECTIVES

Defines what you will learn in each chapter.
SECTION
definition
Find key legal Highlights sections from Acts.
terminology at a
glance
tutor tip ARTICLE

Provides key ideas
from lecturers on Defines Articles of the EC Treaty or of the European Convention on
how to get ahead
Human Rights or other Treaty.
CLAUSE
Shows a Bill going through Parliament or a draft Bill proposed by the Law
Commission.
REGULATION
Defines a provision in a statutory instrument.
CASE EXAMPLE
Illustrates the law in action.
JUDGMENT
Provides extracts from judgments on cases.
qUOTATION
Indicates that you
Encourages you to engage with primary sources.
will be able to test
yourself further on
this topic using the
Key Questions and
Answers section of
KEy fACTS
xvi this book on www.
unlockingthelaw. Outlines important cases and principles.
co.uk.
GUIDE TO THE BOOK
ACTIVITy
Enables you to test yourself as you progress through the chapter.
student
mentor tip
SAMPLE ESSAy qUESTIONS
Offers advice from
law graduates on Provide you with real-life sample essays and show you the best way to plan your
the best way to answer.
achieve the results
you want
SUMMARy
Concludes each chapter to reinforce learning.
Preface
The ‘Unlocking the Law’ series on its creation was hailed as an entirely new style of
undergraduate law textbooks and many of its ground-breaking features have subse-
quently been emulated in other publications. However, many student texts are still very
prose dense and have little in the way of interactive materials to help a student feel his
or her way through the course of study on a given module.
The purpose of the series has always been to try to make learning each subject area
more accessible by focusing on actual learning needs, and by providing a range of dif-
ferent supporting materials and features.
All topic areas are broken up into manageable sections with a logical progression and
extensive use of headings and numerous sub-headings as well as an extensive contents
list and index. Each book in the series also contains a variety of flow charts, diagrams,
key facts charts and summaries to reinforce the information in the body of the text.
Diagrams and flow charts are particularly useful because they can provide a quick and
easy understanding of the key points, especially when revising for examinations. Key
facts charts not only provide a quick visual guide through the subject but are also useful
for revision.
Many cases are separated out for easy access and all cases have full citation in the text
as well as the table of cases for easy reference. The emphasis of the series is on depth of
understanding much more than breadth of detail. For this reason each text also includes
key extracts from judgments where appropriate. Extracts from academic comment from
journal articles and leading texts are also included to give some insight into the aca-
demic debate on complex or controversial areas. In both cases these are highlighted and
removed from the body of the text.
Finally the books also include much formative ‘self-testing’, with a variety of activ-
ities ranging through subject specific comprehension, application of the law, and a range
of other activities to help the student gain a good idea of his or her progress in the
course. Appendices with guides on completing essay style questions and legal problem
solving supplement and support this interactivity. Besides this a sample essay plan is
added at the end of most chapters.
A feature of the most recent editions is the inclusion of some case extracts from the
actual law reports which not only provide more detail on some of the important cases
but also help to support students in their use of law reports by providing a simple com-
mentary and also activities to cement understanding.
The first part of this book covers important concepts which underpin the criminal
law. These include actus reus, mens rea and strict liability, participation in crime, capacity,
inchoate offences and general defences. The second part covers the most important
offences. These include fatal and non-fatal offences against the person, sexual offences,
offences against property and the main offences against public order.
The book is designed to cover all of the main topics on undergraduate and profes-
sional criminal law syllabuses.
Note that all incidental references to ‘he’, ‘him’, ‘his’, etc., are intended to be gender
neutral.
The law is stated as we believe it to be on 1 September 2014.
Jacqueline Martin
Tony Storey
List of figures
1.1 Sources of criminal law 7
1.2 Appeal routes from a magistrates’ court 16
1.3 Appeals from the Crown Court 17
1.4 Elements of an offence 19
2.1 Does D have a duty to act? 41
2.2 Causation 55
3.1 Mens rea 75
3.2 Coincidence 78
4.1 Contrasting the cases of Prince and Hibbert 86
4.2 The Gammon criteria 92
5.1 Secondary liability 122
5.2 Joint enterprise 136
6.1 Mens rea of attempt 150
6.2 Conspiracy 158
7.1 Flow chart on vicarious liability 184
7.2 Corporate liability 193
8.1 Can D plead duress? 221
8.2 The defence of consent 262
9.1 Insanity 280
9.2 Venn diagram on mental capacity defences 310
10.1 Diminished responsibility 336
10.2 Loss of self-control 347
11.1 Assault and battery 388
11.2 Flow chart on non-fatal offences against the person 398
12.1 Rape 426
12.2 Assault by penetration 428
13.1 The elements of theft 437
13.2 Property in the law of theft 452
14.1 Flow chart on robbery 482
14.2 Flow chart on blackmail 499
14.3 Flow chart on handling stolen goods 505
15.1 The offences of fraud in the Fraud Act 2006 528
15.2 Flow chart for obtaining services dishonestly 533
16.1 Offences of criminal damage 552
17.1 Flow chart on riot 561
17.2 Sections 4, 4A and 5 of the Public Order Act 1986 575
Table of cases
UNITED KINGDOM
A (a Juvenile) v R [1978] Crim LR 689 ...........................................................................................539, 553
A (Children) (Conjoined Twins: Surgical Separation), Re [2000] EWCA Civ 254;
[2000] 4 All ER 961 .........................................................................41, 220, 226, 228, 230, 231, 238, 266
A & Others [2010] EWCA Crim 1622; [2011] QB 841 ...........................................................................124
A [2012] EWCA Crim 434; [2012] 2 Cr App R 8....................................................................................210
Abdul-Hussain and Others [1999] Crim LR 570...................................................................212, 220, 226
Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659..........................................................................161
AC [2012] EWCA Crim 2034 ...............................................................................................................411–2
Adams [1957] Crim LR 365 ........................................................................................................................51
Adams v Camfoni [1929] 1 KB 95 ...........................................................................................................182
Adomako [1995] 1 AC 171; [1994] 3 All ER 79 .....................................................27, 37, 57, 69, 355, 356,
358, 359, 360, 361
Ahluwalia [1992] 4 All ER 869.........................................................................................327, 339, 340, 374
Ahmad [1986] Crim LR 739 .................................................................................................................36, 57
Airedale NHS Trust v Bland [1993] AC 789; [1993] 1 All ER 821.......................................6, 40, 56, 322
Aitken and others [1992] 1 WLR 1006; (1992) 95 Cr App R 304 .................258, 263, 267, 299, 301, 393
Ali [1995] Crim LR 303 .............................................................................................................215, 221, 227
Ali [2008] EWCA Crim 716 ......................................................................................................................216
Allan [1965] 1 QB 130................................................................................................................................117
Allan [1988] Crim LR 698 .....................................................................................................................293–4
Allen [1985] 2 All ER 641......................................................................................................................508–9
Allen v Whitehead [1930] 1 KB 211 ........................................................................................183, 184, 186
Alphacell Ltd v Woodward [1972] 2 All ER 475 .....................................................................................94
Altham [2006] EWCA Crim 7; [2006] 2 Cr App R 8; [2006] Crim LR 633 .............................28, 30, 230
Anderson [1986] AC 27; [1985] 2 All ER 961 .....................................................................................154–5
Anderson and Morris [1966] 2 QB 110 ...................................................................................130, 131, 139
Anderton v Ryan [1985] AC 560; [1985] 2 All ER 355 ..................................................................149, 500
Andrews [2002] EWCA Crim 3021; [2003] Crim LR 477 .....................................................................351
Andrews v DPP [1937] AC 576 .........................................................................72, 357, 358, 360, 361, 373
Antoine [2000] UKHL 20; [2001] 1 AC 340; [2000] 2 All ER 208 .................................................179, 324
Armstrong v Strain [1952] 1 All ER 139 .................................................................................................190
Asmelash [2013] EWCA Crim 157, [2014] QB 103 ........................................................................345, 346
Assange v Sweden [2011] EWHC 2849 ..........................................................................410, 412, 413, 416
Atakpu and Abrahams [1994] Crim LR 693 ......................................................................................438–9
Atkin v DPP [1989] Crim LR 581 ............................................................................................................567
Attorney-General of Hong Kong v Chan Nai-Keung [1987] 1 WLR 1339 ........................................452
Attorney-General of Northern Ireland v Gallagher [1963] AC 349 ...........................................303, 310
Attorney-General’s Reference (No 1 of 1974) [1974] 2 All ER 899 .....................................................501
Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; [1975] 2 All ER 684 ...........115, 119, 138
Attorney-General’s Reference (Nos 1 and 2 of 1979) [1979] 3 All ER 143 .........................146, 171, 487
Attorney-General’s Reference (No 4 of 1979) [1981] 1 All ER 1193 ...............................................500–1
Attorney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057 ...........254, 257, 262, 263, 267, 391
Attorney-General’s Reference (No 1 of 1983) [1985] 3 All ER 369 .....................................458, 459, 470
Attorney-General’s Reference (No 2 of 1983) [1984] QB 456 ......................................................239, 249
Attorney-General’s Reference (No 1 of 1992) [1993] 2 All ER 190 .............................................144, 146
Attorney-General’s Reference (No 3 of 1992) [1994] 2 All ER 121 .............................................147, 171
Attorney-General’s Reference (No 3 of 1994) [1997] 3 WLR 421 ..........................................73, 318, 372
Attorney-General’s Reference (No 2 of 1999) [2000] 3 All ER 187 .....................................193, 196, 206
Attorney-General’s Reference (No 4 of 2002) [2004] UKHL 43; [2005] 1 All ER 237 .......22, 23, 25, 30
Attorney-General’s Reference (No 4 of 2004) [2005] EWCA Crim 889; [2005]
2 Cr App R 26 .................................................................................................................................17, 575
Attorney-General v Whelan [1934] IR 518.............................................................................................220
Ayeva [2009] EWCA Crim 2640 ..............................................................................................................430
B (a minor) v DPP [2000] 1 All ER 833; [2000] Cr App R 65............91, 99, 100, 102, 103, 104, 105, 111
B (Consent to Treatment: Capacity), Re [2002] EWHC 429 (Fam); [2002] 2 All ER 449 ....................40
B [2006] EWCA Crim 400 .........................................................................................................................417
B [2006] EWCA Crim 2945; [2007] 1 WLR 1567; [2006] All ER (D) 173 (Oct) ...................253, 415, 416
B [2013] EWCA Crim 3, [2014] Crim LR 312 .........................................................................411, 424, 425
Bailey [1961] Crim LR 828 ............................................................................................................325–6, 334
Bailey [1983] 1 WLR 760 ...........................................................................................................................294
Bainbridge [1960] 1 QB 129 ..............................................................................................................121, 122
Baker [1994] Crim LR 444 ................................................................................................................134, 139
Baker and Ward [1999] EWCA Crim 913; [1999] 2 Cr App R 335 ......................................215, 216, 227
Baker and Wilkins [1996] EWCA Crim 1126; [1997] Crim LR 497 .............................210, 227, 548, 558
Ball [1989] Crim LR 730 ............................................................................................................................351
Bamonadio [2005] EWCA Crim 3355 .....................................................................................................429
B and R v DPP [2007] EWHC 739 (Admin) ...........................................................................................478
B and S v Leathley [1979] Crim LR 314 ..................................................................................485, 487, 512
Bantekas (2008) 73 JoCL 251 ....................................................................................................................429
Barnard (1837) 7 C & P 784 ..............................................................................................................517, 518
xx Barnard (1980) 70 Cr App R 28 ...............................................................................................................152
Barnes [2004] EWCA Crim 3246; [2005] 1 WLR 910; [2005] 2 All ER 113 .............256–7, 263, 267, 392
Bassett [2008] EWCA Crim 1174; [2009] 1 WLR 1032 ..........................................................................431
TaBlE Of CaSES
Bateman (1925) 19 Cr App R 8 ................................................................................................358, 361, 373

Beasley (1981) 73 Cr App R 44.................................................................................................................394
Becerra and Cooper (1975) 62 Cr App R 212 .................................................................134, 136, 138, 139
Beckford [1988] AC 130 ....................................................................................235, 236, 238, 239, 244, 249
Benge (1865) 4 F & F 504 ............................................................................................................................46
Bennett [1995] Crim LR 877 .....................................................................................................................299
Bentham [2005] UKHL 18; (2005) The Times 11 March ........................................................................478
Betts and Ridley (1930) 22 Cr App R 148 ...............................................................................................585
Betty (1964) 48 Cr App R 6 ...............................................................................................................130, 131
Bevans [1988] Crim LR 236 ......................................................................................................................498
Billinghurst [1978] Crim LR 553 ......................................................................................................255, 263
Bilton (2005) The Guardian, 20 December ...............................................................................................281
Bingham [2013] EWCA Crim 823, [2013] 2 Cr App R 29 .............................................421, 422, 423, 430
Bird [1985] 2 All ER 513 ....................................................................................................239, 240, 242, 249
Blackman [2014] EWCA Crim 1029 ........................................................................................................318
Blackshaw; Sutcliffe [2011] EWCA Crim 2312; [2012] 1 WLR 1126 ...............................................162–3
Blake [1997] 1 All ER 963..............................................................................................................98, 99, 111
Blake v DPP [1993] Crim LR 586 .....................................................................................................539, 547
Bland see Airedale NHS Trust v Bland [1993]; Inglis and Bland [1993]
Blaue [1975] 3 All ER 446 .......................................................................................................50, 51, 59, 353
Bloxham [1982] 1 All ER 582....................................................................................................................502
Bogacki [1973] 2 All ER 864 .....................................................................................................................491
Boggeln v Wiliams [1978] 2 All ER 1061 ................................................................................................462
Bolduc and Bird (1967) 63 DLR (2d) 82 ..................................................................................................263
Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 6 ........................................................................395
Bonner [1970] 2 All ER 97.................................................................................................................455, 459
Bounekhla [2006] EWCA Crim 1217 ......................................................................................................429
Bourne (1952) 36 Cr App R 125 ...............................................................................................................120
Bow [1977] Crim LR 176 .......................................................................................................................491–2
Bowen [1996] Crim LR 577 ......................................................................................219, 220, 223, 227, 266
Boyea [1992] Crim LR 574 ................................................................................................................259, 408
Boyle and Boyle [1987] Crim LR 111 ......................................................................................143, 150, 151
Bradshaw (1878) 14 Cox CC 83 ...............................................................................................................256
Bradshaw v Ewart-Jones [1983] 1 All ER 12 ..........................................................................................183
Bratty v Attorney-General of Northern Ireland [1963] AC 386; [1961]
3 WLR 965 .......................................................................35, 272, 275, 284, 285, 286, 297, 299, 309, 312
Bravery v Bravery [1954] 3 All ER 59 .....................................................................................................257
Bree [2007] EWCA Crim 804; [2008] QB 131 ...........................................................................419–20, 433
Bristow and others [2013] EWCA Crim 1540, [2014] Crim LR 457 ....................................350, 352, 355
Broad [1997] Crim LR 666 ........................................................................................................................152
Bromley (1992) 142 NLJ 116 .....................................................................................................................272
Broome v Perkins [1987] Crim LR 271 ...................................................................................................287
Brown [1985] Crim LR 167 .......................................................................................................484, 487, 511
Brown [2011] EWCA Crim 2796; [2012] Crim LR 223..................................................................327, 329
Brown and others [1994] 1 AC 212; [1993] 2 All ER 75 .......................5, 6, 250, 253, 254, 256, 258, 260,
261, 262, 263, 264–5, 266, 267, 268,
351, 383, 391, 392, 584
Brutus v Cozens [1972] 2 All ER 1297 ............................................................................................461, 567
Buckoke v GLC [1975] Ch 655 .............................................................................................................230–1
Bunch [2013] EWCA Crim 2498 ......................................................................................................330, 335
Bundy [1977] 2 All ER 382 .......................................................................................................................507
Burgess [1991] 2 QB 92 .....................................................................................276, 277, 281, 284, 309, 312
Burns (1974) 58 Cr App R 364 .................................................................................................................295
Burns [2006] EWCA Crim 1451 ...............................................................................................................429
Burrell v Harmer [1967] Crim LR 169 ............................................................................................250, 268
Burstow and Ireland see Ireland and Burstow [1998] AC 147; [1997] 4 All ER 225
Byrne [1960] 2 QB 396 .................................................................................62, 279, 326, 327, 328, 334, 374
Byrne v Kinematograph Renters Society Ltd [1958] 2 All ER 579 .....................................................486 xxi
C [1992] Crim LR 642 ................................................................................................................................300
TaBlE Of CaSES
C [2007] EWCA Crim 1862...............................................................................................286, 288, 290, 309
Cahill [1993] Crim LR 141 ................................................................................................................466, 470
Cairns [1999] EWCA Crim 468; [1999] 2 Cr App R 137 .......................................217, 218, 223, 224, 227
Cakman and others (2002) The Times, 28 March ...................................................................................554
Caldwell see Metropolitan Police Commissioner v Caldwell [1982] AC 341; [1981] 1 All ER 961
Calhaem [1985] 1 QB 808............................................................................................................62, 118, 122
Callow v Tillstone (1900) 83 LT 411 ......................................................................................86, 87, 93, 108
Campbell [1991] Crim LR 268 .................................................................................144, 146, 150, 151, 170
Campbell [1997] 1 Cr App R 199; [1997] Crim LR 227 .........................................................................327
Campbell [1997] Crim LR 495 .................................................................................................................324
Camplin (1845) 1 Den 89 ..........................................................................................................................418
Canns [2005] EWCA Crim 2264 ..............................................................................................243, 244, 249
Carey and others [2006] EWCA Crim 17; [2006] Crim LR 842 ...........................................350, 353, 376
Carpenter [2011] EWCA Crim 2568; [2012] 1 Cr App R 11 .................................................................133
Carr-Briant [1943] 2 All ER 156 .................................................................................................................21
Carroll v DPP [2009] EWHC 554 (Admin) ............................................................................................300
Castle [2004] EWCA Crim 2758 ........................................................................................71, 551, 552, 553
Cato [1976] 1 All ER 260 ...................................................................47, 59, 350, 354, 355, 373, 376, 402–3
Chan Fook [1994] 2 All ER 552 ................................................................................................................389
Chan Wing-Siu and others [1985] 1 AC 168 ..................................................123, 125, 130, 138, 139, 585
Cheshire [1991] 3 All ER 670; 1 WLR 844 ......................................................................52, 53, 57, 59, 372
Chief Constable of Avon v Shimmen (1986) 84 Cr App R 7 .................................................................71
Chrastny [1992] 1 All ER 189 ...................................................................................................................153
Church [1965] 2 All ER 72; [1966] 1 QB 59 ...............................................77, 349, 351, 353, 355, 362, 376
Ciccarelli [2011] EWCA Crim 2665; [2012] 1 Cr App R 15 ......................................................417–8, 431
Clarence (1888) 22 QBD 23 ...............................................................................................250, 251, 263, 384
Clarke [1972] 1 All ER 219........................................................................................................273, 281, 284
Clarke [2009] EWCA Crim 921 ................................................................................................288, 290, 309
Clarkson and others [1971] 1 WLR 1402 ................................................................................................117
Clear [1968] 1 All ER 74 ........................................................................................................................497–8
Clegg [1995] 1 AC 482.......................................................................................................248, 249, 318, 340
Cleps [2009] EWCA Crim 894 .................................................................................................................517
Clerk to the Croydon Justices, ex parte Chief Constable of Kent [1989] Crim LR 910 ...................193
Clinton [2012] EWCA Crim 2; [2012] 2 All ER 947 ...........................338, 340, 341–2, 344, 345, 346, 348
Clouden [1987] Crim LR 56 .............................................................................................................477, 481
Cogan and Leak [1976] QB 217 .......................................................................................................114, 119
Cole [1993] Crim LR 300...........................................................................................................................297
Cole [1994] Crim LR 582...............................................................................................................213–4, 221
Coles [1995] 1 Cr App R 157 ................................................................................................................70, 71
Coley, McGhee & Harris [2013] EWCA Crim 223 ........................285, 289, 290, 299, 304, 305, 306, 309
Collins [1972] 2 All ER 1105 .............................................................................484, 485, 486, 487, 488, 511
Collins v Wilcock [1984] 3 All ER 374 ............................................................262, 263, 267, 380, 382, 386
Collister and Warhurst (1955) 39 Cr App R 100 ...................................................................................496
Concannon [2001] EWCA Crim 2607; [2002] Crim LR 213 .................................................................128
Coney and others (1882) 8 QBD 534 .......................................................................116, 254, 263, 267, 268
Constanza [1997] Crim LR 576 ................................................................................................................381
Conway [1988] 3 All ER 1025 ..................................................................................211, 220, 225, 226, 227
Cooke [1986] 2 All ER 985 ........................................................................................................................159
Coomber [2005] EWCA Crim 1113 .........................................................................................................427
Cooper [2004] EWCA Crim 1382 ..............................................................................................71, 551, 552
Cooper and Schaub [1994] Crim LR 531 ..........................................................................................36, 410
Coppen v Moore (No 2) [1898] 2 QB 306 .......................................................................182, 185, 192, 193
Corbett [1996] Crim LR 594 ...................................................................................................................48–9
Corbett v Corbett [1971] P 83...................................................................................................................257
Corcoran v Anderton (1980) Cr App R 104; [1980] Crim LR 385 ...............................438, 472, 477, 481
Cotswold Geotechnical Holdings Ltd [2011] EWCA Crim 1337........................................200, 201, 202
Court [1989] AC 28....................................................................................................................................408
xxii Cousins [1982] QB 526 ..............................................................................................................................236
Coutts [2006] UKHL 39; [2006] 1 WLR 2154..................................................................................132, 320
Cox [1968] 1 WLR 308 ...............................................................................................................................325
TaBlE Of CaSES
Cresswell v DDP; Currie v DPP [2006] EWHC 3379 (Admin) ...........................................450, 548, 557
Crutchley (1831) 5 C & P 133 ...................................................................................................................220
Cuerrier [1998] 2 SCR 371 ....................................................................................................251–2, 253, 263
Cundy v Le Cocq (1884) 13 QBD 207 .................................................................................................88, 94
Cunliffe [2006] EWCA Crim 1706 ...........................................................................................................427
Cunningham [1957] 2 QB 396; [1957] 2 All ER 412..........................67, 68, 69, 70, 75, 79, 307, 395, 396,
398, 402, 403, 544, 553, 562
Cunningham [1982] AC 566 ....................................................................................................................372
C v DPP [1995] 2 All ER 43 ......................................................................................................................175
Dalby [1982] 1 All ER 916...................................................................................................47, 354, 355, 373

Dalloway (1847) 2 Cox CC 273 ..................................................................................................................44
Dang and others [2014] EWCA Crim 348, [2014] 2 Cr App R ............................................................157
Dao, Mai & Nguyen [2012] EWCA Crim 1717......................................................................................210
Davidge v Bunnett [1984] Crim LR 297 .................................................................................................457
Davies [1975] QB 691 ................................................................................................................................344
Davis (1881) 14 Cox CC 563 .....................................................................................................................303
Davison [1992] Crim LR 31 ......................................................................................................................565
Dawes [2013] EWCA Crim 322, [2014] 1 WLR 947.......................................................338, 341, 342, 343
Dawson (1985) 81 Cr App R 150 .....................................................................350, 352, 353, 355, 373, 376
Dawson and James (1976) 64 Cr App R 170 ..................................................................................477, 481
Day, Day and Roberts [2001] EWCA Crim 1594; [2001] Crim LR 984...............................................132
Deal [2006] EWCA Crim 684 ...................................................................................................................429
Dear [1996] Crim LR 595 ............................................................................................................................51
Dehal v DPP [2005] EWHC 2154 (Admin) ........................................................................30, 31, 569, 570
Denton [1982] 1 All ER 65 ................................................................................................................546, 557
Devonald [2008] EWCA Crim 527 ..........................................................................................421, 422, 430
Deyemi (Danny) EWCA Crim 2060........................................................................................................106
Dhaliwal [2006] EWCA Crim 1139; [2006] All ER (D) 236 ..................................................................390
Dias [2001] EWCA Crim 2986; [2002] 2 Cr App R 96 .....................................................47, 354, 355, 402
Dica [2005] EWCA Crim 2304, CA; [2004] EWCA Crim 1103; [2004] QB 1257 ............252, 253, 262, 263,
267, 268, 395, 415
Dickie [1984] 3 All ER 173 ........................................................................................................................272
Dietschmann [2003] UKHL 10; [2003] 1 AC 1209 .........................................327, 331, 332, 333, 335, 374
Din (Ahmed) [1962] 1 WLR 680; (1962) 46 Cr App R 269....................................................................325
Dix (1982) 74 Crim LR 302 .......................................................................................................................326
Dixon [1993] Crim LR 579 ........................................................................................................................565
Dobson v General Accident Fire and Life Insurance Corp [1990] 1 QB 354.............................440, 443
Doherty (1887) 16 Cox CC 306 ................................................................................................................358
Donoghue v Stevenson [1932] AC 562 ...........................................................................................356, 360
Donovan [1934] 2 KB 498 .........................................................................250, 260, 262, 263, 268, 389, 391
Doughty (1986) 83 Cr App R 319 ............................................................................................................341
Doukas [1978] 1 All ER 1061 ............................................................................................................506, 527
Dowds [2012] EWCA Crim 281; [2012] 3 All ER 154 .....................................................329–30, 335, 374
Doyle [2010] EWCA Crim 119 .........................................................................................................411, 431
DPP, ex parte Kebilene [2000] 2 AC 326; [1999] 4 All ER 801 ...............................................................97
DPP [2006] All ER (D) 250 (May); [2006] EWHC 1375 (Admin) ................................................569, 572
DPP of Northern Ireland v Maxwell [1978] 1 WLR 1350 ............................................................121, 122
DPP v Bailey [1995] 1 Cr App R 257 ...............................................................................................236, 239
DPP v Beard [1920] AC 479 .....................................................................................................297, 299, 308
DPP v Bell [1992] Crim LR 176 ................................................................................................................225
DPP v Camplin [1978] AC 705 ........................................................................................................341, 345
DPP v Davis; DPP v Pittaway [1994] Crim LR 600 ..............................................................................225
DPP v Doot [1973] AC 807 .......................................................................................................................152
DPP v Gohill and another [2007] EWHC 239 (Admin) ...............................................................463, 472
DPP v H [1997] 1 WLR 1406 ....................................................................................................................271
DPP v Johnson [2008] All ER (D) 371 (Feb) ...........................................................................................576
DPP v K (a minor) [1990] 1 All ER 331 .............................................................................................69, 384 xxiii
DPP v K & C [1997] Crim LR 121....................................................................................................115, 425
DPP v Kent and Sussex Contractors Ltd [1944] KB 146 ......................................................................187
TaBlE Of CaSES
DPP v Lavender [1994] Crim LR 297......................................................................................466, 467, 470
DPP v M (minor) [2004] EWHC 1453 (Admin); [2004] 1 WLR 2758 ..................................................575
DPP v Majewski [1977] AC 443; [1976] 2 All ER 142 ....................71, 235, 288, 291, 293, 294, 296, 298,
299, 300, 301, 302, 305, 307, 308,
310, 311, 387
DPP v Morgan [1976] AC 182..................................................................234, 235, 236, 266, 297, 423, 432
DPP v Newbury and Jones [1977] AC 500.....................................................350, 354, 355, 373, 375, 376
DPP v Nock [1978] AC 979 ......................................................................................................................160
DPP v Orum [1988] 3 All ER 449 ............................................................................................................571
DPP v P [2007] EWHC 946 (Admin) ......................................................................................................176
DPP v Pal [2000] Crim LR 756 .................................................................................................................401
DPP v Parmenter see Savage, DPP v Parmenter [1992] AC 699; [1991] 4 All ER 698
DPP v Ray [1973] 3 All ER 131 ................................................................................................514, 518, 520
DPP v Santana-Bermudez [2003] EWHC 2908 (Admin) .................................................35, 36, 384, 385
DPP v Smith (Michael) [2006] 2 All ER 16; [2006] 2 Cr App R 1 ........................................................389
DPP v Smith [1961] AC 290 ...............................................................................................63, 320, 372, 395
DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909 ..........................................................................142
Dudley and Stephens (1884) 14 QBD 273 ......................................................................................220, 222
Du Cros v Lambourne [1907] 1 KB 40 ............................................................................................117, 163
Duke of Leinster see Leinster (Duke of) [1924]
Dunbar [1958] 1 QB 1 ........................................................................................................................324, 335
Durante [1972] 3 All ER 962 .....................................................................................................................299
Dyson [1908] 2 KB 454 ..............................................................................................................................319
Dytham [1979] QB 722 ....................................................................................................................42, 56, 57
Eagleton (1855) Dears 515 ................................................................................................................142, 151

Easom [1971] 2 All ER 945 ...............................................................................................................146, 468
Eatch [1980] Crim LR 650 .........................................................................................................................294
Egan [1992] 4 All ER 470 ..................................................................................................................331, 332
Eifinger [2001] EWCA Crim 1855 ...........................................................................................................328
Elbekkay [1995] Crim LR 163 ..................................................................................................................423
Elliott v C (a minor) [1983] 1 WLR 939; [1983] 2 All ER 1005 .........................................70, 71, 543, 551
Elvidge [2005] EWCA Crim 1194 ............................................................................................................429
Emmett [1999] EWCA Crim 1710; (1999) The Times, 15 October ........................................................263
English [1997] UKHL 45; [1999] AC 1; [1997] 4 All ER 545 ................... 120, 124–5, 130, 136, 137, 138, 139
Enoch (1833) 5 C & P 539 .........................................................................................................................317
Erskine [2009] EWCA Crim 1425; [2009] 2 Cr App R 29 .............................................................327, 334
Esop (1836) 7 C & P 456 ............................................................................................................................235
Evans [2009] EWCA Crim 650; [2009] 1 WLR 1999 ..........................................................39, 57, 357, 373
E v DPP (2005) The Times, 9 February 2005 ...................................................................................28–9, 31
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439;
[1968] 3 All ER 442 .....................................................................................................76, 78, 79, 380, 383
Fallon [1994] Crim LR 519..........................................................................................................................64
Fancy [1980] Crim LR 171 ........................................................................................................................539
Faulkner v Talbot [1981] 3 All ER 468 ....................................................................................................383
Feely [1973] 1 All ER 341 ..............................................................................................................461–2, 464
Fenton (1975) 61 Cr App R 261........................................................................................329, 332, 335, 349
Fenton [1830] 1 Lew CC 179 ....................................................................................................................349
Fiak [2005] EWCA Crim 2381 ..................................................................................................................539
Fitzmaurice [1983] QB 1083; [1983] 1 All ER 189 ..................................................................167, 169, 170
Fitzpatrick [1977] NI 20 ....................................................................................................................214, 227
Flattery (1877) 2 QBD 410 ........................................................................................................................420
Forrester [2006] EWCA Crim 1748 .........................................................................................................429
Forsyth [1997] Crim Law 846 ..........................................................................................................503, 504
Fotheringham (1989) 88 Cr App R 206 .......................................................299, 300, 305, 306, 309, 423–4
Foye [2013] EWCA Crim 475 ...............................................................................................25, 26, 324, 335
Francis [1982] Crim LR 363 ......................................................................................................................489
xxiv Franklin (1883) 15 Cox CC 163 ........................................................................................349, 355, 373, 376
Fritschy [1985] Crim LR 745 ............................................................................................................440, 441
Fryer (1843) 10 Cl & F ...............................................................................................................................279
TaBlE Of CaSES
F v DPP [2013] EWHC 945, [2014] 2 WLR 190 ......................................................................413, 414, 416
F v West Berkshire Health Authority [1989] 2 All ER 545 ..................................................................383
G [2006] 1 WLR 2052; [2006] EWCA Crim 821......................................................................................106

G [2008] UKHL 37; [2008] 1 WLR 1379 ............................................................22, 29, 30, 31, 97, 111, 433
Gale [2008] EWCA Crim 1344 .................................................................................................................528
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] 2
All ER 503 ...................................................................................................91–2, 94, 95, 98, 99, 110, 111
G and another [2003] UKHL 50; [2003] 3 WLR 1060, HL; reversing, sub nom Gemmell and
Richards [2002] EWCA Crim 192, CA ....................................69, 70, 71, 177, 543, 544, 551, 552, 553
Garwood [1987] 1 All ER 1032.................................................................................................................498
Gay [2006] EWCA Crim 820 ....................................................................................................................350
Gayford v Chouler [1898] 1 QB 316 ........................................................................................................538
Geddes [1996] Crim LR 894 .............................................................................144, 145, 146, 150, 151, 170
Gemmell and Richards see G and another [2003] UKHL 50; [2003] 3 WLR 1060, HL; reversing, sub
nom Gemmell and Richards [2002] EWCA Crim 192, CA
Ghosh [1982] 2 All ER 689, CA ..............................................72, 160, 462, 463, 464–6, 472, 495, 504, 532
Giannetto [1997] 1 Cr App R 1; [1996] Crim LR 722, CA ............................................................114, 116
Gibbins and Proctor (1918) 13 Cr App R 134 ................................................................37, 38, 56, 57, 151
Gibson and Sylveire [1990] 2 QB 619; [1991] 1 All ER 439 ........................................................7, 90, 159
Gilks [1972] 3 All ER 280 ..............................................................................................................458–9, 470
Gill [1963] 2 All ER 688 .....................................................................................................213, 220, 221, 227
Gillard [1998] Crim LR 53 ........................................................................................................................402
Gillick v West Norfolk and Wisbech AHA [1986] AC 112..................................................................120
Gilmartin [1983] 1 All ER 829 ..................................................................................................................519
Gilmour [2000] 2 Cr App R 407 ...............................................................................................................131
Gittens [1984] 3 All ER 252...................................................................................327, 330–1, 332, 335, 374
Gnango [2011] UKSC 59; [2012] 1 AC 827 .................................................................................73, 79, 116
Golding [2014] EWCA Crim 889 .............................................................................................................395
Golds [2014] EWCA Crim 748 .........................................................................................................329, 334
Goldstein [2005] UKHL 63; [2005] 3 WLR 982 ..................................................................................27, 31
Gomez (1964) 48 Cr App R 310 ...............................................................................................................327
Gomez [1993] 1 All ER 1...............................................439, 440–4, 469, 472, 480, 490, 583, 584, 586, 587
Goodfellow [1986] Crim LR 468 ......................................................................................350, 354, 355, 376
Gore [2007] EWCA Crim 2789.................................................................................................................366
Gotts [1992] 2 AC 412, HL, affirming [1991] 2 All ER 1, CA ...............171, 221, 224, 225, 228, 266, 370
Gough v DPP [2013] EWHC 3267 (Admin)...........................................................................................574
Governor of Brixton Prison, ex parte Levin [1997] 3 All ER 289 ................................................447, 586
Governor of Pentonville Prison, ex parte Osman [1989] 3 All ER 701 ..........................446–7, 586, 587
Graham [1982] 1 All ER 801 .....................................................................217, 218, 219, 221, 223, 227, 266
Grant and others [2014] EWCA Crim 143 .........................................................................................74, 79
Grant [1960] Crim LR 424 ........................................................................................................................325
Greater London Metropolitan Police Commissioner v Streeter (1980) Cr App R 113 ....................501
Great North of England Railway Co (1846) 9 QB 315 ..........................................................................192
Greatrex [1999] 1 Cr App R 126 ......................................................................................................127, 139
Greenburg [1972] Crim LR 331 ...............................................................................................................507
Groark [1999] EWCA Crim 207; [1999] Crim LR 669 ...................................................................302, 307
Gullefer [1990] 3 All ER 882 .....................................................................................143, 144, 146, 150, 170
G v United Kingdom (Admissibility) (37334/08) [2012] Crim LR 46............................................22, 29
Hale [1979] Crim LR 596 ..................................................................................479, 480, 481, 584, 586, 587
Hall [1972] 2 All ER 1009 ..................................................................................................456, 457, 459, 470
Hall [1985] Crim LR 377 ...........................................................................................................................503
Hamilton [2008] EWCA Crim 2518 ........................................................................................................517
Hancock and Shankland [1986] AC 455.............................................................................................64, 80
Hardie [1985] 1 WLR 64 ...........................................................................................................295, 308, 309
Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim LR 330, CND ..........539
Harmer [2001] EWCA Crim 2930; [2002] Crim LR 401................................................................215, 216 xxv
Harrow LBC v Shah and Shah [1999] 3 All ER 302 ....................................87, 93, 94, 108, 109, 182, 185
Harry [1974] Crim LR 32 ..........................................................................................................................498
TaBlE Of CaSES
Harvey (1981) 72 Cr App R 139...............................................................................................................497
Harvey (2012) 176 J P 265 .........................................................................................................................573
Hasan [2005] UKHL 22; [2005] 2 AC 467 .......................................210, 212, 215, 216, 218, 221, 227, 266
Hatton [2005] EWCA Crim 2951; [2006] 1 Cr App R 16; [2006] Crim LR 353 ................245, 249, 308, 309
Haughton v Smith [1975] AC 476 ...........................................................................................................148
Haystead v Chief Constable of Derbyshire [2000] Crim LR 758 ........................................................384
Hayward (1908) 21 Cox CC 692 ................................................................................................................50
Heard [2007] EWCA Crim 125; [2008] QB 43 ........................................292, 293, 298, 299, 300, 306, 310
Heath [1999] EWCA Crim 1526; [2000] Crim LR 109...................................................215, 216, 221, 227
Hegarty [1994] Crim LR 353 ....................................................................................................................219
Hendy [2006] EWCA Crim 819; [2006] 2 Cr App R 33 ........................................327, 331, 332, 335, 374
Hennessy [1989] 1 WLR 287 ............................................................272, 274, 275, 277, 281, 284, 309, 312
Hibbert [1869] LR 1 CCR 184 ...............................................................................................................85, 86
Hichens [2011] EWCA Crim 1626; [2011] Crim LR 873 ...............................................................240, 241
Hill (1985) 81 Cr App R 206 .....................................................................................................................403
Hill and Hall (1988) 89 Cr App R 74; [1989] Crim LR 136 ...........................................................547, 557
Hill v Baxter [1958] 1 QB 277 ...............................................................................................285, 286–7, 309
Hinks [2000] 4 All ER 833.................................................................444, 445, 465, 469, 472, 526, 586, 587
Hinton-Smith [2005] EWCA Crim 2575 .................................................................................................161
HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1956] 3 All ER 624 ............187, 189, 190, 193
HM Coroner for East Kent, ex parte Spooner (1989) 88 Cr App R 10 ...............................................192
Hobson [1998] 1 Cr App R 31 ..........................................................................................326, 327, 334, 374
Holland (1841) 2 Mood & R 351 ................................................................................................................51
Holloway [1994] QB 302 ...........................................................................................................................361
Hood [2003] EWCA Crim 2772 .................................................................................................................37
Horne [1994] Crim LR 584 .......................................................................................................................219
Horseferry Road Magistrates’ Court, ex parte K [1996] 3 All ER 719................................................271
Howard [1965] 3 All ER 684 ....................................................................................................................250
Howe and Bannister [1987] AC 417, HL; affirming [1986] QB 626,
CA ..................................................................217, 218, 220, 221, 222, 223, 224, 225, 227, 228, 266, 370
Howells [1977] QB 614..........................................................................................................................95, 99
Howker v Robinson [1972] 2 All ER 786 ................................................................................................183
Hudson and Taylor [1971] 2 QB 202...............................................................................210, 212, 213, 220
Huggins (1730) 2 Strange 883 ..................................................................................................................181
Hughes [2013] UKSC 56, [2013] 1 WLR 2461 ..................................................................44, 45, 46, 56, 58
Hughes v DPP [2012] EWHC 606 (Admin) ...........................................................................................568
Hui Chi-Ming [1992] 1 AC 34 ..........................................................................................................125, 130
Humphreys [1995] 4 All ER 1008 ....................................................................................................341, 342
Hunt (1977) 66 Cr App R 105...........................................................................................................546, 557
Hussain and others [2010] EWCA Crim 94; [2010] Crim LR 428 ...............................................237, 248
Hyde, Sussex and Collins [1991] 1 QB 134 ............................................................................125, 130, 139
I, M and H v DPP [2001] UKHL 10.........................................................................................................564

Iama [2004] EWCA Crim 960 ..................................................................................................................327
Ibrams and Gregory (1981) 74 Cr App R 154 ................................................................................339, 340
ICC v Eisenhower [1983] 3 All ER 230 ...................................................................................................394
ICR Haulage Ltd [1944] KB 551 ......................................................................................................187, 206
Ikram and Parveen [2008] EWCA Crim 586; [2008] 4 All ER 253 ..............................................114, 363
Inglis [2010] EWCA Crim 2637; [2011] 1 WLR 1110.........................................................318, 320, 321–2
Inglis and Bland [1993] AC 789 ...............................................................................................................322
Inseal [1992] Crim LR 35 ..........................................................................................................................332
Instan [1893] 1 QB 450 ......................................................................................................................37–8, 57
Invicta Plastics Ltd v Clare [1976] Crim LR 131 ...................................................................................164
Ireland and Burstow [1998] AC 147; [1997] 4 All ER 225 ....................................211, 381, 390, 394, 395
Isitt (1978) 67 Cr App R 44 ...............................................................................................................286, 287
Ismail [2005] EWCA Crim 397 ........................................................................................................409, 410
xxvi Jackson, Golding and Jackson [1985] Crim LR 442 ..............................................................................156
Jaggard v Dickinson [1980] 3 All ER 716 ...............................................299, 306, 308, 309, 546, 557, 558
Janjua and Choudury [1998] EWCA Crim 1419; [1998] Crim LR 675 ...............................................320
TaBlE Of CaSES
Jennings [1990] Crim LR 588 ...................................................................................................................349

Jewell [2014] EWCA Crim 414.................................................................................................................338
Jheeta [2007] EWCA Crim 1699; [2008] 1 WLR 2582 ............................................................412, 422, 423
JMW Farms Ltd (unreported, 8 May 2012) ...................................................................................200, 202
Jogee [2013] EWCA Crim 1433 ................................................................................................................123
John M [2003] EWCA Crim 3452 ............................................................................................................179
Johnson [1994] Crim LR 376 ....................................................................................................................236
Johnson [2007] EWCA Crim 1978 ...........................................................................................278, 282, 284
Johnson v Youden and others [1950] 1 KB 544 .....................................................................................121
Johnstone [2003] UKHL 28 ........................................................................................................................24
Jones (Margaret) [2004] EWCA Crim 1981; [2004] 4 All ER 955.................................................547, 557
Jones [1973] Crim LR 710 .........................................................................................................................425
Jones [1990] 3 All ER 886 ..................................................................................................143, 144, 146, 151
Jones [2007] EWCA Crim 1118; [2007] 3 WLR 907 ...............................................149, 150, 161, 170, 171
Jones and others (1986) 83 Cr App R 375; [1987] Crim LR 123 ...................................258, 263, 267, 393
Jordan (1956) 40 Cr App R 152 ............................................................................................................54, 59
JTB [2009] UKHL 20 ..................................................................................................................................176
Julien [1969] 1 WLR 839 ...........................................................................................................................239
K [2001] 3 All ER 897 ....................................................................................................................96, 99, 104

Kaitamaki [1984] 2 All ER 435 ...........................................................................................................36, 410
Kai-Whitewind [2005] EWCA Crim 1092; [2006] Crim LR 348 ..........................................................366
Kanwar [1982] 2 All ER 528 .............................................................................................................502, 503
Kapitene [2010] EWCA Crim 2061 .................................................................................................521, 522
Kay v Butterworth (1945) 173 LT 191 .....................................................................................................288
Keane see McGrath; Keane [2010] EWCA Crim 2514; [2011] Crim LR 393
Kelly and Lindsay [1998] 3 All ER 741 ...........................................................................................449, 450
Kemp [1957] 1 QB 399.......................................................................................................274, 277, 281, 284
Kennedy [1998] EWCA Crim 2545; [1999] Crim LR 65 .......................................................................402
Kennedy [2007] UKHL 38; [2008] 1 AC 269 ................................................47, 57, 59, 354, 355, 357, 376
Kenning and others [2008] EWCA Crim 1534; [2008] 3 WLR 1306................................................156–7
Khan [1990] 2 All ER 783 ..........................................................................................................147, 148, 171
Khan [2009] EWCA Crim 1569 ................................................................................................327, 328, 334
Khan and Khan [1998] EWCA Crim 971; [1998] Crim LR 830................................................36, 37, 373
Khan and others [2009] EWCA Crim 2; [2009] 1 Cr App R 28 .......................................................363–4
Kimber [1983] 3 All ER 316 ..................................................................................................................234–5
Kimsey [1996] Crim LR 35 .........................................................................................................................46
Kingston [1995] 2 AC 355 .................................................................................................292, 293, 308, 309
Kite and OLL (1994) The Independent, 9 December ...........................................................................202–3
Klass (1998) 1 Cr App R 453 ....................................................................................................................490
Klineberg and Marsden [1999] Crim LR 419 .........................................................................457, 459, 470
Knuller (Publishing, Printing & Promotions) Ltd v DPP [1973] AC 439 ..........................................159
Kohn (1979) 69 Cr App R 395 ..................................................................................................................452
Konzani [2005] EWCA Crim 706; [2005] 2 Cr App R 14 ......................252, 253, 262, 263, 267, 268, 415
Kopsch (1925) 19 Cr App R 50.................................................................................................................279
Kumar [2004] EWCA Crim 3207 .....................................................................................................104, 105
Lamb [1967] 2 QB 981; [1967] 2 All ER 1282 ..................................................................349, 351, 355, 381
Lambert [2001] UKHL 37; [2002] 1 All ER 2 ............................................................................................24
Lambert [2009] EWCA Crim 2860 ..........................................................................................496, 497, 498
Lambie [1981] 2 All ER 776 ......................................................................................................514, 515, 518
Lane and Lane (1986) 82 Cr App R 5, CA ..........................................................................................113–4
Larkin [1943] 1 All ER 217................................................................................................349, 355, 373, 376
Larsonneur (1933) 24 Cr App R 74 ...........................................................................................................84
Larter and Castleton [1995] Crim LR 75 ................................................................................................417
Latimer (1886) 17 QBD 359 ..................................................................................................................73, 79
Lavercombe [1988] Crim LR 435 .............................................................................................................156
Laverty [1970] 3 All ER 432......................................................................................................................514 xxvii
Lawrence [1982] AC 510.......................................................................................................................68, 69
Lawrence v Commissioner of Metropolitan Police [1972] AC 626; (1971)
TaBlE Of CaSES
Cr App R 64 ..................................................................................439, 440, 441, 442, 443, 469, 472, 586
Le Brun [1991] 4 All ER 673 ...........................................................................................................77, 78, 79
Lee [2000] Crim LR 991 ....................................................................................................................235, 236
Leinster (Duke of) [1924] 1 KB 311 .................................................................................................182, 185
Lemon and Whitehouse v Gay News [1979] 1 All ER 898 ....................................................................90
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 ...................................187, 190
Levin see Governor of Brixton Prison, ex parte Levin [1997] 3 All ER 289
Le Vine v DPP [2010] EWHC 1129 Admin ............................................................................................570
Lewis [1974] Crim LR 647 ........................................................................................................................394
Lewis v Lethbridge [1987] Crim LR 59 ..........................................................................................457, 458
Lidar (2000) (unreported).........................................................................................................................361
Light (1857) D & B 332 ..............................................................................................................................382
Lim Chin Aik v The Queen [1963] AC 160 ......................................................................................99, 111
Linekar [1995] 3 All ER 69 ................................................................................................................420, 421
Linnett v Metropolitan Police Commissioner [1946] 1 All ER 380.....................................183, 184, 186
Lion Steel Equipment Ltd (unreported, 20 July 2012) .........................................................200, 201, 202
Lipman [1970] 1 QB 152 ...........................................................................235, 288, 290, 299, 305, 308, 309
Litchfield [1997] EWCA Crim 3290; [1998] Crim LR 507.....................................................356, 358, 360
Lloyd (1989) 11 Cr App R (S) 36..............................................................................................................258
Lloyd [1967] 1 QB 175 .......................................................................................................................328, 374
Lloyd [1985] 2 All ER 661 .................................................................................................................468, 470
Lockley [1995] Crim LR 656 .....................................................................................480, 481, 490, 584, 586
Lodgon v DPP [1976] Crim LR 121.....................................................................................................380–1
Lovesey and Peterson [1970] 1 QB 352...........................................................................................130, 131
Lovick [1993] Crim LR 890.......................................................................................................................153
Lowe (2005) The Times, 19 March ............................................................................................................281
Lowe [1973] QB 702 ....................................................................................................36, 350, 355, 373, 376
Luffman [2008] EWCA Crim 1739 ..........................................................................................................118
Lyddaman [2006] EWCA Crim 383 ........................................................................................................427
Lynch v DPP of Northern Ireland [1975] AC 653 .........................................................209, 210, 215, 227
M & M [2012] EWCA Crim 2293, [2013] 1 WLR 1083 ..................................................................350, 353
MacAngus & Kane v HM Advocate [2009] HCJAC 8 .....................................................................48, 59
Malcherek, Steel [1981] 2 All ER 422 ....................................................................................53, 54, 55, 318
Mallet [1972] Crim LR 260 .......................................................................................................................349
Malone [1998] EWCA Crim 142; [1998] 2 Cr App R 447 .............................................................418, 419
Mandair [1994] 2 All ER 715 ....................................................................................................................394
Marchant and Muntz [2003] EWCA Crim 2099; [2004] 1 WLR 442 .............................44, 119, 364, 365
Marcus [1981] 2 All ER 833 ......................................................................................................................403
Marjoram [2000] Crim LR 372 .............................................................................................................48, 59
Marsh [1997] Crim LR 205 .......................................................................................................................495
Marshall [1998] 2 Cr App R 282 ..............................................................................................................467
Marshall [2009] EWCA Crim 2076..................................................................................................527, 528
Martin (1832) 5 C & P 128 ..........................................................................................................................49
Martin (1881) 8 QBD 54 ............................................................................................................................384
Martin (Anthony) [2001] EWCA Crim 2245; [2002] 2 WLR 1 .................................242–3, 244, 248, 249
Martin [1989] 1 All ER 652 ...............................................................................................211, 220, 225, 227
Martin [2010] EWCA Crim 1450 .............................................................................................................118
Masterson v Holden [1986] 3 All ER 39 .................................................................................................567
Matheson [1958] 2 All ER 87 ............................................................................................................325, 326
Matthews and Alleyne [2003] EWCA Crim 192; [2003] 2 Cr App R 461; [2003]
Crim LR 553 ................................................................................................................................39, 65, 80
Maxwell v DPP of Northern Ireland [1978] 1 WLR 1350 ............................................................121, 122
McAllister [1997] Crim LR 233 ................................................................................................................408
McDavitt [1981] Crim LR 843 ..................................................................................................................508
McFall [1994] Crim LR 226.......................................................................................................................411
McGill (1970) 54 Cr App R 300 ................................................................................................................492
xxviii McGrath; Keane [2010] EWCA Crim 2514; [2011] Crim LR 393.........................................237, 238, 240
McKnight v Davies [1974] RTR 4 ............................................................................................................493
McNally [2013] EWCA Crim 1051, [2014] 2 WLR 200 .........................................................414, 415, 416
TaBlE Of CaSES
Meade [1909] 1 KB 895 .............................................................................................................................297

Meeking [2012] EWCA Crim 641 ....................................................................................................350, 376
Meli (Thabo) and others [1954] 1 All ER 373 ...............................................................................77, 78, 79
Mellor [1996] 2 Cr App R 245 ..............................................................................................................53, 57
Mendez & Thompson [2010] EWCA Crim 516, [2011] QB 876...........................................................129
Meredith [1973] Crim LR 253 ..................................................................................................................454
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918 ...........190
Merrick [1995] Crim LR 802...............................................................................................................71, 551
Metropolitan Police Commissioner v Caldwell [1982] AC 341; [1981]
1 All ER 961 ....................................68, 69, 70, 71, 79, 298, 299, 306, 310, 398, 543, 544, 550, 551, 553
Metropolitan v Charles [1976] 3 All ER 112 ..........................................................................................519
Metropolitan v Wilson [1984] AC 242 ....................................................................................................394
M’Growther (1746) Fost 13 ......................................................................................................................210
Millar (Robert) Contractors Ltd [1971] 1 All ER 577 ............................................................................187
Miller [1954] 2 QB 282.................................................................................................................................11
Miller [1983] 2 AC 161; [1983] 1 All ER 978 ...................................................19, 35, 39, 57, 357, 385, 553
Millward [1994] Crim LR 527 ..........................................................................................................119, 122
Minor v DPP [1988] Crim LR 55 .....................................................................................................505, 506
Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr App R 21 ...........27, 31, 57, 359, 360, 361
Mitchell [1983] QB 741 ............................................................................35, 73, 79, 349, 354, 355, 375, 376
Mitchell [2008] EWCA Crim 2552 ...................................................................................................135, 139
Mitchell and King [1998] EWCA Crim 2444; [1999] Crim LR 496, CA..............................134, 135, 139
MM [2011] EWCA Crim 1291 ..................................................................................................................424
M’Naghten (1843) 10 Cl & F 200 .............................................................................................................278
MNS Mining Ltd (unreported, 19 June 2014) ...............................................................................200, 201
Mohan [1976] QB 1, [1975] 2 All ER 193 ........................................................................................150, 171
Moloney [1985] AC 905; [1985] 1 All ER 1025 ...................................................................64, 80, 320, 397
Moore (1898) 14 TLR 229 ..........................................................................................................................256
Moore v I Bresler Ltd [1944] 2 All ER 515..............................................................................................187
Morphitis v Salmon [1990] Crim LR 48, DC..........................................................................................540
Morris [1983] All ER 288 ..................................................................438, 440, 441, 443, 472, 583, 586, 587
Morrison (1989) 89 Cr App R 17 .............................................................................................................398
Mowatt [1967] 3 All ER 47 ...............................................................................................................396, 397
Moyle [2008] EWCA Crim 3059 ......................................................................................................327, 334
Muhamad [2002] EWCA Crim 1856 .............................................................94, 95, 99, 100, 105, 109, 111
Mujuru [2007] EWCA Crim 2810; [2007] 2 Cr App R 26 .....................................................................363
Narbrough [2004] EWCA Crim 1012..................................................................................................287–8

Nash [1998] EWCA Crim 2392; [1999] Crim LR 308 ....................................................................145, 146
National Coal Board v Gamble [1959] 1 QB 11 .............................................................................120, 122
National Rivers Authority v Alfred McAlpine Homes (East) Ltd (1994) 158 JP 628 ......................192
Nedrick [1986] 3 All ER 1 .........................................................................................64, 65, 66, 80, 146, 397
Nethercott [2001] EWCA Crim 2535; [2002] Crim LR 402...................................................................217
Nettleship v Weston [1971] 3 All ER 581 ...............................................................................................358
Ngan [1998] 1 Cr App R 331 ............................................................................................................446, 447
Nicholls (1874) 13 Cox CC 75 ....................................................................................................................37
Nicklinson v Ministry of Justice [2013] EWCA Civ 961, [2014] 2 All ER 32;
[2014] UKSC 38; [2014] 3 WLR 200....................................................................231, 232, 233, 266, 322
Nika [2005] EWCA Crim 3255.................................................................................................................429
Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167 ....................................485, 487, 512
NW [2010] EWCA Crim 404 ............................................................................................................562, 563
O’Brien [1995] Crim LR 734 .....................................................................................................................130

O’Connell [1997] Crim LR 683 ................................................................................................................292
O’Connor [1991] Crim LR 135 .................................................................................................245, 249, 308
O’Flaherty and others [2004] EWCA Crim 526; [2004] 2 Cr App R 20 ..............................127, 135, 139
O’Grady [1987] QB 995 .............................................................................................245, 249, 266, 308, 309
O’Leary (1986) 82 Cr App R 341 .............................................................................................................489 xxix
OLL Ltd (1994) The Independent, 9 December ............................................................................195, 202–3
Olugboja [1982] QB 320 ....................................................................................................................410, 421
TaBlE Of CaSES
Ortiz (1986) 83 Cr App R 173 ...........................................................................................................211, 227
Osman see Governor of Pentonville Prison, ex parte Osman [1989]........................................................
Osmani [2006] EWCA Crim 816..............................................................................................................429
Owino [1996] 2 Cr App R 128 ......................................................................................241–2, 244, 249, 267
Oxford v Moss [1979] Crim LR 119 ........................................................................................................452
Oye [2013] EWCA Crim 1725, [2014] 1 All ER 902 ...............................................................243, 244, 249
P & O European Ferries (Dover) Ltd (The Herald of Free Enterprise) (1991) 93
Cr App R 72 ..................................................................................................................189, 194, 199, 206
Pace and Rogers [2014] EWCA Crim 186; [2014] 1 Cr App R 34................................................147, 148
Pagett (1983) 76 Cr App Rep 279; [1983] Crim LR 393 ........................................43, 47, 57, 59, 372, 376
Palmer [1971] AC 814 ...............................................................................................241, 242, 248, 249, 267
Parks (1992) 95 DLR (4d) 27.....................................................................................................................276
Parsons [2009] EWCA Crim 64 ...............................................................................................................132
Pearce [1973] Crim LR 321 .......................................................................................................................492
Peart [1970] 2 All ER 823 ..........................................................................................................................493
Pembliton [1874-80] All ER Rep 1163; (1874) LR 2 CCR 119 .................................................74, 542, 543
Perman [1996] 1 Cr App R 24 ..........................................................................................................125, 139
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986]
2 All ER 635 ............................................................................................................83, 84, 92, 95, 99, 109
Philips (1987) 86 Cr App R 18..................................................................................................................153
Pilkington v Scott [1846] 12 Digest (Repl.) 232 .....................................................................................226
Pitchley [1972] Crim LR 705 ............................................................................................................502, 503
Pitham v Hehl [1977] Crim LR 285 .........................................................................................438, 443, 472
Pittwood (1902) 19 TLR 37 .....................................................................................................37, 56, 57, 360
Pommell [1995] 2 Cr App R 607 ..............................................................................213, 220, 221, 226, 227
Pooley (2007) The Daily Mail, 12 January ...............................................................................................281
Pordage [1975] Crim LR 575 ............................................................................................................297, 299
Poulton (1832) 5 C & P 329.......................................................................................................................317
Powell [1999] AC 1; [1997] 4 All ER 545; [1997] UKHL 45 ..................................................................585
Preddy [1996] 3 All ER 481 ..........................................................................................................436, 513–4
Press & Thompson [2013] EWCA Crim 1849 ........................................................................293, 299, 306
Pretty see R (on the application of Pretty) v DPP [2001] ............................................................................
Price [2003] EWCA Crim 2405; (2003) The Times, 20 August ..............................................................408
Prince [1875] LR 2 CCR 154 .................................................................................................85, 86, 102, 104
Pritchard (1836) 7 Car & P 303 ........................................................................................................178, 180
P v DPP [2012] ...................................................................................................................................477, 481
Quayle and others [2005] EWCA Crim 1415; [2005] 1 WLR 3642; [2006]
Crim LR 149 ....................................................................................................................28, 226, 229, 230
Quick [1973] QB 910..............................................................272, 274, 275, 276, 277, 281, 284, 290–1, 309
R (on the application of Leeson) v DPP [2010] EWHC 994 Admin ...................................................565
R (on the application of Pretty) v DPP [2001] UKHL 61; [2002] 1 AC 800 ..............................40–1, 263
R (on the application of Ricketts) v Basildon Magistrates’ Court [2010]
EWHC 2358 (Admin) ..........................................................................................................................455
R (on the application of T) v DPP [2003] Crim LR 622 ........................................................................389
R (Stephen Malcolm) (1984) 79 Cr App R 334...........................................................................70, 71, 551
R [1992] 1 AC 599; [1991] 2 All ER 257 ...................................................................................................425
Rabey (1980) 114 DLR (3d) 193................................................................................................................277
Race Relations Board v Applin [1973] 2 All ER 1190 ...........................................................................164
Rafferty [2007] EWCA Crim 1846 ...............................................................................128–9, 130, 138, 139
Rahman and Others [2008] UKHL 45; [2009] 1 AC 129 ...............123, 124, 127, 129, 130, 137, 138, 139
Rai [2000] Crim LR 192 .............................................................................................................................524
Ralston [2005] EWCA Crim 3279 ............................................................................................................429
Rashford [2005] EWCA Crim 3377; [2006] Crim LR 547 .....................................................................238
Rashid [1977] 2 All ER 237 .......................................................................................................................506
xxx Reed [1982] Crim LR 819 ..................................................................................................................155, 156
Reid (1975) 62 Cr App R 109 ....................................................................................................130, 131, 353
Renouf [1986] 2 All ER 449 ......................................................................................................................236
TaBlE Of CaSES
Reynolds [1988] Crim LR 679 ..................................................................................................................327

Richardson [1998] EWCA 1086; [1998] 2 Cr App R 200...............................................251, 263, 267, 268
Richardson and Irwin [1998] EWCA Crim 3269; [1999] 1 Cr App R 392;
[1999] Crim LR 494 ..............................................................................301, 302, 307, 308, 310, 311, 393
Roberts [1971] Crim LR 27 .......................................................................................................................390
Roberts [1972] Crim LR 242 ...........................................................................................................49, 57, 59
Roberts [1993] 1 All ER 583 ..................................................................................................................125–6
Roberts [1998] 1 Cr App R 441 ................................................................................................................156
Robinson [1977] Crim LR 173 ..........................................................................................................476, 481
Robinson [2011] UKPC 3 ..........................................................................................................................115
Robson [2006] EWCA Crim 2749 ....................................................................................................331, 332
Roe v Kingerlee [1986] Crim LR 735.......................................................................................538, 539, 553
Rogers (Philip) [2007] UKHL 8................................................................................................................575
Rook [1993] 2 All ER 955 ..........................................................................................................134, 138, 139
Ross v HM Advocate 1991 SLT 564 ........................................................................................................294
Rowbotham [2011] EWCA Crim 433......................................................................................299, 300, 301
Rubie v Faulkner [1940] 1 KB 571 ...........................................................................................................117
Ruffell [2003] EWCA Crim 122 ...............................................................................................................373
Ruse v Read [1949] 1 KB 377....................................................................................................................299
R v Codere (1916) 12 Cr App R 21 ..........................................................................................................281
R v DFF, ex p Kebilene [2000] 2 AC 326...................................................................................................24
R v Ellames [1974] 3 All ER 130 ..............................................................................................506, 507, 530
R v Francis (2007) The Times, 17 January................................................................................................570
R v H [2005] EWCA Crim 732; [2005] 2 All ER 859; [2005] 1 WLR 2005;
(2005) The Times, 8 February ..............................................................................................................429
R v R [1991] 4 All ER 481 ............................................................................................................................11
R v Raphael and another [2008] EWCA Crim 1014..............................................................................467
R v T and others [2009] EWCA Crim 1035 ..............................................................................................15
R v Webster [2010] EWCA Crim 2819 ......................................................................................................25
Ryan [1996] Crim LR 320 .........................................................................................................484, 487, 511
S [2012] EWCA Crim 389; [2012] 1 Cr App R 31...................................................................................219

Sadique & Hussain [2011] EWCA Crim 2872; [2012] 1 WLR 1700.....................................................168
Sadique (No. 2) [2013] EWCA Crim 1150, [2014] 1 WLR 986 .....................................................168, 169
Safi and others [2003] EWCA Crim 1809; [2003] Crim LR 721 ...........................212, 218, 220, 226, 227
Saik [2006] UKHL 18; [2007] 1 AC 18 .....................................................152, 156, 157, 158, 160, 170, 523
Salisbury [1976] VR 452 ............................................................................................................................394
Salomon v Salomon & Co Ltd [1897] AC 22 .........................................................................................186
Sanchez [1996] Crim LR 527 ....................................................................................................................565
Sander (1982) Cr App R 84.......................................................................................................................502
Sangha [1988] 2 All ER 385 ......................................................................................................................550
Saunders [1985] Crim LR 230 ..........................................................................................................320, 395
Savage, DPP v Parmenter [1992] AC 699; [1991] 4 All ER 698 .................................69, 307, 390–1, 396
Scalley [1995] Crim LR 504 ........................................................................................................................65
Scott (1979) 68 Cr App R 164 ...................................................................................................................153
Scott v MPC [1975] AC 818 ......................................................................................................................159
Secretary of State for the Home Department, ex p Simms [1999] 3 WLR 328 ..................................105
Seers (1984) 79 Cr App R 261 ...................................................................................................327, 334, 374
Seray-White [2012] EWHC 208 Admin ..................................................................................542, 543, 545
Seymour [1983] 2 AC 493 ...........................................................................................................................69
Shannon (1980) Cr App R 192 .........................................................................................................241, 249
Sharp [1987] 3 All ER 103 .........................................................................................................214, 215, 227
Shaw v DPP [1962] AC 220 ................................................................................................................10, 159
Shayler [2001] EWCA Crim 1977; [2001] 1 WLR 2206 .........................................................220, 226, 228
Sheehan [1975] 1 WLR 739 ...............................................................................................292, 308, 309, 310
Sheldrake v DPP [2004] UKHL 43; [2005] 1 All ER 237 .......................................................22, 23, 25, 30
Shepherd [1987] Crim LR 686..........................................................................................................216, 227
Sherras v De Rutzen [1895] 1 QB 918 ...................................................................................88, 93, 94, 111 xxxi
Shivpuri [1987] AC 1; [1986] 2 All ER 334 .............................................................149, 150, 169, 171, 500
Silverman [1987] Crim LR 574.................................................................................................................520
TaBlE Of CaSES
Simcox [1964] Crim LR 402 ......................................................................................................................327
Singh [1974] 1 All ER 26 ...........................................................................................................................210
Singh [1999] EWCA Crim 460; [1999] Crim LR 582 .......................................................................37, 360
Siracusa (1989) 90 Cr App R 340 .............................................................................................152, 154, 155
Skipp [1975] Crim LR 114 ................................................................................................................440, 441
Slingsby [1995] Crim LR 570............................................................................................259, 263, 267, 385
Small [1987] Crim LR 777 .....................................................................................................................460–1
Smith (Thomas) [1959] 2 QB 35 ...............................................................................52, 53, 57, 59, 318, 372
Smith [1974] 1 All ER 632 .................................................................................................................541, 542
Smith [1979] Crim LR 251 ....................................................................................................................37, 40
Smith and Jones [1976] 3 All ER 54.................................................................................486, 488, 511, 584
Smith and others [2011] EWCA Crim 66 ...............................................................................................454
Smith v Chief Superintendent of Woking Police Station [1983] Crim LR 323 .................................381
Somchai Liangsiriprasert [1991] AC 225................................................................................................155
Southard v DPP [2006] EWHC 3449 (Admin) ..............................................................................572, 573
Southwark LBC v Williams [1971] Ch 734 ............................................................................................231
Spall [2007] EWCA Crim 1623.................................................................................................................430
Spratt [1991] 2 All ER 210...........................................................................................................................69
Steane [1947] KB 997 .............................................................................................................................66, 80
Steer [1987] 2 All ER 833...........................................................................................................549, 550, 553
Stephenson [1979] QB 695; [1979] 2 All ER 1198.............................................................................68, 543
Stevens v Gourley (1859) 7 CB NS 99 .....................................................................................................485
Stewart [2009] EWCA Crim 593 ..........................................................................................333–4, 335, 374
Stewart and Schofield [1995] 3 All ER 159 .............................................................................122, 130, 131
Stone and Dobinson [1977] QB 354 ..............................................................38, 57, 58, 356, 359, 360, 373
Stubbs (1989) 88 Cr App R 53 ..................................................................................................................296
Sullivan [1984] AC 156 .....................................................................272, 273, 275, 276, 277, 284, 309, 312
Swan [2006] EWCA Crim 3378................................................................................................327, 331, 332
Sweet v Parsley [1969] 1 All ER 347 .............................................................................91, 93, 99, 102, 107
Symonds [1998] Crim LR 280 ..................................................................................................................237
T [1990] Crim LR 256 ................................................................................................................276, 287, 290

Tabassum [2000] 2 Cr App R 328; [2000] Crim LR 686 ................251, 252, 262, 263, 267, 268, 385, 408
Tandy [1989] 1 All ER 267; [1989] 1 WLR 350 .......................................................................332, 333, 334
Taran [2006] EWCA Crim 1498 ...............................................................................................................424
Taylor (Robert John) [2002] Crim LR 205 ..............................................................................................152
Taylor v DPP [2006] EWHC 1202 (Admin); (2006) The Times 14 June ...............................................572
Terry [1961] 2 QB 314; [1961] 2 All ER 569 ............................................................................................374
Tesco Supermarkets Ltd v Nattrass [1972] AC 153 ......................................................188, 190, 193, 206
Tesco v Brent LBC [1993] 2 All ER 718 ...................................................................................................190
Thomas (1985) 81 Cr App R 331 ..............................................................................................................383
Thomas v R (1937) 44 ALR 37..............................................................................................................101–2
Thompson (1965) Cr App R 1 ..................................................................................................................154
Thorne v Motor Trade Association [1937] 3 All ER 157 ......................................................................497
Thornton (No 1) [1992] 1 All ER 306 ..............................................................................................339, 340
Tolson (1889) 23 QBD 168 ........................................................................................................................276
Tomsett [1985] Crim LR 369 ............................................................................................446, 447, 586, 587
Toothill [1998] Crim LR 876 .............................................................................................................145, 146
Tosti and White [1997] EWCA Crim 222; [1997] Crim LR 746 ...................................145, 146, 150, 151
Towers (1874) 12 Cox CC 692 ....................................................................................................................50
Treacy v DPP [1971] 1 All ER 110 ...................................................................................................436, 496
Tree [2008] EWCA Crim 261............................................................................................................158, 160
Troughton v Metropolitan Police [1987] Crim LR 138 ........................................................................508
Tuberville v Savage (1669) 1 Mod Rep 3 ...........................................................................................381–2
Tuck v Robson [1970] 1 WLR 741 ...........................................................................................................117
Turner (No 2) [1971] 2 All ER 441 ...................................................................................454, 459, 460, 470
Turner [2005] EWCA Crim 3436 .............................................................................................................429
xxxii Tyrrell [1894] 1 QB 710 .............................................................................................................................153
Uddin [1998] 2 All ER 744; [1998] EWCA Crim 999.....................................................126, 127, 130, 139
TaBlE Of CaSES
Valderrama-Vega [1985] Crim LR 220 ...........................................................................210, 211, 220, 227

Vane v Yiannopoullos [1964] 3 All ER 820 ....................................................................................183, 184
Velumyl [1989] Crim LR 299 ...................................................................................................................466
Venclovas [2013] EWCA Crim 2182 .......................................................................................................319
Venna [1976] QB 421; [1975] 3 All ER 788........................................................................................67, 387
Vinagre (1979) 69 Cr App R 104 ......................................................................................................325, 327
Vinall [2011] EWCA Crim 6252 ...............................................................................................................480
Vincent [2001] Crim LR 488 .....................................................................................................................508
W [2005] EWCA Crim 3138 .....................................................................................................................429

Wacker [2003] EWCA Crim 1944; [2003] 4 All ER 295.....................................................198, 356–7, 360
Wain [1995] 2 Cr App R 660 ....................................................................................................................457
Walker [1995] Crim LR 44 ............................................................................................................................8
Walker and Hayles [1990] Crim LR 44 ...........................................................................................146, 171
Walkington [1979] 2 All ER 716 ..............................................................................171, 485, 487, 512, 584
Wall (1802) 28 State Tr 51 ...........................................................................................................................51
Walton [1978] 1 All ER 542; (1978) 66 Cr App R 25 ......................................................................272, 325
Ward [2012] EWCA Crim 3139 ...............................................................................................................340
Warwick see Webster and Warwick [1995] 2 All ER 168
Watmore v Jenkins [1962] 2 QB 572........................................................................................................287
Watson [1989] 2 All ER 865 ........................................................................47, 350, 351, 352, 353, 355, 376
Watts [1998] Crim LR 833 ........................................................................................................................356
Webster [2006] EWCA Crim 415 .............................................................................................117, 118, 121
Webster [2010] EWCA Crim 2819 .............................................................................................................25
Webster and Warwick [1995] 2 All ER 168 ..............................................................................549–50, 553
Wheeler (1990) 92 Cr App R 279 .....................................................................................................444, 448
White [1910] 2 KB 124 .....................................................................................43, 56, 59, 148, 150, 171, 372
Whitefield (1984) 79 Cr App R 36 ...........................................................................................................133
Whiteley (1991) 93 Cr App R 25 ..............................................................................................................540
Whittaker v Campbell [1983] 3 All ER 582 ............................................................................................493
Whybrow (1951) 35 Cr App R 141 ..........................................................................................146, 150, 171
Whyte [1987] 3 All ER 416................................................................................................................241, 249
Widdowson (1986) 82 Cr App R 314; [1986] Crim LR 233 ..................................................................142
Wilcox v Jeffrey [1951] 1 All ER 464 .......................................................................................117, 122, 584
Willer (1986) 83 Cr App R 225 .................................................................................................220, 225, 227
Willett [2010] EWCA Crim 1620; [2011] Crim LR 65 ...................................................................350, 376
Williams [1923] 1 KB 340..........................................................................................................................420
Williams [1987] 3 All ER 411 ...........................................218, 235, 236, 237, 238, 242, 244, 249, 266, 267
Williams [2012] EWCA Crim 2162 .....................................................................................................25, 26
Williams and Davis [1992] 2 All ER 183 ..................................................................................................49
Willoughby [2005] 1 WLR 1880; [2004] EWCA Crim 3365..........................................350, 357, 360, 376
Wilsher v Essex Area Health Authority [1986] 3 All ER 801 ..............................................................358
Wilson [1997] 3 WLR 125; [1996] Crim LR 573 .................................................6, 259, 263, 266, 267, 392
Wilson [2007] EWCA Crim 1251; [2007] 2 Cr App R 31 ..............................................................223, 228
Wilson v Pringle [1986] 2 All ER 440 ..............................................................................................383, 386
Windle [1952] 2 QB 826 ....................................................................................................278, 284, 309, 312
Wings Ltd v Ellis [1984] 3 All ER 584 .......................................................................................................94
Winzar v Chief Constable of Kent (1983) The Times, 28 March; Co/1111/82 (Lexis), QBD ............ 84, 85
Wisniewski [2004] EWCA Crim 3361 .....................................................................................................430
Wood (1830) 1 Mood CC 278 ...................................................................................................................394
Wood (Fraser) v DPP [2008] EWHC 1056 (Admin) .............................................................................386
Wood [2008] EWCA Crim 1305; [2009] 1 WLR 496 ......................................................333, 334, 335, 374
Woodman [1974] 2 All ER 955.............................................................................................................454–5
Woodrow (1846) 15 M & W 404 ................................................................................................................83
Woods (1981) 74 Cr App R 312 ...............................................................................................299, 300, 423
Woollin [1998] UKHL 28; [1998] 3 WLR 382; [1998] 4 All ER 103;
[1999] 1 AC 82 ............................................................63, 64, 65, 66, 75, 79, 80, 146, 320, 370, 372, 397 xxxiii
Woolmington v DPP [1935] AC 462 ...................................................................................................19–20
Workman [2014] EWCA Crim 575..........................................................................................................338
TaBlE Of CaSES
Wright [2000] Crim LR 510 ......................................................................................................................211
Wright [2000] EWCA Crim 28; [2000] Crim LR 928 ...............................................................................65
Yemoh and others [2009] EWCA Crim 930; [2009] Crim LR 888 .......................................................133
Yip Chiu-Cheung [1995] 1 AC 111; [1994] 2 All ER 924 ......................................................................155
Zahid (Nasir) [2010] EWCA Crim 2158 .................................................................................................106

Zebedee [2012] EWCA Crim 1428 ..........................................................................................................341
Zerei [2012] EWCA Crim 1114 ................................................................................................................476
INTERNATIONAL
Australia
Barker v R (1983) 7 ALJR 426 .............................................................................................................486
Evans and Gardiner [1976] VR 517 ...................................................................................................220
Falconer (1990) 171 CLR 30 ........................................................................................................277, 281
McAuliffe (1995) 183 CLR 108, HC ...................................................................................................126
O’Connor (1980) ALR 449 (HC) ................................................................................................291, 307
Papadimitropoulos (1958) 98 CLR 249 .............................................................................................421
Ryan v R (1967) 40 ALJR 488........................................................................................................289–90
Samuels v Stubbs [1972] SASR 200 (Australia) ...............................................................................538
Snow [1962] Tas SR 271 ......................................................................................................................307
Stapleton (1952) 86 CLR 358...............................................................................................................279
Canada
Bernard [1988] 2 SCR 833 ...........................................................................................................305, 307
Bolduc and Bird (1967) 63 DLR (2d) 82 ............................................................................................250
Bouchard-Lebrun [2011] 3 SCR 575 ......................................................................................303–4, 307
Chaulk (1991) 62 CCC (3d) 193..........................................................................................................279
Ciccarelli (1989) 54 CCC (3d) 121 ......................................................................................................256
Daviault (1995) 118 DLR (4d) 469, SC...............................................................................................305
Gray (1981) 24 CR (3d) 109 .................................................................................................................256
JA [2011] 2 SCR 440 .............................................................................................................................418
Kerr [2004] 2 SCR 371..........................................................................................................................233
Latimer [2001] 1 SCR 3 ........................................................................................................................233
Moloney (1976) 28 CCC (2d) 323 .......................................................................................................256
Perka [1984] 2 SCR 232 .......................................................................................................................233
Petrozzi (1987) 35 CCC (3d) 528 ........................................................................................................421
R v George [1960] SCR 871 .................................................................................................................299
Ryan [2013] 1 SCR 14 ..........................................................................................................................214
Williams [2003] 2 SCR 134 ..................................................................................................................253
European Court of Human Rights
Anderson and others v UK (1997) 25 EHRR CD 172........................................................................31
CR v United Kingdom (Case no 48/1994/495/577) (1996) 21 EHRR 363;
[1996] FLR 434 ........................................................................................................................11, 26, 31
G v United Kingdom (Admissibility) (37334/08) [2012] Crim LR 46 ......................................22, 29
Laskey v UK (1997) 24 EHRR 39 .......................................................................................................263
Salabiaku v France (1988) 13 EHRR 379 .......................................................................................96, 97
T v UK; V v UK (1999) 7 EHRR 659 ............................................................................................30, 177
New Zealand
Burr [1969] NZLR 736 .........................................................................................................................287
Kamipeli [1975] 2 NZLR 610, CA ..............................................................................................291, 307
Lee [2006] 3 NZLR 42 ..................................................................................................................255, 260
Ramsay [1967] NZLR 1005 ...................................................................................................................77
R v Barker [2009] NZCA 186, [2010] 1 NZLR 235 .....................................................................259–60
R v Kirby [2013] NZCA 451 ...............................................................................................................307
South Africa
Chiswibo [1960] (2) SA 714 ..................................................................................................................77
xxxiv Chretien [1981] (1) SA 1097 ................................................................................................................291
United States
Burrows v State 38 Ariz 99, 297 (1931) (Arizona) ...........................................................................296
TaBlE Of CaSES
Eldredge v United States 62 F 2d 449 (1932)....................................................................................134

Hanks v State 542 SW 2d 413 (1976) (Texas) ...................................................................................294
Johnson v Commonwealth 135 Va 524 (1923) (Virginia) ...............................................................295
People v Cruz 83 Cal App 3d 308 (1978) (California) ....................................................................294
People v Velez 175 Cal App 3d 785 (1985) (California) .................................................................294
Table of statutory
instruments
Aliens Order 1920 (SI 1920/448) ..............................................................................................................84
Defence (General) Regulations 1939 (SI 1939/927) ...............................................................................66
Motor Vehicles (Authorisation of Special Types) General Order 1979 (SI 1979/1198) .................365
Traffic Signs Regulations and General Directions 1994 (SI 1994/1519)
Reg 33(1)(b) ............................................................................................................................................231
Table of legislation
Abortion Act 1967
s 1 ........................................................................................................................................................ 367
Accessories and Abettors Act 1861....................................................................................................... 166
s 8 ...................................................................................................................114–15, 136, 138, 584, 585
Age of Marriage Act 1929........................................................................................................................104
s 2 .........................................................................................................................................................103
Aggravated Vehicle-Taking Act 1992 ...................................................................................................494
Anti-social Behaviour, Crime and Policing Act 2014 ........................................................................436
s 177 .....................................................................................................................................................234
Bribery Act 2010............................................................................................................................................9
British Nationality Act 1948
s 3 .........................................................................................................................................................318
Child Abduction Act 1984
s 1 .........................................................................................................................................................219
Children Act 1989
s 31 .......................................................................................................................................................174
s 31(2) ..........................................................................................................................................174, 175
Children and Young Persons Act 1933
s 1 .........................................................................................................................................................350
s 1(1) ....................................................................................................................................................350
s 50 ...............................................................................................................................................174, 177
Civil Aviation Act 1982
s 92 .......................................................................................................................................................319
Civil Aviation (Amendment) Act 1996
s 1 .........................................................................................................................................................319
Civil Partnership Act 2004 ......................................................................................................................153
Computer Misuse Act 1990
s 3(6) ....................................................................................................................................................540
Contempt of Court Act 1981 .............................................................................................................90, 109
Coroners and Justice Act 2009........................................................................................................369, 371
s 52 ...............................................................................................................................................323, 334
s 53 .......................................................................................................................................................150
s 54 ...............................................................................................................249, 250, 267, 335, 337, 370
s 54(1) ..........................................................................................................................337, 338, 340, 348
s 54(1)(a)......................................................................................................................................338, 340
s 54(1)(b) .............................................................................................................................................340
s 54(1)(c) ......................................................................................................................................345, 348
s 54(2) ..........................................................................................................................................338, 348
s 54(3) ..................................................................................................................................................348
s 54(4) ..........................................................................................................................................340, 348
s 54(5) ..........................................................................................................................................338, 348
s 54(6) ..................................................................................................................................................348
s 54(7) ..........................................................................................................................................338, 348
s 55 ...............................................................................................................................................335, 370
s 55(1) ..................................................................................................................................................337
s 55(3) ..........................................................................................................................340, 341, 344, 348
s 55(4) ..........................................................................................................................340, 342, 344, 348
s 55(4)(a)......................................................................................................................................341, 342
s 55(4)(b) .....................................................................................................................................341, 342
s 55(5) ......................................................................................................................................342–3, 348
s 55(6) ..................................................................................................................................................343
s 55(6)(a)......................................................................................................................................343, 348
s 55(6)(b) .....................................................................................................................................343, 348
s 55(6)(c) ..............................................................................................................................344, 346, 348
s 56(1) ..........................................................................................................................................335, 337
s 56(2) ..................................................................................................................................................335
s 57 .......................................................................................................................................................365
Corporate Manslaughter and Corporate Homicide Act 2007 ..................................9, 197–9, 205, 206
s 1(1) ............................................................................................................................................197, 206
s 1(3) ....................................................................................................................................................197
s 8 .........................................................................................................................................................199
s 8(1)(b) ...............................................................................................................................................199
s 8(2) ....................................................................................................................................................199
s 8(3) ....................................................................................................................................................199
s 8(4) ....................................................................................................................................................199
Crime and Courts Act 2013 .............................................................................................................559, 572
xxxvii
s 43 ...............................................................................................................................................237, 246
Crime and Disorder Act 1998
s 11 ...............................................................................................................................................175, 177
TaBlE Of lEGISlaTION
s 28 ...............................................................................................................................................555, 574
s 28(1) ..................................................................................................................................................555
s 28(4) ..................................................................................................................................................575
s 29 ...............................................................................................................................................401, 404
s 30(1) ..................................................................................................................................................555
s 30(3) ..................................................................................................................................................555
s 31 ...............................................................................................................................................574, 577
s 31(1)(a)..............................................................................................................................................575
s 31(1)(b) .............................................................................................................................................570
s 34 ...............................................................................................................................................176, 178
Criminal Appeal Act 1995.........................................................................................................................16
Criminal Attempts Act 1981 ...................................................................................147, 160, 169, 170, 468
s 1 .........................................................................................................................................148, 167, 171
s 1(1) ............................................................................................................................................148, 583
s 1(2) ............................................................................................................................................148, 583
s 1(3) ....................................................................................................................................................148
s 1(4) ....................................................................................................................................................150
s 4(3) ....................................................................................................................................................142
Criminal Damage Act (CDA) 1971 ............................................................................................8, 450, 538
s 1 .....................................................................................................69, 70, 543, 544, 552, 553, 554, 556
s 1(1) ..............................................................................................................................68, 537, 553, 555
s 1(2) ............................................................................................................300, 549, 550, 551, 552, 553
s 1(2)(b) ...............................................................................................................................................549
s 1(3) ....................................................................................................................................300, 552, 553
s 2 .........................................................................................................................................................554
s 2(b) ....................................................................................................................................................554
s 3 .........................................................................................................................................539, 543, 554
s 5 .........................................................................................................................................545, 548, 557
s 5(2) ....................................................................................................................................306, 545, 548
s 5(2)(a)................................................................................................................................547, 555, 557
s 5(2)(b) ...............................................................................................................546, 547, 548, 555, 557
s 5(3) ............................................................................................................................................306, 557
s 10 .......................................................................................................................................................548
s 10(1) ..................................................................................................................................................540
s 10(2) ..................................................................................................................................................541
s 10(3) ..................................................................................................................................................541
Criminal Justice (Terrorism and Conspiracy) Act 1998 ....................................................................156
Criminal Justice Act 1925
s 47 .......................................................................................................................................................234
Criminal Justice Act 1967 ..........................................................................................................................63
s 8 ...........................................................................................................................................79, 301, 310
s 91 .......................................................................................................................................................300
s 36 .........................................................................................................................................................17
s 39 .......................................................................................................................................................380
Criminal Justice Act 1991 ........................................................................................................................487
Criminal Justice Act 2003 ....................................................................................................................17, 18
s 44 .........................................................................................................................................................15
Criminal Justice and Immigration Act 2008 ..........................................................................................90
s 76 .......................................................................................................236, 237, 242, 244, 246, 247, 267
s 76(3) ..................................................................................................................................242, 247, 249
s 76(4) ..........................................................................................................................242, 247, 248, 249
xxxviii s 76(4)(b) .....................................................................................................................................244, 245
s 76(5) ..........................................................................................................................245, 247, 248, 249
s 76(5A) .......................................................................................................................246, 247, 248, 249
s 76(6) ..........................................................................................................................................242, 249

s 76(6A) .......................................................................................................................................242, 249
s 76(7) ..........................................................................................................................................242, 249
s 76(8) ..................................................................................................................................................242
s 76(8A) ...............................................................................................................................................246
s 76(8A)(d) ..........................................................................................................................................248
s 76(8D) .......................................................................................................................................247, 248
s 76(8F) ................................................................................................................................................247
s 76(10) ................................................................................................................................................247
Criminal Justice and Licensing (Scotland) Act 2010 .................................................................174, 282
Criminal Justice and Public Order Act 1994 ...................................................................6, 407, 409, 568
s 68 .......................................................................................................................................................559
Criminal Law Act 1967
s 3 .........................................................................................................................................................236
s 3(1) ....................................................................................................................................................236
s 3(2) ....................................................................................................................................................236
s 4(1) ....................................................................................................................................................135
s 6(4) ....................................................................................................................................................151
Criminal Law Act 1977 ............................................................................................................158, 169, 170
s 1 .........................................................................................................................................................583
s 1(1) ............................................................................................................................................152, 160
s 1(1)(a)................................................................................................................................................160
s 1(2) ....................................................................................................................................157, 160, 170
s 1A ......................................................................................................................................................156
s 2(1) ............................................................................................................................................153, 160
s 2(1)(b) ...............................................................................................................................................160
s 2(2) ....................................................................................................................................................170
s 2(2)(a)........................................................................................................................................153, 160
s 2(2)(b) ...............................................................................................................................................153
s 2(2)(c) ........................................................................................................................................153, 160
s 5(3) ....................................................................................................................................................159
Criminal Law Amendment Act 1880 ....................................................................................................104
Criminal Law Amendment Act 1885 ........................................................................................................6
Criminal Law Amendment Act 1922 ....................................................................................................104
Criminal Procedure (Insanity) Act 1964 ...............................................................................................179
s 1 .........................................................................................................................................................272
s 5 .........................................................................................................................................................272
s 6 .........................................................................................................................................................325
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 .....................................179, 180, 312
s 1 .........................................................................................................................................................272
Criminal Procedure (Scotland) Act 1995
s 51A ....................................................................................................................................................282
Criminal Procedure and Investigations Act 1996.................................................................................17
Customs and Excise Management Act 1979 ........................................................................................229
s 170(2) ................................................................................................................................................154
Domestic Violence Crime and Victims Act 2004 ...........................................................15, 57, 179, 272
s 5 .........................................................................................................................................363, 364, 371
s 5(1) ................................................................................................................................................362–3
s 5(6) ....................................................................................................................................................363
Domestic Violence Crime and Victims (Amendment) Act 2012 .....................................................362
Explosive Substances Act 1883
s 4 .........................................................................................................................................................564
s 4(1) ....................................................................................................................................................239
xxxix
Female Genital Mutilation Act 2003
s 1(1) ....................................................................................................................................................258
Finance (No 2) Act 1940 ...........................................................................................................................187
Finance Act 1968
s 1(1)(a)..................................................................................................................................................95
Firearms Act 1968
s 5(1)(b) ...............................................................................................................................................106
s 16 .......................................................................................................................................................549
Firearms Act 1982
s 1(5) ......................................................................................................................................................26
Food Act 1984 ............................................................................................................................................109
Food Safety Act 1990
s 8 .........................................................................................................................................................106
s 14 .......................................................................................................................................................106
s 15 .......................................................................................................................................................106
s 21 .......................................................................................................................................................106
s 21(1) ..................................................................................................................................................106
s 21(3) ..................................................................................................................................................106
s 21(4) ..................................................................................................................................................106
Football (Offences) Act 1991 ....................................................................................................................36
Fraud Act 2006 .............................................................................................8, 9, 72, 435, 436, 441, 515, 533
s 2 .................................................................................................................516, 517, 518, 528, 529, 534
s 2(1) ............................................................................................................................................516, 523
s 2(2) ............................................................................................................................................516, 524
s 2(3) ............................................................................................................................................516, 524
s 2(4) ....................................................................................................................................516, 517, 524
s 2(5) ............................................................................................................................................519, 524
s 3 .............................................................................................516, 520, 524, 525–6, 528, 529, 534, 535
s 4 .........................................................................................................516, 526, 527, 528, 529, 534, 535
s 4(1) ....................................................................................................................................................526
s 4(2) ....................................................................................................................................................526
s 5 .................................................................................................................................................521, 524
s 5(2) ....................................................................................................................................................521
s 5(3) ....................................................................................................................................................521
s 5(4) ....................................................................................................................................................521
s 6 ...........................................................................................................................516, 529, 529–30, 534
s 6(1) ....................................................................................................................................................529
s 7 .........................................................................................................................................516, 530, 534
s 11 ...............................................................................................................................516, 531, 534, 536
s 11(1) ..................................................................................................................................................531
s 11(2) ..................................................................................................................................................531
s 11(2)(a)..............................................................................................................................................534
s 15 .......................................................................................................................................................513
s 16 .......................................................................................................................................................513
Health and Safety at Work etc Act 1974 ...............................................................................................193
Homicide Act 1957 ...............................................................................................................................8, 280
s 2 .........................................................................................................180, 272, 312, 323, 370, 374, 375
s 2(1) ....................................................................................................................323, 326, 327, 328, 334
s 2(1A) .........................................................................................................................................323, 334
s 2(1B) ..........................................................................................................................................323, 329
s 2(1)(c) ........................................................................................................................................329, 332
s 2(2) ..................................................................................................................................20–1, 324, 335
s 2(3) ....................................................................................................................................................324
s 3 .................................................................................................................................................335, 340
s 4 .........................................................................................................................................................370
s 4(1) ....................................................................................................................................................348
xl s 4(3) ....................................................................................................................................................348
Homicide Act 1975
s 2(2) ......................................................................................................................................................26
Human Fertilisation and Embryology Act 1990

s 37 .......................................................................................................................................................367
Human Rights Act 1998...........................................................................................10, 96, 142, 263–4, 359
s 3 .....................................................................................................................................................21, 25
Indecency with Children Act 1960
s 1 .........................................................................................................................................................104
s 1(1) ....................................................................................................................................100, 101, 105
Infanticide Act 1938
s 1 .........................................................................................................................................................371
s 1(1) ............................................................................................................................................365, 366
Infant Life (Preservation) Act 1929
s 1(1) ................................................................................................................................................366–7
s 1(2) ....................................................................................................................................................367
Insolvency Act 1986
s 362(1)(a)................................................................................................................................94, 95, 105
Interpretation Act 1889 ............................................................................................................................186
Interpretation Act 1978 ............................................................................................................................186
Larceny Act 1916 .......................................................................................................................................439
Law Commissions Act 1965
s 3(1) ........................................................................................................................................................8
Law Reform (Year and a Day Rule) Act 1996
s 1 .........................................................................................................................................................319
s 2 .........................................................................................................................................................319
Legal Aid, Sentencing and Punishment of Offenders Act 2012
s 148 .....................................................................................................................................................237
Licensing Act 1872
s 12 .........................................................................................................................................................85
s 13 .........................................................................................................................................................88
s 16 .........................................................................................................................................................88
s 16(1) ..............................................................................................................................................89, 93
s 16(2) ..............................................................................................................................................88, 89
Licensing Act 1961
s 22 .......................................................................................................................................................183
Licensing Act 1964....................................................................................................................................117
Magistrates’ Courts Act 1980
s 44 .......................................................................................................................................................136
Malicious Damage Act (MDA) 1861 ...................................................................................67–8, 538, 541
Medicines Act 1968
s 58(2) ....................................................................................................................................................92
Mental Deficiency Act 1913
s 56(3) ..................................................................................................................................................104
Mental Health Act 1983 ...................................................................................................................178, 179
s 37(1) ..................................................................................................................................................325
s 41 .......................................................................................................................................................180
Merchant Shipping Act 1894
s 502 .....................................................................................................................................................191
Metropolitan Police Act 1839
s 44 .......................................................................................................................................................183
Misuse of Drugs Act 1971 .......................................................................................................................229
s 4(2)(b) ...............................................................................................................................................157
s 19 .......................................................................................................................................................161
s 28(2) ....................................................................................................................................................24
National Health Service (Family Planning) Amendment Act 1972 ................................................257
National Lottery etc Act 1993 xli
s 13 .........................................................................................................................................................93
s 13(1) ....................................................................................................................................................93
s 13(1)(a)....................................................................................................................................87, 93, 94
s 13(1)(b) .........................................................................................................................................93, 94
s 13(1)(c) ....................................................................................................................................87, 93, 94
Offences against the Person Act (OAPA) 1861 .......................................................................................8
s 4 .........................................................................................................................................................161
s 9 .........................................................................................................................................................318
s 10 .......................................................................................................................................................318
s 18 ........................................................................43, 62, 64, 74, 75, 218, 224, 254, 298, 301, 306, 319,
379, 380, 390, 394, 395, 396–8, 403, 404, 405
s 20 ..............................................................5, 69, 73, 211, 252, 253, 254, 264, 265, 266, 276, 298, 299,
301, 304, 306, 319, 379, 380, 384, 390, 391, 392, 393–6,
397, 398, 401, 403, 404, 405, 415, 416
s 23 .................................................................................................................67, 371, 396, 402, 403, 404
s 24 .......................................................................................................................................402, 403, 404
s 47 ....................................................................5, 6, 49, 67, 69, 211, 254, 263, 264, 265, 266, 296, 299,
379, 380, 384, 388, 389–93, 395, 398, 401, 403, 404, 405
s 52 .......................................................................................................................................................104
s 55 ...................................................................................................................................................85, 86
s 58 .......................................................................................................................................................367
Official Secrets Act 1989 ..........................................................................................................................226
Police and Criminal Evidence Act (PACE) 1984
Code of Practice H ......................................................................................................................................13
s 24 .........................................................................................................................................................12
s 42(1) ....................................................................................................................................................13
s 56 .........................................................................................................................................................13
s 58 .........................................................................................................................................................13
Powers of Criminal Courts (Sentencing) Act 2000
s 143 .....................................................................................................................................................478
Prevention of Corruption Act 1889
s 1 ...........................................................................................................................................................25
s 1(2) ......................................................................................................................................................25
Prevention of Corruption Act 1916
s 2 ...........................................................................................................................................................21
Prevention of Crime Act 1953
s 1 .................................................................................................................................................349, 564
s 10 .......................................................................................................................................................489
Prevention of Terrorism (Temporary Provisions) Act 1969 ...............................................................24
Proceeds of Crime Act 2002 ....................................................................................................................157
s 327 .....................................................................................................................................................147
Protection from Eviction Act 1977...........................................................................................................36
Public Order Act 1936..............................................................................................................................559
s 5 .........................................................................................................................................................567
Public Order Act 1986..............................................................................................................................559
s 1 .................................................................................................................560, 563, 566, 576, 578, 579
s 1(1) ....................................................................................................................................................560
s 1(2) ............................................................................................................................................560, 567
s 1(3) ............................................................................................................................................560, 566
s 1(4) ....................................................................................................................................................560
s 1(5) ............................................................................................................................................560, 566
s 2 .........................................................................................................................562, 563, 566, 576, 578
s 2(1) ....................................................................................................................................................562
s 2(2) ....................................................................................................................................................562
s 2(3) ....................................................................................................................................................562
xlii s 2(4) ....................................................................................................................................................562
s 3 .................................................................................................................350, 563, 564, 566, 576, 578
s 3(4) ....................................................................................................................................................565
s 3(5) ....................................................................................................................................................566
s 4 .............................................................................................................566–8, 574, 575, 576, 577, 579
s 4(1) ....................................................................................................................................................566
s 4(1)(a)................................................................................................................................................567
s 4(2) ....................................................................................................................................................566
s 4A ....................................................................................30, 568, 569, 570, 572, 573, 574, 575, 576–7
s 4A(1) .................................................................................................................................................569
s 4A(3) .........................................................................................................................................570, 571
s 5 .................................................................................................568, 571, 572, 574, 575, 577, 578, 579
s 5(1) ............................................................................................................................................571, 574
s 5(3) ................................................................................................................................................573–4
s 6 .................................................................................................................................................578, 579
s 6(1) ............................................................................................................................................561, 566
s 6(2) ............................................................................................................................562, 563, 565, 566
s 6(3) ................................................................................................................................................567–8
s 6(4) ....................................................................................................................................................574
s 6(5) ............................................................................................................................562, 563, 565, 577
s 8 .................................................................................................................................................560, 570
s 8(a) ....................................................................................................................................................566
Regulatory, Enforcement and Sanctions Act 2008
Pt 3 .......................................................................................................................................................109
Rivers (Prevention of Pollution) Act 1951
s 2(1)(a)............................................................................................................................................94, 95
Road Safety Act 2006 ...............................................................................................................................365
Road Traffic Act (RTA) 1988 ....................................................................................................................57
s 1 .................................................................................................................................................364, 371
s 2A ......................................................................................................................................................364
s 2A(1) .................................................................................................................................................364
s 2A(2) .................................................................................................................................................364
s 2A(3) .................................................................................................................................................364
s 2A(4) .................................................................................................................................................364
s 2B ......................................................................................................................................................365
s 3A ......................................................................................................................................................365
s 3ZB ................................................................................................................................................44, 45
s 5 .........................................................................................................................................................271
s 5(1)(b) .................................................................................................................................................23
s 5(2) ......................................................................................................................................................23
s 6 ...........................................................................................................................................................42
s 6(5) ....................................................................................................................................................236
s 22A(1b) .............................................................................................................................................350
s 170 .......................................................................................................................................................42
Road Traffic Act (RTA) 1991 ..................................................................................................................365
s 1 .........................................................................................................................................................364
Serious Crime Act (SCA) 2007 .............................................................................9, 79, 161–3, 168–9, 170
s 44 ...............................................................................................................162, 163, 164, 165, 166, 167
s 44(1) ..........................................................................................................................................161, 164
s 44(2) ..........................................................................................................................................161, 164
ss 44–46 .......................................................................................................................................161, 166
s 45 ...............................................................................................................................162, 163, 164, 166
s 46 ...........................................................................................................................162, 164–5, 166, 168
s 46(1) ..................................................................................................................................................162
s 47 .......................................................................................................................................................168
s 47(2) ..................................................................................................................................................164
xliii
s 47(3) ..................................................................................................................................................164
s 47(4) ..................................................................................................................................................164
s 47(5)(a)..............................................................................................................................................165
s 47(5)(b) .............................................................................................................................................165
s 47(8) ..................................................................................................................................................165
s 47(8)(a)..............................................................................................................................................165
s 47(8)(b) .............................................................................................................................................165
s 49 .......................................................................................................................................................166
s 49(1) ..................................................................................................................................163, 166, 167
s 50 .......................................................................................................................................................166
s 50(1) ..................................................................................................................................................166
s 50(2) ..................................................................................................................................................166
s 50(3) ..................................................................................................................................................166
s 51 .......................................................................................................................................................167
s 59 .......................................................................................................................................................161
s 65(1) ..................................................................................................................................................164
s 65(2)(b) .............................................................................................................................................163
s 67 .......................................................................................................................................................163
Serious Organised Crime and Police Act 2005
s 110 .......................................................................................................................................................12
Sexual Offences Act (SOA) 1956 .............................................................................................................28
s 1(1) ....................................................................................................................................................407
s 6 .................................................................................................................................................104, 120
s 6(3) ....................................................................................................................................................102
s 12 ...............................................................................................................................................104, 105
s 14 .........................................................................................................................................96, 104, 408
s 14(1) ..........................................................................................................................................103, 104
s 14(2) ..................................................................................................................................................104
s 14(3) ..................................................................................................................................................104
s 14(4) ..................................................................................................................................................104
s 15 .......................................................................................................................................................408
Sexual Offences Act (SOA) 1967 ...............................................................................................................6
Sexual Offences Act (SOA) 1993
s 1 .........................................................................................................................................................177
Sexual Offences Act (SOA) 2003 ...............................................................8, 105–6, 251, 298, 411, 430–1
Pt 1 .......................................................................................................................................................430
s 1 .................................................................................................................253, 300, 416, 427, 431, 432
s 1(1) ....................................................................................................................................36, 72, 408–9
s 1(2) ....................................................................................................................................409, 426, 427
s 2 ...................................................................................................72, 300, 409, 414, 416, 427, 431, 432
s 2(1) ........................................................................................................................................425–6, 428
s 2(2) ....................................................................................................................................................426
s 3 ...........................................................................................................72, 299, 416, 417, 429, 431, 432
s 3(1) ....................................................................................................................................427, 428, 429
s 3(2) ....................................................................................................................................................427
s 4 ...................................................................................................................................72, 416, 422, 431
s 4(1) ..............................................................................................................................................429–30
s 5 .............................................................................................................................29, 97, 106, 432, 433
s 8 .................................................................................................................................................149, 161
s 9 .................................................................................................................................................120, 167
ss 9–13 .................................................................................................................................................430
s 10 .......................................................................................................................................................161
s 13 .........................................................................................................................................................29
s 13(1) ..................................................................................................................................................176
s 14 .......................................................................................................................................................430
s 15 .......................................................................................................................................................430
xliv s 16 .......................................................................................................................................................430
s 26 .......................................................................................................................................................161
s 31 .......................................................................................................................................................161
s 48 .......................................................................................................................................................161
s 52 .......................................................................................................................................................161
s 61 .......................................................................................................................................................430
s 62 .......................................................................................................................................................430
s 63 ...............................................................................................................................146, 430, 483, 485
s 66 .......................................................................................................................................................430
s 67 .......................................................................................................................................................431
s 69 .......................................................................................................................................................431
s 70 .......................................................................................................................................................431
s 74 ...............................................................................................................412, 413, 416, 423, 431, 432
s 75 .......................................................................................................................................416, 431, 432
s 75(1) ..................................................................................................................................................417
s 75(2) ....................................................................................................................................417, 419–20
s 75(2)(c) ..............................................................................................................................................417
s 75(2)(d) .............................................................................................................................417, 418, 419
s 75(2)(f) ..............................................................................................................................418, 419, 420
s 76 ...............................................................................................268, 416, 420, 421, 422, 423, 431, 432
s 76(1) ..................................................................................................................................................420
s 76(2) ..................................................................................................................................................420
s 76(2)(a)..............................................................................................................................420, 421, 422
s 76(2)(b) .............................................................................................................................................423
s 78 ...............................................................................................................................................427, 428
s 78(a) ..................................................................................................................................................429
s 78(b) ..................................................................................................................................................429
s 79(2) ............................................................................................................................................36, 410
s 79(3) ..................................................................................................................................................409
s 79(8) ..................................................................................................................................................428
s 79(8)(c) ..............................................................................................................................................429
Sexual Offences(Amendment) Act 1976
s 1 .........................................................................................................................................................300
Sexual Offences (Amendment) Act 2000 ...............................................................................................34
Sexual Offences (Conspiracy and Incitement) Act 1996
s 2 .........................................................................................................................................................161
Suicide Act 1961
s 2(1) ....................................................................................................................................................150
Suppression of Terrorism Act 1978
s 4 .................................................................................................................................................318, 319
Terrorism Act 2000 ...............................................................................................................................13, 57
s 11 .........................................................................................................................................................23
s 11(1) ....................................................................................................................................................23
s 11(2) ....................................................................................................................................................23
s 19 .........................................................................................................................................................42
Terrorism Act 2006 .....................................................................................................................................13
s 1 .........................................................................................................................................................161
Theft Act 1968 .........................................................................................................................8, 72, 435, 541
s 1 .................................................................................................................................436, 437, 442, 583
s 1(1) ....................................................................................................................441, 442, 444, 459, 472
s 1(3) ....................................................................................................................................................442
s 2 .................................................................................................................................437, 442, 459, 461
s 2(1) ............................................................................................................................460, 466, 472, 522
s 2(1)(a)................................................................................................................................445, 460, 476
s 2(1)(b) ...............................................................................................................................................460
s 2(2) ............................................................................................................................................461, 472
s 3 .................................................................................................................................437, 442, 443, 445 xlv
s 3(1) ........................................................................................................................437, 438–9, 443, 472
s 3(2) ....................................................................................................................................443, 444, 448
s 4 .........................................................................................................................................437, 442, 451
s 4(1) ....................................................................................................................................449, 451, 521
s 4(2) ............................................................................................................................................451, 452
s 4(2)(b) ...............................................................................................................................................451
s 4(2)(c) ................................................................................................................................................451
s 4(3) ....................................................................................................................................................450
s 4(4) ....................................................................................................................................................450
s 5 .........................................................................................................................437, 442, 445, 456, 458
s 5(1) ....................................................................................................................................443, 453, 459
s 5(2) ............................................................................................................................................456, 459
s 5(3) ....................................................................................................................................................459
s 5(4) ............................................................................................................................................445, 459
s 6 .................................................................................................................................437, 442, 466, 467
s 6(1) ....................................................................................................................................................466
s 8 .................................................................................................................................475, 478, 509, 585
s 9 ...........................................................................................................................................36, 483, 485
s 9(1) ....................................................................................................................................................483
s 9(1)(a)........................................................145, 146, 430, 483, 485, 486, 487, 488, 489, 510, 511, 583
s 9(1)(b) ...............................................................................................483, 484, 486, 488, 489, 510, 511
s 9(2) ....................................................................................................................................................483
s 9(3) ....................................................................................................................................................487
s 9(4) ....................................................................................................................................484, 487, 511
s 10 ...............................................................................................................................................489, 510
s 11 ...............................................................................................................................................490, 510
s 11(1) ..................................................................................................................................................490
s 11(2) ..................................................................................................................................................490
s 12 .......................................................................................................468, 491, 492, 493, 494, 510, 583
s 12(1) ..........................................................................................................................................491, 504
s 12(5) ..................................................................................................................................................491
s 12(6) ..........................................................................................................................................491, 493
s 12(7)(a)..............................................................................................................................................493
s 12A ....................................................................................................................................................585
s 12A(1) ...............................................................................................................................................494
s 12A(2)(b) ..........................................................................................................................................495
s 12A(2)(c)...........................................................................................................................................495
s 12A(2)(d) ..........................................................................................................................................495
s 12A(3) ...............................................................................................................................................495
s 12A(7) ...............................................................................................................................................494
s 13 ...............................................................................................................................................452, 495
s 15 ...............................................................................................................440, 441, 504, 516, 524, 535
s 15(1) ..................................................................................................................................................500
s 15A ....................................................................................................................................514, 516, 535
s 15B ....................................................................................................................................................516
s 16 ...............................................................................................................................................516, 535
s 16(1) ..................................................................................................................................................515
s 16(2)(a)..............................................................................................................................................518
s 20(2) ..................................................................................................................................................516
s 21 .......................................................................................................................................495, 496, 510
s 21(1) ..................................................................................................................................................495
s 21(1)(a)..............................................................................................................................................496
s 21(1)(b) .............................................................................................................................................496
s 21(2) ..........................................................................................................................................495, 498
xlvi s 22 ...............................................................................................................................................499, 511
s 24 ...................................................................................................................................................501–2
s 24(2) ..................................................................................................................................................500
s 24(2)(a)..............................................................................................................................................500
s 24(3) ..................................................................................................................................................501
s 24(4) ..................................................................................................................................................500
s 25 ...............................................................................................................................504, 505, 511, 529
s 25(1) ..........................................................................................................................................504, 530
s 25(3) ..................................................................................................................................................506
s 34(2)(a)..............................................................................................................................................498
s 34(2)(b) .....................................................................................................................................499, 500
Theft Act 1978 ...................................................................................................................................436, 475
s 1 .................................................................................................................................513, 516, 531, 535
s 2 .........................................................................................................................................513, 516, 535
s 2(1)(b) ...............................................................................................................................................508
s 3 ...........................................................................................................................................36, 435, 511
s 3(1) ....................................................................................................................................................507
s 3(3) ....................................................................................................................................................507
Theft (Amendment) Act 1996 .........................................................................................................436, 514
Tobacco Advertising and Promotion Act 2002 ...................................................................................109
Trade Description Act 1968 ......................................................................................................................94
s 11 .......................................................................................................................................................188
s 24(1) ..........................................................................................................................................188, 189
Trade Marks Act 1994
s 92(5) ....................................................................................................................................................24
Transport Act 1982 ...................................................................................................................................193
Trial of Lunatics Act 1883 .......................................................................................................................312
Video Recordings Act 1984
s 11(1) ..................................................................................................................................................190
Wildlife and Countryside Act 1981 ......................................................................................................450
Wireless Telegraphy Act 1949
s 1(1) ......................................................................................................................................................98
INTERNATIONAL LEGISLATION
Canada
Charter of Human Rights
s 7 ...........................................................................................................................................................96
France
Criminal Code (1992) ...................................................................................................................................9
New Zealand
Crimes Act 1961 ........................................................................................................................................260
Securities Amendment Act 1988
s 20 .......................................................................................................................................................190
Singapore
Immigration Ordinance
s 6(2) ......................................................................................................................................................99
s 9 ...........................................................................................................................................................99
United Nations Instruments and Conventions
United Nations Charter of the Rights of the Child
Art 17
United States
Model Penal Code 1985 .......................................................................................................................66, 67
xlvii
Table of European
instruments
European Convention on the Protection of Human Rights and Fundamental
Freedoms 1950.............................................................................................................................10, 263–4
Art 2.....................................................................................................................................................282
Art 3.............................................................................................................................................230, 282
Art 3(1) ..................................................................................................................................................21
Art 5.................................................................................................................................................21, 96
Art 6.......................................................................................................22, 24, 25, 96, 97, 128, 177, 423
Art 6(1) ......................................................................................................................................21, 22, 97
Art 6(2) ..............................................................................................21, 22, 23, 25, 26, 96, 97, 282, 324
Art 7.....................................................................................................................11, 12, 26, 27, 168, 359
Art 7(1) ............................................................................................................................................21, 26
Art 7(2) ..................................................................................................................................................26
Art 8...................................................................................................................................22, 28, 29, 265
Art 8(1) ..............................................................................................................................28, 29, 30, 264
Art 8(2) ..................................................................................................................................................28
Art 10...................................................................................................................................142, 569, 574
Art 14...............................................................................................................................................22, 29
Part I
Concepts in
criminal law
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1
Introduction to criminal
law
AIMS AND OBJECTIVES

After reading this chapter you should be able to:
 Understand the basic origins and purposes of criminal law
 Understand the definitions and classifications of criminal law
 Understand the basic workings of the criminal justice system
 Understand the basic concept of the elements of actus reus and mens rea in criminal
law
 Understand the burden and standard of proof in criminal cases
 Understand how human rights law may have an effect on criminal law
This book deals with substantive criminal law. Substantive criminal law refers to the
physical and mental element (if any) that has to be proved for each criminal offence.
It also includes the general principles of intention and causation, the defences avail-
able and other general rules such as those on when participation in a crime makes the
person criminally liable. Substantive criminal law does not include rules of pro-
cedure or evidence or sentencing theory and practice. However, these are equally
important parts of the criminal justice system.
This chapter, therefore, gives some background information on criminal law. The
purpose of the criminal law is considered, as well as how we know what is recognised
as a crime, and the sources of criminal law. There are also brief sections explaining the
courts in which criminal offences are tried, and the purposes of sentencing. The penul-
timate section of this chapter explains the burden and standard of proof in criminal
cases. The final section looks at the effect of human rights law on criminal law.
1.1 Purpose of criminal law

The purpose of criminal law has never been written down by Parliament and, as the
criminal law has developed over hundreds of years, it is difficult to state the aims in any
precise way. However, there is general agreement that the main purposes are to:
 protect individuals and their property from harm;
 preserve order in society;
 punish those who deserve punishment.
However, on this last point, it should be noted that there are also other aims when a
sentence is passed on an offender. These include incapacitation, deterrence, reformation
and reparation.
In addition to the three main aims of the criminal law listed above, there are other
points which have been put forward as purposes. These include:
 educating people about appropriate conduct and behaviour;
 enforcing moral values.
The use of the law in educating people about appropriate conduct can be seen in the
drink-driving laws. The conduct of those whose level of alcohol in their blood or urine
was above specified limits has only been criminalised since 1967. Prior to that, it had to
4
be shown that a driver was unfit to drive as a result of drinking. Since 1967, there has
been a change in the way that the public regard drink-driving. It is now much more
unacceptable, and the main reason for this change is the increased awareness, through
introduction to criminal law
the use of television adverts, of people about the risks to innocent victims when a vehicle
is driven by someone over the legal limit.
1.1.1 Should the law enforce moral values?

This is more controversial, and there has been considerable debate about whether the
law should be used to enforce moral values. It can be argued that it is not the function of
criminal law to interfere in the private lives of citizens unless it is necessary to try to
impose certain standards of behaviour. The Wolfenden Committee reporting on homo-
sexual offences and prostitution (1957) felt that intervention in private lives should only
occur in order to:
 preserve public order and decency;
 protect the citizen from what is offensive or injurious;
 provide sufficient safeguards against exploitation and corruption of others, particu-
larly those who are especially vulnerable.
Lord Devlin disagreed. He felt that ‘there are acts so gross and outrageous that they
must be prevented at any cost’. He set out how he thought it should be decided what
type of behaviour be viewed as criminal by saying:
quotation
‘How are the moral judgments of society to be ascertained . . . It is surely not enough that they
should be reached by the opinion of the majority; it would be too much to require the indi-
vidual assent of every citizen. English law has evolved and regularly uses a standard which does
not depend on the counting of heads. It is that of the reasonable man. He is not to be con-
fused with the rational man. He is not to be expected to reason about anything and his judg-
ment may be largely a matter of feeling . . . for my purpose I should like to call him the man in
the jury box . . .
It is not nearly enough that to say that a majority dislike a practice: there must be a real
feeling of reprobation . . . I do not think one can ignore disgust if it is deeply felt and not manu-
factured. Its presence is a good indication that the bounds of toleration are being reached.’
Lord Devlin, The Enforcement of Morals (Oxford University Press, 1965)
There are two major problems with this approach. First, the decision of what moral
behaviour is criminally wrong is left to each jury to determine. This may lead to incon-
sistent results, as there is a different jury for each case. Second, Lord Devlin is content
to rely on what may be termed ‘gut reaction’ to decide if the ‘bounds of toleration are
being reached’. This is certainly neither a legal method nor a reliable method of decid-
ing what behaviour should be termed criminal. Another problem with Lord Devlin’s
approach is that society’s view of certain behaviour changes over a period of time.
Perhaps because of the lack of agreement on what should be termed ‘criminal’ and the
difficulty of finding a satisfactory way of legally defining such behaviour, there is
another problem in that the courts do not approach certain moral problems in a con-
sistent way. This can be illustrated by conflicting cases on when the consent of the
injured party can be a defence to a charge of assault. The first is the case of Brown
[1993] 2 All ER 75.
5
CASE EXAMPLE
Brown [1993] 2 all er 75
1.1 PurPose of criminal law

Several men in a group of consenting adult sado-masochists were convicted of assault causing
actual bodily harm (s 47 Offences Against the Person Act 1861) and malicious wounding (s 20
Offences Against the Person Act 1861). They had carried out in private such acts as whipping
and caning, branding, applying stinging nettles to the genital area and inserting map pins or
fish hooks into the penises of each other. All of the men who took part consented to the acts
against them. There was no permanent injury to any of the men involved and no evidence that
any of them had needed any medical treatment. The House of Lords considered whether
consent should be available as a defence in these circumstances. It took the view that it could
not be a defence and upheld the convictions.
Lord Templeman said:
JUDGMENT
‘The question whether the defence of consent should be extended to the consequences of
sado-masochistic encounters can only be decided by consideration of policy and public interest
. . . Society is entitled and bound to protect itself against a cult of violence. Pleasure derived
from the infliction of pain is an evil thing. Cruelty is uncivilised.’
Two of the judges dissented and would have allowed the appeals. One of these judges,
Lord Slynn, expressed his view by saying:
JUDGMENT
‘Adults can consent to acts done in private which do not result in serious bodily harm, so that
such acts do not constitute criminal assaults for the purposes of the 1861 [Offences Against
the Person] Act. In the end it is a matter of policy in an area where social and moral factors are
extremely important and where attitudes could change. It is a matter of policy for the legis-
lature to decide. It is not for the courts in the interests of paternalism or in order to protect
people from themselves to introduce into existing statutory crimes relating to offences against
the person, concepts which do not properly fit there.’
The second case is Wilson [1996] Crim LR 573, where a husband had used a heated butter
knife to brand his initials on his wife’s buttocks, at her request. The wife’s burns had
become infected and she needed medical treatment. He was convicted of assault causing
actual bodily harm (s 47 Offences Against the Person Act 1861) but on appeal the Court
of Appeal quashed the conviction. Russell LJ said:
JUDGMENT
‘[W]e are firmly of the opinion that it is not in the public interest that activities such as the
appellant’s in this appeal should amount to a criminal behaviour. Consensual activity between
husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper
matter for criminal investigation, let alone criminal prosecution . . . In this field, in our judg-
ment, the law should develop upon a case by case basis rather than upon general propositions
to which, in the changing times we live, exceptions may arise from time to time not expressly
6 covered by authority.’
The similarities in the two cases are that both activities were in private and the partici-
pants were adults. In Brown there were no lasting injuries and no evidence of the need
for medical treatment, whereas in Wilson the injuries were severe enough for Mrs
Wilson to seek medical attention (and for the doctor to report the matter to the police).
The main distinction which the courts relied on was that in Brown the acts were for
sexual gratification, whereas the motive in Wilson was of ‘personal adornment’. Is this
enough to label the behaviour in Brown as criminal? (See sections 8.6.3 and 8.6.4 for
further discussion of the decision in Brown and also the decision of the European
Court of Human Rights in the case.)
The reference in Russell LJ’s judgment to changing times acknowledges that society’s
view of some behaviour can change. There can also be disagreement about what morals
should be enforced. Abortion was legalised in 1967, yet some people still believe it is
morally wrong. A limited form of euthanasia has been accepted as legal with the ruling
in Airedale NHS Trust v Bland [1993] 1 All ER 821, where it was ruled that medical staff
could withdraw life support systems from a patient, who could breathe unaided but
was in a persistent vegetative state. This ruling meant that they could withdraw the
feeding tubes of the patient, despite the fact that this would inevitably cause him to die.
Many people believe that this is immoral, as it denies the sanctity of human life.
All these matters show the difficulty of agreeing that one of the purposes of criminal
law should be to enforce moral standards.
1.1.2 Example of the changing nature of criminal law

As moral values will have an effect on the law, what conduct is criminal may, therefore,
vary over time and from one country to another. The law is likely to change when there
is a change in the values of government and society. A good example of how views on
what is criminal behaviour change over time can be seen from the way the law on con-
sensual homosexual acts has changed.
 The Criminal Law Amendment Act 1885 criminalised consensual homosexual acts
between adults in private. It was under this law that the playwright Oscar Wilde was
imprisoned in 1895.
 The Sexual Offences Act 1967 decriminalised such behaviour between those aged 21
and over.
 The Criminal Justice and Public Order Act 1994 decriminalised such behaviour for
those aged 18 and over.
 In 2000 the government reduced the age of consent for homosexual acts to 16, though
the Parliament Acts had to be used as the House of Lords voted against the change in
the law.
We will now move on to consider where the criminal law comes from.
1.2 Sources of criminal law

The two main areas from which our criminal law is derived are case decisions (common
law) and Acts of Parliament.
1.2.1 Common law offences

The courts have developed the criminal law in decisions over hundreds of years. In some
instances offences have been entirely created by case law and precedents set by judges in
those cases. An offence which is not defined in any Act of Parliament or delegated legisla- 7
tion is called a common law offence. Murder is such an offence. The classic definition of
murder comes from the seventeenth-century jurist, Lord Coke. This definition has continu-
ally been refined by judges, including some important decisions during the 1980s and
1.2 sources of criminal law

1990s. Other common law offences include manslaughter and assault and battery. Equally,
some defences have been entirely created by the decisions of judges. The defences of
duress, duress of circumstances, automatism and intoxication all come into this category.
One problem with common law offences is that they can be very vague. This is illus-
trated by the common law offence of outraging public decency. This offence has arisen so
rarely that there have even been debates about whether it actually exists, but it was used in
two separate cases in the 1990s. The first case was Gibson and another [1991] 1 All ER 439.
CASE EXAMPLE
Gibson and another [1991] 1 all er 439
In this the first defendant had created an exhibit of a model’s head with earrings which were
made out of freeze-dried real human foetuses. He intended to convey the message that
women wear their abortions as lightly as they wear earrings. This model was put on public
display in the second defendant’s art gallery. Both men were convicted of outraging public
decency and their convictions were upheld by the Court of Appeal.
Source
Common law
Statutory law
Made by judges
Acts of Parliament Delegated legislation
N.B. Both of these may be interpreted by judges

Figure 1.1 Sources of criminal law.
The second case was very different. This was Walker [1995] Crim LR 44, where the
defendant had exposed his penis to two girls in the sitting room of his own house. The
Court of Appeal allowed the defendant’s appeal against his conviction, as the place
where the act occurred was not open to the public. The prosecution’s choice of charge
seems odd, but presumably the fact that there had been very few cases made it difficult
for them to know whether it was necessary to prove only that other people had been
outraged or whether, as decided by the Court of Appeal, it had to be in a place where
there was a real possibility that members of the general public might witness the act. In
fact in Walker there were other more suitable offences with which the defendant could
have been charged.
In some instances the courts will develop the law and then it will be absorbed into a
statute. This happened with the defence of provocation (a defence to murder). It had
been developed through case law but was then set out in the Homicide Act 1957. Even
where there is a definition in an Act of Parliament, the courts may still have a role to play
8 in interpreting that definition and drawing precise boundaries for the crime.
1.2.2 Statutory offences

Today the majority of offences are set out in an Act of Parliament or through delegated
legislation. About 70 to 80 Acts of Parliament are passed each year. In addition there is
a considerable amount of delegated legislation each year, including over 3,000 statutory
instruments created by government ministers. Most offences today are statutory ones.
Examples include theft, robbery and burglary, which are in the Theft Act 1968. Criminal
damage is set out in the Criminal Damage Act 1971. The law on sexual offences is now
largely contained in the Sexual Offences Act 2003. The various offences of fraud are set
out in the Fraud Act 2006.
Note that, even when offences have been created by Acts of Parliament or delegated
legislation, judges still play a role in interpretation. Different sources of law are shown
in Figure 1.1.
1.2.3 Codification of the criminal law

One of the main problems in criminal law is that it has developed in a piecemeal way
and it is difficult to find all the relevant law. Some of the most important concepts, such
as the meaning of ‘intention’, still come from case law and have never been defined in an
Act of Parliament. Other areas of the law rely on old Acts of Parliament, such as the
Offences Against the Person Act which is nearly 150 years old. All these factors mean
that the law is not always clear. In 1965 the government created a full-time law reform
body called the Law Commission. The Law Commission has the duty to review all areas
of law, not just the criminal law. By s 3(1) of the Law Commissions Act 1965 the Com-
mission was established to:
SECTION
‘take and keep under review all the law . . . with a view to its systematic development and
reform, including in particular the codification of such law, the elimination of anomalies, the
repeal of obsolete and unnecessary enactments, the reduction of the number of separate
enactments and generally the simplification and modernisation of the law.’
The Law Commission decided to attempt the codification of the criminal law to include
existing law and to introduce reforms to key areas. A first draft was produced in 1985,
and this was followed by consultation which led to the publication of A Criminal Code
for England and Wales (1989) (Law Com No 177). The two main purposes of the code
were regarded as:
 bringing together in one place most of the important offences;
 establishing definitions of key fault terms such as ‘intention’ and ‘recklessness’.
The second point would also have helped Parliament in the creation of any new offences
as it would be presumed that, when using words defined by the code in a new offence,
it intended the meanings given by the criminal code unless they specifically stated
otherwise.
The Draft Criminal Code has never been made law. Parliament has not had either the
time or the will for such a large-scale technical amendment to the law. Because of this the
Law Commission has since 1989 tried what may be called a ‘building-block’ approach,
under which it has produced reports and draft Bills on small areas of law in the hope
that Parliament would at least deal with the areas most in need of reform. In its Tenth
9
Programme in 2008 the Law Commission removed the codification of criminal law from
its law reform programme. It stated that it continued to support the objective of codify-
ing the law and would continue to codify where it could. However, it considered that it
1.2 sources of criminal law

needs to redefine its approach and intends to simplify areas of the criminal law as a step
towards codification.
Past Law Commission reports for reform of the criminal law have included:
 Legislating the Criminal Code: Offences Against the Person and General Principles (1993)
Law Com No 218;
 Legislating the Criminal Code: Intoxication and Criminal Liability (1995) Law Com No
229;
 Legislating the Criminal Code: Involuntary Manslaughter (1996) Law Com No 237;
 Fraud (2002) Law Com No 276;
 Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com No 300;
 Murder, Manslaughter and Infanticide (2006) Law Com No 304;
 Participating in Crime (2007) Law Com No 305;
 Intoxication and Criminal Liability (2009) Law Com No 314;
 Conspiracy and Attempts (2009) Law Com No 318.
These reports deal with areas of law in which cases have highlighted problems. Although
these are areas of law where reform is clearly needed, Parliament has been slow to enact
the Law Commission’s reports on reform of specific areas of criminal law. For example
there has been no reform of the law on offences against the person or on the defence of
intoxication.
However, since 2006 there have been a number of reforms as the result of some of
the Law Commission’s reports. In 2006 Parliament passed the Fraud Act partially
implementing the proposals on fraud. The Corporate Manslaughter and Corporate
Homicide Act 2007 implemented proposals made in Legislating the Criminal Code:
Involuntary Manslaughter (1996) Law Com No 237. The Serious Crime Act 2007 imple-
mented the Law Commission’s report Inchoate Liability for Assisting and Encouraging
Crime (2006) Law Com No 300. The Bribery Act 2010 implemented the report Reform-
ing Bribery (2008) Law Com No 313.
It is worth noting that most European countries have a criminal code. France’s Code
pénal was one of the earliest, being introduced by Napoleon in 1810, though there is
now a new code, passed in 1992.
1.2.4 Reform of the law
Even if the law were codified, it would still be necessary to add to it from time to time.
Modern technology can lead to the need for the creation of new offences. A recent
example of this is that it is now a criminal offence to use a handheld mobile phone when
driving. Pressure for new laws comes from a variety of sources. The main ones are:
 government policy
 EU law
 Law Commission reports
 reports by other commissions or committees
 pressure groups.
It is also necessary since the passing of the Human Rights Act 1998 to ensure that new
10 laws are compatible with the European Convention on Human Rights.
1.3 Defining a crime

As seen in section 1.1.2, it is difficult to know what standard to use when judging whether
an act or omission is criminal. The only way in which it is possible to define a crime is
that it is conduct forbidden by the state and to which a punishment has been attached
because the conduct is regarded by the state as being criminal. This is the only definition
which covers all crimes.
As the criminal law is set down by the state, a breach of it can lead to a penalty, such
as imprisonment or a fine, being imposed on the defendant in the name of the state.
Therefore, bringing a prosecution for a criminal offence is usually seen as part of the role
of the state. Indeed, the majority of criminal prosecutions are conducted by the Crown
Prosecution Service (CPS), which is the main state agency for criminal prosecutions.
There are other state agencies which bring prosecutions for certain types of offences. For
example, the Serious Fraud Office brings cases relating to large-scale frauds, and the
Environmental Agency handles breaches of law affecting the environment.
It is also possible for a private individual or business to start a prosecution. For
example the RSPCA brings prosecutions on offences relating to animal welfare. However,
it is unusual for an individual to bring a prosecution. Even where an individual brings
a prosecution, the state still can control the case by the CPS taking over the prosecution
and then making the decision on whether to continue with the prosecution or not. Alter-
natively the Attorney-General can stay (i.e. halt) the proceedings at any time by entering
nolle prosequi what is called a nolle prosequi without the consent of the prosecutor.
An order halting
the prosecution of
a case
1.3.1 Conduct criminalised by the judges
Some conduct is criminalised not by the state but by the courts. This occurs where the
courts create new criminal offences through case law. In modern times this only happens
on rare occasions, because nearly all law is made by Parliament. An example of conduct
criminalised by the courts is the offence of conspiracy to corrupt public morals. This
offence has never been enacted by Parliament. Its creation was recognised in Shaw v DPP
[1962] AC 220. In this case the defendant had published a Ladies Directory, which adver-
tised the names and addresses of prostitutes with their photographs and details of the
‘services’ they were prepared to offer. In the House of Lords, Viscount Simonds asserted
that the offence of conspiracy to corrupt public morals was an offence known to the
common law. He also claimed:
JUDGMENT
‘[T]here is in [the] court a residual power, where no statute has yet intervened to supersede the
common law, to superintend those offences which are prejudicial to the public welfare. Such
occasions will be rare, for Parliament has not been slow to legislate when attention has been
sufficiently aroused. But gaps remain and will always remain since no one can foresee every
way in which the wickedness of man may disrupt the order of society.’
Another offence which has been recognised in modern times by the judges is marital
rape. This was declared a crime in R v R [1991] 4 All ER 481 (see next section for details
on this case).
1.3.2 Retroactive effect of case law

It is argued that it is wrong for the courts to make law. It is Parliament’s role to make the
law, and the courts’ role is to apply the law. One of the arguments for this view is that 11
Parliament is elected while courts are not, so that lawmaking by courts is
undemocratic.
1.3 defining a crime

The other argument involves the fact that judge-made law is retrospective in effect.
This means that when courts decide a case, they are applying the law to a situation
which occurred before they ruled on the law. At the time of the trial or appeal they
decide, as a new point of law, that the conduct of the defendant is criminal. That decision
thus criminalises conduct which was not thought to be criminal when it was committed
months earlier.
This point was considered in R v R, where a man was charged with raping his wife.
The court in R v R had to decide whether, by being married, a woman automatically
consented to sex with her husband. There had never been any statute law declaring that
it was a crime for a man to have sexual intercourse with his wife without her consent.
Old case law dating back as far as 1736 had taken the view that ‘by their mutual matri-
monial consent the wife hath given up herself in this to her husband, which she cannot
retract’. In other words, once married, a woman was always assumed to consent and she
could not go back on this. This view of the law had been confirmed as the law in Miller
[1954] 2 QB 282, even though in that case the wife had already started divorce proceed-
ings. In R v R the House of Lords ruled that it was a crime of rape when a man had
sexual intercourse with his wife without her consent, pointing out that:
JUDGMENT
‘The status of women and the status of a married woman in our law have changed quite dra-
matically. A husband and wife are now for all practical purposes equal partners in marriage.’
Following the House of Lords’ decision, the case was taken to the European Court of
Human Rights in CR v United Kingdom (Case no 48/1994/495/577 [1996] FLR 434) claim-
ing that there was a breach of art 7 of the European Convention on Human Rights. The
article states:
ARTICLE
‘No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence under national or international law at the time when it
was committed.’
The European Court of Human Rights held that there had not been any breach, as the
debasing character of rape was so obvious that to convict in these circumstances was not
a variance with the object and purpose of art 7. In fact, abandoning the idea that a
husband could not be prosecuted for the rape of his wife conformed with one of the
fundamental objectives of the Convention, that of respect for human dignity. (See section
1.9 for further discussion on human rights and criminal law.)
1.4 Classification of offences

There are many ways of classifying offences depending on the purpose of the classifica-
tion. They are:
 by source
 by police powers
12
 by type of offence
 by place of trial.
1.4.1 Classifying law by its source

As already explained in section 1.2, law comes from different sources. This distinction is
important from an academic point of view. So law can be categorised as:
 common law (judge-made);
 statutory (defined in an Act of Parliament);
 regulatory (set out in delegated legislation).
1.4.2 Categories for purposes of police powers of

detention
summary Police powers to detain a suspect who has been arrested depend on the category of
offence offence. There are three categories:
An offence that
can only be tried  summary offences
in a magistrates’
court  indictable offences
 terrorism offences.
indictable Summary offences

offence Under s 24 Police and Criminal Evidence Act 1984 (PACE), as amended by s 110 of the
An offence that Serious Organised Crime and Police Act 2005, a constable can make an arrest for any
can only be tried
in the Crown
offence. However, an arresting officer can only arrest if he or she has reasonable grounds
Court for believing that it is necessary to make the arrest for one of the following reasons:
 to enable the person’s name or address to be ascertained;
 to prevent the person from:
 causing physical injury to him or herself or any other person,
 suffering physical injury,
 causing loss of or damage to property,
 committing an offence against public decency where members of the public
cannot reasonably be expected to avoid the person in question,
 causing an unlawful obstruction of the highway;
 to protect a child or other vulnerable person;
 to allow the prompt and effective investigation of the offence or of the conduct of the
person;
 to prevent any prosecution for the offence from being hindered by the disappearance
of the person in question.
Where the offence is not one of terrorism or an indictable offence, the police can only
detain a person for a maximum of 24 hours. They must also allow someone to be
informed of the arrest and for the suspect to have legal advice as soon as possible after
arrest.
Indictable offences
For these the police have the power to detain any person who has been arrested for an
initial period of 24 hours. This can then be extended to 36 hours by an officer of the rank 13
of superintendent or above under s 42(1) of the Police and Criminal Evidence Act 1984
(PACE) (as amended). The police then have the right to apply to a magistrate for permis-
1.4 classification of offences

sion to detain the suspect for up to a maximum of 96 hours.
In addition there are restrictions on the rights of the suspected person. The right to
have someone informed of their arrest may be delayed for up to 36 hours (s 56 Police and
Criminal Evidence Act 1984). The right to legal advice may also be delayed for up to 36
hours (s 58 Police and Criminal Evidence Act 1984).
Terrorism offences
The Terrorism Act 2000 controls powers of detention for terrorism offences. Under s 8 of
this Act, as amended by the Terrorism Act 2006, the police can detain a person arrested
on suspicion of terrorism offences for 48 hours. After this they can apply to a judge to
extend the period up to a maximum of 14 days. The PACE Code of Practice H applies to
those detained for a terrorism offence.
1.4.3 Classifying by the type of harm caused by the crime

When studying criminal law it is usual to study offences according to the type of harm
caused. The main categories here are:
 offences against the person
 offences against property
 offences against public order.
1.4.4 Classification by where a case will be tried

One of the most important ways of classifying offences is by the categories that affect
where and how a case will be tried. For this purpose offences are classified as:
triable either 1. Indictable only offences. These must be tried on indictment at the Crown Court (e.g.
way offence
murder, manslaughter, rape).
An offence which
can be tried in 2. Triable either way offences. These can be tried either on indictment at the Crown Court
either the or summarily at a magistrates’ court (e.g. theft, burglary, assault occasioning actual
magistrates’ courts
or the Crown bodily harm).
Court 3. Summary offences. These can be tried only at a magistrates’ court (e.g. assaulting a
policeman in the execution of his duty, common assault).
1.5 Criminal justice system
There are two types of courts which try criminal cases. These are:
 the magistrates’ courts
 the Crown Court.
As already seen in the section on classification of offences (section 1.4.4), the decision as
to where the trial will take place depends on whether the offence is summary, triable
either way or indictable.
1.5.1 Trials in the magistrates’ courts

Magistrates can try summary offences and any triable either way offences where they
accept jurisdiction and the defendant elects for the case to be tried in a magistrates’
court. Cases are tried by a panel of two or three lay justices or by a District Judge
14
(magistrates’ courts).
Lay justices have no legal qualifications, sit only part-time and are not paid a salary,
although they are paid expenses. They are appointed from ordinary members of the
community. The only qualifications they need are six key qualities:
 good character
 understanding and communication
 social awareness
 maturity and sound temperament
 sound judgment
 commitment and reliability.
Those appointed must be prepared to sit at least 26 half-days per year, although con-
sideration is being given to making this 24 half-days, that is one day a month, in order
to attract more people into the magistracy.
District judges (magistrates’ court) are qualified barristers or solicitors of at least five
years’ standing. District judges may hear cases on their own or they may form a panel
with one or two lay magistrates.
Both lay magistrates and district judges have dual roles. They hear the case and
decide if the defendant is guilty or not guilty. Where the defendant is found guilty or has
pleaded guilty, they pass sentence.
Magistrates’ powers of sentencing are limited to a maximum of six months’ imprison-
ment for one offence, or a total of 12 months’ imprisonment for two or more offences.
Magistrates’ maximum fine used to be £5,000. In 2014 the government announced that it
was increasing the maximum fine to £20,000. In addition it proposed that for some
offences (usually committed by businesses) there would be no limit on the amount mag-
istrates could fine.
1.5.2 Trials in the Crown Court

The offences which can be tried at the Crown Court are all indictable only offences and
any triable either way offences where the magistrates have declined jurisdiction or the
defendant has elected trial at the Crown Court.
Where the defendant pleads not guilty the case is heard by a judge and a jury of 12.
The judge decides the law and sums up to the jury. The jury decide the facts and, accord-
ingly, whether the defendant is guilty or not guilty. If the defendant is found guilty, it is
then the role of the judge to pass sentence.
As the judge is the decider of law and the jury the decider of facts, the judge can
decide at the end of the prosecution case that, as a matter of law, the prosecution has not
proved the case, and he can direct that the defendant be acquitted. Statistics of trials in
the Crown Court show that about 12 per cent are ended by a judge-directed acquittal.
Where the case continues, then, at the end of the whole case, the judge will direct the
jury on any relevant points of law and they will then decide whether the defendant is
guilty or not guilty. If they find the defendant not guilty, he is acquitted. Where they
convict then the judge decides the appropriate sentence to impose on the defendant. If a
defendant pleads guilty then the judge deals with the case on his own. There is no jury.
Use of juries
The use of a jury in the Crown Court is regarded as an important constitutional right
and a way of protecting human rights. There have been several attempts to restrict the
use of juries in criminal cases. In both 1999 and 2000, the government tried to get a Bill
passed which would have removed from offenders charged with triable either way 15
offences the right to choose jury trial. On both occasions the House of Lords voted
against the Bill so that it was not made law.
In 2003 the Criminal Justice Bill included two clauses which would have affected the
1.5 criminal justice system

defendant’s right to trial by jury. The first gave the defendant the right to choose to be
tried by a judge alone without a jury. The House of Lords defeated this clause. The other
clause provided for the prosecution to apply for trial by a judge alone in complex fraud
cases. The House of Lords voted against this, but eventually a compromise was reached
so that the section was passed as part of the Criminal Justice Act 2003. However, it was
subject to an affirmative resolution which meant that it could not become law unless
both the House of Commons and the House of Lords in the future vote in favour of this.
In 2012 this provision was repeated without ever having come into effect. In 2006 there
was another attempt to restrict the use of juries in fraud trials, but again the Bill was
defeated.
There are, however, some limited situations in which a defendant can be tried by a
judge alone. Section 44 of the Criminal Justice Act 2003 allows the prosecution to make
an application for a trial without a jury where there is evidence of a real and present
danger that jury tampering would take place. The first occasion this was used success-
fully was in R v T and others [2009] EWCA Crim 1035 when earlier trials had collapsed
because of interference with the jury. The Court of Appeal gave permission for the case
to go ahead without a jury.
The other situation is under the Domestic Violence, Crime and Victims Act 2004
where the defendant is charged with a large number of similar offences. In order to sim-
plify the case, the prosecution may choose to have the defendant tried on a small number
of sample counts. This trial will be with a jury. If the defendant is found guilty, then he
can be tried for the rest of the offences by a judge alone.
1.5.3 Appeals from a magistrates’ court

There are two different appeal routes, as shown in Figure 1.2.
Case stated appeal to the Queen’s Bench Divisional Court

This is used where the appeal is on a point of law. The magistrates are asked to state a
case (finding of facts). This route is available for both the prosecution and the defence.
The Divisional Court can quash the decision, confirm it or remit the case to a magis-
trates’ court for a rehearing. Where reference is made to judgments of the Divisional
Court or Queen’s Bench Divisional Court (QBD) in any textbook on criminal law, then
the case must have originally been tried in a magistrates’ court.
Supreme Court
Permission to appeal
point of law of general public importance
Queen’s Bench Divisional Court
Case stated appeal

16
Case stated appeal Crown Court

Retrial
Defence only
Magistrates’ Court
Figure 1.2 Appeal routes from a magistrates’ court.
A further appeal is possible to the Supreme Court. This must be on a point of law of
general public importance, and the Supreme Court (or QBD) must give permission to
appeal. Very few cases reach the Supreme Court by this route: only about two or three
per year.
Appeal to the Crown Court

This route is only available to the defendant. The appeal can be against sentence or con-
viction or both. The whole case is reheard at the Crown Court by a judge and two lay
magistrates. They decide whether the defendant is guilty or not guilty and, if guilty, can
pass any appropriate sentence. There is no further appeal from the Crown Court, unless
a point of law is involved in which case the appeal then goes to the QBD and Supreme
Court as above.
1.5.4 Appeals from trials in the Crown Court

Appeals by the defendant
The defendant has the possibility of appealing against conviction and/or sentence to
the Court of Appeal (Criminal Division). The rules on appeals are set out in the Crimi-
nal Appeal Act 1995 and in all cases the defendant must obtain leave to appeal from
the Court of Appeal, or a certificate that the case is fit for appeal from the trial judge.
On the hearing of an appeal the Court of Appeal can allow a defendant’s appeal and
quash the conviction. Alternatively it can vary the conviction to that of a lesser offence
of which the jury could have convicted the defendant. So far as sentence is concerned,
the court can decrease it, but cannot increase it on the defendant’s appeal. Finally, the
court can dismiss the appeal.
Appeals by the prosecution
Originally the prosecution had no right to appeal against either the verdict or sen-
tence passed in the Crown Court. Gradually, however, some limited rights of appeal
have been given to it by Parliament. With one small exception, the prosecution cannot
appeal against a finding of not guilty by a jury. The exception is for cases where the
acquittal was the result of the jury being ‘nobbled’, that is where some jurors are
bribed or threatened by associates of the defendant. In these circumstances, provided
there has been an actual conviction for ‘jury nobbling’, the Criminal Procedure and
Investigations Act 1996 allows the prosecution to appeal and the High Court can order
a retrial.
However, the prosecution has a special referral right in cases where the defendant
is acquitted. This is under s 36 of the Criminal Justice Act 1972, which allows the
Attorney-General to refer a point of law to the Court of Appeal in order to get a ruling
on the law. The decision by the Court of Appeal on that point of law does not affect
the acquittal, but it creates a precedent for any future case involving the same point of 17
law. When this has occurred, the reported case is cited in the form of Attorney-General’s
Reference (No x of 2004).
1.5 criminal justice system

Under the Criminal Justice Act 2003 it is also possible for a defendant who has been
acquitted of certain serious offences to be tried a second time. This can only happen
where the Court of Appeal decides that there is new and compelling evidence which
justifies a second trial.
Appeals to the Supreme Court

Both the prosecution and the defence may appeal from the Court of Appeal to the
Supreme Court, but it is necessary to have the case certified as involving a point of law
of general public importance and to get leave to appeal, either from the Supreme Court
or from the Court of Appeal. Very few criminal appeals are heard by the Supreme Court.
Figure 1.3 shows the appeal route from the Crown Court.
Supreme Court
Need permission to appeal

point of law of general public importance
Court of Appeal
(Criminal Division)
Crown Court
Figure 1.3 Appeals from the Crown Court.

1.5.5 The hierarchy of the courts
This hierarchy of the appeal courts is important for judicial precedent. Decisions by the
Supreme Court (formerly the House of Lords) on points of law are binding on all the
other courts in England and Wales. The only exception to this is where there has been a
decision by the European Court of Justice when lower courts should follow this and not
a Supreme Court decision. Also, all courts have to take account of judgments of the
European Court of Human Rights and may choose to follow such a decision. However,
decisions of this court do not have to be followed.
The lower courts must also follow decisions of the Court of Appeal where there is no
decision by the Supreme Court. However, decisions made by the Court of Appeal can be
overruled by the Supreme Court. The Divisional Court is below the Court of Appeal in
the hierarchy for the purposes of precedent, but lower courts are bound to follow any
decisions made by the Divisional Court if there is no decision by either the Court of
Appeal or the Supreme Court.
18
1.6 Sentencing
1.6.1 Purposes of sentencing

It is recognised that sentencing can be aimed at different purposes, but for the first time
the government has set down the key aims in a statutory context. The Criminal Justice
Act 2003 sets out the purposes of sentencing for those aged 18 and over, saying that a
court must have regard to:
 the punishment of offenders;
 the reduction of crime (including its reduction by deterrence and by the reform and
rehabilitation of offenders);
 the protection of the public;
 the making of reparation by offenders to persons affected by their offences.
The Act also states that ‘in considering the seriousness of any offence, the court must
consider the offender’s culpability in committing the offence and the harm, or risk of
harm, which the offence caused or was intended to cause’. Previous convictions are an
aggravating factor if the court considers this so in view of the relevance to the present
offence and the time which has elapsed since the previous conviction. Racially or reli-
giously aggravated offences are viewed seriously and the Act allows for an increase in
sentence in these situations. There can be a reduction in sentence for a guilty plea, par-
ticularly where made early in the proceedings.
The Sentencing Guidelines Council issues guidelines on the level of sentence appro-
priate in certain types of cases.
actus reus
The physical
element of an 1.7 Elements of a crime
offence (see
Chapter 2 for full For all crimes, except crimes of strict liability (see Chapter 4), there are two elements
discussion)
which must be proved by the prosecution as shown in Figure 1.4. These are:
 actus reus
mens rea  mens rea.
The mental or
fault element of These terms come from a Latin maxim, actus non facit reum nisi mens sit rea, which means
an offence (see
Chapter 3 for full
‘the act itself does not constitute guilt unless done with a guilty mind’. Both an act (or
discussion) omission) and a guilty mind must be proved for most criminal offences.
ACTUS REUS + MENS REA = OFFENCE
Figure 1.4 Elements of an offence.
tutor tip Actus reus has a wider meaning than an ‘act’, as it can cover omissions or a state of
‘Actus reus and affairs. The term has been criticised as misleading. Lord Diplock in Miller [1983] 1 All ER
mens rea are 978 preferred the term ‘prohibited conduct’, while the Law Commission in the Draft
essential topics in Criminal Code (1989) used the term ‘external element’. Actus reus as a concept is con-
criminal law: make
sure you study sidered fully in Chapter 2.
these topics in Mens rea translates as ‘guilty mind’, but this also is misleading. The Law Commis-
detail in the next sion in the Draft Criminal Code (1989) used the term ‘fault element’. The levels of
two chapters.’
‘guilty mind’ required for different offences vary from the highest level, which is spe-
cific intention for some crimes, to much lower levels such as negligence or knowledge 19
of a certain fact for less serious offences. The levels of mens rea are explained in detail
in Chapter 3.
1.8 Burden and standard of Proof

The actus reus and mens rea will be different for different crimes. For example, in
murder the actus reus is the killing of a human being and the mens rea is causing the
death with ‘malice aforethought’. For theft the actus reus is the appropriation of property
belonging to another, while the mens rea is doing this dishonestly and with the intention
permanently to deprive the other of the property. The actus reus and the mens rea must
be present together, but if there is an ongoing act, then the existence of the necessary
mens rea at any point during that act is sufficient. This is explained fully in Chapter 3.
Even where the actus reus and mens rea are present, the defendant may be not guilty if he
has a defence.
There are some crimes which are an exception to the general rule that there must be
both actus reus and mens rea. These are crimes of strict liability, where the prosecution
need only prove the actus reus; no mental element is needed for guilt. (See Chapter 4 for
strict liability.)
1.8 Burden and standard of proof

1.8.1 Presumption of innocence
An accused person is presumed innocent until proven guilty. The burden is on the pro-
secution to prove the case. This means that it must prove both the required actus reus and
the required mens rea. The prosecution may also have to disprove a defence which the
defendant raises. This was confirmed in the case of Woolmington v DPP [1935] AC 462.
CASE EXAMPLE
Woolmington v DPP [1935] ac 462
D’s wife had left him and gone to live with her mother. D wanted her to return to him. He went
to the mother’s house and shot his wife dead. He claimed that he had decided to ask his wife to
come back to him and, if she refused, to commit suicide. So he took with him a loaded sawn-off
shotgun. He attached a piece of wire flex to the gun so he could put the flex over his shoulder
and carry the gun underneath his coat. When his wife indicated that she would not return to him,
he threatened to shoot himself and brought the gun out to show her he meant it. As he brought
it across his waist it somehow went off, killing his wife. He claimed this was a pure accident.
The judge at the trial told the jury that the prosecution had to prove beyond reason-
able doubt that the defendant killed his wife. He then went on to tell them that, if the
prosecution satisfied them of that, the defendant had to show that there were circum-
stances which made that killing pure accident. This put the burden of proof on the
defendant to prove the defence. In the House of Lords it was held that this was a
misdirection.
Lord Sankey stated that:
JUDGMENT
‘Throughout the web of the English criminal law one golden thread is always to be seen – that
it is that duty of the prosecution to prove the prisoner’s guilt . . . if at the end of and on the
whole of the case, there is a reasonable doubt, created by evidence given by either the pro-
secution or the prisoner, as to whether the prisoner killed the deceased with a malicious inten-
20
tion, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No
matter what the charge or where the trial, the principle that the prosecution must prove the
guilt of the prisoner is part of the common law of England and no attempt to whittle it down
can be entertained.’
This judgment makes several important points which the House of Lords regards as
fixed matters on English law. These are:
 The prosecution must prove the case.
 This rule applies to all criminal cases.
 The rule must be applied in any court where there is a criminal trial (currently the
magistrates’ courts and Crown Court).
 Guilt must be proved beyond reasonable doubt.
 A reasonable doubt can be raised by evidence from either the prosecution or the
defence.
1.8.2 Raising a defence

If the defendant raises a defence then it is for the prosecution to negate that defence. In
Woolmington the defendant stated that the gun had gone off accidentally, thus raising
the defence of accident. The prosecution was obliged to disprove this if the defendant
was to be found guilty.
For all common law defences, except insanity, the defendant only has to raise some
evidence of the key points of the defence. This can be from evidence given by the defence
or by the prosecution. If evidence of a defence is given at the trial, then even where the
defendant has not specifically raised the defence, the prosecution must disprove at least
one element of that defence. The trial judge must direct the jury to acquit unless they are
satisfied that the defence has been disproved by the prosecution.
Reverse onus
For certain defences, the burden of proof is on the defendant. For example, if the defend-
ant claims that he was insane at the time of the crime, the burden of proving this is on
the defendant. This shifting of the burden of proof to the defendant is known as the
‘reverse onus’. As well as the common law defence of insanity, it applies to exceptions
which have been created by statute. One of these is the defence of diminished respon-
sibility in the Homicide Act 1957, where s 2(2) states:
SECTION
‘2(2) On a charge of murder, it shall be for the defence to prove that the person charged is by
virtue of this section not liable to be convicted of murder.’
Where a statute places the burden of proof on the defendant to prove a defence, the
standard is the civil one of balance of probabilities. This was decided in Carr-Briant
[1943] 2 All ER 156, where the defendant was charged under the Prevention of Corrup-
tion Act 1916. Section 2 of the Act states that any money or other gift given by someone
trying to get a contract with a government department or other public body to the holder
of a public office ‘shall be deemed to have been paid or given and received corruptly as
such inducement or reward . . . unless the contrary is proved’.
The trial judge had directed the jury that this meant the defendant had to prove his
innocence beyond reasonable doubt. On appeal the conviction was quashed on another
ground, but the court went on to state that this direction was wrong: 21
JUDGMENT
1.9 criminal law and human rights

‘In our judgment, in any case where, either by statute or at common law, some matter is pre-
sumed against an accused “unless the contrary is proved,” the jury should be directed that it
is for them to decide whether the contrary is proved; that the burden of proof is less than is
required at the hands of the prosecution in proving the case beyond reasonable doubt; and
that the burden may be discharged by evidence satisfying the jury of the probability of that
which the accused is called upon to establish.’
There may be a breach of human rights when the defence has to prove a defence. (See
section 1.9 for a full discussion of this.)
1.8.3 Standard of proof

The standard of proof in order for a defendant to be found guilty is ‘beyond reasonable
doubt’. This is usually explained by the judge telling the jury that they should only
convict if they are satisfied that they are sure of the defendant’s guilt.
1.9 Criminal law and human rights

The Human Rights Act 1998 incorporated the European Convention on Human Rights
into our law. Under s 3 of the Act all Articles of the Convention have to be taken into
consideration by English courts. Much of the effect of the Convention is on evidence and
procedure but it has also had an effect on substantive criminal law.
In criminal law the most relevant rights under the Convention are:
 the right to liberty (art 5);
 the right to a fair trial (art 6(1));
 the presumption of innocence (art 6(2));
 that there should be no punishment without law (art 7(1)).
However, challenges to our substantive criminal law have been made under other
Articles. These include:
 the right not to be subjected to inhuman or degrading treatment (art 3(1));
 the right of respect for a person’s private life (art 8);
 that, in the application of the Convention rights and freedoms, there should be no
discrimination on the grounds of sex, race, religion or political opinion (art 14).
1.9.1 The right to a fair trial

This right is contained in art 6(1) of the European Convention.
ARTICLE
‘6(1) Everyone is entitled to a fair trial and public hearing within a reasonable time by an inde-
pendent and impartial tribunal established by law.’
In G [2008] UKHL 37, it was held that the fact that the offence was one of strict liability
22 did not render the trial unfair. See section 4.4.5 for more details.
The House of Lords upheld D’s conviction unanimously. They held that a strict liab-
ility offence was not a breach of art 6(1) or art 6(2). Lord Hoffmann stated in his
judgment:
JUDGMENT
‘Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone
is entitled to a “fair and public hearing” and article 6(2) provides that everyone charged with a
criminal offence “shall be presumed innocent until proved guilty according to law”. It is settled
law that Article 6(1) guarantees fair procedure and the observance of the principle of the separa-
tion of powers but not that either the civil or criminal law will have any particular substantive
content. Likewise, article 6(2) requires him to be presumed innocent of the offence but does not
say anything about what the mental or other elements of the offence should be.’
G applied for the case to be heard by the European Court of Human Rights (ECHR), but
the application was ruled inadmissible (G v United Kingdom (Admissibility) (37334/08)
[2012] Crim LR 46).
The ECHR did not consider that Parliament’s decision not to make available a defence
based on reasonable belief that the complainant was aged 13 or over could give rise to
any issue under art 6. They also pointed out that it is not the ECHR’s role under either
art 6(1) or 6(2) to dictate the content of domestic criminal law. This includes issues of
whether there should be a particular defence available to the accused and whether or
not a blameworthy state of mind should be one of the elements of an offence.
1.9.2 Burden of proof

Article 6(2) states that ‘Everyone charged with a criminal offence shall be presumed
innocent until proven guilty.’
This places the burden of proof on the prosecution and effectively makes the same
provision for the standard of proof in a criminal trial as already exists in our legal system.
The only potential conflict with human rights is where the defendant has to prove a
defence. Defences which place the burden of proving the defence on the defendant may
be in breach of art 6(2).
In the conjoined appeals of Attorney-General’s Reference (No 4 of 2002) and Sheldrake v
DPP [2004] UKHL 43; [2005] 1 All ER 237, the House of Lords considered whether
defences which require the defendant to prove them on the balance of probabilities were
a breach of the presumption of innocence under art 6(2) of the European Convention on
Human Rights. The Lords came to the conclusion that in many cases the wording of the
Act could be interpreted so that it did not create a legal burden to prove the defence as
was held in Attorney-General’s Reference (No 4 of 2002). However, they held that even if a
section did breach art 6(2) it was permissible if it was ‘justifiable, legitimate and propor-
tionate’. This was the situation in the case of Sheldrake v DPP.
CASE EXAMPLE
Sheldrake v DPP [2004] uKhl 43; [(2005] 1 all er 237
Sheldrake was convicted of being in charge of a motor car in a public place while over the
drink-drive limit, contrary to s 5(1)(b) of the Road Traffic Act 1988. Section 5(2) of the Act
allows a defence if D can prove that there was no likelihood of his driving while he was over
the limit. He was convicted but the Divisional Court quashed the conviction. The prosecution
23
then appealed to the House of Lords.
The defence argued that s 5(2) infringed the presumption of innocence guaranteed by art

6(2) as it imposed on the defendant a legal burden of proving innocence by proving a
defence.
The House of Lords held that s 5(2) did impose a legal burden of proof on the defend-
ant. However, they pointed out that there is an obvious risk that a person who is in
charge of a car when unfit to drive may drive and so risk causing death or serious injury.
As a result, the Lords allowed the prosecution’s appeal and reinstated the conviction.
CASE EXAMPLE
Attorney-General’s Reference (No 4 of 2002) [2004] uKhl 43; [2005] 1 all er 237
This case concerned s 11 of the Terrorism Act 2000. The defendant had been charged with
counts of (1) being a member of a proscribed organisation and (2) professing to be a member
of a proscribed organisation, both contrary to s 11(1). The question was whether s 11(2)
imposed a legal or evidential burden on the defendant.
Section 11(2) states:
SECTION
‘11(2) It is a defence for a person charged with an offence under subsection 11(1) to prove:
a. that the organisation was not proscribed on the last (or only) occasion on which he
became a member or began to profess to be a member, and
b. that he has not taken part in the activities of the organisation at any time while it
was proscribed.’
At the trial the judge ruled that there was no case to answer on the two counts. The
Attorney-General referred the point of law for the opinion of the Court of Appeal, who
ruled in the Attorney-General’s favour. The defence referred the matter to the House of
Lords which ruled that s 11(2) could be read down as imposing an evidential instead of
a legal burden.
Lord Bingham gave the leading speech in these conjoined cases. His judgment is par-
ticularly useful as he gave a review of reverse burden situations covering:
 the pre-Convention law of England and Wales;
 the Convention and the Strasbourg jurisprudence;
 the leading United Kingdom cases since the Human Rights Act 1998.
After considering cases decided by the European Court of Human Rights, Lord Bingham
said:
JUDGMENT
‘From this body of authority certain principles may be derived. The overriding concern is that
a trial should be fair, and the presumption of innocence is a fundamental right directed to that
end. The Convention does not outlaw presumptions of fact or law but requires that these
should be kept within reasonable limits and should not be arbitrary’ (para 21).
24
He went on to point out that:
JUDGMENT
‘Relevant to any judgment on reasonableness or proportionality will be the opportunity given
to the defendant to rebut the presumption, maintenance of the rights of the defendant, flex-
ibility in application of the presumption, retention by the court of a power to assess the evid-
ence, the importance of what is at stake and the difficulty which a prosecutor may face in the
absence of a presumption’ (para 21).
UK decisions since the Human Rights Act 1998

Lord Bingham reviewed several cases. The most important being:
 R v DFF, ex p Kebilene [2000] 2 AC 326 regarding the provisions of the Prevention of
Terrorism (Temporary Provisions) Act 1989, in which the majority of the Lords held
that the relevant provision could be read down as imposing an evidential and not a
legal burden.
 Lambert [2001] UKHL 37; [2002] 1 All ER 2 which concerned s 28(2) of the Misuse of
Drugs Act 1971. The appeal failed because a majority of the Lords held that the
Human Rights Act 1998 was not retrospective. Although the appeal failed on this
ground the Lords did consider the presumption of innocence and a majority held
that if s 28(2) of the Misuse of Drugs Act 1971 was read as imposing a legal burden
on the defendant to prove lack of knowledge, then this undermined the presumption
of innocence to an impermissible extent. However, they thought it could be read
down as imposing only an evidential burden.
 Johnstone [2003] UKHL 28 concerning s 92(5) of the Trade Marks Act 1994. The Law
Lords held that the section did impose a legal burden on the defendant and so dero-
gated from the presumption of innocence. However, this could be justified if it was
necessary to maintain a balance between the public interest and the interests of the
defendant.
Lord Bingham pointed out that the first question the House of Lords had to consider in
each case was whether the provision in question did, unjustifiably, infringe the pre-
sumption of innocence. In order to do this it was necessary to consider the following:
 Did the provision make an inroad into art 6?
 If so, was an inroad justifiable, legitimate and proportionate?
If an inroad into art 6 was justifiable, legitimate and proportionate, then a legal burden
was placed on the defendant. If an inroad was unjustified, then a further question
arose – could and should the provision be ‘read down’ in accordance with the courts’
interpretative obligation under s 3 of the Human Rights Act 1998 so as to impose an
evidential and not a legal burden on the defendant? ‘Reading down’ in this context
means the Act could be interpreted to mean the lower level of an evidential burden of
proof.
In Sheldrake the Law Lords decided that there was an inroad into art 6 but that it was
justifiable, legitimate and proportionate. In Attorney-General’s Reference (No 4 of 2002)
they decided that the provision could be read as imposing an evidential burden on the
defendant.
Andrew Ashworth in his commentary on the cases of Attorney-General’s Reference (No
4 of 2002) and Sheldrake v DPP criticises the decision of the House of Lords, pointing 25
out:

quotation
‘The least satisfactory aspect of this decision is that it furnishes the courts with no clear
guidance on how to interpret statutes that impose a burden of proof on the defendant.
The only certainty is that courts should use s 3 of the Human Rights Act 1998 fully, and
should not defer to Parliament’s intention, least of all where there is no evidence that the
legislature had the presumption of innocence in mind. Beyond that there seem to be three
major factors to be taken into account – maximum penalty, the danger of convicting the
innocent, and the ease of proof. All three factors remain problematical as a result of this
decision.’
A. Ashworth, ‘Attorney-General’s Ref (No 4 of 2002), Sheldrake v DPP:
Case and Commentary’ (2005) Crim LR 215
The issue has been considered in subsequent cases including Webster [2010] EWCA Crim
2819, Williams [2012] EWCA Crim 2162 and Foye [2013] EWCA Crim 475.
CASE EXAMPLE
Webster [2010] ewca crim 2819
The defendant was convicted of corruptly giving a gift under s 1(2) of the Prevention of Cor-
ruption Act 1889. He had a business which supplied educational aids to schools. About half of
his business came from the local authority. The conviction related to a gift of £100 cash to an
employee of the local council. The Court of Appeal quashed the conviction because the 1889
Act required the defendant to prove that the gift was not ‘given . . . corruptly as . . . [an] induce-
ment or reward’.
This placed a reverse burden of proof on the defendant and violated the presumption of
innocence under Article 6(2) of the European Convention on Human Rights. The Court of
Appeal stated that s 3 of the Human Rights Act 1998 could have been used to make the legis-
lation comply with the presumption of innocence. Reading down the requirement on proof
would have placed a burden on the defendant to raise in evidence the issue of whether the
gift was corruptly made within the meaning of s 1 of the 1889 Act. Then the prosecution
would have had to prove beyond reasonable doubt that it was corrupt.
CASE EXAMPLE
Williams [2012] ewca crim 2162
The defendant was convicted of possession of a firearm under the Firearms Act 1982. Section
1(5) of that Act provided a defence if the defendant could show that he did not know and had
no reason to suspect that an imitation firearm was so constructed or adapted as to be readily
converted into a useable firearm.
The Court of Appeal held that this subsection imposed a reverse burden of proof on the
defendant. On the question of whether this violated art 6(2) of the European Convention on
Human Rights, the Court of Appeal held that the reverse burden was justified as a ‘necessary,
reasonable and proportionate derogation’ from the presumption of innocence. Firearm
offences were a very serious problem and the need to protect the public was obvious. This
included the need for protection in the case of readily convertible imitation firearms.
26
CASE EXAMPLE
Foye [2013] ewca crim 475

The defendant, who was already serving a life sentence for murder, killed a fellow prisoner. He
was convicted of murder with the jury rejecting his defence of diminished responsibility. D
appealed on the basis that s 2(2) of the Homicide Act 1975 (which sets out the defence of
diminished responsibility) contravened art 6(2) of the European Convention on Human Rights
as it imposed a reverse burden of proof.
The Court of Appeal dismissed the appeal. They pointed out that s 2(2) did not require the
defendant to disprove an element of the offence to establish an exception or excuse, so the
better view was that s 2(2) did not impinge on the presumption of innocence. Even if it did,
the subsection was a justified modification of the presumption as it would be virtually imposs-
ible for the prosecution to disprove beyond reasonable doubt a defendant’s assertion that he
was suffering from diminished responsibility. The defendant was under no obligation to submit
to a medical examination on behalf of the prosecution. He could also refuse, lawfully, to make
available past medical records. These provided fundamental reasons why the reverse onus was
essential to the working of the law of diminished responsibility.
1.9.3 No punishment without law

This is covered by art 7 which states:
ARTICLE
‘7(1) No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time
when it was committed.
7(2) This article shall not prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.’
This Article was used to challenge the conviction in CR v UK (1995) 21 EHRR 363. D had
been convicted of raping his wife. The argument was that such an offence did not exist
until the conviction, so there was no law against it at the time of D’s assault on his wife.
The challenge was unsuccessful for two reasons. The first was that there had been earlier
cases where such an offence was beginning to be recognised. The second was that the
offence is one which supported fundamental objectives of the Convention. As a result it
was not in breach of this Article.
Uncertainty
In other cases there have been challenges under art 7 on the basis that the offence is too
uncertain or lacks clarity. This happened in Misra; Srivastava [2004] EWCA Crim 2375;
[2005] 1 Cr App R 21, where the defendants were charged with gross negligence man-
slaughter. The defence argued that the elements of this offence were not certain. They
relied on the Law Commission’s paper Legislating the Criminal Code: Involuntary Man-
slaughter (Law Com No 237) in support of this argument. The paper had identified that
the current test was circular and this circularity led to uncertainty. On this point the
paper concluded:
quotation 27
‘It is possible that the law in this area failed to meet the standard of certainty required by the
European Convention on Human Rights.’

Legislating the Criminal Code: Involuntary Manslaughter (Law Com No 237)
The Court of Appeal rejected the argument. They held that the elements of the offence
of gross negligence manslaughter were made clear in Adomako [1995] 1 AC 171. They
were that:
 A duty of care was owed.
 That duty had been broken.
 The breach of the duty of care amounted to gross negligence.
 The negligence was a substantial cause of the death of the victim.
On the issue of risk it was clear from Adomako and subsequent cases that the risk must
relate to death. It was not enough to show that there was risk of bodily injury or injury
to health. (See section 10.4.2 for full details on gross negligence manslaughter.) As the
elements of gross negligence manslaughter were clear, there was no breach of art 7.
Another unsuccessful challenge on the basis of lack of clarity was in the case of Gold-
stein [2005] UKHL 63; [2005] 3 WLR 982 where D was charged with public nuisance.
CASE EXAMPLE
Goldstein [2005] uKhl 63; [2005] 3 wlr 982
Goldstein had sent an envelope containing salt through the post as a joke relating to kosher
food and also to a public scare in the United States over anthrax. The salt spilled out of the
envelope in a sorting office causing the evacuation of the building due to fears that it was
anthrax. D was charged with causing a public nuisance contrary to the common law. The
defence argued that this offence lacked precision and clarity of definition, the certainty and
the predictability necessary to meet the requirements of art 7.
The House of Lords held that the offence was defined by Sir James Stephens in A Digest of
Criminal Law 1877 and subsequent cases so that it was clear, precise, adequately defined and
based on a discernible rational principle. However, they allowed D’s appeal as it had not been
proved that he knew or ought to have known that the salt would escape from the envelope.
1.9.4 Other human rights
There have been challenges to the criminal law on the basis of other rights in the Con-
vention. Article 3 states:
ARTICLE
‘3 No one shall be subjected to torture or inhuman or degrading treatment or punishment.’
In Altham [2006] EWCA Crim 7, D argued that the refusal to allow him the defence of
necessity in respect of his use of cannabis for extreme physical pain was a breach of art 3.
CASE EXAMPLE
28 Altham [2006] ewca crim 7
D had been seriously injured in an accident some 15 years earlier in which he dislocated both
hips and suffered a fracture of his pelvis. He subsequently had surgery but this was not suc-
cessful, so, in 1997, his entire left hip was removed. Since then he had had chronic pain in his
legs. He claimed that cannabis gave him more relief from pain than any prescribed drug and
it also had fewer side effects. He was charged with possession of a controlled drug. At the trial
the judge ruled that the defence of necessity or duress of circumstances should not be left to
the jury. Following this ruling D pleaded guilty and received an absolute discharge.
He appealed on the basis that art 3 prohibits ‘inhuman or degrading treatment’ and there
were circumstances where severe medical symptoms can amount to ‘inhuman or degrading
treatment’. If the state provides that the only way to avoid those symptoms is to break the
criminal law and risk punishment up to and including imprisonment, then the state is subject-
ing that person to ‘inhuman or degrading treatment’. The Court of Appeal dismissed the
appeal holding that the state had done nothing to subject D to inhuman or degrading
treatment.
The Court of Appeal has also heard appeals in cases of breach of right to respect for
private lives under art 8.
ARTICLE
‘8(1) Everyone has the right to respect for his private and family life, his home and his
correspondence.
8(2) There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the preven-
tion of disorder or crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.’
In Quayle [2005] EWCA Crim 1415, the Court of Appeal heard appeals in five cases
where the defendants claimed the defence of medical necessity for using cannabis. Ds
argued that the refusal to allow them the defence of necessity in respect of use of can-
nabis for medical reasons was a breach of their right to respect for their private lives
under art 8. This challenge failed.
In E v DPP [2005] EWHC 147 (Admin) D was a 15-year-old boy who was charged
with unlawful sexual intercourse with a girl under the age of 16, contrary to s 6 of the
Sexual Offences Act 1956 which has since been repealed. The girl was also aged 15 and
was a willing participant. By prosecuting D, the state was criminalising his behaviour
and treating the girl as the victim, when this was not, in fact, the situation. At the trial it
was argued that this was contrary to art 6 (the right to a fair trial) and art 14 (the right
not to be discriminated against on the ground of sex). At the appeal in the Divisional
Court the defence added the argument that it was also contrary to art 8 (respect for D’s
private life).
The Divisional Court found there was no breach of art 8(1). They further pointed out
that even if there had been a breach, the state could assert a legitimate aim under art 8(2),
that of protection of health or morals. Since art 14 does not create a free-standing right,
the fact that there was no breach of art 8 meant there could not be a breach of art 14. Even
if there had been a breach of art 14, the court stated that there would have been justifica-
tion for the different treatment of males and females. That justification was to be found
in the fact that females needed protection from the risk of pregnancy.
In G [2008] UKHL 37, D was charged with rape of a child under 13 when he had had
consensual sex with a 12-year-old girl, reasonably believing her to be 15 (see section 4.4.5 29
for fuller facts).
The defence argued that there was a breach of art 8. This was because D’s right to

respect for his private life had been violated because the prosecution did not substitute
a charge under s 13 of the Sexual Offences Act 2003 for the one under s 5. This meant that
D was convicted of an offence bearing the label ‘rape’.
The judges in the House of Lords were divided on the point of whether there was a
breach of art 8. Lord Hoffmann took the view that it was not engaged on the facts of D’s
case. Baroness Hale (and Lord Mance agreeing with her) was also of the view that it was
not engaged but went on to point out that even if it were engaged, it was entirely justi-
fied. She pointed out:
JUDGMENT
‘The concept of private life “covers the physical and moral integrity of the person, including
his or her sexual life”. This does not mean that every sexual relationship, however brief or
unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform.
It does mean that the physical and moral integrity of the complainant, vulnerable by reason of
her age if nothing else, was worthy of respect. The state would have been open to criticism if
it did not provide her with adequate protection. This it attempts to do by a clear rule that chil-
dren under 13 are incapable of giving any sort of consent to sexual activity and treating penile
penetration as a most serious form of such activity. This does not in my view amount to a lack
of respect for the private life of the penetrating male.’
Lords Hope and Carswell dissented on this point. They thought that the use of s 5 was
disproportionate and so a breach of art 8. Lord Hope stated that:
JUDGMENT
‘I would hold that it was unlawful for the prosecutor to continue to prosecute the appellant
under section 5 in view of his acceptance of the basis of the appellant’s plea which was that
the complainant consented to intercourse. This was incompatible with his article 8 Convention
right, as the offence fell properly within the ambit of section 13 and not section 5.’
G then applied for a hearing by the European Court of Human Rights. This application
was refused (G v United Kingdom (Admissibility) (37334/08) [2012] Crim LR 46). In its
reasons for the refusal to hold a full hearing the court agreed that the sexual activity in
the case of G did fall within the meaning of art 8(1).
It also stated that bringing criminal proceedings against him did constitute interfer-
ence by a public authority into his right for private and family life. However, the inter-
ference was ‘necessary in a democratic society’ and was proportionate to the legitimate
aim of protecting young and vulnerable children from premature sexual activity,
exploitation and abuse.
Article 10
This gives the right to freedom of expression. Many laws restrict our freedom of expres-
sion but are justified on the basis that it is necessary for national security, or to prevent
crime or disorder. In Dehal v DPP [2005] EWHC 2154 (Admin), it was held there was a
breach of art 10 by bringing a criminal prosecution where it was more suitable to deal
with the matter under civil law.
30
CASE EXAMPLE
Dehal v DPP [2005] ewhc 2154 (admin)

D entered a temple and placed a notice stating that the preacher at the temple was ‘a hypo-
crite’. D was convicted of an offence under s 4A of the Public Order Act 1986. D argued that
his right to freedom of expression was infringed by being prosecuted for his action. The Divi-
sional Court quashed his conviction. They held that the criminal law should not be invoked
unless the conduct amounted to such a threat to public order that it required the use of the
criminal law and not merely the civil law.
1.9.5 Human rights and criminal procedure

One of the main effects of human rights has been on the procedure for trying child
defendants, where they are charged with a very serious offence. Such offences must be
tried in the Crown Court. However, the procedure and formality of the Crown Court
can mean that a child defendant is unable to understand what is happening. In T v UK:
V v UK (1999) 7 EHRR 659 the European Court of Human Rights held there was a breach
of art 6 (the right to a fair trial), as the defendants were unable to participate effectively
in the trial. Following this decision by the European Court of Human Rights, special
arrangements must be made whenever a child is tried at the Crown Court, to ensure that
he or she understands what is happening.
kEy fACTS
Keys facts on human rights and the criminal law
Article Right Comment/case

3 Right not to be subjected Refusal to allow defence of necessity to charge of
to inhuman or degrading possessing cannabis was not a breach (Altham (2006)).
treatment or punishment
5 Right to liberty Important in law on arrests and detention.
6(1) Right to a fair trial Strict liability offences are not a breach (G (2008)).
6(2) Presumption of innocence Reverse burdens of proof can be a breach of this Article
but may be justified (Attorney-General’s Reference (No 4
of 2002) and Sheldrake v DPP (2004)).
7 Can only be convicted if CR v UK (1996)
the offence existed and Misra; Srivastava (2004)
was sufficiently certain Goldstein (2005)
8 Right to respect for private No breach for failure to allow defence of necessity to
life charge of possessing cannabis (Quayle (2005)).
Possible breach if consequences of offence are out of
proportion (G (2008)).
9 Freedom of thought, This could affect the law of blasphemy.
conscience and religion
10 Freedom of expression Criminal law should not be invoked unless the conduct
amounted to such a threat to public order that it was
required (Oehal v DPP (2005)).
11 Freedom of peaceful Restriction can be justified where it is necessary for
assembly national security, public safety or prevention of disorder 31
or crime, such as regulations limiting demonstrations
outside the Houses of Parliament. Also this freedom does
not extend to purely social gatherings, e.g. a group

hanging about in a shopping centre (Anderson & others
v UK (1997) 25 EHRR CD 172).
14 Right not be discriminated Can only be invoked if there is an infringement of
against on basis of sex or another right (E v DPP (2005)).
race, religion, political or As well as race, the Article includes that there should be
other opinion, property, no discrimination on the basis of colour, language,
birth or other status national origin or association with a national minority.
SUMMARy
The purpose of criminal law is to:
 protect individuals and their property from harm;
 preserve order in society;
 punish those who deserve punishment.
Also, but more debatable, criminal law can:

 educate about appropriate conduct;
 enforce moral values.
Sources of law are:

 common law (decisions of judges);
 statutory law (Acts of Parliament and delegated legislation).
The definition of a crime is conduct which is forbidden by the state and for which there
is a punishment.
Criminal offences can be classified in different ways depending on the purpose of the
classification. The main ways are:
 by source
 by police powers
 by type of offence
 by place of trial.
Criminal Justice System:

In the criminal justice system trials take place in either the magistrates’ courts or the
Crown Court.
 The elements of a crime are the actus reus and the mens rea.
 The burden of proving guilt is on the prosecution. The defendant is presumed inno-
cent until proven guilty.
 The standard of proof is beyond reasonable doubt.
 The European Convention on Human Rights applies to criminal law in England and
Wales. All statutory offences must be interpreted in such a way as to make them
compatible with the Convention. Decisions of the European Court of Human Rights
32 must be taken into account.
ACTIVITy
self-test questions
1. What are the main purposes of criminal law?
2. How is it possible to define a crime?
3. What are the main sources of criminal law?
4. What is the burden of proof on the prosecution?
5. In the exceptional cases where the defence has to adduce evidence of a defence, what is
the standard of proof on the defence?
Further reading
Books
Huxley-Binns, R and Martin, J, Unlocking the English Legal System (4th edn, Routledge,
2014), Chapter 5 ‘Criminal courts and procedure’.
Ormerod, D, Smith and Hogan Criminal Law (13th edn, Oxford University Press, 2011)
Chapter 1 ‘Defining crime’ and Chapter 2 ‘Sources of criminal law’.
Articles
Ashworth, A, ‘Is the criminal law a lost cause?’ (2000) 116 LQR 223.
Ashworth, A, ‘The Human Rights Act and substantive law’ (2000) Crim LR 564.
Ashworth, A, ‘Attorney-General’s Ref (No 4 of 2002), Sheldrake v DPP: case and
commentary’ (2005) Crim LR 215.
Devlin, Lord, ‘The conscience of the jury’ (1991) 107 LQR 398.
Madhloon, L, ‘Corruption and a reverse burden of proof ’ (2011) 75 J Crim L 96.
Wells, C, ‘Reversing the burden of proof ’ (2005) NLJ 183 (4 Feb).
Internet links
www.cjsonline.gov.uk for general information on the criminal justice system.
www.lawcom.gov.uk for the work of the Law Commission and its reports.
www.legislation.gov.uk for all Acts of Parliament from 1988 onwards and for all Statutory
Instruments from 1987 onwards.
www.parliament.gov.uk for all draft Bills before Parliament and for all debates in
Hansard.
2
Actus reus
AIMS AND OBJECTIVES

 Understand when liability can be imposed for a failure to act (an omission)
 Understand the rules on factual causation, the ‘but for’ test
 Understand the rules on legal causation
 Analyse critically the laws on omissions and causations
 Apply the law to factual situations to determine whether there is liability for a
failure to act or whether there has been a break in the ‘chain of causation’
This chapter examines the physical elements that are required to be proved for liab-
ility to be imposed. The Latin phrase ‘actus reus’ is used as a convenient shorthand for
describing all the physical elements that go to make up different criminal offences.
2.1 The physical element

The majority of criminal offences considered in this textbook require as a starting
point some physical element on the part of the defendant (D). Precisely what that
physical element is depends on the criminal offence. To give some examples:
 Murder and manslaughter require, in most cases, that D does an act which causes
the death of the victim (V) (see Chapter 10).
 Battery requires that D applies unlawful force to the body of the victim. The crime
of malicious wounding requires that D does some act which cuts the skin of the
victim (see Chapter 11).
 Rape requires that D ‘penetrates’ the vagina, anus or mouth of the victim with his
penis and without V’s consent (see Chapter 12).
 Theft requires that D ‘appropriates’ ‘property’ which ‘belongs to another’ person
(see Chapter 13).
2.1.1 Conduct and consequences
You will see that the physical element in murder actually subdivides into two ele-
ments: an act (conduct) and death (consequence). The act part could be, for example,
aiming a gun at V and pulling the trigger; stabbing V with a knife; strangling V with
a piece of cord; or pushing V from the top of a tall building (no doubt you can think
of plenty of other examples). The consequence that must follow from D’s act, namely
the death of V, is also part of the physical element. In most cases death follows fairly
swiftly after D’s act but, in some cases, there may be a delay of minutes, hours, days
or even longer. Has D caused V’s death if he strangles her, leaving her in a coma as a
result of hypoxia (loss of oxygen to the brain) from which she eventually dies six
months later? It is impossible to give a definite answer to this question; it is a question
of fact for a jury. However, there are a number of legal principles which exist to help
a jury in such cases and these will be examined below.
With malicious wounding, the conduct and consequence could be regarded as
34 inseparable: the act of stabbing or slashing at V with a knife, broken bottle, etc.
(conduct) must cause V’s skin to be cut (consequence). In battery, the physical element
requires conduct (applying force to V’s body) but there is no consequence require-
Actus reus
ment. Similarly, in rape there is a conduct requirement (penetration) but no con-

sequence is required. Theft is another example: there is a conduct element (D must
‘appropriate’, which means to assume rights over, property) but there is no con-
sequence requirement.
2.1.2 Circumstances
Some criminal offences require certain circumstances to exist in addition to the conduct/
consequence elements. One of the physical elements required in rape is that V must not
have consented. This is a circumstance that must exist at the time D penetrates V’s
vagina, anus or mouth, and without it there is no crime. Similarly, in theft, in addition to
the conduct element of appropriating, there must be ‘property’ that ‘belonged to another’
at the time of the appropriation. D, a vagrant, might assume rights of ownership over an
old, worn-out shoe that he finds lying in the street, but this would probably not be
enough to satisfy all the physical elements in the crime of theft, as it is likely that the
shoe has been abandoned and hence is ownerless.
2.1.3 The physical element alone is not a crime

Look again at the conduct elements of the crimes above. In none of the cases does it
automatically follow that D has committed a crime. In most rape cases, the conduct
element is penetration of V’s vagina or anus by D’s penis, which are, generally speaking,
perfectly lawful activities (subject to V having attained the age of consent, which in
England is 16 (Sexual Offences (Amendment) Act 2000)). In theft, the conduct element is
‘appropriating’ property, an act which does not imply any wrongdoing. If you are
reading this book whilst sitting at a desk in a library, you are ‘appropriating’ the seat
and the desk because you are assuming rights of ownership over them (albeit tempor-
arily). What prevents this performance of the physical element from amounting to a
criminal offence is, in some cases, the lack of other physical elements. Thus, for D to use
his penis to penetrate V’s vagina, anus or mouth is, generally speaking, not the crime of
rape, because V consents. In other cases, all the physical elements (whether conduct,
consequences or circumstances) may be present, but still the crime may not be commit-
ted because the mental element of the crime is missing. Thus, in order to commit theft, it
is necessary that D has the ‘intention to permanently deprive’ the owner of their prop-
erty and that D was ‘dishonest’.
Someone sitting innocently at a library desk does not have either the requisite intent
or the dishonesty. There are exceptions to this rule, however. Some criminal offences
may be committed with no, or a very little, mental element. These crimes are known as
‘absolute’ or ‘strict’ liability offences and will be examined in Chapter 4.
2.1.4 Omissions
It was stated above that, in murder and manslaughter, ‘in most cases’ D must do some
act which causes death. The exception is where D does nothing to prevent V’s death. In
certain circumstances, D may be under a duty to take positive steps to assist V and
failing to take them can amount to the physical element of the crimes of murder and
manslaughter. This topic will be examined below.
2.2 Voluntary conduct

35
In Bratty v Attorney-General of Northern Ireland [1963] AC 386, Lord Denning said that:
‘The requirement that [the act of the accused] should be a voluntary act is essential . . . in
every criminal case. No act is punishable if it is done involuntarily.’ An example of this
2.3 OmissiOns
might be if the defendant, D, were to push a bystander, E, so that E lost his balance and
knocked a second bystander, V. If V loses his balance and falls to the ground, fracturing
his leg, has E committed the actus reus of battery or even assault occasioning actual
bodily harm? The actus reus of battery requires the unlawful application of physical
force to the body of the victim; the actus reus of actual bodily harm is the same plus the
infliction of some hurt or injury to the victim. The answer is that E is not guilty of any
crime: although E was the immediate cause of V falling to the ground and hence his
injuries, in no sense can E be said to have ‘acted’. Moreover, even if E could be said to
have performed an ‘act’ in the above scenario, it was clearly not ‘voluntary’ in the sense
of being a deliberate or willed ‘act’ on his behalf. (These are the facts of Mitchell [1983]
QB 741. V, aged 89, died of a pulmonary embolism caused by thrombosis, which in turn
was caused by the fracture. In the event, D (and not E) was charged and convicted of her
manslaughter.)
2.3 Omissions
Originally, the English criminal law only punished those who caused a prohibited result
by a positive act. But it came to accept that it should also punish those who fail to act,
when a duty to act could be implied, with the result that the prohibited result ensued.
Nevertheless, on the whole, the position is still that there is no general duty to act. There
may well be a moral obligation on someone to be a ‘Good Samaritan’, but there is not a
legal one. There are two requirements:
 The crime has to be capable of being committed by omission (known as result
crimes).
 D must be under a duty to act.
2.3.1 Commission by omission

Generally speaking, the crime must be capable of being committed by omission. Nearly
all of the leading cases involve murder or gross negligence manslaughter. Other crimes
capable of being committed by omission are arson (Miller [1983] 2 AC 161, which will be
discussed below) and assault and battery. This was decided in DPP v Santana-Bermudez
[2003] EWHC 2908.
CASE EXAMPLE
DPP v santana-Bermudez [2003] EWHC 2908
V, a female police officer, asked D to turn out all his pockets, which he did. V asked him if he
had removed everything; he replied ‘Yes’. She then asked ‘Are you sure that you do not have
any needles or sharps on you?’ D said ‘No’. V commenced her search but when she put her
hand into one pocket she pricked her finger on a hypodermic needle. V noticed that D was
smirking. D was convicted of assault by magistrates, but appealed to the Crown Court, suc-
cessfully arguing that it was legally impossible to commit an assault by omission. The prosecu-
tion appealed to the Divisional Court, which allowed the appeal.
Conversely, a crime that is incapable of being committed by omission is constructive

manslaughter (a positive act is always required, according to Lowe [1973] QB 702; see
Chapter 10). Sometimes the definition of the actus reus makes it clear that a positive
36
act is required. For example, burglary (s 9 of the Theft Act 1968 requires D to ‘enter’
into a building; see Chapter 14) and making off without payment (s 3 of the Theft Act
1978 requires D to ‘make off ’; see also Chapter 14). The definition of rape in s 1(1) of
Actus reus
the Sexual Offences Act 2003 makes clear that the offence is committed only when D
‘penetrates the vagina, anus or mouth of another person with his penis’. Section 79(2)
of the same Act states that ‘penetration is a continuing act’. This would seem to rule
out any possibility of committing rape by omission (although see the discussion of
the cases of Kaitamaki [1984] 2 All ER 435 and Cooper and Schaub [1994] Crim LR 531
on this point in Chapter 12). Another example is the offence of ‘throwing missiles’
(s 2 Football Offences Act 1991). In Ahmad [1986] Crim LR 739, D, a landlord, was
convicted of ‘doing acts calculated to interfere with the peace and comfort of a resid-
ential occupier with intent to cause him to give up occupation of the premises’, con-
trary to the Protection from Eviction Act 1977. The relevant acts had been done
without the requisite intent; D had then deliberately refrained from rectifying
the situation. The Court of Appeal quashed the conviction; D had not ‘done acts’ with
the requisite intent.
One problem with the imposition of liability for failing to act in ‘result’ crimes, such
as murder and gross negligence manslaughter, which the courts have not really acknow-
ledged, is the requirement of causation. Suppose D, a professional lifeguard on duty,
sees a small child fall into a pool, but simply stands and watches while she struggles and
eventually drowns. No one else is present. There is little doubt that D is under a duty to
save the girl (because of contractual responsibility; see below) and failure to do so could
well be murder (if D intends death or serious injury) or gross negligence manslaughter.
But did D ‘cause’ the girl to die? She would almost certainly have died in exactly the
same way – the same ‘result’ would have occurred – had she been completely alone and
D had not been there. The Law Commission tackles this when it provides in its Draft
Criminal Code (1989), clause 17(1), that ‘a person causes a result . . . when . . . (b) he omits
to do an act which might prevent its occurrence and which he is under a duty to do
according to the law relating to that offence’.
2.3.2 Imposition of a duty to act

The most important factor is that D must be under a duty, recognised by the law, to act
or intervene in the circumstances. In Khan and Khan [1998] EWCA Crim 971; [1998] Crim
LR 830, the Court of Appeal quashed manslaughter convictions of two drug dealers
because the judge had made no ruling as to whether the facts were capable of giving rise
to any relevant duty, nor had he directed the jury in relation to that issue.
CASE EXAMPLE
Khan and Khan [1998] EWCA Crim 971; [1998] Crim LR 830
D and E were drug dealers in Birmingham. V, a 15-year-old prostitute, went to a flat where
they supplied her with heroin. She ingested a large amount, lapsed into a coma and was obvi-
ously in need of medical assistance. However, D and E left the flat, leaving V alone to die. They
were charged with murder but were convicted of manslaughter. The Court of Appeal quashed
their convictions. The Crown’s case was that the appellants’ omission to summon medical
assistance formed the basis of their liability. However, the Court of Appeal decided that, in
such circumstances, before they could convict, the jury had to be sure that D was criminally
responsible, and this required that D be standing in such a relation to the victim that he is
under a duty to act.
It should be noted that the above case does not decide that no duty was (or could be) 37
owed on the facts; rather that it must be left to the jury to decide whether, on the facts, a
duty was in fact owed. Such a duty may be owed in a variety of situations, as the fol-
2.3 OmissiOns
lowing cases illustrate.
Duty arising out of contractual liability

Where failure to fulfil a contract is likely to endanger lives, the criminal law will impose
a duty to act. The duty is owed to anyone who may be affected, not just the other parties
to the contract. The leading cases are Pittwood (1902) 19 TLR 37 and Adomako [1995] 1 AC
171. In Pittwood, D was a signalman employed by the railway company to look after a
level crossing and ensure the gate was shut when trains were due. D left the gate open
and was away from his post, with the result that someone crossing the line was hit and
killed. D was convicted of manslaughter. The court rejected D’s argument that his duty
was owed simply to the railway company: he was paid to look after the gate and protect
the public. This duty will be held by members of the emergency services, lifeguards, etc.
In Adomako, a duty to act was imposed on a hospital anaesthetist (see Chapter 10). In
Singh [1999] EWCA Crim 460; [1999] Crim LR 582, a duty to act was imposed on a land-
lord. D, who helped his father run a lodging house, was convicted of manslaughter after
carbon monoxide poisoning from a defective gas fire killed one of the tenants. On appeal
he contended that no duty to act had arisen, whether as rent collector, maintenance man
or anything else. However, the Court of Appeal decided that, as it was D’s responsibility
to maintain the flat, a duty to act was imposed on him to deal with any danger by calling
in expert help.
Duty arising out of a relationship

Parents are under a duty to their children (Gibbins and Proctor (1918) 13 Cr App R 134)
and spouses owe a duty to each other (Smith [1979] Crim LR 251; see Hood [2003] EWCA
Crim 2772 below).
Duty arising from the assumption of care for another

A duty will be owed by anyone who voluntarily undertakes to care for another
person, whether through age, infirmity, illness, etc. The duty may be express but is
more likely to be implied from conduct. Thus in Nicholls (1874) 13 Cox CC 75, D, a
grandmother who took her granddaughter into her home after the girl’s mother died,
was held to have undertaken an express duty to act. In Instan [1893] 1 QB 450, D
moved in with her elderly aunt, who became ill and for the last 12 days of her life was
unable to care for herself or summon help. D did not give her any food or seek medical
assistance, but continued to live in the house and eat the aunt’s food. Eventually the
aunt died and D was convicted of manslaughter. In Gibbins and Proctor, the court
found that the deliberate non-performance of a legal duty to act could result in
liability for murder being imposed on D, who had voluntarily undertaken responsib-
ility to care for a child.
CASE EXAMPLE
Gibbins and Proctor (1918) 13 Cr App R 134
G was the father of several children, including a seven-year-old daughter, Nelly. His wife had
left him and he was living with a lover, P. They kept Nelly separate from the other children and
deliberately starved her to death. Afterwards they concocted a story about how Nelly had
38 ‘gone away’; in fact G had buried her in the brickyard where he worked. Both adults were
convicted of murder and the Court of Criminal Appeal upheld the convictions. G owed Nelly
a duty as her father; P was held to have undertaken a duty.
Actus reus
The leading case is now Stone and Dobinson [1977] QB 354.
CASE EXAMPLE
stone and Dobinson [1977] QB 354
S lived with his mistress, D. In 1972, S’s sister, Fanny, aged 61, came to live with them.
Fanny was suffering from anorexia nervosa and although initially capable of looking after
herself, her condition deteriorated. Eventually, in 1975, she was confined to bed in the
small front room where she remained until her death, refusing to eat anything other than
biscuits. S was then 67, partially deaf, nearly blind and of low intelligence. D was 43 but was
described as ‘ineffectual’ and ‘somewhat inadequate’. Both were unable to use a tele-
phone. They had tried to find Fanny’s doctor but failed; eventually a local doctor was called,
but by this point it was too late. Fanny had died, weighing less than five-and-a-half stone,
in an excrement- and urine-soiled bed with two large, maggot-infested ulcers on her right
hip and left knee, and bone clearly visible. The Court of Appeal upheld S and D’s man-
slaughter convictions. They had assumed a duty of care to Fanny, and their pathetically
feeble efforts to look after her amounted to gross negligence.
ACTIVITy
self-test question
Would Stone and Dobinson have been better off simply ignoring Fanny after she became
bedbound?
Duty arising from the creation of a dangerous situation

Where D inadvertently, and without the requisite mens rea, does an act which creates a
dangerous situation then, on becoming aware of it, he is under a duty to take all such
steps as lie within his power to prevent or minimise the harm. If he fails to take such
steps with the appropriate mens rea, then he will be criminally liable. This situation arose
in Miller.
CASE EXAMPLE
Miller [1983] 2 AC 161
D, a vagrant, was squatting in a house in Birmingham. He had fallen asleep one night but
awoke to find that a cigarette he had been smoking had set fire to the mattress. He did
nothing to extinguish the fire, but moved to another room and went back to sleep. The house
caught fire, and £800 of damage was caused. The House of Lords upheld his conviction, on
the basis that his inadvertent creation of a dangerous situation imposed a duty on him to take
steps to minimise that danger as soon as he realised what he had done. What those steps are
will depend on what is reasonable in the circumstances. At the least, D might have been
expected to try to put out the fire or, if it was beyond control, call the fire brigade.
A number of subsequent cases have discussed the Miller principle.

 In Matthews and Alleyne [2003] EWCA Crim 192; [2003] Crim LR 553 (the full facts of
39
which appear in the next chapter in the context of intention) the trial judge suggested
that D and E could have been convicted of murder if, having pushed V into a river,
they subsequently realised that he was unable to swim and (with intent that he
2.3 OmissiOns
should die or suffer serious injury) took no steps to rescue him. The appellants and
V were strangers to each other prior to this event, so the basis on which D and E
owed V a duty to act could be regarded as similar to that in Miller.
 In Santana-Bermudez, the facts of which were given above, the Divisional Court
expressly applied Miller as the basis for finding D’s duty to act. The court held that,
when D gave V a dishonest assurance about the contents of his pockets, he exposed
her to a reasonably foreseeable risk of injury. His subsequent failure to inform her of
the presence of needles in his pockets constituted an evidential basis for a finding
that the actus reus of assault occasioning actual bodily harm had occurred.
The most recent example of the Miller principle is the case of Evans [2009] EWCA Crim
650; [2009] 1 WLR 1999, in which the principle was applied to gross negligence
manslaughter.
CASE EXAMPLE
evans [2009] EWCA Crim 650; [2009] 1 WLR 1999
D lived with her 16-year-old half-sister, V, a heroin addict, and their mother. One day, D bought
£20 of heroin and gave some to V, who self-injected. Later, it was obvious that V had overdosed
but neither D nor their mother contacted the emergency services. Instead they put V to bed
hoping that she would recover. Instead, she died during the night. Both D and her mother were
convicted of gross negligence manslaughter. D appealed, but the Court of Appeal upheld the
conviction on the basis that D owed V a duty of care based on the Miller principle.
Lord Judge CJ stated:
JUDGMENT
‘The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a
familial or professional relationship between [D] and [V]. In our judgment, consistently with
Adomako and the link between civil and criminal liability for negligence, for the purposes of gross
negligence manslaughter, when a person has created or contributed to the creation of a state of
affairs which he knows, or ought reasonably to know, has become life threatening, a consequent
duty on him to act by taking reasonable steps to save the other’s life will normally arise.’
The Draft Criminal Code (1989), clause 23, also endorses the Miller principle:
CLAUSE
‘23 Where it is an offence to be at fault in causing a result, a person who lacks the fault
required when he does an act that causes or may cause the result nevertheless commits the
offence if –
a. he has become aware that he has done the act and that the result had occurred and may
continue, or may occur; and
b. with the fault required, he fails to do what he can reasonably be expected to do that
might prevent the result continuing or occurring; and
c. the result continues or occurs.’
Clause 31 of the Draft Criminal Law Bill (1993) is to similar effect.

40
Release from duty to act
One issue that has troubled the courts is whether D, having undertaken a duty or having
Actus reus
had one imposed on him, may be released from it. In Smith (1979), D’s wife had given
birth to a stillborn child at home. She hated doctors and would not allow D to call one.
When she finally gave D permission it was too late; she died and D was charged with
manslaughter. The judge directed the jury ‘to balance the weight that it is right to give
to his wife’s wish to avoid calling a doctor against her capacity to make rational deci-
sions. If she does not appear too ill it may be reasonable to abide by her wishes. On the
other hand, if she appeared desperately ill then whatever she may say it may be right to
override.’ The jury were unable to agree and D was discharged. The principle that, pro-
vided V is rational, she may release D from a duty to act was confirmed in Re B (Consent
to Treatment: Capacity) [2002] EWHC 429 (Fam); [2002] 2 All ER 449. Here, the High Court
held that, when a competent patient gives notice that they wish life-preserving treat-
ment to be discontinued, anyone responsible up to that point for providing such treat-
ment (in this case doctors) would be obliged to respect that notice.
Cessation of duty to act

In Airedale NHS Trust v Bland [1993] AC 789 (like Re B, a civil case), the House of Lords
provided guidance on the issue of when a duty to act ceases. Bland, who had been suf-
focated during the Hillsborough Stadium tragedy in 1989, had been in a persistent veg-
etative state in hospital for over three years. When the hospital authorities applied for
judicial authority to discontinue treatment in the form of artificial feeding and hydra-
tion, the House of Lords held that, on the facts, it was permissible to do so. Lord Goff,
giving the leading judgment, stated that there was no absolute rule that a patient’s life
had to be prolonged regardless. The fundamental principle was the sanctity of life, but
respect for human dignity demanded that the quality of life be considered. The principle
of ‘self-determination’ meant that an adult patient of sound mind could refuse treat-
ment. Doctors (or other persons responsible for the patient) would have to respect that.
In Bland, the House of Lords was careful to characterise the withdrawal of life support
as an omission (a failure to continue treatment). The case does not stand as an authority
for the proposition that doctors may take positive steps to end a patient’s life. Euthana-
sia, therefore, remains illegal in England and Wales.
The crime of assisting another’s suicide is also unaffected by the Bland decision. This
was demonstrated in R (on the application of Pretty) v DPP [2001] UKHL 61; [2002] 1 AC
800. P was suffering from motor neurone disease which she knew would eventually lead
to her suffocating to death. She applied to the courts for a judicial declaration that, if her
Is the offence capable of being
committed by omission (e.g. D cannot be
murder or gross negligence NO liable for a failure
manslaughter)? to act
D may be D may be
liable under a YES liable under a
contractual relationship
duty (e.g. duty (e.g.
Pittwood, YES YES Gibbins &
Adomako) Proctor, Smith,
41
Hood )
Does D have a duty
to act?
2.3 OmissiOns
D may be D may be liable
YES YES
liable under under a duty
an assumed through
duty (e.g. NO creation of
Instan, Stone & a dangerous
Dobinson) situation (e.g.
Miller, Evans)
D cannot be liable for a

failure to act
Figure 2.1 Does D have a duty to act?
husband assisted her to commit suicide, he would not be prosecuted (her physical con-
dition having deteriorated to such an extent by this point that she was unable to take her
own life unassisted). This request was denied by the High Court and confirmed by the
Court of Appeal and House of Lords. Assisting another person to commit suicide seems,
inevitably, to amount to a positive act. A final appeal to the European Court of Human
Rights also failed, the Court in Strasbourg ruling that English law did not infringe P’s
human rights.
In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2000]
4 All ER 961, the Court of Appeal (Civil Division) confirmed that a surgical procedure to
separate two baby girls who were born joined together at the abdomen was a positive
act and not an omission. Therefore, because the doctors knew that the procedure would
inevitably lead to the death of one girl, the doctors had both the actus reus and mens rea
of murder. However, the doctors were able to apply the defence of necessity (the twins
shared one functioning heart which would eventually fail as they grew, therefore the
operation was necessary to save one girl’s life – not operating would lead to both girls’
deaths) and the court held that the procedure was lawful (see Chapter 8 for further dis-
cussion of this case).
2.3.3 Breach of duty to act
It should also be noted that there is a range of crimes (mostly statutory) which can be
committed simply by failing to act. Examples include the following:
 failing to provide a police officer with a specimen of breath when required to do so
is an offence under s 6 of the Road Traffic Act (RTA) 1988;
 failing to stop and provide a name and address to any person reasonably requiring it
when your vehicle has been involved in an accident where there has been injury to
another person or damage to another vehicle is an offence under s 170 of the RTA
1988;
 failing to disclose to the police information that another person has committed certain
terrorist offences is an offence under s 19 of the Terrorism Act 2000.
One such offence exists at common law and a conviction for it was upheld by the Court
42 of Appeal in Dytham [1979] QB 722.
CASE EXAMPLE
Actus reus
Dytham [1979] QB 722

D, a police officer, was on duty near a nightclub at about 1 a.m. He was standing about 30
yards from the door when a bouncer ejected V from the club. A noisy fight ensued in which a
large number of men participated. Three men eventually kicked V to death, all of which was
clearly audible and visible to D. However, he took no steps to intervene and, when the incident
was over, adjusted his helmet and drove off, telling two people nearby that he was going off
duty. D was convicted of the common law offence of misconduct whilst acting as an officer of
justice, in that he had wilfully omitted to take any steps to carry out his duty to preserve the
Queen’s Peace or to protect V or to arrest or otherwise bring to justice his assailants. The Court
of Appeal upheld his conviction.
Interestingly, PC Dytham was not charged with manslaughter, a result crime, although
it could well be argued that, on the facts, he owed a duty to act to V to intervene and
assist him, this duty arising from D’s contractual obligations. The reason that D was not
charged with the more serious crime may be because of the difficulties in proving that
he had actually made a causative contribution to V’s death.
2.3.4 Reform
Advocates of reform of this area suggest that where rescue of the victim would not pose
a danger to D, then liability should be imposed for failing to act, even where there was
no pre-existing legal duty on D (A Ashworth, ‘The scope of criminal liability for omis-
sions’ (1989) 105 LQR 424). There are, however, serious moral and practical objections:
 Definition of when it would be easy for D to attempt a rescue.
 Moral objection to forcing citizens to watch out for and protect each other, especially
as most citizens already pay (through taxes) for highly trained and well-equipped
professionals (police, fire brigade officers, lifeboat crew, paramedics, etc.) to do that
job on our behalf.
 Possibility that D may (genuinely and/or reasonably) misjudge the situation and
either fail to attempt a rescue when it was in fact easy (D thinking it would be dan-
gerous) or attempt a dangerous rescue (D thinking it was actually easy). In the former
scenario, D faces potential liability for homicide if V is killed. In the latter scenario,
D’s own life is put at risk and genuine rescuers (police etc.) now have two people to
rescue (D and V) instead of just V.
 Possible imposition of liability on large numbers of people. For example, when a
train platform is crowded with commuters and all fail to come to the aid of V who
has slipped and fallen on to the tracks and is lying unconscious, despite the fact that
no train is due for several minutes, should all the commuters be held liable? Alterna-
tively, what about all the sunbathers on a crowded beach who all choose to ignore V
who is clearly drowning 20 yards from shore?
student 2.4 Causation

mentor tip
When D is charged with any result crime, the Crown must prove that his acts or omis-
‘A good way to
study causation sions caused the prohibited consequence. For example, in murder or manslaughter
and actus reus is (see Chapter 10), it is necessary to prove that D, by his or her acts or omissions, caused
to draw diagrams V’s death. If V dies because of some other cause, then the offence has not been com- 43
and label all the
exceptions.’ mitted even though all the other elements of the offence, including the mens rea, are
Gayatri, University present. D may of course be liable for attempt instead (White [1910] 2 KB 124; see
2.4 CAusAtiOn
of Leicester. below and see Chapter 6 for discussion of attempts). Similarly, if D is charged with
causing grievous bodily harm with intent, contrary to s 18 of the Offences Against the
Person Act (OAPA) 1861, the Crown must prove that D’s acts or omissions caused V
to suffer serious injuries. The issue of causation is for the jury to decide. The judge
should direct them as to the elements of causation, but it is for them to decide if the
causal link between D’s act and the prohibited consequence has been established.
Usually it will be sufficient to direct the jury (per Robert Goff LJ in Pagett [1983] Crim
LR 393): ‘simply that in law the accused’s act need not be the sole cause, or even the
main cause, of the victim’s death, it being enough that his act contributed significantly
to that result’. When a problem arises, as occasionally happens, then it is for the judge
to direct the jury in accordance with the legal principles which they have to apply.
There are two main principles:
 The jury must be satisfied that D’s conduct was a factual cause of V’s death or
injuries.
 The jury must also be satisfied that D’s conduct was a legal cause of V’s death or
injuries.
2.4.1 Factual causation

This is determined using the ‘but for’ test; that is, it must be established that the con-
sequence would not have occurred as and when it did but for D’s conduct. If the con-
sequence would have happened anyway, there is no liability. The leading example of
this is White [1910] 2 KB 124.
CASE EXAMPLE
White [1910] 2 KB 124
D put potassium cyanide into his mother’s drink. He had direct intent to kill, in order to gain
under her will. Later V was found dead, sitting on the sofa at her home. Although she had
drunk as much as a quarter of the poisoned drink, medical evidence established that she had
died of a heart attack, not poisoning. In any event D had not used enough cyanide for a fatal
dose. D was acquitted of murder: he had not caused her death. (He was, however, convicted
of attempted murder.)
Factual causation on its own is insufficient for liability. As the Supreme Court explained
in Hughes [2013] UKSC 56; [2013] 1 WLR 2461:
JUDGMENT
‘The law has frequently to confront the distinction between “cause” in the sense of a sine qua
non without which the consequence would not have occurred, and “cause” in the sense of
something which was a legally effective cause of that consequence. The former, which is often
conveniently referred to as a “but for” event, is not necessarily enough to be a legally effective
cause. If it were, the woman who asked her neighbour to go to the station in his car to collect
her husband would be held to have caused her husband’s death if he perished in a fatal road
accident on the way home.’
2.4.2 Legal causation

44 Factual causation alone, therefore, is not enough for criminal liability. It is essential that
legal causation is established as well. This is again a question for the jury: the question
is whether the consequence (death, serious injury, as the case may be) can fairly be said
Actus reus
to be D’s fault. In an early case, Dalloway (1847) 2 Cox CC 273, D was acquitted because,
although V’s death would not have occurred but for D driving a horse and cart over
him, the jury were not convinced that D was to blame.
CASE EXAMPLE
Dalloway (1847) 2 Cox CC 273
D was driving a horse and cart without holding the reins, which were lying loose on the horse’s
back. A child, V, ran in front of the cart, was struck by one of the wheels and killed. D was
charged with manslaughter but the jury acquitted. It appeared from the evidence that, even if
D had been holding the reins, he could not have stopped the cart in time. Hence the death
was not D’s fault.
This principle was seen in Marchant and Muntz [2003] EWCA Crim 2099; [2004] 1 WLR 442,
a case of causing death by dangerous driving. V, a motorcyclist, impaled himself on a
metre-long spike (called a tine) attached to the front of an agricultural vehicle being driven
on a public road. There was no suggestion that D’s driving was dangerous; rather, the
allegation was that simply having the vehicle on the road at all was dangerous. Although
D was convicted, the Court of Appeal quashed the conviction. Expert evidence at trial
indicated that the spike could have been ‘covered by some sort of guard’, but Grigson J
concluded that ‘even had such a guard been in place, it would not have prevented the col-
lision. The consequences to anyone striking a tine or the guard at speed would have been
very severe, if not fatal’ (emphasis added). In other words, D had not caused V’s death.
In Hughes (2013), the Supreme Court confirmed that legal causation, as a pre requisite
in any result crime, implied proof of some level of fault. The case involved the offence of
causing death by driving whilst uninsured and/or unlicensed to drive, contrary to s 3ZB
of the Road Traffic Act 1988. The Crown case was that an accused charged under s 3ZB
was guilty if death occurred as a result of taking a vehicle on to the road when the driver
was uninsured or unlicensed to drive, irrespective of the blameworthiness of the driving
itself. The Supreme Court rejected this on the basis that it would be unacceptably harsh
to impose liability for a homicide offence on motorists whose actual driving was entirely
blameless. The Court used a number of hypothetical examples to illustrate: where V
committed suicide by stepping out in front of D’s car; where V was killed after ramming
their car into D’s car in a deliberate attempt to kill or injure an occupant of D’s car; where
V stumbled, drunk, from the pavement directly in front of D’s car and was run over and
killed; where V was killed playing ‘chicken’ by running out in front of oncoming vehi-
cles; where D’s car was struck by another motorist and the impact of the collision shunted
D’s car on to the pavement where a child was run over and killed. The Supreme Court
rejected the notion that V’s death in all of those examples had been ‘caused’ by D.
Instead, the Court held that it must be proved ‘that there was something which [D]
did or omitted to do by way of driving which contributed in a more than minimal way
to the death’. As to what that ‘something’ was, the Court held that the expression ‘causes
. . . death’ in the RTA 1988 implied that ‘there is something properly to be criticised in the
driving of [D], which contributed in some more than minimal way to the death . . . Juries
should be directed that there must be something open to proper criticism in the driving of
the defendant, beyond the mere presence of the vehicle on the road, and which con-
tributed in some more than minimal way to the death’ (emphasis added).
CASE EXAMPLE 45
Hughes [2013] uKsC 56; [2013] 1 WLR 2461
2.4 CAusAtiOn
On a late Sunday afternoon, V was driving along the A69, heading west from Newcastle. He was
on the return leg of a 400-mile round trip from his place of work on the west coast of Scotland
and was over-tired. He was also under the influence of heroin, and had been driving erratically
for some time, narrowly missing colliding with other vehicles. He rounded a bend on the wrong
side of the road and crashed head-on into a camper van being driven in the opposite direction by
D. V was fatally injured. It was accepted that D’s driving had been faultless and that, on a
‘common sense’ view, V was entirely responsible for his own death. D was, however, uninsured
at the time, and driving under a provisional licence. He was therefore charged with causing V’s
death by driving whilst uninsured and/or unlicensed to drive, contrary to s 3ZB of the RTA 1988.
The trial judge accepted the defence argument that D had not caused V’s death. The Crown
appealed to the Court of Appeal, which held that D had caused the death, on the basis that the
offence did not require that there be anything wrong with the defendant’s driving. D appealed
to the Supreme Court, where the trial judge’s decision was reinstated. The Supreme Court dis-
agreed with the appeal court and held that there did have to be something wrong with the
defendant’s driving. In the present case, D had not caused V’s death. Admittedly, by driving
along the A69 that afternoon, D had ‘created the opportunity’ for his camper van to be run into
by V’s car, but it was ‘a matter of the merest chance’ that it was D’s vehicle that V hit. He might
‘just as easily have gone off the road and hit a tree’, but in that scenario no one would have said
that V’s death had been caused by the planting of the tree.
Minimal causes may be discounted

If D’s act or omission provides only a minimal contribution to V’s death or injuries, then
it may be discounted under the de minimis principle (the law ignores trivialities). R N
Perkins and R N Boyce in Criminal Law (3rd edn, Foundation Press, 1982) give the fol-
lowing example, where V has suffered two stab wounds from different defendants:
quotation
‘Suppose one wound severed the jugular vein whereas the other barely broke the skin of the
hand, and as the life blood gushed from the victim’s neck one drop oozed from the bruise on
his finger . . . metaphysicians will conclude that the extra drop of blood hastened the end by
the infinitesimal fraction of a second. But the law . . . will conclude that death be imputed only
to the severe injury in such an extreme case as this.’
It is sometimes said that D’s act must be a ‘substantial’ cause of death; this probably
states the case too favourably for D. What is required is that D’s act provides a more than
minimal contribution. Thus, in Kimsey [1996] Crim LR 35, a case of causing death by
dangerous driving, the trial judge told the jury that they did not have to be sure that D’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 trifling link’. On
appeal, it was argued that it was wrong to say that D’s driving did not have to be a ‘sub-
stantial cause’. The Court of Appeal dismissed the appeal; reference to ‘substantial
cause’ was not necessary and moreover might encourage the jury to attach too much
importance to D’s driving. Reference to ‘more than a slight or trifling link’ was permis-
sible and a useful way of avoiding the term ‘de minimis’.
More recently, in Hughes (2013), the Supreme Court explained the minimum thresh-
old requirement for legal causation as follows:
46
JUDGMENT
Actus reus
‘Where there are multiple legally effective causes, it suffices if the act or omission under con-
sideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal.
It need not be the only or the principal cause. It must, however, be a cause which is more than
de minimis, more than minimal.’
Multiple causes
D’s act or omission need not, therefore, be the sole or even the main cause of V’s death
or injuries. It is sufficient that D’s act or omission provides a more than minimal cause.
Other contributory causes may be the acts of others, or even of V themselves.
Actions of third parties

The early case of Benge (1865) 4 F & F 504 provides a good example. D, the foreman of a
track-laying crew, misread the railway timetable, so that the track was up at the time the
train was due. He realised his error and placed a signalman with a flag 540 yards up the
line, although statutory regulations specified a distance of at least 1,000 yards. However,
the train driver was not keeping a proper lookout and failed to stop. Several deaths were
caused. Thus, the deaths were a combination of:
 D misreading the train timetable;

 the signalman’s failure to stand 460 yards further up the line;
 the train driver’s failure to keep a proper lookout.
Nevertheless, the jury were directed to convict D if they were satisfied that his conduct
mainly or substantially caused the deaths (they were so satisfied, and D was
convicted).
A slightly different approach is required in cases where D’s act or omission triggers
some further act by a third party, and it is the latter act or omission which is the imme-
diate cause of death. D is clearly a factual cause of death, but to what extent can D also
be regarded as the legal cause? The leading case is Pagett, where Goff LJ said that, where
the third party’s act is a reasonable response to D’s initial act, the chain will not be
broken. D did not escape liability where a third party, forced into reasonable self-defence
by D, inadvertently caused V’s death.
CASE EXAMPLE
Pagett [1983] Crim LR 393
Several police officers were trying to arrest D for various serious offences. He was hiding in his
first-floor flat with his 16-year-old girlfriend, V, who was pregnant by him. D armed himself
with a shotgun and, against her will, used V’s body as a shield. He fired at two officers, who
returned fire; three bullets fired by the officers hit V. She died from the wounds. D was con-
victed of manslaughter; his appeal was dismissed.
It is crucial that the question of causation is left to the jury to decide. If it is not, convic-
tions may be quashed. A good example is Watson [1989] 2 All ER 865 (examined in detail
in Chapter 10). D was convicted of manslaughter on the basis that his act of burgling V’s
home had triggered a fatal heart attack 90 minutes later. However, D’s conviction was
quashed on the ground of causation: the heart attack may have been caused by the 47
arrival of the police or council workmen to board up the window. There is now a
considerable body of case law on the application of these principles to cases where the
third parties are medical personnel dealing with injuries inflicted by D. These cases raise
2.4 CAusAtiOn
special considerations of public policy and will be dealt with separately below.
Actions of the victim: deliberate acts

Over the years, the appeal courts have heard a series of cases involving similar facts. D,
a drug dealer, provides V, a drug addict, with a syringe containing a mixture of heroin
and water. The heroin is then injected into V, but V accidentally overdoses and dies. The
question is: has D caused V’s death? The answer is: it depends on whether it was D who
injected the heroin into V, or whether D handed the syringe to V, who self-injected.
 Where D injects the heroin into V, who overdoses and dies, then D has caused V’s
death and faces liability for constructive manslaughter (see Chapter 10). This, essen-
tially, was the situation in Cato [1976] 1 All ER 260.
 Where D hands the syringe to V, who self-injects, overdoses and dies, the chain of
causation is broken. V’s deliberate, voluntary act is deemed to have broken the chain
and therefore D is not liable for V’s death. This was the situation in Dalby [1982] 1 All
ER 916 and Dias [2002] 2 Cr App R 96. This principle has now been confirmed by the
House of Lords in Kennedy [2007] UKHL 38; [2008] 1 AC 269.
CASE EXAMPLE
Kennedy [2007] uKHL 38; [2008] 1 AC 269
D and V both lived in a hostel. One night, at V’s request, D prepared a dose of heroin and gave
V a syringe ready for injection. V injected himself but later died, the cause of death being the
inhalation of gastric contents while acutely intoxicated by heroin and alcohol. D was duly
convicted of manslaughter, based on the unlawful act of administering a noxious substance.
He appealed, unsuccessfully, to the Court of Appeal (twice) although on the second occasion
the Court of Appeal certified the following question for the opinion of the House of Lords:
‘When is it appropriate to find someone guilty of manslaughter where that person has been
involved in the supply of a class A controlled drug, which is then freely and voluntarily self-
administered by the person to whom it was supplied, and the administration of the drug then
causes his death?’ The Law Lords allowed the appeal and quashed the conviction. Lord
Bingham said that the answer to the certified question was: ‘In the case of a fully-informed
and responsible adult, never.’
Lord Bingham, giving a single speech on behalf of the whole House in Kennedy, said:
JUDGMENT
‘The criminal law generally assumes the existence of free will . . . Thus [D] is not to be treated
as causing [V] to act in a certain way if [V] makes a voluntary and informed decision to act in
that way rather than another . . . The finding that [V] freely and voluntarily administered the
injection to himself, knowing what it was, is fatal to any contention that [D] caused the heroin
to be administered to [V] or taken by him.’
There is an interesting contrast here between English and Scottish law. In MacAngus and
Kane v HM Advocate [2009] HCJAC 8, the High Court of Justiciary in Edinburgh decided
– on very similar facts to Kennedy – that V’s self-injection of drugs supplied by D does
not necessarily break the chain of causation:
48
JUDGMENT
Actus reus
‘The adult status and the deliberate conduct of a person to whom a controlled drug is . . . sup-
plied by another will be important, in some cases crucial, factors in determining whether that
other’s act was or was not, for the purposes of criminal responsibility, a cause of any death
which follows upon ingestion of the drug. But a deliberate decision by the victim of the reck-
less conduct to ingest the drug will not necessarily break the chain of causation.’
Actions of the victim: fright or flight

In some cases, V brings about his own death or injuries through attempting to escape
from a threat (whether real or imagined) posed by D. However, D may remain respons-
ible for those outcomes. The courts have devised a test which involves establishing a
‘chain of causation’ between D’s original act or omission and V’s ultimate death or
injury. If V’s actions in trying to escape from a threat posed by D are regarded by the
jury as ‘daft’ (or ‘unexpected’ or ‘unreasonable’) then the ‘chain’ is broken and D escapes
liability. If V’s actions are not regarded as ‘daft’ then D remains liable. The question of
‘daftness’, which is one for the jury to answer, is particularly important in cases where
D contends that V has misinterpreted his act or omission and (possibly in a state of con-
fusion and/or panic) has overreacted. Marjoram [2000] Crim LR 372 provides a recent
example.
CASE EXAMPLE
Marjoram [2000] Crim LR 372
D, who had been shouting abuse and kicking V’s hostel room door, forced open the door, at
which point V fell, or possibly jumped, from the window. V sustained serious injury in the fall. D
maintained that he had broken down the door because he had heard the window being opened
and had intended to rescue V from what he thought was a suicide bid. Nevertheless, D was
convicted of inflicting grievous bodily harm, contrary to s 20 OAPA 1861. The Court of Appeal
dismissed D’s appeal. The jury were entitled to find that V’s reaction to having D forcing open
their door was not daft.
Similarly, in Corbett [1996] Crim LR 594, the Court of Appeal rejected D’s appeal that V
had overreacted and upheld his manslaughter conviction. D had punched and head-
butted V, who had run off, tripped and fallen into the path of a passing car. D argued on
appeal that it should have to be proved that what happened was the natural consequence
of D’s act. The Court of Appeal, however, confirmed that the jury had been properly
directed that only a ‘daft’ reaction by V was capable of breaking the chain. The criterion
of V’s reaction being ‘daft’ stems from Roberts [1972] Crim LR 242, in which D was con-
victed of assault occasioning actual bodily harm (contrary to s 47 OAPA 1861) after the
girl passenger in his car jumped out after he allegedly had tried to remove her coat. He
appealed on the ground that causation had not been established. The Court of Appeal
dismissed the appeal. Stephenson LJ said:
JUDGMENT
‘The test is: was [V’s reaction] the natural result of what [D] said and did, in the sense that it
was something that could reasonably have been foreseen as the consequence of what [D] was
saying or doing? . . . If of course [V] does something so “daft” . . . or so unexpected . . . that no
49
reasonable man could be expected to foresee it, then it is only in a very remote and unreal
sense a consequence of [D’s] assault, it is really occasioned by a voluntary act on the part of
[V] which could not reasonably be foreseen and which breaks the chain of causation between
2.4 CAusAtiOn
the assault and harm or injury.’
novus actus
interveniens If the jury agree that V’s reaction was ‘daft’ and the chain of causation broken, it is
A new intervening
act – something
common to refer to this reaction using the Latin term ‘novus actus interveniens’, literally
which breaks the ‘new intervening act’. Thus, in the words of Stuart-Smith LJ in Williams and Davis [1992]
chain of causation 2 All ER 183:
JUDGMENT
‘V’s conduct [must] be something that a reasonable and responsible man in D’s shoes would
have foreseen . . . The nature of the threat is of importance in considering . . . the question
whether V’s conduct was proportionate to the threat, that is to say that it was within the
ambit of reasonableness and not so daft as to make it his own voluntary act which amounted
to a novus actus interveniens and consequently broke the chain of causation.’
CASE EXAMPLE
Williams and Davis [1992] 2 All ER 183
D and E had given a lift to a hitchhiker, V. After some five miles, V opened a rear door and
jumped out to his death. The Crown alleged that V had leaped out to escape being robbed.
The defendants were convicted of robbery and manslaughter. The Court of Appeal quashed
the latter convictions because of a lack of any direction on the question of causation. The jury
should have been asked whether V’s reaction in jumping from the moving car was ‘within the
range of responses’ which might be expected from a victim placed in the situation in which V
was. The jury should also have been told to bear in mind the fact that ‘in the agony of the
moment he may act without thought and deliberation’.
The accused must take the victim as they find them

D cannot complain if V is particularly susceptible to physical injury, e.g. haemophilia
causing death, or brittle bones leading to worse injuries. In Martin (1832) 5 C & P 128, Parke
J said: ‘It is said that [V] was in a bad state of health; but that is perfectly immaterial, as, if
[D] was so unfortunate as to accelerate her death, he must answer for it.’ It was accepted in
Towers (1874) 12 Cox CC 692 that, because children are particularly susceptible to fright and
shock, D may frighten a child to death. D violently assaulted a young girl who was holding
V, a four-month-old baby, in her arms. The girl screamed, frightening V so much that it
cried until its face turned black. V died a month later and D was convicted of manslaughter.
The implication of this ruling was that it would not be possible to frighten an adult to death.
However, this implication was rejected in Hayward (1908) 21 Cox CC 692.
CASE EXAMPLE
Hayward (1908) 21 Cox CC 692
D, in a state of ‘violent excitement’, was heard to say that he was going to give ‘his wife some-
thing’ when she returned home. When she did so, an argument ensued and D chased her
from the house using violent threats. She collapsed in the road and died. Medical evidence
was such that she was suffering from an abnormal condition that might be exacerbated by any
50 combination of physical exertion with strong emotion or fright. The trial judge directed the
jury that proof of death from fright alone, caused by some illegal conduct such as the threats
of violence, would suffice.
Actus reus
The principle that D must take their victim as they find them is not confined to pre-
existing physical or physiological conditions. In Blaue [1975] 3 All ER 446, it was extended
to religious beliefs. Lawton LJ said:
JUDGMENT
‘It has long been the policy of the law that those who use violence on other people must take
their victim as they find them. This in our judgment means the whole man, not just the phys-
ical man. It does not lie in the mouth of the assailant to say that the victim’s religious beliefs
which inhibited him from accepting certain kinds of treatment were unreasonable. The ques-
tion for decision is what caused her death. The answer is the stab wound. The fact that the
victim refused to stop this end coming about did not break the causal connection between the
act and death.’
CASE EXAMPLE
Blaue [1975] 3 All ER 446
D had approached his female victim, V, and asked for sex. When she refused he produced a
knife and stabbed her four times, one wound penetrating a lung. She was admitted to hospital
and told that a blood transfusion was necessary to save her life. As she was a Jehovah’s
Witness (by whom blood transfusions are regarded as contrary to the teachings of the Bible),
she refused and died within a few hours of internal bleeding. Medical evidence indicated she
would have survived had she accepted the transfusion. D was charged with murder, but was
convicted of manslaughter (the jury having accepted his plea of diminished responsibility: see
Chapter 10). On appeal against that conviction, he argued that her refusal was unreasonable
and broke the chain of causation. This was rejected.
Question
Suppose V had been stabbed in a remote place and had died before medical assistance
could reach her. Then D’s liability would certainly have been manslaughter. Why should
D be allowed to escape a manslaughter conviction on the ground that V declined medical
assistance?
Actions of the victim: self-neglect
If V mistreats or neglects to treat his injuries, this will not break the chain of causation. In a
very early case, Wall (1802) 28 State Tr 51, D, the governor of a British colony, was con-
victed of the murder of V, a soldier whom he had sentenced to an illegal flogging of 800
lashes, even though V had aggravated the injuries by drinking spirits in hospital. MacDon-
ald LCB said that D was ‘not at liberty to put another into such perilous circumstances as
these, and to make it depend upon [V’s] own prudence, knowledge, skill or experience’,
whether he escaped liability or not. In a slightly later example, Holland (1841) 2 Mood & R
351, D cut V on the finger with a piece of metal. The wound became infected, but V ignored
medical advice that he should have the finger amputated or risk death. The wound caused
lockjaw, and although the finger was then amputated, V died. The trial judge directed the
jury that it made no difference whether the wound was instantly mortal, or became so by
reason of V not seeking medical help. The jury convicted. Although medical science has
advanced hugely since the early nineteenth century, it is still no answer to a homicide
charge that V refuses treatment. D must accept that V may be irrational, stupid or afraid of 51
hospitals. Holland was in fact followed in Blaue in the 1970s and the principles can be seen
in use in a more recent case, Dear [1996] Crim LR 595.
2.4 CAusAtiOn
CASE EXAMPLE
Dear [1996] Crim LR 595
D had slashed at V several times with a Stanley knife, severing an artery. V died from blood loss
two days later. At his trial for murder, D pleaded provocation, claiming that he had only just
discovered that V had been sexually interfering with his (D’s) 12-year-old daughter. (See
Chapter 10 for discussion of provocation as a defence to murder.) An alternative defence was
that the chain of causation had been broken in that V had committed suicide by either (a)
deliberately reopening the wounds, or (b) the wounds having reopened themselves, from
failing to take steps to staunch the blood flow. The judge directed the jury that they were
entitled to find D guilty of murder if V’s wounds remained an ‘operating’ and ‘substantial’
cause of death. The jury convicted.
Medical treatment
A number of cases have arisen where doctors have been accused of causing death. The
cases divide into two types:
 Where doctors are treating patients with naturally occurring diseases, and adminis-
ter drugs to alleviate pain (palliative care). If a side effect of this treatment is to accel-
erate death, should the doctor face liability for homicide (murder or manslaughter,
depending on the doctor’s mens rea)?
 Where doctors are treating patients who have been rushed in for emergency surgery
having (typically) been stabbed or shot by D. The treatment is imperfect and the
patient dies. Should the doctor face liability for the death? Should the doctor’s mis-
treatment relieve D of liability for the death?
Where doctors are providing patients with palliative care

Adams [1957] Crim LR 365 was a case involving a doctor who, in treating a terminally ill
patient, may have contributed to her death through the administration of drugs. On trial
for murder, the trial judge directed the jury that it did not matter that the victim’s death
was inevitable, nor that her days were numbered. He said, ‘If her life were cut short by
weeks or months it was just as much murder as if it was cut short by years.’ However,
he went on to say:
JUDGMENT
‘That did not mean that a doctor who was aiding the sick and dying had to calculate in
minutes, or even in hours, and perhaps not in days or weeks, the effect upon a patient’s life
of the medicines which he administers or else be in peril of a charge of murder. If the first
purpose of medicine, the restoration of health, can no longer be achieved there is still much
for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and
suffering, even if the measures he takes may incidentally shorten life.’
Where doctors provide medical mistreatment

Two questions were posed above. The first question, whether doctors who inadvert-
ently (as opposed to deliberately) mistreat patients during surgery resulting in death
may themselves face liability for homicide, will be dealt with in Chapter 10, specifically
52 the section on gross negligence manslaughter (see in particular the case of Adomako). The
answer to the second question, whether medical mistreatment provided to the victims
of gunshots or stab wounds may relieve the original perpetrator of liability, is, generally
speaking, no. In Smith (Thomas) [1959] 2 QB 35, Lord Parker CJ said:
Actus reus
JUDGMENT
‘If at the time of death the original wound is still an operating cause and a substantial cause,
then the death can properly be said to be the result of the wound, albeit that some other
cause of death is also operating. Only if it can be said that the original wounding is merely
the setting in which another cause operates can it be said that the death did not result from
the wound. Putting it another way, only if the second cause is so overwhelming as to make
the original wound merely part of the history can it be said that the death does not flow
from the wound.’
CASE EXAMPLE
smith (thomas) [1959] 2 QB 35
D was a British soldier. During the course of a barrack-room fight he stabbed V, another
soldier, twice with a bayonet. One of the wounds had pierced a lung. V eventually died of a
haemorrhage (internal bleeding) but, before his death, the following had occurred: (a) another
soldier carried V to the medical station and dropped him – twice; (b) the medics, who were
under pressure, failed to realise that V had suffered serious injuries because D had been
stabbed in the back; (c) the medics gave him treatment which, in light of this, was described
as ‘thoroughly bad and might well have affected [V’s] chances of recovery’. D was convicted
of murder at a court-martial, and the Court-Martial Appeal Court dismissed his appeal.
In Cheshire [1991] 3 All ER 670, Beldam LJ proposed a new test, asking not whether the
wound was still ‘operating’ but rather whether D’s act or omission could still be said to
have ‘contributed significantly’ to V’s death. Approaching the same question from the
opposite direction, he indicated that only if the medical treatment could be classed as
‘independent’ of D’s original act, would D escape liability. This new test is very important
as it allows the jury to impose liability on D even in cases where V survives, perhaps on
a life-support machine, for a long enough time after the original assault such that the
gunshot wounds or stab wounds have healed. Beldam LJ said:
JUDGMENT
‘[D] need not be the sole cause or even the main cause of death, it being sufficient that his acts
contributed significantly to that result. Even though negligence in the treatment of [V] was the
immediate cause of his death, the jury should not regard it as excluding the responsibility of
[D] unless the negligent treatment was so independent of [D’s] acts, and in itself so potent in
causing death, that they regard the contribution made by [D’s] acts as insignificant.’
Beldam LJ also suggested that it was only in the most extraordinary and unusual case
that medical treatment would break the chain of causation. He said that ‘Treatment
which falls short of the standard expected of the competent medical practitioner is
unfortunately only too frequent in human experience for it to be considered abnormal in
the sense of extraordinary.’
53
CASE EXAMPLE
cheshire [1991] 3 All ER 670
2.4 CAusAtiOn
On 9 December, D and V got into an argument which culminated in D shooting V twice with
a handgun, in the thigh and stomach. The second wound was the more serious and required
an extensive bowel resection in hospital. Respiratory problems then ensued, necessitating a
tracheotomy. By 8 February, however, V was recovering, although he began to complain of
breathing difficulties. Various doctors who saw him around this time thought that his respira-
tory problems were caused by ‘anxiety’. In fact his condition deteriorated rapidly on the night
of 14 February and he died of cardio-respiratory arrest, as a result of his windpipe becoming
narrow and eventually obstructed, a rare but not unknown side effect of the tracheotomy. By
this time, the gunshot injuries had healed to the point where they were no longer life-
threatening. D was convicted of murder, and the Court of Appeal upheld the conviction.
Beldam LJ’s test in Cheshire has been followed since. In Mellor [1996] 2 Cr App R 245, V,
a 71-year-old man, was attacked by a gang including D. V was taken to hospital suffer-
ing facial bruising and complaining of chest pain and a pain in his right shoulder. He
died in hospital two days later. D tried to avoid liability by claiming the hospital failed
to give V sufficient oxygen in time, as a result of which V had developed bronchopneu-
monia (the medical cause of death). However, the Court of Appeal upheld D’s convic-
tion of manslaughter. Schiemann LJ noted that, where the victim of a violent assault
does not die immediately, ‘supervening events’ are quite likely to occur which may have
some causative effect leading to the victim’s death. He listed some examples: a delay in
the arrival of the ambulance; a delay in resuscitation; V’s reaction to medical or surgical
treatment; and the quality of medical, surgical and nursing care. In all cases, however,
Schiemann LJ said that it was a question for the jury to decide, bearing in mind the
gravity of the ‘supervening event’, whether the injuries inflicted by the defendant
remained a ‘significant’ cause of death. The ‘operating’ and ‘substantial’ factor test, first
devised in Smith in the 1950s, has never been overruled, so it would not be a misdirec-
tion for a judge in an appropriate case to refer to it. Indeed in Malcherek, Steel [1981] 2 All
ER 422, the Court of Appeal used the same words. However, it seems that, following the
more recent Cheshire and Mellor, trial judges today are more likely to ask juries to con-
sider whether the original injuries inflicted by D have made a ‘significant’ contribution
to V’s death. Finally, ‘significant’ means ‘more than minimal’ (Hughes (2013)).
The cases above all emphasise that it is ultimately a question for the jury to decide. They
allow for the possibility that medical mistreatment could be so extreme as to relieve D from
liability for V’s death. In Jordan (1956) 40 Cr App R 152, this possibility duly occurred. The
case remains unique, but that is not to imply that it is wrongly decided. Every rule has an
exception and, if the rule is that generally speaking hospital mistreatment does not absolve
D of liability, this is the exception to it. Indeed, in Blaue, Lawton LJ distinguished Jordan on
the ground that it was ‘a case decided on its own special facts’ and in Malcherek, Steel,
which will be discussed below, the Court of Appeal described Jordan as ‘a very exceptional
case’. You will note that neither court stated that Jordan was wrongly decided.
CASE EXAMPLE
Jordan (1956) 40 Cr App R 152
D had stabbed V with a knife, the wound penetrating the intestine in two places. V was rushed
to hospital where the wound was stitched. Eight days later, however, he died, and D was con-
victed of murder. On appeal, fresh evidence was adduced which showed that, at the time of V’s
54
death, the wound had mainly healed. Doctors had given V a drug called terramycin to prevent
infection, but he had shown intolerance to a previous injection. Defence experts described this
treatment as ‘palpably wrong’. Furthermore, large quantities of liquid had been administered
Actus reus
intravenously, which had caused V’s lungs to become waterlogged. This was also described as
‘wrong’ by the defence doctors. As a result of the waterlogging, V developed pulmonary oedema
which led inevitably to bronchopneumonia, which was the medical cause of death. The Court of
Criminal Appeal quashed D’s conviction: if the jury had heard this evidence, they ‘would have felt
precluded from saying that they were satisfied that death was caused by the stab wound’.
Life-support machines
A particular problem concerns victims of violence who have been placed on life-support
machines. If there is no prospect of recovery, and the doctors switch off the machinery,
how (if at all) does this affect D’s responsibility? In Malcherek, Steel, it was argued on
appeal that in just such a case it was the doctors who had caused death. The Court of
Appeal rejected the argument, describing it as ‘bizarre’. Lord Lane CJ said:
JUDGMENT
‘Where a medical practitioner adopting methods which are generally accepted comes bona
fide to the conclusion that the patient is for practical purposes dead, and that such vital func-
tions as exist – for example, circulation – are being maintained solely by mechanical means,
and therefore discontinues treatment, that does not prevent the person who inflicted the
initial injury from being responsible.’
CASE EXAMPLE
Malcherek [1981] 2 All ER 422
On 26 March, Malcherek stabbed his estranged wife, C, nine times. She was admitted to hospital,
where over one-and-a-half litres of blood were removed from her abdominal cavity. She seemed
to be recovering, but on 1 April she suffered a pulmonary embolism. Her condition deteriorated,
and her heart stopped. During open-heart surgery a massive blood clot was removed, at which
point her heart restarted. However, 30 minutes had elapsed and severe brain damage had been
caused, from which she never recovered. The doctors carried out five of the six tests recom-
mended by the Royal College for establishing brain death (omitting the ‘gag reflex’ test), and on
the strength of this switched off the life support. She was certified dead on 5 April.
Did D cause V’s death in fact
(using the ‘but for’ test)?
YES
Did D make a more than minimal

contribution to V’s death? NO
YES NO
Was the chain of causation broken

by V’s own voluntary act?
YES D cannot be guilty of 55
NO murder, but consider
attempted murder,
2.4 CAusAtiOn
Was the chain of causation broken if D acted with
by V’s ‘daft’ reaction? YES intent to kill (White).
Otherwise, D may only
be held liable for a
NO
non-fatal offence (if
anything). There is no
Was the chain of causation broken offence of ‘attempted
YES
by a third party? manslaughter’.
NO
D has caused V’s death in fact and

in law and will be guilty of murder
or manslaughter, depending on
D’s mens rea, unless D can plead
a defence.
Figure 2.2 Causation.
CASE EXAMPLE
steel [1981] 2 All ER 422
On 10 October, Steel attacked W, a random stranger, in the street. He battered her about the
head with a large stone, causing severe head injuries, and left her for dead. She was rushed to
hospital and placed on life support immediately. However, she never recovered consciousness,
and the system was withdrawn two days later after four of the six Royal College tests proved
negative (the ‘corneal reflex’, where the eyeball is touched with cotton wool, and the ‘vestibulo-
ocular’, where ice-cold water is dripped into the ear, tests were omitted). She was certified
dead on 12 October.
Thus, both victims had life-support equipment switched off after some, but not all, of
the Royal College tests indicated brain death. With the equipment switched off, the
victims ceased breathing, their hearts stopped and ‘conventional’ death, that is, cessation
of heartbeat, occurred. Malcherek and Steel were both convicted of murder, at Winches-
ter and Leeds Crown Courts respectively. The Court of Appeal, which heard both cases
together, rejected both appeals. The same principles apply if V is not brain dead but is in
a persistent vegetative state (PVS). In Airedale NHS Trust v Bland (1993) (discussed
above), Lord Goff said that in discontinuing treatment a doctor was ‘simply allowing the
patient to die in the sense that he [is] desisting from taking a step which might prevent
his patient from dying as a result of his pre-existing condition’.
ACTIVITy
1. Consider whether the ‘chain of causation’ would be broken in the following example: V
had been taken to hospital having been poisoned by D, his wife. At the hospital V is treated
by Dr Young, an inexperienced doctor who is also very tired having spent the previous 36
hours on duty. Dr Young prescribes an antidote for the poison but, in his tired and con-
56
fused state, tells the nurse to administer a dose ten times stronger than required. V suffers
a massive heart attack and dies.
2. Consider the liability of D in this scenario:
Actus reus
D, a middle-aged man, has been prescribed powerful painkillers in tablet form for
chronic back pain. One day he discovers his teenage daughter, V, and her friend, W,
slumped, unconscious, on V’s bedroom floor. It is obvious that the girls have taken D’s
tablets from the medicine cabinet in the bathroom as the bottle is lying on the bedroom
floor, empty. D panics because his doctor had warned him to keep the tablets out of the
reach of any children in the house. He goes to the living room to fix himself a large drink
to calm his nerves. Eventually he calls for an ambulance but by the time it arrives V has
lapsed further into unconscious and dies in the ambulance. W survives but is left severely
brain-damaged. D has now been charged with the manslaughter of V and with causing
grievous bodily harm to W. The prosecution’s case is that both girls might have survived
and made full recoveries had D acted immediately on discovering them in the bedroom.
SUMMARy
 The actus reus elements of a crime refer to the physical elements: conduct, circum-
stances and consequences. These elements usually differ from one crime to another:
the actus reus of murder is very different from the actus reus of theft. But some differ-
ent crimes have the same actus reus – for example, murder and involuntary man-
slaughter. What distinguishes these crimes is their different mens rea elements (see
Chapter 3).
 In some situations the conduct element can be satisfied by D’s failure to act, an omis-
sion. This usually requires evidence that D was under a duty to act. There is no
general duty to act in English law (although some commentators argue that there
should be). Instead, there are specific duty situations, including duties imposed by
contract (Pittwood), through a relationship (Gibbins and Proctor), through the volun-
tary assumption of a duty (Stone and Dobinson) and through the creation of a danger-
ous situation (the Miller principle). There are also a number of statutory offences of
failing to act, plus one common law offence (Dytham).
 In ‘result’ crimes, a consequence must be proven. Thus, in murder and manslaugh-
ter it must be proven that D ‘caused’ V’s death. D must be both the factual and
legal cause; factual causation alone is not enough for liability (Hughes). Factual
causation is satisfied using the ‘but for’ test (White). Legal causation looks for an
unbroken ‘chain of causation’. In law, D need not be the sole, or even the main,
cause of death provided he makes a more than minimal contribution to the result
(Pagett, Hughes). Generally speaking, medical Critically
negligenceanalyse
doescase
notlaw on the
break therights
chain of shareholders
provided D’s acts were still the ‘operating’ cause (Smith). Certain events can break demonstrate
to enforce the articles of association to
the chain of causation, however, including V’s whyownyouvoluntary
agree or disagree with the proposition
act (Kennedy), and that the
contractual effect of the articles
medical negligence which is both ‘independent’ and ‘potent’ (Cheshire, Mellor). is limited to provisions
Reasonably foreseeable events, either by V or of athe articles
third concerned
party, will notwith the membership
break the and
constitution of the company.
chain. Only a ‘daft’ reaction by V in trying to escape from D will break the chain
(Roberts).
SAMPLE ESSAy qUESTION

Critically consider the extent to which omitting to act can lead to liability for a criminal
offence. 57
Give a brief outline of the law:
sAmpLE EssAy QuEstiOns

• General position is that criminal liability requires a
positive act
• Note that some offences cannot be committed by
omission (Ahmad (1987))
• Imposition of liability for failing to act is the exception to
the general rule, but there are some statutory offences
that can be committed by omission
• There is also one common law offence – misconduct of
an officer of justice (Dytham (1979))
• Otherwise a duty to act must be established
Identify examples of statutory offences, e.g.

• Failing to provide a breath test (Road Traffic Act 1988)
• Failing to report terrorist activity (Terrorism Act 2000)
• Allowing the death of a child or vulnerable adult
(Domestic Violence Crimes and Victims Act 2004)
Discuss situations when a ‘duty to act’ might exist, e.g.

• Contract (e.g. Pittwood (1902))
• Relationship (e.g. Gibbins & Proctor (1919); Smith (1979))
• Doctors (e.g. Adomako (1993); Misra (2004))
• Assumption of responsibility (e.g. Instan (1893); Stone
and Dobinson (1977))
• Creation of danger (e.g. Miller (1983); Evans (2009))
Discuss areas of doubt/uncertainty, e.g.
• Who owes a relationship duty – parents and spouses
only?
• When does parental duty cease?
• How/when can an assumed duty be discharged?
Discuss whether there should be a ‘general’ duty

to act:
• Such a duty does exist in, e.g. France
58 • Might encourage people to help other people
• Problems if someone underestimates or overestimates
the danger involved in a rescue
Actus reus
• Argument that rescues should be left to trained

professionals
• Problem in identifying a defendant if dozens of people
fail to act
• Problems in limiting the scope of liability – minimum/
maximum age limits, exemptions for physical disability,
etc. Critically analyse case law on the rights of shareholders
to enforce the articles of association to demonstrate
why you agree or disagree with the proposition that the
contractual effect of the articles is limited to provisions
Conclude of the articles concerned with the membership and

Consider whether the legal principles relating to whether the chain of causation has been
broken are satisfactory.
Give a brief outline of the role of causation:

• Essential element in ‘result’ crimes – those requiring
proof of a consequence, such as murder, manslaughter,
some non-fatals
• Causation comes in two forms: factual and legal
• Both must be established for defendant to be held liable
(Hughes (2013))
• Legal causation requires an unbroken ‘chain of
causation’
Explain factual causation:
• Defendant must have caused consequence in fact –
tested using the ‘but for’ test
• Leading case is White (1910)
Explain principles of legal causation:

• Defendant must take victim as he finds her (the thin skull
rule) (Blaue (1975))
• Defendant need not be the sole, or even the main cause,
59
provided he makes a significant contribution (Pagett
(1984))
• Defendant will be liable if he was the ‘operating’ and
sAmpLE EssAy QuEstiOns

‘substantial’ cause even if other causes are also
operating (Smith (1959))
• Medical negligence will only break the chain if it is
‘independent’ and ‘potent’ (Cheshire (1991))
• Victim’s escape attempt will only break the chain if it is
so ‘daft’ as to be unforeseeable (Roberts (1972);
Marjoram (2000))
Give examples of situations of breaks in the chain:

• Victim’s own voluntary act (Kennedy (2007))
• ‘Palpably wrong’ medical treatment (Jordan (1956))
Analyse the above principles/cases, e.g.

• The courts’ reluctance to allow defendants to escape
liability in cases like Roberts, Blaue, Pagett and Cheshire
is based on a policy of protecting the public from violent
crime
• Compare/contrast the outcome in Kennedy with that in
Cato (1976) and the Scottish case of MacAngus and
Kane (2009)
Conclude
Further reading
Books
Ormerod, D, Smith and Hogan Criminal Law (13th edn, Oxford University Press, 2011),
Chapter 4.
Articles
Beynon, H, ‘Causation, omissions and complicity’ [1987] Crim LR 539.
Cherkassky, L, ‘Kennedy and unlawful act manslaughter: an unorthodox application of
the doctrine of causation’ (2008) 72 JoCL 387.
Elliott, D W, ‘Frightening a person into injuring himself ’ [1974] Crim LR 15.
Norrie, A, ‘A critique of criminal causation’ (1991) 54 MLR 685.
Tur, R, ‘legislative technique and human rights: the sad case of assisted suicide’ [2003]
Crim LR 3.
60 Williams, G, ‘Criminal omissions: the conventional view’ (1991) 107 LQR 86.
Williams, G, ‘Finis for novus actus?’ (1989) 48 CLJ 391.
Actus reus
3
Mens rea
AIMS AND OBJECTIVES

 Understand the law of intention, both direct and oblique
 Understand the law of recklessness
 Understand the principles of transferred malice and coincidence
 Analyse critically the law on intention and recklessness
3.1 The mental element

It was noted at the start of the previous chapter that the physical element alone is,
generally speaking, not enough to constitute criminal liability. The presence of
some mental element is usually required. This allows the courts to impose punish-
ment on those who acted with, at least, some awareness of what they were doing.
As a general rule, courts in England are reluctant to apportion blame and impose
punishment on those who acted inadvertently, that is, without awareness of the
conduct, circumstances and consequence elements that make up the actus reus. As
with the physical elements discussed in Chapter 2, a different mental element is
required for each crime. Some criminal offences require one mental element, some
require two, either in addition to each other or as alternative states. Some examples
are as follows.
 In murder the mens rea is intention only (see Chapter 10).
 In theft one mental element is intention; however, there is an additional element
of dishonesty.
 In criminal damage and most non-fatal offences against the person, such as assault
and battery, the mens rea is intention or recklessness (see Chapters 11 and 16).
 In one form of manslaughter, the mental element is recklessness only, while in a
different form of manslaughter, the mental element is ‘gross negligence’ (see
Chapter 10).
3.2 Intention
As noted above, in many offences, the mens rea required is an ‘intention’. However,
intention does not exist as an abstract concept: there must be proof of an intention to
cause a particular result. The following examples illustrate this.
 Murder requires as its mental element intention to kill or cause grievous bodily harm
(see Chapter 10).
 The criminal offence found in s 18 of the Offences Against the Person Act (OAPA)
1861 requires as its mental element an intention to cause grievous bodily harm (see
Chapter 11).
 In theft, the mental element is an intention permanently to deprive another person of
their property, plus dishonesty (see Chapter 13).
direct intent However, whichever crime is charged, the meaning of ‘intent’ is the same. In criminal
62
Mental or fault
law, there are two types of intent:
element involving
aim, purpose or  Direct intent – this refers to someone’s aim, purpose or desire.
mens rea
desire
 Indirect or oblique intent – this is much harder to define. The question whether D
intends a consequence of his actions when he believes that it is virtually certain, or
oblique intent very probable, is one that has greatly troubled English courts for the last 30 years. The
Where D has House of Lords has dealt with the problem on five occasions, all murder cases, the
foreseen a most recent in 1998.
consequence as
virtually certain
3.2.1 Direct intention
As indicated above, direct intention refers to the situation when D desires an outcome.
For example:
 D is a hired professional killer (an example is Calhaem [1985] 1 QB 808; see Chapter 5)
who aims a loaded gun at V’s heart and pulls the trigger. Clearly D has direct intent
to kill. The fact that D’s desire is motivated by cash is irrelevant: D still wanted to
kill V.
 D is a sadistic psychopath who enjoys torturing and killing people. He strangles V to
death and then cuts up the body (as in Byrne [1960] 2 QB 396; see Chapter 10). Clearly
D again has direct intent to kill. The fact that D’s desire is motivated by his abnormal
mental condition is irrelevant to the question of intent: D still wanted to kill V.
An example of a situation where D does not desire a consequence but may still be said
to have intended it might be where D sees a child trapped in a locked car, towards which
a runaway lorry is heading at speed. D grabs a brick and smashes the windscreen to
rescue the child. D’s desire here was to save the child but in doing so he had to cause
criminal damage to the car (see Chapter 16). If D were prosecuted for the offence of
intentional criminal damage to the windscreen, it seems that the prosecution could
establish the elements of the offence. (It is extremely unlikely that the Crown Prosecu-
tion Service would prosecute on these facts; even if they did, D would almost certainly
be found not guilty by pleading duress of circumstances, see Chapter 8.)
3.2.2 Oblique intention

As indicated above, indirect or oblique intention occurs where D does not necessarily
desire an outcome but realises that it is almost (but not quite) inevitable. However, this
scenario invites problems. What degree of probability is required before an undesired
consequence, but one which D has foreseen, can be said to have been intended? Some
would argue none – that once one steps away from foresight of something as 100 per cent
certain to happen, then one is dealing with risk, and that means recklessness, not intent.
Others would argue that very high probability would suffice. A good place to start an
examination of ‘intent’ is the Criminal Justice Act 1967, which states that:
SECTION
‘8 A court or jury in determining whether a person has committed an offence (a) shall not be
bound in law to infer that he intended or foresaw a result of his actions by reason only of its
being a natural and probable consequence of those actions; but (b) shall decide whether he
did intend or foresee that result by reference to all the evidence, drawing such inferences from
the facts as appear proper in the circumstances.’
This provision was passed in order to reverse the decision of the House of Lords in DPP 63
v Smith [1961] AC 290. The Law Lords had declared that there was an irrebuttable pre-
sumption of law that a person foresaw and intended the ‘natural consequences’ of his
3.2 IntentIon
acts. Proof that D did an act, the natural consequence of which was death, was proof that
D intended to kill. Further, the test of what was a natural consequence was purely
objective: ‘not what [D] contemplated, but what the ordinary reasonable man would in
all the circumstances of the case have contemplated as the natural and probable result’.
None of this is now good law. The leading case is now that of Woollin [1998] UKHL 28;
[1998] 3 WLR 382. Lord Steyn (with whom the other members of the House of Lords
agreed) laid down a model direction for trial judges to use in cases where D’s intention
is unclear as follows:
JUDGMENT
‘Where the charge is murder . . . the jury should be directed that they are not entitled [to find]
the necessary intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of [D]’s actions and that [D] appre-
ciated that such was the case.’
CASE EXAMPLE
Woollin [1998] UKHL 28; [1998] 3 WLR 382
D had killed his three-month-old son by throwing him against a wall, fracturing his skull. D did
not deny doing this, but claimed that it was not intended. He claimed that he had picked the
child up after he began to choke and shaken him. Then, in a fit of rage or frustration, he had
thrown him with some considerable force towards a pram four or five feet away. The trial
judge directed the jury that they might infer intention if satisfied that when D threw the child,
he had appreciated that there was a ‘substantial risk’ that he would cause serious harm to the
child. D was convicted of murder and appealed on the basis that the phrase ‘substantial risk’
was a test of recklessness, not of intent, and that the judge should have used ‘virtual cer-
tainty’. The Court of Appeal dismissed the appeal but the House of Lords unanimously reversed
that court’s decision, quashed D’s murder conviction and substituted one of manslaughter.
You will note that in the 1967 Act there is a verb, ‘to infer’. This word was faithfully used
by trial judges and the appeal courts until Woollin. But in that case the Law Lords agreed
that juries would more easily understand the verb ‘to find’. It appears that the Law
Lords simply intended to substitute one word for another, although academics argue
that the words have slightly different meanings. Prior to Woollin, the most oft-quoted
statement of the law of intent was found in Nedrick [1986] 3 All ER 1. This was a Court of
Appeal case, in which Lord Lane CJ attempted to, as he put it, ‘crystallise’ the various
speeches made in the House of Lords in two cases from the 1980s: Moloney [1985] AC 905
and Hancock and Shankland [1986] AC 455. Lord Lane stated:
JUDGMENT
‘It may be advisable first of all to explain to the jury that a man may intend to achieve a
certain result whilst at the same time not desiring it to come about . . . if the jury are satisfied
that at the material time [D] recognised that death or serious harm would be virtually certain
(barring some unforeseen intervention) to result from his voluntary act, then that is a fact
from which they may find it easy to infer that he intended to kill or do serious bodily harm,
64
even though he may not have had any desire to achieve that result. Where a man realises
that it is for all practical purposes inevitable that his actions will result in death or serious
harm, the inference may be irresistible that he intended that result, however little he may
mens rea
have desired or wished it to happen. The decision is one for the jury to be reached on a
consideration of all the evidence.’
Directions on intention not always necessary

Most of the cases mentioned above reached the appeal courts because the trial judge
unnecessarily confused the issue by raising indirect intent in the first place. When this
happens it invites an appeal on the basis that the jury have been unnecessarily confused.
As Lord Bridge put it in Moloney:
JUDGMENT
‘The golden rule should be that . . . the judge should avoid any elaboration or paraphrase of
what is meant by intent, and leave it to the jury’s good sense to decide whether the accused
acted with the necessary intent, unless the judge is convinced that, on the facts and having
regard to the way that case has been presented . . . some further explanation or elaboration is
strictly necessary to avoid misunderstanding.’
The case of Fallon [1994] Crim LR 519 provides a perfect example. D was charged with
attempted murder (this requires proof of an intent to kill). He had shot a police officer in
the leg. The prosecution alleged that he intended to kill; D argued that the gun had gone
off accidentally when the officer tried to grab the gun, which D was trying to hand over.
The trial judge directed the jury on intent, referring to Moloney and Nedrick and intro-
ducing the concept of virtual certainty. Unsurprisingly, the jury asked for clarification,
and the judge gave them further direction, also based on Nedrick. After the jury con-
victed D of murder, the Court of Appeal allowed his appeal (although they instead
substituted a conviction under s 18 OAPA 1861, of causing grievous bodily harm with
intent to resist arrest). The prosecution accepted that the judge’s directions were unneces-
sary and confusing; he had ignored Lord Bridge’s ‘golden rule’. The jury simply had to
decide whether they believed the prosecution or the defence version of events. If they
were sure the prosecution’s version was correct, then they should convict (D had direct
intent); if they thought the defence might be correct, then acquit (the shooting was an
accident, D did not intend to do the officer any harm at all).
In Wright [2000] EWCA Crim 28; [2000] Crim LR 928, the Court of Appeal rejected D’s
appeal against a murder conviction based on the ground that the judge had not directed
the jury according to Nedrick and Woollin. At the time of the killing, D and V were sharing
a prison cell (D was on remand). One morning V was found lying on the cell floor,
unconscious and with a piece of bed sheet tied round his neck. He died a week later. D
denied murder, claiming that, while he (D) was asleep, V had hanged himself. Uphold-
ing the murder conviction, Beldam LJ said that in simply giving ‘the straightforward
direction on intention’ – that is, by just directing the jury to consider direct intent – the
judge was ‘directing the jury to the real question they had to determine and steering
them away from the chameleon-like concepts of purpose, foresight of consequence and
awareness of risk’. This must be correct. The prosecution case was that D wanted to kill
V – that is, he had direct intent; the defence case was that D had nothing to do with V’s
death at all. There was no need for any direction based on oblique intent; indeed, had the
jury been directed to consider D’s foresight of consequences it would only have served
to have distracted them from the key question: did they believe the prosecution’s version 65
of the facts, or the defence’s version?
3.2 IntentIon
Foresight is not intention but evidence of intention
All the courts agree on one thing: foresight of a consequence, even of a virtually certain
consequence, is not intent, but is simply evidence from which intention may be found. It
will therefore be a misdirection for the judge to equate foresight with intention. The jury
must be left to ‘find’ intent from foresight. For example, in Scalley [1995] Crim LR 504, D
was convicted of murder but on appeal his conviction was reduced to manslaughter.
The problem was that the judge had directed the jury that if they found that D had fore-
seen death or serious injury as virtually certain, then he had intended it. However, this
is somewhat confusing. If the jury are agreed that D foresaw a consequence as virtually
certain, then they are entitled to ‘find’ that D intended that consequence. Equally, they
are not compelled to do so. So when should a jury ‘find’ intention based on evidence that
D foresaw a virtually certain consequence (and convict D), and when should they not
(and acquit D)? The courts have failed to give any clues as to when, or how, juries are to
take this step. It has been said that there is a ‘logical gap’ between foresight and intention
(G Williams, ‘Oblique intention’ (1987) 46 CLJ 417).
Nevertheless, the proposition that foresight of a consequence is not intention but
evidence of it was confirmed in Matthews and Alleyne [2003] EWCA Crim 192; [2003] 2 Cr
App R 461.
CASE EXAMPLE
matthews and alleyne [2003] eWCA Crim 192; [2003] 2 Cr App R 461
D and E had pushed V from a bridge over the River Ouse (despite the fact he had told them he
could not swim) where he fell about 25 feet and drowned. D and E were convicted of murder
(among other offences including robbery and kidnapping) after the trial judge told the jury
that if ‘drowning was a virtual certainty and [D and E] appreciated that . . . they must have had
the intention of killing him’. D and E appealed on the basis that this direction went beyond
what was permitted by Nedrick/Woollin and equated foresight with intention. The Court of
Appeal rejected the appeal. Although the judge had gone further than he was permitted (and
had equated foresight with intention), the court thought that, on the particular facts of the
case, if the jury were sure that D and E had appreciated the virtual certainty of V’s death when
they threw him into the river, it was ‘impossible’ to see how they could not have drawn the
inference that D and E intended V’s death.
student Criticism
mentor tip Some academics take the view that intention should be limited to direct intention (desire,
‘Make sure you aim or purpose). As Finnis has pointed out (‘Intention and side-effects’ (1993) 109 LQR
know the actus 329), in ordinary English we would not say that ‘someone who hangs curtains knowing
reus and mens rea
that the sunlight will make them fade’ intends that they will fade – and yet according to
inside out as this
will always come the House of Lords, a jury would be entitled to ‘find’ that they did intend exactly that.
up in an essay Finnis described the definition of indirect or oblique intent as the ‘Pseudo-Masochistic
question.’
Theory of Intention – for it holds that those who foresee that their actions will have
Adil, Queen Mary
University painful effects upon themselves intend those effects.’
Applying the law

Tony celebrates his birthday by drinking five glasses of red wine. He knows from
previous, bitter experience that drinking anything more than two or three glasses of red
wine will give him a terrible hangover in the morning. According to the Nedrick/Woollin
66 definition, does Tony intend to have a terrible hangover?
The Nedrick/Woollin test fails to provide a clear distinction between intention and
recklessness. How is it possible to distinguish a consequence foreseen as ‘virtually
certain’ (which might be evidence of intent) from one foreseen as ‘highly probable’
mens rea
(which would be evidence of recklessness)? There is no obvious cut-off point, and yet
this is the dividing line between murder and manslaughter. There are also strong moral
justifications for distinguishing D who acts in order to achieve V’s death because that is
what he wants to happen, and D who has one goal but foresees that V’s death is certain
to happen, although he desperately hopes it will not.
Reform proposals
In 2006, the Law Commission published a Report entitled Murder, Manslaughter and
Infanticide, in which it was recommended that the Woollin direction on oblique intent
should be codified, and that ‘intention’ should be defined – in full – as follows:
1. A person should be taken to intend a result if he or she acts in order to bring it about.
2. In cases where the judge believes that justice may not be done unless an expanded
understanding of intention is given, the jury should be directed as follows: an inten-
tion to bring about a result may be found if it is shown that the defendant thought
that the result was a virtually certain consequence of his or her action.
The government’s response to the Report, published in July 2008, gives no indication
that it intends to do anything about this recommendation. It is therefore safe to assume
that, for the time being at least, the meaning of oblique intention (or the ‘expanded
understanding’ of it) remains as set out in Woollin.
Another option would be to limit intention to D’s aim or purpose, i.e. direct intention.
This would have the advantage of making the legal definition fit with the word’s
everyday dictionary meaning. In Steane [1947] KB 997, D was charged with doing acts
likely to assist the enemy with intent to assist the enemy, contrary to the Defence
(General) Regulations 1939. He was a British film actor resident in Germany prior to the
Second World War who had been arrested when the war broke out and forced, extremely
reluctantly, to broadcast propaganda on German radio. Threats had been made to place
his wife and children in a concentration camp if he did not comply. The Court of Crimi-
nal Appeal, quashing his conviction on the grounds of lack of intent, adopted a narrow
interpretation of that concept, effectively limiting it to aim or purpose.
The American Law Institute’s Model Penal Code takes a narrower approach. Accord-
ing to the Code, a person acts intentionally when it is his ‘conscious object to engage in
conduct of that nature or to cause such a result’. As to the mental state of foresight of
virtual certainty, under the Code this forms a special category of mens rea, between inten-
tion and recklessness, namely knowledge. The Code states that: ‘A person acts know-
ingly with respect to a material element of an offense when . . . (ii) if the element involves
a result of his conduct, he is aware that it is practically certain that his conduct will cause
such a result.’
3.3 Recklessness
Recklessness generally involves D taking an unjustifiable risk of a particular consequence
occurring, with awareness of that risk. Recklessness is the mens rea state sufficient for many
recklessness
crimes, some very serious, including manslaughter, malicious wounding, inflicting griev-
Foresight by D of
an unjustifiable ous bodily harm and assault occasioning actual bodily harm. The question that has trou-
risk bled the appeal courts for over 30 years is whether recklessness should be assessed
‘subjectively’ – that is, by looking at the case from the defendant’s perspective – or ‘objec-
tively’ – that is, looking at the case from the perspective of the reasonable man. It will be 67
seen that the courts have gone on a long, circular journey. After starting with a subjective
test, in 1981 an objective test was introduced. For a short time in the early 1980s it seemed
3.3 ReCKLessness
that the objective test would replace the subjective test, but the original test began a come-
back in the mid-1980s and continued to reassert itself throughout the 1990s. Finally, in
2003, the objective test was banished to the pages of history.
3.3.1 The Cunningham test

The original case on the definition of recklessness is Cunningham [1957] 2 QB 396. Here
maliciously
Mental or fault
the court gave us the classic, subjective test for recklessness. The question for the Court
element meaning of Criminal Appeal was actually what was meant by the word ‘maliciously’ (in s 23
either intentionally OAPA 1861; see Chapter 11). The judge had directed the jury that it meant ‘wickedly’.
or recklessly
The Court of Criminal Appeal did not agree. In quashing the conviction, the court
approved a definition given by Professor Kenny in 1902:
quotation
‘In any statutory definition of a crime, “malice” must be taken not in the old vague sense of
wickedness in general but as requiring either (i) an actual intention to do the particular kind of
harm that in fact was done or (ii) recklessness as to whether such harm should occur or not
(i.e. the accused has foreseen that the particular kind of harm might be done, and yet has
gone on to take the risk of it).’
CASE EXAMPLE
Cunningham [1957] 2 QB 396
D ripped a gas meter from the cellar wall of a house in Bradford, in order to steal the money
inside. He left a ruptured pipe, leaking gas, which seeped through into the neighbouring
house, where V (actually the mother of D’s fiancee) inhaled it. He was charged with mali-
ciously administering a noxious substance so as to endanger life, contrary to s 23 OAPA 1861,
and convicted. The crux of the matter was whether D had foreseen the risk, in this case, of
someone inhaling the gas.
This definition was subsequently applied throughout the OAPA 1861 (for example
Venna [1976] QB 421, a case of assault occasioning actual bodily harm contrary to s 47)
and to other statutes, such as the Malicious Damage Act 1861 (MDA), whenever the
word ‘malicious’ was used. In 1969, the Law Commission was working on proposals to
reform the law of property damage. In its final Report on Criminal Damage, it recom-
mended the replacement of the MDA with what became the Criminal Damage Act 1971
(CDA). The Law Commission considered that the mental element, as stated in Cunning-
ham, was properly defined, but that for simplicity and clarity the word ‘maliciously’
should be replaced with ‘intentionally or recklessly’. Unfortunately, the Act does not
define ‘reckless’ anywhere; it is left to the courts to interpret. However, after 1971 the
courts continued to define ‘recklessness’ by referring to D’s awareness of the con-
sequences of his actions. In Stephenson [1979] QB 695, for example, Lane LJ said:
JUDGMENT
‘A man is reckless when he carries out the deliberate act appreciating that there is a risk that
damage to property may result from his act . . . We wish to make it clear that the test remains
68 subjective, that the knowledge or appreciation of risk of some damage must have entered the
defendant’s mind even though he may have suppressed it or driven it out.’
mens rea
CASE EXAMPLE
stephenson [1979] QB 695
D was a schizophrenic; he was also homeless. One November night he had decided to shelter
in a hollowed-out haystack in a field. He was still cold, and so lit a small fire of twigs and straw
in order to keep warm. However, the stack caught fire and was damaged, along with various
pieces of farming equipment. D was charged under s 1(1) of the CDA. Evidence was given that
schizophrenia could have the effect of depriving D of the ability of a normal person to foresee
or appreciate the risk of damage. The judge directed the jury that D was reckless if he closed
his mind to the obvious fact of risk, and that schizophrenia could be the reason for D closing
his mind. The Court of Appeal quashed his conviction. What mattered was whether D himself
had foreseen the risk.
3.3.2 The Caldwell years: 1981–2003

In 1981, the House of Lords in Metropolitan Police Commissioner v Caldwell [1982] AC 341,
a criminal damage case, introduced an objective form of recklessness. That is, reckless-
ness was to be determined according to what the ‘ordinary, prudent individual’ would
have foreseen, as opposed to the Cunningham test of what the defendant actually did
foresee. Lord Diplock, with whom Lords Keith and Roskill concurred, said:
JUDGMENT
‘A person charged with an offence under s 1(1) of the Criminal Damage Act 1971 is “reckless
as to whether or not any such property be destroyed or damaged” if (1) he does an act which
in fact creates an obvious risk that property will be destroyed or damaged and (2) when he
does the act he either has not given any thought to the possibility of their being any such risk
or has recognised that there was some risk involved and has nonetheless gone on to do it. That
would be a proper direction to the jury.’
Because Caldwell was a criminal damage case it meant that, while Stephenson would be
overruled, other areas of law were still subject to the Cunningham definition. However,
in Lawrence [1982] AC 510, the House of Lords gave an objective definition to ‘reckless-
ness’ in the context of the crime of causing death by reckless driving. A year later, in
Seymour [1983] 2 AC 493, a reckless manslaughter case, the House of Lords applied the
objective test here too. Their Lordships also indicated that the Caldwell/Lawrence defini-
tion of ‘recklessness’ was ‘comprehensive’. Lord Roskill said that ‘Reckless should today
be given the same meaning in relation to all offences which involve “recklessness” as
one of the elements unless Parliament has otherwise ordained.’
This marked the high-water point for the Caldwell/Lawrence objective test. During the
late 1980s and continuing into the 1990s the courts began a gradual movement to reject
Caldwell and return to the Cunningham subjective test. In DPP v K (a minor) [1990] 1 All ER
331, the Divisional Court had applied Caldwell to s 47 OAPA 1861 (assault occasioning
actual bodily harm), but almost immediately the Court of Appeal in Spratt [1991] 2 All ER
210 declared that DPP v K was wrongly decided. D had been convicted of the s 47 offence
after firing his air pistol through the open window of his flat, apparently unaware that chil-
dren were playing outside. One was hit and injured. At his trial, D pleaded guilty (on the
basis that he had been reckless in that he had failed to give thought to the possibility of a
risk that he might cause harm) and appealed. The Court of Appeal quashed his conviction. 69
McCowan LJ pointed out that Lord Roskill’s dictum in Seymour was clearly obiter and
could not have been intended to overrule Cunningham. McCowan LJ added:
3.3 ReCKLessness
JUDGMENT
‘The history of the interpretation of [the OAPA 1861] shows that, whether or not the word
“maliciously” appears in the section in question, the courts have consistently held that the
mens rea of every type of offence against the person covers both intent and recklessness, in
the sense of taking the risk of harm ensuing with foresight that it might happen.’
Shortly afterwards the House of Lords dealt with a joint appeal involving both s 47 and
s 20 OAPA 1861. In Savage, DPP v Parmenter [1992] AC 699, Lord Ackner, giving the
unanimous decision of the House of Lords, said that ‘in order to establish an offence
under s 20 the prosecution must prove either that [D] intended or that he actually foresaw
that his act would cause harm’. Seymour was effectively overruled by the House of Lords
in Adomako [1995] 1 AC 171. Lord Mackay pointed out that, to the extent that Seymour was
concerned with the statutory offence of causing death by reckless driving, it was no
longer relevant as that offence had been replaced with a new statutory crime of causing
death by dangerous driving (see Chapter 10). As far as manslaughter was concerned,
Lord Mackay decided that objective recklessness set too low a threshold of liability for
such a serious crime and restored the test based on gross negligence (see below).
3.3.3 Back to Cunningham: G and another

In October 2003, the House of Lords completed the circle begun 22 years earlier by over-
ruling Caldwell. In G and another [2003] UKHL 50; [2003] 3 WLR 1060, their Lordships
unanimously declared that the objective test for recklessness was wrong and restored
the Cunningham subjective test for criminal damage. The case itself involved arson, as
had Caldwell. The certified question from the Court of Appeal was:
JUDGMENT
‘Can a defendant properly be convicted under s 1 of the CDA 1971 on the basis that he was
reckless as to whether property would be destroyed or damaged when he gave no thought to
the risk, but by reason of his age and/or personal characteristics the risk would not have been
obvious to him, even if he had thought about it?’
In a number of earlier cases, this question had been answered ‘yes’: see Elliott v C (a
minor) [1983] 1 WLR 939, R (Stephen Malcolm) (1984) 79 Cr App R 334 and Coles [1995] 1
Cr App R 157. All of those cases involved teenagers committing arson and being con-
victed because, under the Caldwell test, it was irrelevant that they had failed to appreci-
ate the risk of property damage created by starting fires, because the risk would have
been obvious to the ordinary prudent adult. However, in G and another the House of
Lords held that the certified question should be answered ‘no’. According to Lord
Bingham the question was simply one of statutory interpretation, namely, what did Par-
liament mean when it used the word ‘reckless’ in s 1 of the 1971 Act? He concluded that
Parliament had not intended to change the meaning of the word from its Cunningham
definition. The majority of the Law Lords in Caldwell, specifically Lord Diplock, had
‘misconstrued’ the 1971 Act. There were four reasons for restoring the subjective test:
1. As a matter of principle, conviction of a serious crime should depend on proof that D
had a culpable state of mind. While it was ‘clearly blameworthy’ to take an obvious risk,
70 it was not clearly blameworthy to do something involving a risk of injury (or property
damage) if D genuinely did not perceive that risk. While such a person might ‘fairly be
accused of stupidity or a lack of imagination’, that was insufficient for culpability.
mens rea
2. The Caldwell test was capable of leading to ‘obvious unfairness’. It was neither ‘moral
nor just’ to convict any defendant, but least of all a child, on the strength of what someone
else would have appreciated.
3. There was significant judicial and academic criticism of Caldwell and the cases that had
followed it. In particular, Lords Wilberforce and Edmund Davies had dissented in Cald-
well itself and Goff LJ in Elliott v C had followed Caldwell only because he felt compelled
to do so because of the rules of judicial precedent. That could not be ignored.
4. The decision in Caldwell was a misinterpretation of Parliament’s intention. Although
the courts could leave it to Parliament to correct that misinterpretation, because it
was one that was ‘offensive to principle and was apt to cause injustice’, the need for
the courts to correct it was ‘compelling’.
Lord Bingham also observed that there were no compelling public policy reasons for
persisting with the Caldwell test. The law prior to 1981 revealed no miscarriages of justice
with guilty defendants being acquitted.
CASE EXAMPLE
G and another [2003] UKHL 50; [2003] 3 WLR 1060
One night in August 2000 the two defendants, G and R, then aged 11 and 12, entered the back
yard of a shop. There they found bundles of newspapers, some of which they set alight using a
lighter they had brought with them. They threw the burning paper under a large, plastic wheelie
bin and left the yard. Meanwhile, the fire had set fire to the wheelie bin. It then spread to another
wheelie bin, then to the shop and its adjoining buildings. Damage estimated at approximately £1
million was caused. G and R were charged with arson (that is, damaging or destroying property
by fire, being reckless as to whether such property would be destroyed or damaged). At trial, they
said that they genuinely thought the burning newspapers would extinguish themselves on the
concrete floor of the yard. Hence, looking at the case subjectively, neither of them appreciated a
risk that the wheelie bins, let alone the shop and its adjoining buildings, would be destroyed or
damaged by fire. The judge, however, directed the jury according to the Caldwell test. The jury,
looking at the case objectively, were satisfied that the ordinary prudent adult would have appre-
ciated that risk, and therefore convicted the two boys. The Court of Appeal dismissed their
appeal but certified the question for appeal to the House of Lords.
The Court of Appeal has confirmed the development in G and another on two occa-
sions, in Cooper (2004) and Castle (2004), both aggravated arson cases. These cases will
be examined in Chapter 16 on criminal damage (see section 16.2.4). There is a supreme
irony to all this: on the facts of the Caldwell case itself, D would have been found
guilty without any need for the objective test. D had been very drunk when he started
a fire in a hotel. When charged with reckless arson, he argued that his extreme intoxi-
cation prevented him from foreseeing the consequences of his actions, and that he
was therefore not guilty. However, the House of Lords had dealt with this very
problem and very similar arguments only four years earlier. In DPP v Majewski [1977]
AC 443, Lord Elwyn-Jones LC stated that when D is intoxicated and carries out the
actus reus of a crime for which the mens rea state is recklessness, then his very
intoxication:
JUDGMENT 71
‘supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent.
It is a reckless course of conduct and recklessness is enough to constitute the necessary mens
3.3 ReCKLessness
rea in assault cases . . . The drunkenness is itself an intrinsic, an integral part of the crime.’
This case and the public policy arguments underpinning it will be looked at in detail in
Chapter 9. Returning to G and another, it is worth noting that the House of Lords did give
consideration to arguments from the Crown that the Caldwell definition could be modi-
fied. There were two possibilities, both of which were rejected.
1. That Caldwell be adapted for cases involving children and mentally disordered
adults. Thus, according to the Crown, a teenage defendant could be convicted if he
had failed to give any thought to a risk which would have been obvious to a child of
the same age. The House of Lords rejected this, on the basis that it was just as offen-
sive to the above principles. It would also ‘open the door’ to ‘difficult and conten-
tious arguments concerning the qualities and characteristics to be taken into account
for the purposes of comparison’.
2. That Caldwell be adapted so that D would be reckless if he had failed to give thought
to an obvious risk which, had he bothered to think about it at all, would have been
equally obvious to him. This argument was rejected because it had the potential to
over-complicate the jury’s task. It was inherently speculative to ask a jury to con-
sider whether D would have regarded a risk as obvious, had he thought about it.
Lord Bingham thought that the simpler the jury’s task, the more reliable its verdict
would be.
It should finally be noted that, in addition to Caldwell, a significant number of Court of

Appeal cases following Caldwell have, by necessity, been overruled too. As well as the
cases cited above – Elliott v C; R (Stephen Malcolm) and Coles – the following have also
been overruled: Chief Constable of Avon v Shimmen [1986] Cr App R 7 and Merrick [1995]
Crim LR 802. It is safe to assume that the Law Commission will welcome the House of
Lords’ decision in G and another. In both the Draft Criminal Code (1989) and the Draft
Criminal Law Bill (1993) the Commission defined ‘recklessness’ in a subjective sense.
Professor Sir John Smith would also have welcomed the House of Lords’ ruling. A well-
known objector to Caldwell, he commented in the Criminal Law Review of the Court of
Appeal’s decision to refer the G and another case to the House of Lords that ‘the law
would be better without all the unnecessary complexity [Caldwell] introduced’ ((2002)
Crim LR at 928).
3.4 Negligence
Negligence is the mental element that must be proved in order to impose liability on defend-
ants in some forms of civil litigation. In that context, it typically means that D is liable if he
or she fails to appreciate circumstances or consequences that would have been appreciated
by the reasonable man. This mental element is rarely found in mainstream criminal law,
with two exceptions, because it is seen as too low a threshold to justify imposing punish-
ment on the defendant. (In civil litigation, if liability is imposed on D, he or she is required
to compensate the victim but is not otherwise punished.) One exception is a form of man-
slaughter – however, it should be noted that the mental element is ‘gross’ negligence. The
leading case now is Adomako, but the position is perfectly summed up by Lord Atkin in the
early House of Lords case of Andrews v DPP [1937] AC 576, who said:
72
JUDGMENT
‘Simple lack of care as will constitute civil liability is not enough. For purposes of the criminal
law there are degrees of negligence, and a very high degree of negligence is required to be
mens rea
proved before the [crime] is established.’
Gross negligence manslaughter will be considered in depth in Chapter 10.

The second exception is rape and some of the other offences in the Sexual Offences
Act 2003. Section 1(1) of the Sexual Offences Act 2003 provides that D has the mens rea of
rape if he intends to penetrate V and ‘does not reasonably believe’ that V consents to sex
(see Chapter 12 for a full definition of the offence). Clearly, if D realises that V is not con-
senting (because she is struggling or screaming, for example) he cannot ‘reasonably
believe’ that she is consenting and so D will have this element of the mens rea. However,
there may well be other situations in which D should have realised that V is not consent-
ing, and therefore if D intentionally penetrates V without her consent in circumstances
when he should have realised that she was not consenting, D may be convicted of rape.
The same mens rea state is also used in ss 2, 3 and 4 SOA 2003.
3.5 Dishonesty
This form of mens rea is used in the Theft Act 1968 and the Fraud Act 2006, although it is
not defined in either statute. The meaning of ‘dishonesty’ has therefore been determined
by the courts. For a period of time in the 1970s there was judicial disagreement about
whether it should be tested subjectively (by reference to D’s own standards) or objec-
tively (by reference to the standards of reasonable and honest people). The leading case
is now Ghosh [1982] 2 All ER 689, where the Court of Appeal adopted a hybrid test com-
bining both a subjective and an objective element. This case is examined in Chapter 13.
transferred 3.6 Transferred malice

malice
Situation where If D, with the mens rea of a particular crime, does an act that causes the actus reus of that
the mental or fault crime, then he faces liability. It is no excuse to say that the way in which the actus reus
element for an
offence is was carried out was not exactly as D intended it. Suppose that D, intending to punch V,
transferred from swings his fist in the direction of V who ducks so that D’s fist connects with W who is
one victim to standing immediately behind V. Should D be allowed to plead not guilty to the battery
another
on W, on the basis that he had intended to punch V? The answer is no. This scenario is
an example of the doctrine of transferred malice. Something very similar to those facts
occurred in one of the leading cases, Latimer (1886) 17 QBD 359.
CASE EXAMPLE
Latimer (1886) 17 QBd 359
D was involved in a disagreement with V. He took off his belt and swung it at V. The belt
glanced off V, and W, who was nearby, received virtually the full impact of the blow. She was
badly wounded and D was charged with malicious wounding under s 20 OAPA 1861. At trial,
the jury found that the injuries to W were ‘purely accidental’ and could not reasonably have
been expected. However, the doctrine of transferred malice rendered this irrelevant, and D
was convicted.
Latimer was followed and applied in Mitchell [1983] QB 741, the facts of which were
given in Chapter 2. You may recall that D pushed E, who lost his balance and knocked
V to the ground, where she broke her leg and eventually died of her injuries. D was
convicted of V’s manslaughter. In Attorney-General’s Reference (No 3 of 1994) [1997] 3 73
WLR 421, Lord Mustill explained the transferred malice doctrine as follows:
3.6 tRAnsfeRRed mALICe

JUDGMENT
‘The effect of transferred malice . . . is that the intended victim and the actual victim are treated
as if they were one, so that what was intended to happen to the first person (but did not
happen) is added to what actually did happen to the second person (but was not intended to
happen), with the result that what was intended and what happened are married to make a
notionally intended and actually consummated crime.’
CASE EXAMPLE
attorney-General’s reference (no 3 of 1994) [1997] 3 WLR 421
D had stabbed his girlfriend, V, who was between five and six months pregnant. She subse-
quently recovered from the wound but, some seven weeks later, gave birth prematurely. Subse-
quently, the child, W, died some four months after birth. It was clear the stab wound had
penetrated W whilst in the womb and this was the cause of death. D was charged with W’s
murder, but was formally acquitted after the judge held that the facts did not disclose a homicide
against the child. The case was referred to the Court of Appeal, which held the trial judge was
wrong and that, applying the doctrine of transferred malice, a murder conviction was possible.
Unusually, a further reference was made to the House of Lords, where it was decided that, at
most, manslaughter was possible. The Law Lords took exception to the Court of Appeal’s use of
the transferred malice doctrine, holding that the ‘transferee’ had to be in existence at the time
that D was proven to have formed the mental element. Lord Mustill said that it would ‘overstrain
the idea of transferred malice by trying to make it fit the present case’.
A more recent example of transferred malice is Gnango [2011] UKSC 59; [2012] 1 AC 827,
a decision of the Supreme Court which will be examined in more detail in Chapter 5.
Briefly, the case involved two men, Armel Gnango and a man known only as ‘Bandana
Man’, who were engaged in a gun battle in a car park in southeast London. A young
woman, Magda Pniewska, was caught in the crossfire and killed – shot once in the head
by Bandana Man. In the course of his judgment, Lord Phillips said that ‘It was common
ground that Bandana Man had been guilty of the murder of Miss Pniewska, applying the
principle of transferred malice in that he had plainly been attempting to kill or cause
serious bodily harm to [Armel Gnango] . . . Bandana Man accidentally shot Miss Pniewska.
Under the doctrine of transferred malice he was liable for her murder.’
Meanwhile, if D, with the mens rea of one crime, does an act which causes the actus
reus of some different crime, he cannot, generally speaking, be convicted of either crime.
This is illustrated by the facts of Pembliton [1874] LR 2 CCR 119.
CASE EXAMPLE
Pembliton [1874] LR 2 CCR 119
D was involved in a fight involving 40–50 people, outside a pub in Wolverhampton. D sepa-
rated himself from the group, picked up a large stone and threw it in the direction of the
others. The stone missed them and smashed a large window. D was convicted of malicious
damage but his conviction was quashed on appeal. The jury had found that he intended to
74 throw the stone at the people but did not intend to break the window.
The Pembliton principle is not an absolute rule, however. In certain circumstances,

transferred malice can be invoked where D intended one crime against V1 but actu-
mens rea
ally caused a different crime to V2. This occurred recently in Grant & others [2014]
EWCA Crim 143. Here, D (along with two accomplices) shot and seriously injured
two people in a south London shop. D had actually fired two shots at another person,
V1, with intent to kill, but had missed him. At his subsequent trial, the jury convicted
D of one count of attempting to murder V1 and two counts of causing GBH with
intent to do GBH, contrary to s 18 OAPA 1861, to V2 and V3. The latter convictions
required application of transferred malice. D appealed to the Court of Appeal, con-
tending that it was wrong to transfer his intent in this case, because he had one intent
vis-à-vis V1 (intent to kill), and a different intent vis-à-vis V2 and V3 (intent to do
GBH). This was rejected, on the basis that the intent required to convict D of attempt-
ing to murder V1 included the intent required to convict him of causing GBH with
intent to V2 and V3. Rafferty LJ said:
JUDGMENT
‘Proof of the mens rea for attempted murder by definition involves proof of the mens rea for
causing GBH with intent . . . A finding of intention to kill leads inevitably to a finding of inten-
tion to cause GBH – the consequence of the hierarchy of intent, with intention to kill at the
top. It is impossible to kill without causing really serious harm.’
CASE EXAMPLE
Grant & others [2014] eWCA Crim 143
Nathaniel Grant, Kazeem Kolawole and Tony McCalla were all charged with attempted murder
and two counts of causing GBH with intent. The Crown’s case was that the three defendants
were members of or associated with the Grind and Stack gang or Organised Crime/One
Chance gang. One evening, the three defendants, on bicycles, had pulled up outside the
Stockwell Food & Wine shop directly after Roshaun Bryan had run inside. Bryan was or was
suspected to be a member of a rival gang, the All ‘Bout Money gang. Grant produced a gun
and fired two shots into the shop. One bullet hit and paralysed a five-year-old girl whose uncle
owned the shop; the other hit, and remains in the head of, a customer. Bryan was unhurt.
During his trial, D contended that the charges of attempted murder and causing GBH with
intent were mutually inconsistent, as they involved different mens rea. However, the trial
judge ruled that if D shot with the intention of killing, he intended to cause at least really
serious bodily harm; the lesser intent may be subsumed in the greater. The jury convicted on
all counts and the Court of Appeal upheld the convictions.
Criticism
Although a useful, practical device for obtaining convictions, the transferred malice
doctrine has not gone uncriticised. Professor Williams argued that the doctrine is a
‘rather arbitrary exception to normal principles’ (‘Convictions and fair labelling’
(1983) CLJ 85). Considering the situation where D intends to kill V but misses and
instead kills W, Professor Williams commented that because the indictment would
actually charge D with killing W, strictly speaking it should be necessary to prove that
D intended to kill (or seriously injure) W. However, this view has not attracted support
from the courts.
75
D has direct intent. Intention is the
3.6 tRAnsfeRRed mALICe

minimum mens rea state for
Did D have a consequence as his
YES murder, s 18 OAPA 1861, theft,
aim, purpose or desire? robbery, conspiracy and all
attempts.
NO
This is evidence from which a jury

Did D foresee a consequence as
YES may ‘find’ that D had intent: Woollin.
virtually certain?
If so, D has oblique intent.
NO
D has been subjectively reckless:
Cunningham, Savage, G.
Did D foresee a consequence as
YES This is the minimum mens rea state
probable or possible?
for non-fatal offences, arson and
criminal damage.
NO
D has been negligent.
Gross negligence is used in
Should D have foreseen a manslaughter: Adomako.
YES
consequence? Negligence (as to V’s consent) is
the mens rea state for sexual
offences.
NO
D has no mens rea and may only

be convicted of strict liability
offences.
Figure 3.1 Mens rea.

Reform
The Law Commission, in both the Draft Criminal Code (1989) and the Draft Criminal
Law Bill (1993), accepted the need to preserve the transferred malice doctrine. Clause
32(1) of the 1993 Bill provides as follows:
CLAUSE
‘32(1) In determining whether a person is guilty of an offence, his intention to cause, or his
awareness of a risk that he will cause, a result in relation to a person or thing capable of being
the victim or subject-matter of the offence shall be treated as an intention to cause or, as the
case may, an awareness of a risk that he will cause, that result in relation to any other person
or thing affected by his conduct.’
76
coincidence 3.7 Coincidence of actus reus and mens rea
Principle that the
actus reus and Suppose that D, the victim of domestic violence, forms a vague intention to kill her husband,
mens rea elements
of an offence must
V, at some convenient moment in the future if it should present itself, perhaps by pushing
mens rea
occur at the same him off a set of ladders while he is cleaning leaves from the roof gutter. Ten minutes later,
time D reverses her car from the garage, oblivious of the fact that V is sitting in the driveway
attempting to repair the lawnmower, and runs him over, killing him instantly. Is D guilty
of V’s murder? The answer would be ‘no’, because of the requirement that the actus reus of
any crime must be accompanied at that precise moment in time by the mens rea of the same
crime. Although D did cause death, and had formed an intention to do so, the various ele-
ments were separated in time. There are certain exceptions to this doctrine, however: first,
where the actus reus takes the form of a continuing act, it has been held that it is sufficient
if D forms mens rea at some point during the duration of the act. In Fagan v Metropolitan
Police Commissioner [1969] 1 QB 439, James J said:
JUDGMENT
‘We think that the crucial question is whether, in this case, [D’s act] can be said to be complete
and spent at the moment of time when the car wheel came to rest on the foot, or whether his
act is to be regarded as a continuing act operating until the wheel was removed. In our judg-
ment, a distinction is to be drawn between acts which are complete, though results may con-
tinue to flow, and those acts which are continuing . . . There was an act constituting a battery
which at its inception was not criminal because there was no element of intention, but which
became criminal from the moment the intention was formed to produce the apprehension
which was flowing from the continuing act.’
CASE EXAMPLE
Fagan v metropolitan Police Commissioner [1969] 1 QB 439
D was being directed to park his car by a police officer. D accidentally drove his car on to the
officer’s foot, who shouted at D to move the car. At this point, D refused and even switched off
the engine. The officer had to repeat his request several times until D eventually acquiesced. D was
charged with battery (physical element: the application of unlawful force; mental element: intent
or recklessness). The magistrates were not convinced that D had deliberately driven on to the
officer’s foot; however, they were satisfied that he had intentionally allowed the wheel to remain
there afterwards. D was therefore convicted on the basis that allowing the wheel to remain on the
officer’s foot constituted a continuing act, and the Divisional Court dismissed D’s appeal.
The second exception is where the actus reus is itself part of some larger sequence of
events, it may be sufficient that D forms mens rea at some point during that sequence.
The leading case is the Privy Council decision (hearing an appeal from South Africa) in
Thabo Meli and others [1954] 1 All ER 373.
CASE EXAMPLE
Thabo meli and others [1954] 1 All eR 373
The appellants, in accordance with a prearranged plan, took V to a hut where they beat him
over the head. Believing him to be dead, they rolled his body over a low cliff, attempting to
make it look like an accidental fall. In fact, V was still alive at this point in time but eventually
died from exposure. The appellants were convicted of murder and the Privy Council dismissed
their appeals, which had been based on an argument that the actus reus (death from expo-
sure) was separated in time from the mens rea (present during the attack in the hut but not 77
later, because they thought V was dead).
Lord Reid stated that it was:
3.7 CoInCIdenCe of aCTus reus And mens rea

JUDGMENT
‘impossible to divide up what was really one series of acts in this way. There is no doubt that
the accused set out to do all these acts in order to achieve their plan, and as part of their plan;
and it is much too refined a ground of judgment to say that, because they were at a misap-
prehension at one stage and thought that their guilty purpose was achieved before it was
achieved, therefore they are to escape the penalties of the law.’
This dictum appears to suggest that the judgment might have been different if the
acts were not part of a prearranged plan. Thabo Meli was, indeed, distinguished on
this ground in New Zealand (Ramsay [1967] NZLR 1005) and, at first, in South Africa
(Chiswibo [1960] (2) SA 714). However, the Court of Appeal in England has followed
Thabo Meli, in two cases where there was no antecedent plan. In Church [1965] 2 All
ER 72, D got into a fight with a woman and knocked her unconscious. After trying
unsuccessfully for 30 minutes to wake her, he concluded she was dead, panicked and
threw her body into a nearby river. V drowned. The jury convicted D of manslaugh-
ter, after a direction that they could do so ‘if they regarded [D]’s behaviour from the
moment he first struck her to the moment when he threw her into the river as a series
of acts designed to cause death or GBH’. D’s conviction was upheld. A more recent
case is Le Brun [1991] 4 All ER 673, where the Court of Appeal dismissed an appeal
based on the significant time lapse that had occurred between the original assault
(when D had mens rea) and V’s eventual death (when he did not). Lord Lane CJ
said:
JUDGMENT
‘Where the unlawful application of force and the eventual act causing death are parts of the
same sequence of events, the same transaction, the fact that there is an appreciable interval
of time between the two does not serve to exonerate [D] from liability. That is certainly so
where [D’s] subsequent actions which caused death, after the initial unlawful blow, are
designed to conceal his commission of the original unlawful assault.’
CASE EXAMPLE
Le Brun [1991] 4 All eR 673
D had a row with his wife as they made their way home late one night. Eventually he punched
her on the chin and knocked her unconscious. While attempting to drag away what he thought
was her dead body he dropped her, so that she hit her head on the kerb and died. The jury were
told that they could convict of murder or manslaughter (depending on the mental element
present when the punch was thrown), if D accidentally dropped V while (i) attempting to move
her against her wishes and/or (ii) attempting to dispose of her ‘body’ or otherwise cover up the
assault. He was convicted of manslaughter. The Court of Appeal upheld the conviction.
Fagan v Metropolitan Police Commissioner

78 D accidentally parks his car on V’s foot.
This is the actus reus of battery – the application
of unlawful force. D has no mens rea
mens rea
at this point in time.
D later forms the mens rea, when he realises

what he’s done and refuses to move his car –
he intends to apply unlawful force to V’s foot.
D is guilty of battery using the ‘continuing act’ theory.
Thabo Meli and others

D attacks V with intent to kill. D has the mens rea of murder
at this point in time, but not the actus reus, because V does
not die. D thinks that V is dead and dumps the ‘body’ in bushes.
V later dies from exposure. This is the
actus reus of murder, but D no longer has the mens rea.
D is guilty of murder using the ‘transaction’ theory.
Le Brun
D intentionally punches V in the face. This is enough mens rea

for constructive manslaughter. However, V does not die, and
so there is no actus reus of manslaughter at this point in time.
V hits her head on the pavement as D tries to move her,
and she later dies from head injuries. This is the actus reus
of manslaughter, but D no longer has the mens rea.
D is guilty of manslaughter using the ‘transaction’ theory.
Figure 3.2 Coincidence.

SUMMARY
Different crimes have different mens rea states. In this book the most common mens rea
states are intention, recklessness, ‘malice’ (which means either intention or recklessness),
negligence and dishonesty, although there are others such as ‘belief ’ (used in the Serious
Crime Act 2007).
Intention is the highest form of mens rea state and is an essential element of crimes
such as murder, wounding or causing GBH with intent, robbery and theft. Intention
may be direct, where a consequence is D’s aim, purpose or desire, or oblique, where a
consequence is not desired but is foreseen by D as ‘virtually certain’ (Woollin). Foresight
is not the same thing as intention but is evidence from which a jury may ‘find’ intention.
The Law Commission has proposed placing the case law definition of intention into
statutory form.
Recklessness is the form of mens rea used in most non-fatal offences against the person,
one form of manslaughter and criminal damage. It requires proof that D took an unjus- 79
tifiable risk with awareness of that risk – this is referred to as ‘subjective’ recklessness as
it refers to D’s foresight of the consequences (Cunningham). In 1981 an ‘objective’ test for
sAmpLe essAy QUestIon

recklessness was introduced by Caldwell, according to which D was reckless if he failed
to appreciate a risk which would have been obvious to an ‘ordinary prudent individual’.
Caldwell was overruled in R v G in 2003 on the basis that it is unfair to convict D of an
offence based on what someone else would have foreseen.
Negligence is used as a mens rea state in rape and certain other sexual offences (D
must have a ‘reasonable belief ’ in V’s consent) while ‘gross’ negligence is the mens rea
state for one form of manslaughter.
The principle of ‘transferred malice’ means that if D fulfils the actus reus and mens rea
elements of an offence, then D is liable even if the actus reus was carried out in an unex-
pected way. Thus, D is guilty of murder if he deliberately fires a gun and shoots V dead,
even if D was aiming the gun at W. The fact that V’s death analyse
Critically was in case
one sense
law on‘accidental’
the rights of shareholders
is no excuse as D’s mens rea with respect to W isto‘transferred’
enforce the to V (Latimer,
articles Mitchell,
of association to demonstrate
Gnango, Grant and others). why you agree or disagree with the proposition that the
All the elements of the actus reus and mens rea must coincideeffect
contractual at theofsame point is
the articles inlimited
time. to provisions
The courts are prepared to be flexible with this requirement and have
of the articles adopted
concerned witha the
variety
membership and
of solutions such as finding that elements of the actus reus can
constitution of be
the‘continuing’
company. (Fagan)
and that apparently separate acts can be classed as part of the same ‘transaction’ (Thabo
Meli, Le Brun).
SAMPLE ESSAY qUESTION

Consider how successful the courts have been in defining the concept of intention.
Explain the role of intention:

• It is a mens rea state, associated with more serious
offences such as murder
• It is tested purely subjectively (s 8, Criminal Justice Act
1967)
• It is essential in many offences, especially murder and
attempts
Explain the difference between different forms of
intention:
• Direct intention = D’s aim, purpose or desire (e.g. Steane
(1947))
• Oblique intent = D’s foresight of a consequence may be
used as evidence by a jury to ‘find’ that D intended it
Explain the cases on oblique intent:

• Moloney (1985) – foresight of a ‘natural’ consequence
80 allows jury to infer intention. Lord Bridge’s golden
rule = directions on oblique intent should be used
sparingly to avoid confusion
mens rea
• Hancock (1986) – Moloney guidelines misleading – they

omitted any reference to probability
• Nedrick (1986) – D’s foresight should be of a ‘virtually
certain’ consequence before jury may ‘easily’ infer intent
• Woollin (1998) – Nedrick approved except ‘infer’
changed to ‘find’
• Matthew & Alleyne (2003) – suggests that foresight of a
consequence may equal intention rather than just
evidence of it
Evaluate the cases/principles:

• Discuss the argument that intent should mean direct
intent only
• Discuss whether oblique intent overlaps with
recklessness and blurs distinction between murder and
manslaughter
• Discuss whether or not the verbs ‘to infer’ and ‘to find’
have different meanings
• Discuss whether foresight of a consequence should be
intention or just evidence of it
• Refer to the Law Commission’s proposals for a statutory
definition of intention
Conclude
Further reading
Books
Ormerod, D, Smith and Hogan Criminal Law: Cases and Materials (14th edn, Oxford
University Press, 2014), Chapter 5.
Articles
Duff, R A, ‘The obscure intentions of the House of Lords’ [1986] Crim LR 771.
Goff, Lord, ‘The mental element in the crime of murder’ (1988) 104 LQR 30.
Horder, I, ‘Transferred malice and the remoteness of unexpected outcomes from
intentions’ [2006] Crim LR 383.
Lacey, N, ‘A clear concept of intention: elusive or illusory?’ (1993) 56 MLR 621.
Norrie, A, ‘After Woollin’ [1999] Crim LR 532.
Pedain, A, ‘Intention and the terrorist example’ [2003] Crim LR 579.
Simester, A P, ‘Murder, mens rea and the House of Lords: again’ (1999) 115 LQR 17. 81
Sullivan, G R, ‘Contemporaneity of actus reus and mens rea’ (1993) 52 CLJ 487.
Williams, G, ‘Oblique intention’ (1987) 46 CLJ 417.
fURtHeR ReAdIng
Williams, G, ‘The mens rea for murder: leave it alone’ (1989) 105 LQR 387.
Wilson, W, ‘Doctrinal rationality after Woollin’ (1999) 62 MLR 448.
4
Strict liability
AIMS AND OBJECTIVES

 Understand the basic concept of strict liability in criminal law
 Understand the tests the courts use to decide whether an offence is one of strict
liability
 Apply the tests to factual situations to determine the existence of strict liability
 Understand the role of policy in the creation of strict liability offences
 Analyse critically the concept of strict liability
The previous chapter explained the different types of mens rea. This chapter con-
siders those offences where mens rea is not required in respect of at least one aspect of
the actus reus. Such offences are known as strict liability offences. The ‘modern’ type
of strict liability offence was first created in the mid-nineteenth century. The first
known case on strict liability is thought to be Woodrow (1846) 15 M & W 404. In that
case the defendant was convicted of having in his possession adulterated tobacco,
even though he did not know that it was adulterated. The judge, Parke B, ruled that
he was guilty even if a ‘nice chemical analysis’ was needed to discover that the
tobacco was adulterated.
The concept of strict liability appears to contradict the basis of criminal law.
Normally criminal law is thought to be based on the culpability of the accused. In
strict liability offences there may be no blameworthiness on the part of the defend-
ant. The defendant, as in Woodrow, is guilty simply because he has done a prohib-
ited act.
A more modern example demonstrating this is Pharmaceutical Society of Great
Britain v Storkwain Ltd [1986] 2 All ER 635.
CASE EXAMPLE
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 2 all Er 635
This case involved s 58(2) of the Medicines Act 1968, which provides that no person shall
supply specified medicinal products except in accordance with a prescription given by an
appropriate medical practitioner. D had supplied drugs on prescriptions which were later
found to be forged. There was no finding that D had acted dishonestly, improperly or even
negligently. The forgery was sufficient to deceive the pharmacists. Despite this the House of
Lords held that the Divisional Court was right to direct the magistrates to convict D. The phar-
macists had supplied the drugs without a genuine prescription, and this was enough to make
them guilty of the offence.
For nearly all strict liability offences it must be proved that the defendant did the rel-
84 evant actus reus. In Woodrow this meant proving that he was in possession of the adulter-
ated tobacco. For Storkwain this meant proving that they had supplied specified medicinal
products not in accordance with a prescription given by an appropriate medical practi-
Strict liability
tioner. In these cases it also had to be proved that the doing of the actus reus was volun-
tary. However, there are a few rare cases where the defendant has been found guilty
even though they did not do the actus reus voluntarily. These are known as crimes of
absolute liability.
4.1 Absolute liability

Absolute liability means that no mens rea at all is required for the offence. It involves
absolute
liability status offences; that is, offences where the actus reus is a state of affairs. The defendant is
An offence where liable because they have ‘been found’ in a certain situation. Such offences are very rare.
no mens rea is To be an absolute liability offence, the following conditions must apply:
required and
where actus reus  The offence does not require any mens rea.
need not be
voluntary – very  There is no need to prove that the defendant’s actus reus was voluntary.
rare
The following two cases demonstrate this. The first is Larsonneur (1933) 24 Cr App R 74.
CASE EXAMPLE
Larsonneur (1933) 24 cr app r 74
The defendant, who was an alien, had been ordered to leave the United Kingdom. She
decided to go to Eire, but the Irish police deported her and took her in police custody back
to the United Kingdom, where she was put in a cell in Holyhead police station. She did not
want to return to the United Kingdom. She had no mens rea; her act in returning was not
voluntary. Despite this she was found guilty under the Aliens Order 1920 of ‘being an alien
to whom leave to land in the United Kingdom has been refused’ who was ‘found in the
United Kingdom’.
The other case is Winzar v Chief Constable of Kent, The Times, 28 March l983; Co/llll/82
(Lexis), QBD.
CASE EXAMPLE
Winzar v Chief Constable of Kent, The Times, 28 March 1983
D was taken to hospital on a stretcher, but when doctors examined him they found that he
was not ill but was drunk. D was told to leave the hospital but was later found slumped on a
seat in a corridor. The police were called and they took D to the roadway outside the hospital.
They formed the opinion he was drunk so they put him in the police car, drove him to the
police station and charged him with being found drunk in a highway contrary to s 12 of the
Licensing Act 1872. The Divisional Court upheld his conviction.
As in Larsonneur, the defendant had not acted voluntarily. The police had taken him to
the highway. In the Divisional Court Goff LJ justified the conviction:
JUDGMENT 85
‘[L]ooking at the purpose of this particular offence, it is designed . . . to deal with the nuisance
4.2 Strict liability

which can be caused by persons who are drunk in a public place. This kind of offence is caused
quite simply when a person is found drunk in a public place or highway . . . . [A]n example . . .
illustrates how sensible that conclusion is. Suppose a person was found drunk in a restaurant
and was asked to leave. If he was asked to leave, he would walk out of the door of the res-
taurant and would be in a public place or in a highway of his own volition. He would be there
of his own volition because he had responded to a request. However, if a man in a restaurant
made a thorough nuisance of himself, was asked to leave, objected and was ejected, in those
circumstances he would not be in a public place of his own volition because he would have
been put there . . . It would be nonsense if one were to say that the man who responded to
the plea to leave could be said to be found drunk in a public place or in a highway, whereas
the man who had been compelled to leave could not.
This leads me to the conclusion that a person is “found to be drunk or in a public place or
in a highway”, within the meaning of those words as used in the section, when he is perceived
to be drunk in a public place. It is enough for the commission of the offence if (1) a person is
in a public place or a highway, (2) he is drunk, and (3) in those circumstances he is perceived
to be there and to be drunk.’
It is not known how Winzar came to be taken to the hospital on a stretcher, but com-
mentators on this case point out that there may be an element of fault in Winzar’s
conduct. He had become drunk, and in order to have been taken to hospital must have
either been in a public place when the ambulance collected him and took him to hos-
pital, or he must have summoned medical assistance when he was not ill but only
drunk.

For all offences, there is a presumption that mens rea is required. The courts will always
start with this presumption, but if they decide that the offence does not require mens rea
for at least part of the actus reus, then the offence is one of strict liability. This idea of not
requiring mens rea for part of the offence is illustrated by two cases, Prince (1875) LR 2
CCR 154 and Hibbert (1869) LR 1 CCR 184. In both these cases the charge against the
defendant was that he had taken an unmarried girl under the age of 16 out of the pos-
session of her father against his will, contrary to s 55 of the Offences Against the Person
Act 1861.
OFFENCE
Taking an unmarried girl under the age of
16 out of the possession of her father
Contrary to s 55 Offences Against the
Person Act 1861
Prince (1875) Hibbert (1869)

Knew girl was in the possession of her Did not know girl was in possession of
86 father, but thought she was over 16 her father
GUILTY NOT GUILTY
Because the offence was one of strict Because he had no intention to take the
Strict liability
liability in respect to age girl out of the possession of her father

D could not rely on mistake about age Mens rea was required in respect of this
aspect of the offence
Figure 4.1 Contrasting the cases of Prince and Hibbert.
Prince knew that the girl he took was in the possession of her father but believed, on
reasonable grounds, that she was aged 18. He was convicted, as he had the intention to
remove the girl from the possession of her father. Mens rea was required for this part of
the actus reus, and he had the necessary intention. However, the court held that know-
ledge of her age was not required. On this aspect of the offence there was strict liability.
In Hibbert the defendant met a girl aged 14 on the street. He took her to another place
where they had sexual intercourse. He was acquitted of the offence as it was not proved
that he knew the girl was in the custody of her father. Even though the age aspect of the
offence was one of strict liability, mens rea was required for the removal aspect, and in
this case, the necessary intention was not proved.
As already stated, the actus reus must be proved and the defendant’s conduct in doing
the actus reus must be voluntary. However, a defendant can be convicted if his voluntary
act inadvertently caused a prohibited consequence. This is so even though the defendant
was totally blameless in respect of the consequence, as was seen in Callow v Tillstone
(1900) 83 LT 411.
CASE EXAMPLE
Callow v Tillstone (1900) 83 lt 411
A butcher asked a vet to examine a carcass to see if it was fit for human consumption. The vet
assured him that it was all right to eat, and so the butcher offered it for sale. In fact it was unfit
and the butcher was convicted of the offence of exposing unsound meat for sale. It was a
strict liability offence, and even though the butcher had taken reasonable care not to commit
the offence, he was still guilty.
4.2.1 No due diligence defence
due diligence For some offences, the statute creating the offence provides a defence of due diligence.
Where D has This means that the defendant will not be liable if he can adduce evidence that he did all
taken all possible
care not to do the that was within his power not to commit the offence. There does not seem, however, to
forbidden act or be any sensible pattern for when Parliament decides to include a due diligence defence
omission. and when it does not. It can be argued that such a defence should always be available for
strict liability offences. If it was, then the butcher in Callow v Tillstone above would not
have been guilty. By asking a vet to check the meat he had clearly done all that he could
not to commit the offence.
Another example where the defendants took all reasonable steps to prevent the
offence but were still guilty, as there was no due diligence defence available, is Harrow
LBC v Shah and Shah [1999] 3 All ER 302.
CASE EXAMPLE 87
Harrow LBC v Shah and Shah [1999] 3 all Er 302

The defendants owned a newsagent’s business where lottery tickets were sold. They had
told their staff not to sell tickets to anyone under 16 years. They also told their staff that if
there was any doubt about a customer’s age, the staff should ask for proof of age, and if
still in doubt should refer the matter to the defendants. In addition there were clear notices
up in the shop about the rules, and staff were frequently reminded that they must not sell
lottery tickets to underage customers. One of their staff sold a lottery ticket to a 13-year-
old boy without asking for proof of age. The salesman mistakenly believed the boy was
over 16 years. D1 was in a back room of the premises at the time; D2 was not on the
premises.
D1 and D2 were charged with selling a lottery ticket to a person under 16, contrary to
s 13(1)(c) of the National Lottery etc. Act 1993 and the relevant Regulations. Section 13(1)(c)
provides that ‘Any other person who was a party to the contravention shall be guilty of an
offence.’ This subsection does not have any provision for a due diligence defence, although
s 13(1)(a), which makes the promoter of the lottery guilty, does contain a due diligence
defence. Both these offences carry the same maximum sentence (two years’ imprisonment,
a fine or both) for conviction after trial on indictment. The magistrates dismissed the
charges. The prosecution appealed by way of case stated to the Queen’s Bench Divisional
Court.
The Divisional Court held the offence to be one of strict liability. They allowed the appeal
and remitted the case to the magistrates to continue the hearing. The Divisional Court held
that the offence did not require any mens rea. The act of selling the ticket to someone who
was actually under 16 was enough to make the defendants guilty, even though they had done
their best to prevent this happening in their shop.
Mens rea
For new statutory offences, a ‘due diligence’ defence is more often provided. However,
it is argued that due diligence should be a general defence, as it is in Australia and
Canada. The Draft Criminal Code of 1989 included provision for a general defence of
due diligence, but the Code has never been enacted. (See section 1.2.3.)
4.2.2 No defence of mistake

Another feature of strict liability offences is that the defence of mistake is not available.
This is important as, if the defence of mistake is available, the defendant will be acquitted
when he made an honest mistake. Two cases which illustrate the difference in liability
are Cundy v Le Cocq (1884) 13 QBD 207 and Sherras v De Rutzen [1895] 1 QB 918. Both of
these involve contraventions of the Licensing Act 1872.
In Cundy the defendant was charged with selling intoxicating liquor to a drunken
person, contrary to s 13 of the Act. This section enacts:
SECTION
‘13 If any licensed person permits drunkenness or any violent quarrelsome or riotous conduct
to take place on his premises, or sells any intoxicating liquor to any drunken person, he shall
be liable to a penalty.’
The magistrate trying the case found as a fact that the defendant and his employees had
88 not noticed that the person was drunk. The magistrate also found that while the person
was on the licensed premises he had been ‘quiet in his demeanour and had done nothing
to indicate insobriety; and that there were no apparent indications of intoxication’.
Strict liability
However, the magistrate held that the offence was complete on proof that a sale had
taken place and that the person served was drunk and convicted the defendant. The
defendant appealed against this, but the Divisional Court upheld the conviction. Stephen
J said:
JUDGMENT
‘I am of the opinion that the words of the section amount to an absolute prohibition of the
sale of liquor to a drunken person, and that the existence of a bona fide mistake as to the
condition of the person served is not an answer to the charge, but is a matter only for mitiga-
tion of the penalties that may be imposed.’
So s 13 of the Licensing Act 1872 was held to be a strict liability offence as the defendant
could not rely on the defence of mistake. In contrast it was held in Sherras v De Rutzen
that s 16 of the Licensing Act 1872 did not impose strict liability. In that case the defend-
ant was able to rely on the defence of mistake.
CASE EXAMPLE
Sherras v De Rutzen [1895] 1 Qb 918
In Sherras the defendant was convicted by a magistrate of an offence under s 16(2) of the
Licensing Act 1872. This section makes it an offence for a licensed person to ‘supply any liquor
or refreshment’ to any constable on duty. There were no words in the section requiring the
defendant to have knowledge that a constable was off duty. The facts were that local police
when on duty wore an armband on their uniform. An on-duty police officer removed his
armband before entering the defendant’s public house. He was served by the defendant’s
daughter in the presence of the defendant. Neither the defendant or his daughter made any
enquiry as to whether the policeman was on duty. The defendant thought that the constable
was off duty because he was not wearing his armband. The Divisional Court quashed the
conviction. They held that the offence was not one of strict liability, and accordingly a genuine
mistake provided the defendant with a defence.
When giving judgment in the case Day J stated:
JUDGMENT
‘This police constable comes into the appellant’s house without his armlet, and with every
appearance of being off duty. The house was in the immediate neighbourhood of the police
station, and the appellant believed, and had very natural grounds for believing, that the con-
stable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the
constable was on duty; but does that fact make the innocent act of the appellant an offence?
I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief
that the constable was off duty. It seems to me that the contention that he committed an
offence is utterly erroneous.’
It is difficult to reconcile this decision with the decision in Cundy. In both cases the sections
in the Licensing Act 1872 were expressed in similar words. In Cundy the offence was ‘sells
89
any intoxicating liquor to any drunken person’, while in Sherras the offence was ‘supplies
any liquor . . . to any constable on duty’. In each case the publican made a genuine mistake.
Day J justified his decision in Sherras by pointing to the fact that although s 16(2) did not
4.3 coMMon law Strict liability offEncES

include the word ‘knowingly’, s 16(1) did, for the offence of ‘knowingly harbours or know-
ingly suffers to remain on his premises any constable during any part of the time appointed
for such constable being on duty’. Day J held this only had the effect of shifting the burden
of proof. For s 16(1) the prosecution had to prove that the defendant knew the constable
was on duty, while for s 16(2) the prosecution did not have to prove knowledge, but it was
open to the defendant to prove that he did not know.
The other judge in the case of Sherras, Wright J, pointed out that if the offence was to
be made one of strict liability, then there was nothing the publican could do to prevent
the commission of the crime. No care on the part of the publican could save him from a
conviction under s 16(2), since it would be as easy for the constable to deny that he was
on duty when asked as to remove his armlet before entering the public house. It is more
possible to reconcile the two cases on this basis as in most cases the fact of a person being
drunk would be an observable fact, so the publican should be put on alert and could
avoid committing the offence.
4.2.3 Summary of strict liability

So where an offence is held to be one of strict liability, the following points apply:
 The defendant must be proved to have done the actus reus.
 This must be a voluntary act on his part.
 There is no need to prove mens rea for at least part of the actus reus.
 No due diligence defence will be available.
 The defence of mistake is not available.
These factors are well established. The problem lies in deciding which offences are ones
of strict liability. For this the courts will start with presuming that mens rea should apply.
This is so for both common law and statutory offences.
4.3 Common law strict liability offences

Nearly all strict liability offences have been created by statute. Strict liability is very rare
in common law offences. Only three common law offences have been held to be ones of
strict liability. These are
 public nuisance
 some forms of criminal libel
 outraging public decency.
Public nuisance and forms of criminal libel such as seditious libel probably do not
require mens rea, but there are no modern cases. In Lemon and Whitehouse v Gay News
[1979] 1 All ER 898, the offence of blasphemous libel was held to be one of strict liability.
In that case a poem had been published in Gay News describing homosexual acts done to
the body of Christ after his crucifixion and also describing his alleged homosexual prac-
tices during his lifetime. The editor and publishers were convicted of blasphemy. On
their appeal to the House of Lords, the Law Lords held that it was not necessary to prove
that the defendants intended to blaspheme. Lord Russell said:
JUDGMENT
90
‘Why then should the House, faced with a deliberate publication of that which a jury with
every justification has held to be a blasphemous libel, consider that it should be for the pro-
secution to prove, presumably beyond reasonable doubt, that the accused recognised and
Strict liability
intended it to be such. The reason why the law considers that the publication of a blasphe-
mous libel is an offence is that the law considers that such publications should not take place.
And if it takes place, and the publication is deliberate, I see no justification for holding that
there is no offence when the publisher is incapable, for some reason particular to himself, of
agreeing with a jury on the true nature of the publication.’
Note that blasphemous libel has now been abolished by the Criminal Justice and Immi-
gration Act 2008.
Outraging public decency was held to be an offence of strict liability in Gibson and
Sylveire [1991] 1 All ER 439 since it does not have to be proved that the defendant
intended to or was reckless that his conduct would have the effect of outraging public
decency.
Criminal contempt of court used to be a strict liability offence at common law. It is
now a statutory offence, and Parliament has continued it as a strict liability offence.
Note that the Law Commission consulted in 2010 on possible reform of the offences
of public nuisance and outraging public decency. A report is due out but had not been
published at the time of writing the text.
4.4 Statutory strict liability offences

The surprising fact is that about half of all statutory offences are strict liability. This
amounts to over 5,000 offences. Most strict liability offences are regulatory in nature.
This may involve such matters as regulating the sale of food and alcohol and gaming
tickets, the prevention of pollution and the safe use of vehicles.
In order to decide whether an offence is one of strict liability, the courts start by
assuming that mens rea is required, but they are prepared to interpret the offence as one
of strict liability if Parliament has expressly or by implication indicated this in the rel-
evant statute. The judges often have difficulty in deciding whether an offence is one of
strict liability. The first rule is that where an Act of Parliament includes words indicat-
ing mens rea (e.g. ‘knowingly’, ‘intentionally’, ‘maliciously’ or ‘permitting’), the offence
requires mens rea and is not one of strict liability. However, if an Act of Parliament
makes it clear that mens rea is not required, the offence will be one of strict liability. An
example of this is the Contempt of Court Act 1981 where s 1 sets out the ‘strict liability
rule’. It states:
SECTION
‘In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as
a contempt of court as tending to interfere with the course of justice in particular legal pro-
ceedings regardless of intent to do so.’
Throughout the Act it then states whether the ‘the strict liability rule’ applies to the
contempt of
court
various offences of contempt of court.
Interfering with
However, in many instances a section in an Act of Parliament is silent about the need
the course of for mens rea. Parliament is criticised for this. If they made clear in all sections which
justice especially in create a criminal offence whether mens rea was required, then there would be no problem.
relation to court
proceedings
As it is, where there are no express words indicating mens rea or strict liability, the courts
have to decide which offences are ones of strict liability.
91
4.4.1 The presumption of mens rea
Where an Act of Parliament does not include any words indicating mens rea, the judges
will start by presuming that all criminal offences require mens rea. This was made clear
4.4 Statutory Strict liability offEncES

in the case of Sweet v Parsley [1969] 1 All ER 347.
CASE EXAMPLE
Sweet v Parsley [1969] 1 all Er 347
D rented a farmhouse and let it out to students. The police found cannabis at the farmhouse,
and the defendant was charged with ‘being concerned in the management of premises used
for the purpose of smoking cannabis resin’. The defendant did not know that cannabis was
being smoked there. It was decided that she was not guilty as the court presumed that the
offence required mens rea.
The key part of the judgment was when Lord Reid said:
JUDGMENT
‘there has for centuries been a presumption that Parliament did not intend to make criminals
of persons who were in no way blameworthy in what they did. That means that, whenever a
section is silent as to mens rea, there is a presumption that, in order to give effect to the will
of Parliament, we must read in words appropriate to require mens rea it is firmly established
by a host of authorities that mens rea is an ingredient of every offence unless some reason can
be found for holding that it is not necessary.’
This principle has been affirmed by the House of Lords in B (a minor) v DPP [2000] 1 All
ER 833 where the House of Lords reviewed the law on strict liability. The Law Lords
quoted with approval what Lord Reid had said in Sweet v Parsley (see section 4.4.8 for
full details of B v DPP).
Although the courts start with the presumption that mens rea is required, they look at
a variety of points to decide whether the presumption should stand or if it can be dis-
placed and the offence made one of strict liability.
4.4.2 The Gammon criteria

In Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] 2 All ER 503, the
appellants had been charged with deviating from building work in a material way from
the approved plan, contrary to the Hong Kong Building Ordinances. It was necessary to
decide if it had to be proved that they knew that their deviation was material or whether
the offence was one of strict liability on this point. The Privy Council started with the
presumption that mens rea is required before a person can be held guilty of a criminal
offence but went on to give four other factors to be considered. These were stated by
Lord Scarman to be:
 The presumption in favour of mens rea being required before D can be convicted
applies to statutory offences and can be displaced only if this is clearly or by neces-
sary implication the effect of the statute.
 The presumption is particularly strong where the offence is ‘truly criminal’ in
character.
 The only situation in which the presumption can be displaced is where the statute is
concerned with an issue of social concern; public safety is such an issue.
92  Even where the statute is concerned with such an issue, the presumption of mens rea
stands unless it can be shown that the creation of strict liability will be effective to
promote the objects of the statute by encouraging greater vigilance to prevent the
Strict liability
commission of the prohibited act.
Presumption can be rebutted The presumption is

by clear words in the statute particularly strong in ‘truly
or by necessary implication criminal’ cases
There is a presumption that

mens rea is required
It must be shown that strict

The presumption should only
liability will be effective to
be displaced if the issue is
promote the objects of the
one of social concern
statute
Figure 4.2 The Gammon criteria.
4.4.3 Looking at the wording of an Act

As already stated, where words indicating mens rea are used, the offence is not one of
strict liability. If the particular section is silent on the point, then the courts will look at
other sections in the Act. Where the particular offence has no words of intention, but
other sections in the Act do, then it is likely that this offence is a strict liability offence. In
Pharmaceutical Society of Great Britain v Storkwain the relevant section, s 58(2) of the Medi-
cines Act 1968, was silent on mens rea. The court looked at other sections in the Act and
decided that, as there were express provisions for mens rea in other sections, Parliament
had intended s 58(2) to be one of strict liability.
However, the fact that other sections specifically require mens rea does not mean that
the courts will automatically make the offence without express words of mens rea one of
strict liability. In Sherras, even though s 16(1) of the Licensing Act 1872 had express
words requiring knowledge, it was held that mens rea was still required for s 16(2), which
did not include the word ‘knowingly’. This point was reinforced in Sweet, when Lord
Reid stated:
JUDGMENT
‘It is also firmly established that the fact that other sections of the Act expressly require mens
rea, for example because they contain the word “knowingly”, is not of itself sufficient to
justify a decision that a section which is silent as to mens rea creates an absolute offence. In
the absence of a clear intention in the Act that an offence is intended to be an absolute
offence, it is necessary to go outside the Act and examine all relevant circumstances in order
to establish that this must have been the intention of Parliament.’ 93
Where other sections allow for a defence of no negligence but another section does not,

then this is another possible indicator from within the statute that the offence is meant
to be one of strict liability. In Harrow LBC v Shah and Shah the defendants were charged
under s 13(1)(c) of the National Lottery etc. Act 1993. The whole of s 13 reads:
SECTION
‘13(1) If any requirement or restriction imposed by regulations made under section 12 is
contravened in relation to the promotion of a lottery that forms part of the National
Lottery,
(a) the promoter of the lottery shall be guilty of an offence, except if the contravention
occurred without the consent or connivance of the promoter and the promoter exer-
cised all due diligence to prevent such a contravention,
(b) any director, manager, secretary or other similar officer of the promoter, or any person
purporting to act in such a capacity, shall be guilty of an offence if he consented to or
connived at the contravention or if the contravention was attributable to any neglect
on his part, and
(c) any other person who was a party to the contravention shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable

(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment not exceeding two years, to a fine or to
both.’
The subsection under which the defendants were charged, (1)(c), contains no words
indicating either that mens rea is required or that it is not, nor does it contain any provi-
sion for a defence of due diligence. However, subsection (1)(a) clearly allows a defence
of due diligence. In addition it contains an element of mens rea as it provides for the
defendant to be not guilty if the contravention was not done with his consent or conniv-
ance. Subsection (1)(b) clearly requires mens rea, as it only makes the accused guilty if he
‘consented to or connived at the contravention or if the contravention was attributable
to any neglect on his part’. The inclusion of a due diligence defence in part of s 13 but not
in the section under which the defendants were charged was an important point in the
Divisional Court coming to the decision that s 13(1)(c) was an offence of strict liability.
Mitchell J said:
JUDGMENT
‘Section 13 has two important features. First, whereas in subsection (1) paragraphs (a) and (b)
the liability of the promoter and the promoter’s directors, managers and the like is tempered
by the provision of a statutory defence. In subsection (1)(c) the liability of “any other person”
who was a party to the contravention of the regulations is not expressed to be subject to a
statutory defence.’
In fact this statement by Mitchell J that in both paragraphs (1)(a) and (1)(b) liability is
tempered by the provision of a statutory defence is not accurate. Only s 13(1)(a) has such
a provision. But despite this, the case illustrates how the courts will look at the wording
of other relevant provisions in the statute in deciding whether to impose strict liability.
In Muhamad [2002] EWCA Crim 1856, D was charged with ‘materially contributing to
94
the extent of insolvency by gambling’ contrary to s 362(1)(a) of the Insolvency Act 1986.
The Court of Appeal pointed out that the wording of the majority of offences in the Act
clearly had an express requirement of a mental element. However, s 362(1)(a) was one of
the few that did not specify any mental intention. This fact was one of the reasons why
Strict liability
the Court of Appeal found that this was an offence of strict liability.
4.4.4 Quasi-criminal offences

In Gammon the Privy Council stated that the presumption that mens rea is required is
particularly strong where the offence is ‘truly criminal’ in character. Offences which
are regulatory in nature are not thought of as being truly criminal matters and are,
therefore, more likely to be interpreted as being of strict liability. This idea of offences
which are ‘not criminal in any real sense, but are acts which in the public interest are
prohibited under penalty’ was a category mentioned by Wright J in Sherras as being
an exception to the presumption of mens rea where the courts would hold that the
offence was one of strict liability. Regulatory offences are usually classed as being ‘not
truly criminal’. In Wings Ltd v Ellis [1984] 3 All ER 584, the House of Lords was con-
sidering the Trade Descriptions Act 1968, which creates offences aimed at consumer
protection. Lord Scarman pointed out that this Act was ‘not a truly criminal statute.
Its purpose is not the enforcement of the criminal law but the maintenance of trading
standards.’
Regulatory offences are also referred to as ‘quasi-crimes’. They affect large areas of
everyday life. They include offences such as breaches of regulations in a variety of fields,
such as
 selling food, as in Callow;
 the selling of alcohol, as in Cundy;
 building regulations, as occurred in Gammon;
 sales of lottery tickets to an underage child, as in Harrow LBC;
 the prevention of pollution, as in Alphacell Ltd v Woodward [1972] 2 All ER 475.
In the Alphacell case the company was charged with causing polluted matter to enter a
river, contrary to s 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951, when pumps
which it had installed failed, and polluted effluent overflowed into a river. There was no
evidence either that the company knew of the pollution or that it had been negligent.
The offence was held by the House of Lords to be one of strict liability and the company
found guilty. Lord Salmon stated:
JUDGMENT
‘It is of the utmost public importance that rivers should not be polluted. The risk of pollu-
tion . . . is very great. The offences created by the Act of 1951 seem to me to be prototypes
of offences which are “not criminal in any real sense, but are acts which in the public
interest are prohibited under penalty” . . . I can see no valid reason for reading the word
“intentionally”, “knowingly” or “negligently” into section 2(1)(a) . . . this may be regarded
as a not unfair hazard of carrying on a business which may cause pollution on the banks of
a river.’
Penalty of imprisonment
Where an offence carries a penalty of imprisonment, it is more likely to be considered
‘truly criminal’ and so less likely to be interpreted as an offence of strict liability. In B v
DPP the offence was the commission of gross indecency with or towards a child under 95
14 which, at the time the offence was committed, carried a maximum penalty of two
years’ imprisonment. Lord Nicholls pointed out that this was a serious offence, and this

was important since ‘the more serious the offence, the greater was the weight to be
attached to the presumption [of mens rea], because the more severe was the punishment
and the graver the stigma that accompanied a conviction’.
However, some offences carrying imprisonment have been made strict liability
offences. In Gammon the offence carried a penalty of HK$250,000 and imprisonment for
three years. The Privy Council admitted that this penalty was a ‘formidable argument’
against strict liability but went on to hold that there was nothing inconsistent with the
purpose of the Ordinance in imposing severe penalties for offences of strict liability. It
said ‘the legislature could reasonably have intended severity to be a significant deter-
rent, bearing in mind the risks to public safety arising from some contraventions of the
ordinance’. Similarly, in Storkwain the offence carried a maximum sentence of two years’
imprisonment, but this fact did not persuade the House of Lords not to impose strict
liability for the offence.
In both these cases the defendant was a corporation; hence, there was no question of
a penalty of imprisonment actually being used. However, in Howells [1977] QB 614 the
defendant was charged with possession of a firearm without a firearm certificate, con-
trary to s 1(1)(a) of the Firearms Act 1968. The maximum penalty for this offence was five
years’ imprisonment. Despite this the Court of Appeal held that the offence was one of
strict liability. It thought that the wording of the Act and the danger to the public from
the unauthorised possession of firearms outweighed the fact of the severity of the
maximum sentence in deciding whether to impose strict liability.
More recently, in Muhamad [2002] EWCA Crim 186S, the Court of Appeal held that
the offence of materially contributing to insolvency by gambling contrary to s 362(1)(a)
of the Insolvency Act 1986 was one of strict liability even though it carried a maximum
penalty of two years’ imprisonment. They stated that it was open to doubt whether it
would be regarded as ‘truly criminal’. One of the reasons they reached this conclusion
was because other offences under the same Act carried a maximum penalty of ten years’
imprisonment.
It appears unjust that an individual should be liable to imprisonment even though
the offence does not require proof of some fault on the behalf of the defendant. Some
writers take the view that it is wrong to impose any penalty on a person where they are
not blameworthy. Peter Brett, writing in 1963, put this view forward:
quotation
‘Let us now consider what ought to be the future of the doctrine of strict liability. There are those
who believe that there is no great objection to it, and even that it serves a useful and proper social
purpose. Sayre’s general conclusion (“Public Welfare Offences”, 33 Col L Rev 55 (1933)) was that
the doctrine was applicable only to the minor public welfare offences, despite his recognition of
its applicability in some other fields, which he attempted to distinguish on special grounds. In his
view there is no objection to applying strict liability so long as only a light penalty is involved; but
it ought not to be applied to “true crimes”. This seems rather like saying that it is all right to be
unjust so long as you are not too unjust. My own position is that any doctrine which permits the
infliction of punishment on a morally innocent man is reprehensible.’
P Brett, An Inquiry into Criminal Guilt (Sweet & Maxwell, 1963), p. 114
96 4.4.5 Strict liability and human rights

Where a defendant is at risk of being sentenced to imprisonment, the question of whether
this is a breach of human rights is also raised. In Canada, s 7 of their Charter of Human
Rights states that ‘everyone has the right to life, liberty and security of the person and
Strict liability
the right not to be deprived thereof except in accordance with the fundamental principles
of justice’. In 1986 the Supreme Court of Canada held that the fundamental principles of
justice precluded strict liability where the offence was one which carried a penalty of
imprisonment. They said that the ‘combination of imprisonment and absolute liability
violates s 7 irrespective of the nature of the offence’.
In England and Wales the Human Rights Act 1998 incorporated the European Con-
vention on Human Rights into our law from October 2000. The right to liberty is con-
tained in art 5 of the Convention, and the right to a fair trial in art 6. These are not as
broadly worded as the Canadian Charter of Human Rights. They state:
ARTICLE
‘5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save as in the following cases and in accordance with a procedure prescribed by
law:
(a) the lawful detention of a person after conviction by a competent court . . .
6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.’
Unlike the Canadian Charter, this wording does not make any reference to ‘fundamental
principles of justice’. Instead, art 5 focuses on the procedure being ‘prescribed by law’,
and provided the procedure is lawful and carried out by a competent court, then there
is no breach of the Convention. With art 6 the focus is on a fair trial, though art 6(2)
maintains the need for the prosecution to prove guilt. However, guilt can be established
by proving that the defendant did the prohibited act.
In K [2001] 3 All ER 897 the Court of Appeal had to consider whether a genuine mistake
was a defence to s 14 of the Sexual Offences Act 1956. It held that the offence was one of
strict liability but that this was not incompatible with art 6(2). The Court of Appeal’s ruling
that the offence was one of strict liability was overruled by the House of Lords (see section
4.4.6); hence, the human rights implication was not a necessary part of the House of Lords’
judgment. The Court of Appeal relied on a decision of the European Court of Human
Rights in Salabiaku v France (1988) 13 EHRR 379, in which it had been said:
JUDGMENT
‘Article 6(2) does not therefore regard the presumptions of fact or of law provided for in the
criminal law with indifference. It requires states to confine them within reasonable limits which
take into account the importance of what is at stake and maintain the rights of the defence.’
The House of Lords considered the effect of art 6 in DPP, ex parte Kebilene (1999) 4 All ER
801, and Lord Hope said of the provisions of the Convention: ‘As a matter of general prin-
ciple therefore a fair balance must be struck between the demands of the general interest of
the community and the protection of the fundamental rights of the individual.’
The question of whether a strict liability offence may be a breach of the right to a fair
trial was considered again in G [2008] UKHL 37.
CASE EXAMPLE 97
G [2008] uKHl 37

D was a boy aged 15 who had had sexual intercourse with a girl aged 12. He was charged
under s 5 of the Sexual Offences Act 2003 (SOA) with rape of a child under 13. The girl was
actually 12, but D believed on reasonable grounds that she was 15. She had told him so on an
earlier occasion. D was held to be guilty as the offence is one of strict liability and may be com-
mitted irrespective of
 consent
 reasonable belief in consent
 a reasonable belief as to age.
The House of Lords upheld the Court of Appeal’s decision that the fact that s 5 was an
offence of strict liability did not breach human rights.
The House of Lords was unanimous in stating that strict liability did not breach art 6 of
the European Convention on Human Rights. Lord Hoffmann said:
JUDGMENT
‘It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of
the separation of powers but not that either the civil or criminal law will have any particular sub-
stantive content . . . Likewise, article 6(2) requires him to be presumed innocent of the offence but
does not say anything about what the mental or other elements of the offence should be.’
The judges in the Lords were very dismissive of the case of Salabiaku stating that no one
had yet discovered what the paragraph from the judgment (see previous page) meant.
They also pointed out that the European Court of Human Rights itself had ignored the
Salabiaku in later cases.
G then applied for a hearing by the European Court of Human Rights. The court
refused this application. In its reasons for refusal, the court noted that the s 5 offence was
created to protect children from sexual abuse and that the prosecution was required to
prove all elements of the offence beyond reasonable doubt. The court did not consider
that Parliament’s decision not to make a defence available where D had a reasonable
belief that V was aged 13 or over could give rise to any issue under art 6.
They pointed out that it is not the court’s role under art 6(1) or (2) to dictate the con-
tents of domestic criminal law. This included whether an offence should require a
blameworthy state of mind. It also included whether or not there should be any par-
ticular defence available to the accused.
So it now seems settled that the concept of strict liability does not breach human
rights law.
4.4.6 Issues of social concern

The type of crime and whether it is ‘truly criminal’ is linked to another condition laid
down by the case of Gammon; that is the question of whether the crime involves an issue
of social concern. The Privy Council ruled that the only situation in which the presump-
tion of mens rea can be displaced is where the statute is concerned with an issue of social
concern. This echoed what had been said in Sweet, when Lord Diplock stated:
JUDGMENT
98 ‘Where the subject-matter of a statute is the regulation of a particular activity involving potential
danger to public health, safety or morals, in which citizens have a choice whether they participate
or not, the court may feel driven to infer an intention of Parliament to impose, by penal sanctions,
Strict liability
a higher duty of care on those who choose to participate and to place on them an obligation to
take whatever measure may be necessary to prevent the prohibited act, without regard to those
considerations of cost or business practicability which play a part in the determination of what
would be required of them to fulfil the ordinary common law duty of care.’
This allows strict liability to be justified in a wide range of offences as issues of social
concern can be seen to cover any activity which is a ‘potential danger to public health,
safety or morals’. Regulations covering health and safety matters in relation to food,
drink, pollution, building and road use are obviously within the range, but other issues
such as possession of guns are also regarded as matters of public safety. It is recognised
that even sexual offences may come within its ambit where the law is aimed at protect-
ing children or other vulnerable people.
Even transmitting an unlicensed broadcast has been held to be a matter of social
concern. This was in Blake [1997] 1 All ER 963, where the defendant was a disc jockey
who was convicted of using a station for wireless telegraphy without a licence, contrary
to s 1(1) of the Wireless Telegraphy Act 1949. His defence was that he believed he was
making a demonstration tape and did not know he was transmitting. He was convicted
on the basis that the offence was one of strict liability. He appealed to the Court of
Appeal, but his appeal was dismissed. Hirst J said:
JUDGMENT
‘[S]ince throughout the history of s 1(1), an offender has potentially been subject to a term of
imprisonment, the offence is “truly criminal” in character, and . . . the presumption in favour
of mens rea is particularly strong. However, it seems to us manifest that the purpose behind
making the unlicensed transmissions a serious criminal offence must have been one of social
concern in the interests of public safety . . . since undoubtedly the emergency services and air
traffic controllers were using radio communications in 1949, albeit in a much more rudimen-
tary form than nowadays . . . Clearly, interference with transmissions by these vital public serv-
ices poses a grave risk to wide sections of the public . . . [T]he imposition of an absolute offence
must surely encourage greater vigilance on the part of those establishing or using a station, or
installing or using the apparatus, to avoid committing the offence, eg in the case of users by
carefully establishing whether they are on air; it must also operate as a deterrent . . . In these
circumstances we are satisfied that s 1(1) does create an absolute offence.’
kEy fACTS
Key facts on the factors affecting strict liability
Law Comment Case

The presumption is that the This is an important Sweet v Parsley (1969)
offence has a mens rea presumption at common law B v OPP (2000)
requirement. and also applies to statutory
offences.
The presumption can only be This can occur if there are Gammon (Hong Kong) Ltd v
displaced if this is clearly or by clear words stating that no Attorney-General of Hong
necessary implication the mens rea is required. Kong (1984)
effect of the statute. If the Act is silent on mens rea, Pharmaceutical Society v
then the courts will look at Storkwain (1986): strict
words in other relevant liability as other sections had 99
sections. express provision for mens rea
R v K (2001): no strict liability

as sections were not part of a
‘coherent legislative scheme’
The presumption is particularly The graver the offence the less B v DPP (2000)
strong where the offence is likely strict liability will be Sweet v Parsley (1969)
‘truly criminal’. imposed. Howells (1977)
Where the potential penalty is
a long term of imprisonment,
the offence is unlikely to be
one of strict liability.
Some imprisonable offences
are strict liability.
The only time strict liability These are issues where there is Sweet v Parsley (1969)
should be imposed is where a potential danger to public Blake (1997): unauthorised
the issue is one of social health, safety or morals. radio transmission posed ‘a
concern. grave risk’
The court should also be sure If strict liability does not do Lim Chin Aik v The Queen
that strict liability will be this then it should not be (1963)
effective in promoting the law. imposed. Muhamad (2002)
4.4.7 Promoting enforcement of the law

In Gammon, the final point in considering whether strict liability should be imposed,
even where the statute is concerned with an issue of social concern, was whether it
would be effective to promote the objects of the statute by encouraging greater vigilance
to prevent the commission of the prohibited act. If the imposition of strict liability will
not make the law more effective, then there is no reason to make the offence one of strict
liability.
In Lim Chin Aik v The Queen [1963] AC 160, the appellant had been convicted under
s 6(2) of the Immigration Ordinance of Singapore of remaining (having entered) in
Singapore when he had been prohibited from entering by an order made by the Minister
under s 9 of the same Ordinance. The Ordinance was aimed at preventing illegal immi-
gration. However, the appellant had no knowledge of the prohibition, and there was no
evidence that the authorities had even tried to bring it to his attention. The Privy Council
thought that it was not enough to be sure that the statute dealt with a grave social evil in
order to infer strict liability. It was also important to consider whether the imposition of
strict liability would assist in the enforcement of the regulations. Lord Evershed said:
JUDGMENT
‘It is pertinent also to inquire whether putting the defendant under strict liability will assist in
the enforcement of the regulations. That means there must be something he can do, directly
or indirectly, by supervision or inspection, by improvement of his business methods or by
exhorting those whom he may be expected to influence or control, which will promote the
observance of the regulations. Unless this is so, there is no reason in penalising him, and it
cannot be inferred that the legislature imposed strict liability merely in order to find a luckless
victim . . .
Where it can be shown that the imposition of strict liability would result in the prosecution
100 and conviction of a class of persons whose conduct could not in any way affect the observance
of the law, their Lordships consider that, even where the statute is dealing with a grave social
evil, strict liability is not likely to be intended.’
Strict liability
However, in Muhamad [2002] EWCA Crim 1865, the Court of Appeal thought that
bankruptcy
making the offence of ‘materially contributing to insolvency by gambling’ one of strict
A declaration by a
court that a
liability would ‘encourage greater vigilance to prevent gambling which will or may
person’s liabilities materially contribute to insolvency’. The offence is committed by gambling in the two
exceed his assets years prior to a petition for bankruptcy being made by D’s creditors. Given this, it seems
unlikely that awareness of strict liability would, in reality, persuade gamblers to desist
from gambling.
4.4.8 Twenty-first century cases

In 2000 and 2001 the House of Lords considered the principles of strict liability in two
important cases. These were B v DPP and K. In both they continued the trend, which
started with Sweet, against the imposition of strict liability. In B v DPP the Lords reviewed
the law on strict liability.
CASE EXAMPLE
B v DPP [2000] 1 all Er 833
B was a boy aged 15. He sat next to a 13-year-old girl on a bus and asked her to give him a
‘shiner’, meaning by that to have oral sex with him. He believed she was over the age of 14.
He was charged with inciting a child under the age of 14 to commit an act of gross indecency.
This is an offence under s 1(1) of the Indecency with Children Act 1960. This states: ‘Any
person who commits an act of gross indecency with or towards a child under 14 [subsequently
raised to 16] or who incites a child under that age to such an act with him or another . . . is
guilty of an offence.’
The question for the House of Lords was whether B’s mistake about the girl’s age gave
him a defence to the charge. If the offence was one of strict liability, then he could not
use the defence of mistake. Lord Nicholls gave the leading judgment. He started by
pointing out that the section says nothing about the mental element required for the
offence. In particular, it says nothing about what the position should be if the person
who commits or incites the act of gross indecency honestly but mistakenly believed that
the child was 14 or over.
He then reviewed the major elements which have to be considered in deciding
whether the offence is one of strict liability. These were
 the presumption of mens rea;
 the lack of words of intention;
 whether that presumption was negatived by necessary implication;
 the severity of the punishment;
 the purpose of the section;
 evidential problems;
 effectiveness of strict liability.
What was said on each of these points will now be briefly examined.
Presumption of mens rea

Lord Nicholls said that the starting point was the presumption that mens rea was intended 101
and he approved what Lord Reid had said in Sweet (see section 4.4.1) that it was firmly
established that mens rea is an essential ingredient of every offence unless some reason

can be found for holding that it is not necessary.
Lack of words of intention

The section had no words referring to the need for mens rea. Nor had Parliament expressly
stated that there was no need for a mental element in the offence. This meant that the
court had to consider whether the need for a mental element was negatived by necessary
implication.
Necessary implication
Looking at the factors to be examined in considering whether Parliament’s intention
was to impose strict liability by ‘necessary implication’, Lord Nicholls pointed out that,
in view of the presumption of mens rea, any necessary implication could only be satis-
fied by an implication that was ‘compellingly clear’. He said that such an implication
may be found in ‘the language used, the nature of the offence, the mischief sought to be
prevented and other circumstances that might assist in determining what intention was
properly to be attributed to Parliament’. In this case he thought that the position was rel-
atively straightforward. The section had created an entirely new offence which was set
out in simple and straightforward language. A major feature was the penalty it
attracted.
Severity of punishment
Lord Nicholls felt that these factors reinforced the application of the presumption of
mens rea. The offence carried a severe penalty and also the stigma of being a sex
offender.
Purpose of the section

Even though the purpose of s 1(1) of the 1960 Act was to protect children, this factor did
not, of itself, lead to the conclusion that liability was intended to be strict so far as the age
element was concerned.
Evidential problems
The fact that it might sometimes be difficult for the prosecution to prove that the defendant
had not known that the child was under 14 or that the defendant had been recklessly indif-
ferent about the child’s age was not enough to make the offence one of strict liability. Lord
Nicholls quoted from an Australian case, Thomas v R (1937) 44 ALR 37 on this point:
JUDGMENT
‘[A] lack of confidence in the ability of a tribunal to estimate evidence of states of mind and
the like can never be sufficient ground for excluding from inquiry the most fundamental
element in a rational and humane code.’
Effectiveness of strict liability

On whether strict liability would promote the purpose of s 1(1) more effectively than if
mens rea were required, Lord Nicholls simply pointed out that there was no general agree-
ment that strict liability was necessary to the enforcement of the law protecting children in
sexual matters. In fact the Draft Criminal Code proposed by the Law Commission in 1989
included a defence of belief that the child was over 16 on similar offences.
Effect of Prince
102 The final point considered was whether the decision in Prince, where it had been held that
the defendant could not use a genuine belief that a girl was over 16 for an offence of remov-
ing her from her father’s custody, should be followed. The prosecution submitted that the
law had been settled since the case of Prince (1875) (i.e. that a mistaken belief about age was
Strict liability
no defence) and that as the Sexual Offences Act 1956 had not been intended to change this,
so the same was true of the 1960 Act. In addition, the prosecution argued that when Parlia-
ment intended belief as to age to be a defence, this was stated expressly. He cited s 6(3) of
the 1956 Act as an example, where a belief that a girl was 16 or over was a defence to a
defendant under 24 on a charge of unlawful sexual intercourse with a girl under 16. Lord
Nicholls rejected these arguments for the following reasons:
 The reasoning in Prince has been subjected to sustained criticism.
 The offences gathered into the Sexual Offences Act 1956 displayed no overall consis-
tent pattern, and therefore the compelling guidance that another statute would have
to give to the present one under consideration was simply not there.
Conclusion
The Law Lords reached the conclusion that there was nothing to displace the common
law presumption that mens rea was required. This is the modern approach which rein-
forces the need for mens rea and shows the courts’ reluctance to declare an offence which
is ‘truly criminal’ to be one of strict liability. However, it should be noted that the House
of Lords did not specifically overrule the decision in Prince as it pointed out that the case
concerned a different offence.
Commentators disagreed on the importance of this decision in B v DPP. Professor Sir
John Smith, in a commentary on the case in (2000) Criminal Law Review 404, suggested
it would have far-reaching consequences, whereas the editors of Archbold thought that
this was ‘significantly overstating its significance because it is far from clear what it
decides other than in relation to the particular offence’. John Beaumont also highlighted
the fact that it did not necessarily lay down general principles:
quotation
‘[T]he case does not really make any progress to solve the general problem of when strict liab-
ility should be imposed. The various considerations that are said by the House to be relevant
in this context amount to no more than a restatement of the principles set out in earlier cases,
such as Sweet v Parsley. They suffer from the same defect as all such attempts, in that they
leave the law in this area in an uncertain state.’
John Beaumont, ‘Mistake and strict liability’ (2000) New Law Journal 382 and 433
Law reform
Finally, the case also highlighted the need for reform of the law and a consistent approach
by Parliament on whether offences required mens rea. Lord Hutton said it was to be
regretted that Parliament had not taken account of the expert advice that it had received
over the years from bodies such as the Law Commission and the Criminal Law Reform
Committee regarding the need to state clearly in all criminal offences whether or not
mens rea is required.
Case of K
One year after B v DPP the use of strict liability offences was again considered by the
House of Lords, in K. In this case it had to consider whether s 14(1) of the Sexual Offences
Act 1956 was a strict liability offence. The defendant was a 26-year-old man who had
taken part in consensual sexual activity with a 14-year-old girl. He honestly believed
that she was aged 16 or over, and the point in the case was whether this could be a
defence to s 14(1). The whole section provides 103
SECTION

‘14(1) It is an offence, subject to the exception mentioned in subsection (3) of the section,
for a person to make an indecent assault on a woman.
(2) A girl under the age of 16 cannot in law give any consent which would prevent an act
being an assault for the purposes of this section.
(3) Where a marriage is invalid under section two of the Age of Marriage Act 1929 (the
wife being a girl under the age of 16), the invalidity does not make the husband guilty
of any offence under this section by reason of her incapacity to consent while under
that age, if he believes her to be his wife and has reasonable cause for the belief.
(4) A woman who is a defective cannot in law give any consent which would prevent an
act being an assault for the purposes of this section, but a person is only to be treated
as guilty of an indecent assault on a defective by reason of that incapacity to consent,
if that person knew or had reason to suspect her to be a defective.’
As in B v DPP, there are no words at all referring to mens rea contained in subs (1).
However, there is a difference, in that there are two situations in which a mistake as to a
fact (of a valid marriage or of being a defective) can provide a defence. At the trial, a
preliminary issue was raised as to whether the prosecution had to prove that at the time
of the incident K did not honestly believe that the girl was 16 or over. The trial judge
ruled that the prosecution did have to prove that the defendant had an absence of
genuine belief on this point. The prosecution appealed against this ruling and the Court
of Appeal allowed the appeal holding that an absence of belief did not have to be proved.
The Court of Appeal certified the following point of law of general public importance
for the consideration of the House of Lords:
JUDGMENT
‘a. Is a defendant entitled to be acquitted of the offence of indecent assault on a complainant
under the age of 16 years, contrary to s 14(1) of the Sexual Offences Act 1956, if he may
hold an honest belief that the complainant in question was aged 16 years or over?
b. If yes, must the belief be held on reasonable grounds?’
The House of Lords reversed the decision of the Court of Appeal and held that an honest
belief was a defence to the charge. It considered the language of the section and concluded
that they could not place any reliance on the structure of s 14. It said it was not part of a
‘single coherent legislative scheme’, but rather of a ‘rag-bag nature’. In fact it had been a
consolidation Act with offences being brought together from several earlier Acts. Lord
Bingham pointed out that, within s 14, each subsection had its origins in different Acts.
 Section 14(1) derived from s 52 of the Offences Against the Person Act 1861.
 Section 14(2) had its origins in the Criminal Law Amendment Act 1880 when the age
was 13 and this had been changed by the Criminal Law Amendment Act 1922 to the
age of 16.
 Section 14(3) had its origins in the Age of Marriage Act 1929.
 Section 14(4) derives from s 56(3) of the Mental Deficiency Act 1913.
It could not, therefore, be said from looking at the structure of the section that Parlia-
ment had intended s 14(1) and s 14(2) to impose strict liability in relation to a situation
104 where the defendant had made an honest mistake about the girl’s age. They relied on the
fact that there was no express exclusion of the need to prove an absence of genuine belief
on the part of the defendant as to the age of an underage victim.
Strict liability
The Law Lords also thought that it was right to look at the Act involved in B v DPP,
the Indecency with Children Act 1960, as the Lords in that case had been invited to treat
the Acts as part of a single code. As absence of genuine belief as to the age of an under-
age victim had to be proved against a defendant under s 1 of the 1960 Act, it would
create a ‘glaring anomaly’ if the same rule was not to be applied to s 14 of the 1956 Act.
There was also a persistent and unacceptable anomaly within the 1956 Act, by which a
defendant could plead the ‘young man’s defence’ to a charge under s 6 of sexual inter-
course with a girl under age 16, but could not rely on any similar argument in respect of
a charge of indecent assault arising out of that sexual intercourse.
The Lords concluded that the presumption of mens rea had been underlined in Sweet
v Parsley and again recently in B v DPP. In a statutory offence the presumption of mens
rea could only be excluded by express words or by necessary implication. In s 14 there
were no express words, and the ‘rag-bag’ nature of the Act, together with the anomaly
arising from the young man’s defence, made it impossible to find the necessary
implication.
Although, as with B v DPP, this case does not expressly overrule Prince, the Lords in
R v K referred to it as being ‘discredited’, and it appears to have been impliedly overruled.
The case of Kumar

The decisions in B v DPP and K were followed in Kumar [2004] EWCA Crim 3207 where
the Court of Appeal held that buggery of a boy under the age of 16 (an offence under s
12 of the Sexual Offences Act 1956, now repealed) was not one of strict liability.
CASE EXAMPLE
Kumar [2004] Ewca crim 3207
D, aged 34, picked up V, a 14-year-old boy at a recognised gay club. The club had a policy of
admitting only those aged 18 or over. The evidence was that V looked about 17. V willingly
went to D’s flat and consensual sexual activity took place, including penetration of V’s anus by
D. The trial judge ruled that the offence was one of strict liability in regard to the age of V. D
then pleaded guilty. He appealed on the ground that the judge was wrong in holding that the
offence was one of strict liability and that an honest belief as to the age of V should be allowed
as a defence. The Court of Appeal allowed the appeal.
In this case the Court of Appeal relied on the judgment in B v DPP [2000] Cr App R 65.
They referred to several passages in it starting with Lord Nicholls when he said:
JUDGMENT
‘As habitually happens with statutory offences, when enacting this offence Parliament defined
the prohibited conduct solely in terms of the prescribed physical acts . . .
In these circumstances the starting point for a court is the established common law pre-
sumption that a mental element, traditionally labelled mens rea, is an essential ingredient
unless Parliament has indicated a contrary intention either expressly or by necessary implica-
tion. The common law presumes that, unless Parliament indicated otherwise, the appropriate
mental element is an unexpressed ingredient of every statutory offence.’
They also considered the judgment of another judge in B v DPP, Lord Steyn, who
explained the principle in a slightly different way: 105
JUDGMENT

‘The language is general and nothing on the face of s 1(1) [of the Indecency with Children Act
1960] indicates one way or the other whether s 1(1) creates an offence of strict liability. In
enacting such a provision Parliament does not write on a blank sheet. The sovereignty of Par-
liament is the paramount principle of our constitution. But Parliament legislates against the
background of the principle of legality.’
To explain the point of the principle of legality, Lord Steyn quoted from the judgment of
Lord Hoffmann in R v Secretary of State for the Home Department, ex p Simms [1999] 3 WLR
328 where he said:
JUDGMENT
‘But the principle of legality means that Parliament must squarely confront what it is doing and
accept the political cost. Fundamental rights cannot be overridden by general or ambiguous
words. This is because there is too great a risk that the full implications of their unqualified
meaning may have passed unnoticed in the democratic process. In the absence of express
language or necessary implication to the contrary, the courts therefore presume that even the
most general words were intended to be subject to the basic rights of the individual.’
student
The Court of Appeal concluded that very similar considerations to those in B v DPP and
mentor tip K applied in Kumar. The mental element had not been excluded from s 12 of the Sexual
Offences Act 1956 by necessary implication. Consequently an honest belief that V was
‘The best way to
study criminal law over 16 was a defence.
is to read the cases
in full. This will not Cases where strict liability has been found
only ensure you
Although the above cases demonstrate an unwillingness to declare an offence one of
remember the
principles but the strict liability, there have been other recent cases where the courts have been prepared
facts are usually to rule that the offence was one of strict liability. For example in Muhamad [2002] EWCA
easy to remember
Crim 1865, the Court of Appeal held that the offence of materially contributing to insol-
and will help you
recall the vency by gambling under s 362(1)(a) of the Insolvency Act 1986 was an offence of strict
judgments too.’ liability even though it carried a maximum sentence of two years’ imprisonment. They
Gayatri, University
held that it was not necessary to prove that D knew or was reckless as to whether his act
of Leicester
of gambling would materially contribute to his insolvency. The Sexual Offences Act
2003 (SOA) has created several offences of strict liability in respect of belief in the age of
a willing participant in sexual activity. In G [2006] EWCA Crim 821, the defence accepted
that s 5 of the SOA 2003 (rape of a child under 13) created a strict liability offence, even
where the defendant honestly and reasonably believed that the child was over 13, and
the child was a willing participant. The defence accepted this as other sections in the Act
have express references to reasonable belief that a child is over 16, whereas s 5 has no
allowance for a reasonable belief as to age. Despite the fact that this offence is one of
strict liability, it carries a maximum penalty of imprisonment for life.
The Firearms Act 1968 also has a number of sections which impose strict liability. In
Deyemi (Danny) [2007] EWCA Crim 2060, D was stopped and searched, and an electrical
stun gun was found. D was charged with possessing a prohibited weapon contrary to s
5(1)(b) of the Firearms Act 1968. D’s evidence was that he did not know it was a stun
gun; he thought it was a torch. The trial judge held that the offence was one of strict liab-
ility. So D then pleaded guilty, but appealed to the Court of Appeal. They held that
106 physical possession of the gun was sufficient to make D guilty. The fact that he was
ignorant of its nature was not relevant.
Another case of strict liability under the Firearms Act 1968 is Zahid (Nasir) [2010] EWCA
Strict liability
Crim 2158 which involved possession of ammunition contrary to s 5(1A)(f). D had two
bullets in his pocket and a brown paper package containing 38 more bullets in his house.
His defence was that he had found the package outside his front door and believed it to
contain bolts or screws left by workmen working at his house. He had put it into his pocket
to take indoors and was unaware that anything had fallen into his pocket.
The reasoning in Deyemi was applied and the Court of Appeal held that the offence
was one of strict liability. A genuine belief the article was something other than bullets
was not a defence.
ACTIVITy
applying the law
Read the following sections of the Food Safety Act 1990 and apply them to the situations
below to decide whether an offence has been committed.
‘14. Selling food not of the nature or substance or quality demanded

1. Any person who sells to the purchaser’s prejudice any food which is not of the nature or
substance or quality demanded by the purchaser shall be guilty of an offence.
2. In subsection (1) above the reference to sale shall be construed as a reference to sale for
human consumption; and in proceedings under that subsection it shall not be a defence
that the purchaser was not prejudiced because he bought for analysis or examination.’
‘21. Defence of due diligence

1. In any proceedings for an offence under any of the preceding provisions of this Part, it shall
. . . be a defence for the person charged to prove that he took all reasonable precautions
and exercised all due diligence to avoid the commission of the offence by himself or by a
person under his control.
2. Without prejudice to the generality of subsection (1) above, a person charged with an
offence under section 8, 14 or 15 above who neither:
(a) prepared the food in respect of which the offence is alleged to have been committed;
nor
(b) imported it into Great Britain, shall be taken to have established the defence provided
by that subsection if he satisfies the requirements of subsection (3) or (4) below.
3. A person satisfies the requirements of this subsection if he proves:
(a) that the commission of the offence was due to an act or default of another person who
was not under his control, or to reliance on information supplied by such a person;
(b) that he carried out all such checks of the food in question as were reasonable in all the
circumstances, or that it was reasonable in all the circumstances for him to rely on
checks carried out by the person who supplied the food to him; and
(c) that he did not know and had no reason to suspect at the time of commission of the
alleged offence that his act or omission would amount to an offence under the rel-
evant provision.’
Situations
1. Grant owns a pizza parlour. He buys toppings to put on pizzas from Home Foodies Ltd.
When he bought the latest batch, he told the sales representative of Home Foodies that he
did not want any of the toppings to contain nuts. The sales rep assured him that all their
products were ‘nut-free’. Halouma bought a pizza and suffered a severe allergic reaction, 107
which was found to be because the topping contained traces of nuts.
2. Tanya owns a sandwich bar. Unknown to her, Wesley, one of the sandwich makers, used
4.5 JuStification for Strict liability

Edam cheese to make sandwiches described as ‘cheddar cheese and chutney’. These sand-
wiches were sold in the sandwich bar.
3. Kylie, who is a trained nutritionist, owns a restaurant. On the menu certain meals are
described as ‘low-calorie’. Kylie has given the chefs a list of suitable ingredients to be used
in these meals. This includes using low-fat yogurt instead of cream in making sauces. One
evening a chef uses cream instead of the yogurt in a ‘low-calorie’ dish served to one of the
diners.
4.5 Justification for strict liability

The main justification is that given in Sweet, that strict liability offences help protect
society by regulation of activities ‘involving potential danger to public health, safety or
morals’. The imposition of strict liability promotes greater care over these matters by
encouraging higher standards in such matters as hygiene in processing and selling food
or in obeying building or transport regulations. It makes sure that businesses are run
properly. This reason for justifying the use of strict liability was put by Kenny:
quotation
‘The application of strict liability can be justified in special cases: particularly with regard to the
conduct of a business. In such a case, even a strict liability statute makes an appeal to the prac-
tical reasoning of the citizens: in this case, when the decision is taken whether to enter the
business the strictness of the liability is a cost to be weighed. Strict liability is most in place
when it is brought to bear on corporations. In such cases there may not be, in advance, any
individual on whom an obligation of care rests which would ground a charge of negligence
for the causing of the harm which the statute wishes to prevent: the effect of the legislation
may be to lead corporations to take the decision to appoint a person with the task of finding
out how to prevent the harm in question.’
A Kenny, Free Will and Responsibility (Routledge, 1978), p. 93
As failure to comply with high standards may cause risk to the life and health of large
numbers of the general public, there is good reason to support this point of view.
However, some opponents of strict liability argue that there is no evidence that strict
liability leads to business taking a higher standard of care. Some even argue that
strict liability may be counterproductive. If people realise that they could be prosecuted
even though they have taken every possible care, they may be tempted not to take any
precautions.
Other justifications for the imposition of strict liability include the following:
 It is easier to enforce, as there is no need to prove mens rea.
 It saves court time, as people are more likely to plead guilty.
 Parliament can provide a no negligence defence where this is thought appropriate.
 Lack of blameworthiness can be taken into account when sentencing.
As there is no need to prove mens rea, it is clear that enforcement of the law is more
straightforward. In addition, rather than prosecute for minor regulatory breaches, the
Health and Safety Executive and local trading standards officers are more likely to serve
improvement notices or prohibition notices in the first instance. This can help ensure
108 that the law is complied with, without the need for a court hearing. When a case is taken
to court, the fact that only the act has to be proved saves time and also leads to many
guilty pleas.
Strict liability
The use of due diligence defence (or a no negligence defence) can temper the law on
strict liability. In many instances Parliament provides such a defence in the statute creat-
ing the offence. If the inclusion of such defences was done in a consistent way, then
many of the objectors to the imposition of strict liability would be satisfied. However,
the use of due diligence clauses in Acts often seems haphazard. For example in Harrow
LBC v Shah and Shah, the relevant section allowed a due diligence defence for promoters
of the lottery but not for those managing a business in which lottery tickets were sold
(see section 4.2.1).
The final justification for strict liability is that allowances for levels of blameworthi-
ness can be made in sentencing. Baroness Wootton wrote:
quotation
‘Traditionally, the requirement of the guilty mind is written into the actual definition of a crime.
No guilty intention, no crime, is the rule. Obviously this makes sense if the law’s concern is with
wickedness: where there is no guilty intention, there can be no wickedness. But it is equally
obvious, on the other hand, that an action does not become innocuous merely because whoever
performed it meant no harm. If the object of the criminal law is to prevent the occurrence of
socially damaging actions, it would be absurd to turn a blind eye to those which were due to
carelessness, negligence or even accident. The question of motivation is in the first instance irrel-
evant. But only in the first instance. At a later stage, that is to say, after what is now known as a
conviction, the presence or absence of guilty intention is all-important for its effect on the appro-
priate measures to be taken to prevent a recurrence of the forbidden act.’
Baroness Wootton, Crime and the Criminal Law (2nd edn, Stevens, 1981)
4.5.1 Arguments against strict liability

Although there are sound justifications for imposing strict liability, there are also equally
persuasive arguments against its use. The main argument against strict liability is that it
imposes guilt on people who are not blameworthy in any way. Even those who have
taken all possible care will be found guilty and can be punished. This happened in the
case of Harrow LBC v Shah and Shah, where they had done their best to prevent sales of
lottery tickets to anyone under the age of 16. Another case where all possible care had
been taken was Callow. In this case even the use of an expert (a vet) was insufficient to
avoid liability.
Although an important reason for imposition of strict liability is the maintenance of
high standards so that health and safety are not put in jeopardy, there is, as already
mentioned earlier, no evidence that it improves standards. With some of the offences it
is difficult to see how strict liability would persuade other people not to commit the
offence. A clear example is Muhamad where it was held that there was strict liability for
materially contributing to insolvency by gambling. For this offence the conduct com-
plained of could take place at any time in the two years before any petition for bank-
ruptcy was filed against D. It, therefore, seems highly unlikely that any gambler would
address their mind to potential creditors and a future risk of insolvency.
Finally, the imposition of strict liability where an offence is punishable by imprison-
ment is contrary to the principles of human rights.
4.6 Proposals for reform

109
The surest way to be certain whether a statutory offence is meant to be one of strict liab-
ility is for Parliament always to state expressly whether or not it is. The example of the
Contempt of Court Act 1981 shows that this can be done. However, it seems unlikely
4.6 ProPoSalS for rEforM

that Parliament will take this route for every Act that creates criminal offences.
Another method which would avoid the worst effects of strict liability is that recom-
mended by the Law Commission in its report The Mental Element in Crime (1978) (Law
Com No 89). Its proposal was that all strict liability offences should be treated as crimes
of negligence. This would mean the prosecution would have to prove that D had been
negligent. So any defendant who had taken all possible care and not been negligent
would not be guilty. Under this principle the pharmacist in Storkwain would not have
been guilty, nor would the defendants in Shah and Shah have been guilty of selling a
lottery ticket to an underage person.
A move towards making more strict liability offences ones of negligence would be for
Parliament to include ‘due diligence’ or ‘no negligence’ defences more often when enact-
ing criminal offences. This is already done in a number of regulatory Acts such as the
Food Act 1984 or the Tobacco Advertising and Promotion Act 2002.
An alternative way of avoiding some of the problems of strict liability would be to
take regulatory offences out of the criminal justice system and deal with them through
the civil justice system instead. There has been a move towards this with the Regula-
tory, Enforcement and Sanctions Act 2008. Part 3 of the Act provides a number of civil
sanctions by which regulators can be given power to impose for breaches of regulatory
law. These include fixed monetary penalties. There are also discretionary powers
including
 a variable monetary penalty, the amount being decided by the regulator;
 a requirement that certain steps be taken to ensure that the offence does not occur
again;
 a restoration order requiring that the position be restored to what it would have been
if the offence had not occurred;
 a stop notice which prohibits the person from carrying on an activity specified in the
notice until they have taken the steps specified in the notice.
This method is suitable to deal with regulatory offences in such areas as selling food or
alcohol or other items such as lottery tickets, but it obviously cannot be used for other
offences such as drugs, firearms or sex offences. These have to remain in the criminal
justice system.
SUMMARy
Absolute liability is where no mens rea is needed at all. In addition, it is not necessary to
prove that the defendant’s actus reus was voluntary. Absolute offences are very rare.
A strict liability offence is one where mens rea is not required for at least one part of
the actus reus.
For strict liability offences there is no defence of due diligence. Also, the defence of
mistake is not available.
The only strict liability offences in common law are public nuisance, criminal libel
and outraging public decency.
More than half of all statutory offences are ones of strict liability. To decide whether
an offence is one of strict liability the wording is considered. If it is clear that no mens rea
is required, then the offence is one of strict liability. If the wording is not clear then the
Gammon tests are used to decide. These are as follows:
110 1. There is a presumption that mens rea is required.
2. The presumption is particularly strong where the offence is ‘truly criminal’.
3. The presumption applied can be displaced only if this is clearly or by necessary
Strict liability
implication the effect of the statute.

4. The presumption can only be displaced where the statute involves an issue of social
concern.
5. The creation of strict liability must be effective to promote the objects of the statute
by encouraging greater vigilance to prevent the commission of the prohibited act.
Strict liability is justified because:
 It protects society.
 It is easier to enforce as there is no need to prove mens rea.
 It saves court time as people are more likely to plead guilty.
 Parliament can provide a no negligence defenceCritically
where analyse
this is thought
case law appropriate.
on the rights of shareholders
 Lack of blameworthiness can be taken into account to enforce
when the articles of association to demonstrate
sentencing.
Arguments against strict liability are:
 Liability should not be imposed on people whoofare notarticles
the blameworthy.
concerned with the membership and
 Those who have taken all possible care should not be penalised.
 There is no evidence that it improves standards.
 It is contrary to the principles of human rights.

Critically discuss the factors the courts take into account when considering whether a statu-
tory offence is one of strict liability or not.
Define strict liability:

• Explain the presumption of mens rea
• State the Gammon criteria
• Could also state the elements reviewed in B v DPP (2000)
• Then expand each of the Gammon criteria using cases – see below
Presumption displaced only if this is clearly or by necessary
implication the effect of the statute:
• Are there express words?
• If not, can look at other sections in the Act, but does this really
indicate Parliament’s intention?
• Courts not always consistent in applying this e.g. Sherras v de Rutzen
Presumption is particularly strong where the offence is ‘truly

criminal’:
• Is there stigma attached to the offence?
111
• Is it punishable with imprisonment?
• Discuss cases e.g. G (2008), B v DPP (2000), Howells (1977),
Muhamad (2002)
SaMPlE ESSay QuEStion

• Are the courts consistent?
Does offence involve an issue of social concern?

• What are matters of social concern?
• Obvious ones of public health and safety, pollution, etc.
• But what about other areas? e.g. gambling Muhamad, wireless
transmissions Blake (1997)
• Do these involve social concern?
Will strict liability be effective to promote the objects of the

statute?
• Does strict liability encourage greater vigilance to prevent offences?
• Compare courts’ approach in Gammon (1984) and Lim Chin Aik
(1963)
• Discuss other cases e.g. sex offences involving defendants under
16 – B v DPPG
• Discuss other areas of law e.g. gambling Muhamad
General points:
• Are the courts consistent in their approach?
• Courts may stress one of the criteria more than others
Conclude
ACTIVITy
Self-test questions
1. Explain what is meant by ‘absolute liability’. How does this differ from ‘strict liability’?
2. Explain with examples which defence is not available to a defendant charged with a strict
liability offence.
3. What are the Gammon tests for deciding when a statutory offence will be construed as an
offence of strict liability?
4. Give examples of matters which are considered to be of ‘social concern’ and, therefore,
more likely to be construed as strict liability offences.
5. Explain the arguments for and against strict liability.
112
Further reading
Books
Clarkson, C M V and Keating, H, Criminal Law: Text and Materials (7th edn, Sweet &
Strict liability
Maxwell, 2010), Chapter 3, Part I.
Articles
Beaumont, J, ‘Mistake and strict liability’ (2000) NLJ 382 and 433.
Horder, J, ‘Strict liability, statutory construction and the spirit of liberty’ (2002) 118 LQR
458.
Reed, A, ‘Case comment: strict liability and the reasonable excuse defence’ (2012) J Crim
L 293.
Stanton-Ife, J, ‘Strict liability: stigma and regret’ (2003) 27 OJLS 151.
Smith, J C, ‘Commentary on the case of B v DPP’ (2000) Crim LR 404.
5
Parties to a crime
AIMS AND OBJECTIVES

 Understand the law of secondary liability – aiding, abetting, counselling or
procuring
 Understand the law of joint enterprise
 Understand when secondary liability can be avoided by withdrawing
 Analyse critically the rules on secondary liability and joint enterprise
 Apply the law to factual situations to determine whether there is liability either as
an accessory or for a joint enterprise
5.1 Principal offenders

The person who directly and immediately causes the actus reus of the offence is the
‘perpetrator’ or ‘principal’, while those who assist or contribute to the actus reus are
‘secondary parties’, or ‘accessories’. Just because two (or more) parties are involved in
the commission of a criminal offence, it does not mean that one of them must be the
principal and the other their accessory. They may be both (or all) principals, provided
that each has mens rea and together they carry out the actus reus (see below). If D and E
plant a bomb, which explodes killing V, then they are both liable as principals for homi-
cide. This often happens where D and E carry out a robbery or burglary together, which
is referred to as a ‘joint enterprise’, although it is possible to conceive of a situation
whereby D and E, for example, independently attack V and the combined effect is
serious injury or death. Each would be guilty of assault as principal offenders.
5.1.1 Difficulties in identifying the principal

In some cases it may be obvious that a crime has been committed by one or both of
two people but it may not be clear either who is the principal or whether the other
was an accessory. In such a case, both may escape liability. There was a particular
problem when a child died whilst being looked after by two parents or carers. In Lane
and Lane (1986) 82 Cr App R 5, evidence showed that the Lanes’ child was killed
between 12 noon and 8.30 p.m. Each parent had been present for some of this time
and absent for some of this time. It could not be proved that one was the principal, nor
could it be proved that the other must have been an accessory. Both had to be acquitted
of manslaughter.
This problem has now been addressed by Parliament. Section 5(1) of the Domestic
Violence, Crime and Victims Act 2004, which is discussed more fully in Chapter 10,
created a new offence of causing or allowing the death of a child or vulnerable adult. In
Ikram and Parveen [2008] EWCA Crim 586; [2008] 4 All ER 253, which is factually very
similar to Lane and Lane, the father of a one-year-old boy and the father’s partner were
convicted under s 5 after the child suffered a non-accidental broken leg, which caused a
fat embolism (when fat enters the bloodstream) with fatal consequences. No one else
had had any contact with the child on the fateful day, so one or other of the defendants
must have been responsible. However, both defendants claimed not to know how the
child’s leg was broken and with no other evidence it would have been extremely diffi-
cult to convict either defendant of murder or manslaughter. Instead, they were both
114 convicted under s 5 of the 2004 Act.
Meanwhile, if it can be proved that D, being one of two or more parties to a crime,
must have been guilty as either principal or accessory, then he may be convicted. In
Parties to a crime
Giannetto [1997] 1 Cr App R 1, D was convicted of the murder of his wife, V. According
to the prosecution’s case, V was murdered either by D or by a hired killer on his behalf.
D appealed on the ground that, if the prosecution could not prove whether he had mur-
dered V himself or someone else had done it, he was entitled to an acquittal. The Court
of Appeal dismissed the appeal. Provided, in either case, that D had the requisite actus
reus and mens rea (as principal, this is causing death with intent to kill or cause really
serious injury; for secondary parties, see below), then it did not matter whether he had
killed her himself or encouraged another to do so.
5.2 Innocent agents

Where the perpetrator of the actus reus of a crime is an ‘innocent agent’, someone without
mens rea, or not guilty because of a defence such as infancy or insanity, then the person
most closely connected with the agent is the principal. So if D, an adult, employs his
eight-year-old son to break into houses and steal, the child is an innocent agent, and the
father liable as principal. A well-known example of an ‘innocent agent’ acting without
mens rea would be a postman unknowingly delivering a letter bomb. An example comes
from the case of Cogan and Leak [1976] QB 217. L terrorised his wife into having sex with
another man, C. C’s conviction for rape was quashed because his plea that he honestly
believed L’s wife was consenting had not been left to the jury. L’s rape conviction was
upheld on the basis that he had procured (caused) the crime to happen (see below). The
Court of Appeal also considered, obiter, that L may alternatively have committed the
offence as principal through the doctrine of an innocent agency. Lawton LJ said that,
‘had [L] been indicted as a principal offender, the case against him would have been
clear beyond argument’.
5.3 Secondary parties

5.3.1 Actus reus of secondary parties: aiding, abetting,
counselling or procuring
The law for indictable offences is set out in s 8 of the Accessories and Abettors Act 1861
(s 44 of the Magistrates’ Courts Act 1980 provides the same for summary offences):
‘Whosoever shall aid, abet, counsel or procure the commission of any indictable offence
aiding and . . . is liable to be tried, indicted and punished as a principal offender.’ This is a very wide
abetting definition. It should also be noted that it is possible for a secondary party to be held
Providing help or
liable for committing an offence which they could not commit as principal. For example,
encouragement to
another person to a woman may commit rape as an accessory, although women cannot commit rape as
commit a crime principal offender (DPP v K & C [1997] Crim LR 121; see Chapter 12). A secondary party
will be charged with ‘aiding, abetting, counselling or procuring’ the particular offence
counselling (murder, robbery, theft, etc.) and is liable to be convicted provided that it can be proved
Advising or that he participated in at least one of the four ways. The Court of Appeal has held that
persuading the words should simply bear their ordinary meaning. In Attorney-General’s Reference
another person to
commit a crime
(No 1 of 1975) [1975] 2 All ER 684, Lord Widgery CJ said:
JUDGMENT
‘We approach s 8 of the 1861 Act on the basis that the words should be given their ordinary 115
meaning, if possible. We approach the section on the basis also that if four ordinary words
are employed here – aid, abet, counsel or procure – the probability is that there is a differ-
ence between each of those four words and the other three, because, if there were no such
5.3 secondary Parties

difference, then Parliament would be wasting time in using four words where two or three
procuring
Taking steps to
would do.’
cause another
person to commit
There is considerable overlap between the four words, and it is quite possible for D to
a crime
participate in more than one way.
kEy fACTS
Aiding Helping or assisting the principal, whether prior to, or at the time of, the
commission of the actus reus by the principal. Typical examples: supplying
information or equipment; keeping watch; acting as driver.
Abetting Encouraging the principal at the time of the offence. An example might involve
a crowd of onlookers shouting encouragement to the perpetrators of an assault
or rape.
Counselling Encouraging the principal prior to the commission of the actus reus. Also
advising, suggesting or instigating an offence. The best-known English case
involves hiring a ‘hitman’ to carry out a murder.
Procuring Used to mean ‘to produce by endeavour’. More modern cases indicate that it is
enough for D to make some causal contribution to the performance by the
principal of the actus reus.
‘Aiding’
As indicated above, this means to provide some assistance before or during the commis-
sion of a crime by the principal. The scope of aiding is demonstrated by the case of Rob-
inson [2011] UKPC 3, in which D was convicted of aiding a murder committed by E by
acting as a lookout/backup. E had killed two men (who were twin brothers) with a base-
ball bat, while D guarded the door to the room where the attack took place. The brothers’
decomposing bodies were found a month later down a cliff. D appealed, unsuccessfully,
to the Privy Council. The Court stated that aiding ‘imports a positive act of assistance’
but added that:
JUDGMENT
‘Of course, that positive act of assistance may sometimes be constituted by D2 being present,
and communicating to D1 not merely that he concurs in what D1 is doing, but that he is ready
and willing to help in any way required. The commission of most criminal offences, and cer-
tainly most offences of violence, may be assisted by the forbidding presence of another as
back-up and support.’
‘Abetting’
The threshold of involvement is very low. The Court of Appeal in Giannetto [1996] Crim
LR 722 stated that ‘any involvement from mere encouragement upwards would suffice’
for a conviction of abetting. In turn, ‘encouragement’ could be ‘as little as patting on the
back, nodding, saying “Oh goody” ’. Although it is not essential for D to be present at
the scene of the crime if charged with aiding, it seems that it is essential for abetting.
116 A remarkable example of abetting is provided by the recent Supreme Court case of
Gnango (2011).
Parties to a crime
CASE EXAMPLE
Gnango [2011] UKsc 59; [2012] 1 ac 827
One evening, Armel Gnango and a man known only as ‘Bandana Man’ engaged in a gun battle
in southeast London. A young woman, Magda Pniewska, was caught in the crossfire and killed
– shot once in the head by Bandana Man. Gnango was subsequently convicted of the attempted
murder of Bandana Man and the murder of Magda, on the basis of joint enterprise. He success-
fully appealed against his murder conviction to the Court of Appeal, but the prosecution appealed
to the Supreme Court. That court, sitting with seven judges, allowed the appeal, and reinstated
the murder conviction – not on the basis of joint enterprise, but on the basis of secondary liability.
Lord Phillips, Lord Judge CJ, Lord Dyson and Lord Wilson held that Gnango, by firing shots at
Bandana Man, was simultaneously attempting to murder Bandana Man and, at the same time,
aiding and abetting the attempted murder of himself. Bandana Man, meanwhile, was attempting
to murder Gnango, but inadvertently shot Magda. Through the application of transferred malice,
this would have made Bandana Man guilty of her murder. Finally, because of Gnango’s participa-
tion in the attempted murder of himself, and a second application of transferred malice, that
made Gnango guilty of Magda’s murder. Lord Phillips explained his reasoning as follows:
JUDGMENT
‘(i) Bandana Man attempted to kill [Gnango]. (ii) By agreeing to the shoot-out, [Gnango] aided
and abetted Bandana Man in this attempted murder. (iii) Bandana Man accidentally killed Miss
Pniewska instead of [Gnango]. Under the doctrine of transferred malice he was guilty of her
murder. (iv) The doctrine of transferred malice applied equally to [Gnango] as aider and abetter
of Bandana Man’s attempted murder. He also was guilty of Miss Pniewska’s murder.’
A number of cases have raised the issue whether mere presence at the scene of the crime
(as opposed to presence combined with some actions: shouting, gesticulating, etc.) will
suffice for the actus reus of abetting. In Coney and others (1882) 8 QBD 534, three onlookers
at an illegal bare-knuckle fight were convicted of abetting assault. The Court of Criminal
Appeal quashed their convictions following misdirections to the jury. The court held
that, although presence alone may suffice for the actus reus, it must be combined with the
culpable mental element for it to amount to the offence of abetting. Hawkins J said:
JUDGMENT
‘A man may unwittingly encourage another in fact by his presence, by misinterpreted words,
or gestures, or by his silence . . . or he may encourage intentionally by expressions, gestures or
actions intended to signify approval. In the latter case he aids and abets, in the former he does
not. It is no criminal offence to stand by, a mere passive spectator of a crime . . . But the fact
that a person was voluntarily and purposely present witnessing the commission of a crime and
offered no opposition to it . . . or at least to express his dissent might under some circum-
stances afford cogent evidence upon which a jury would be justified in finding that he wilfully
encouraged and so aided and abetted.’
There have been a number of cases since. The law now is that D may be guilty of abetting
via presence alone if:
 His presence provided encouragement in fact. 117
 He intended to provide encouragement through his presence.
In Allan [1965] 1 QB 130, there was no actual encouragement in fact. D was present at an

affray. He was totally passive, though he had a secret intention to join in to help his
‘side’ if need be. The Court of Appeal quashed his conviction of abetting a public order
offence. To hold otherwise would be tantamount to convicting D for his thoughts alone.
Meanwhile, in Clarkson and others [1971] 1 WLR 1402, there was no evidence of an inten-
tion to encourage. The appellants were soldiers at a British Army barracks in Germany
who had witnessed the gang rape by at least three soldiers of an 18-year-old girl. Other
soldiers had clearly aided and abetted the rape by holding the girl down, but there was
no evidence that two of the appellants did anything other than just watch. However,
both elements were present in Wilcox v Jeffrey [1951] 1 All ER 464.
CASE EXAMPLE
Wilcox v Jeffrey [1951] 1 all er 464
Coleman Hawkins, a famous American saxophonist, appeared at a concert in London, illegally
(the terms of his entry into the UK being that he did not take up employment). D was the owner
of a magazine, Jazz Illustrated, who had met Hawkins at the airport, attended the concert and
then written a very positive review of the concert in the magazine. D’s conviction for abetting
Hawkins’ illegal concert was upheld, based on his voluntary presence in the crowd.
Abetting by omission
If D has knowledge of the actions of the principal, plus the duty or right to control them,
but deliberately chooses not to, then he may be guilty of aiding or abetting by omission.
In Du Cros v Lambourne [1907] 1 KB 40 and Rubie v Faulkner [1940] 1 KB 571, the defend-
ants were the owners of cars who had allowed the principal to drive their cars carelessly,
while they sat in the passenger seat. Both defendants were convicted of abetting road
traffic offences. Presence in the vehicle, combined with (at least) the right to tell the
driver what to do, was sufficient for liability. The principle is not limited to road traffic
cases, as Tuck v Robson [1970] 1 WLR 741 illustrates. D, a pub landlord, had failed to get
late drinkers out of his pub after closing time. D was convicted of aiding and abetting
three customers to consume intoxicating liquor out of licensed hours, contrary to the
Licensing Act 1964. His presence in the pub combined with his failure to take steps to
ensure the drinkers drank up and left on time was enough for liability.
Du Cros v Lambourne was confirmed in Webster [2006] EWCA Crim 415.
CASE EXAMPLE
Webster [2006] eWca crim 415
D was convicted of abetting his friend, E, in causing death by dangerous driving. E, who had been
drinking all day, drove D’s car erratically and at high speed before losing control, leaving the road
and crashing in a field. V, a rear seat passenger, was thrown out of the car and killed. E pleaded
guilty to the substantive offence and D, who had pleaded not guilty, was convicted of abetting
him by allowing him to drive his car, when E was obviously drunk. The Court of Appeal held that
the crucial issue was whether D had an opportunity to intervene once he realised (because of the
speed at which he was going) that E was driving dangerously. (D’s conviction was subsequently
quashed because of a misdirection concerning mens rea – see section 5.3.2.)
In Martin [2010] EWCA Crim 1450, D was convicted of aiding and abetting a learner
driver, E, to commit the offence of causing death by dangerous driving. E was driving
118
his car under D’s supervision when he lost control and crashed head-first into another
vehicle. E and a passenger were killed. The prosecution’s case was that D had failed to
instruct E to slow down before the impact. D claimed that it had not occurred to him that
Parties to a crime
E’s driving just before the accident was such as to require him to give a warning. The
Court of Appeal allowed D’s appeal on the basis of the trial judge misdirecting the jury.
The Court took the opportunity to clarify the law in such cases. To convict, a jury would
have to be sure that E (the driver) had caused death by dangerous driving; D (the super-
visor) knew that E was driving in a manner which D knew fell far below the standard of
a competent and careful driver; D, knowing that he had an opportunity to stop E from
driving in that manner, deliberately did not take that opportunity; by not taking that
opportunity, D intended to assist or encourage E to drive in that manner; and D did in
fact, by his presence and failure to intervene, encourage E to drive dangerously.
‘Counselling’
In Calhaem [1985] 1 QB 808, Parker LJ said that, ‘we should give to the word “counsel”
its ordinary meaning, which is . . . “advise”, “solicit”, or something of that sort’. Although
this is a wide definition, the scope of ‘counselling’ is subject to some limitations. In
Calhaem, Parker LJ added that ‘there must clearly be, first, contact between the parties
and, second, a connection between the counselling and the [offence committed]. Equally,
the act done must . . . be done within the scope of the authority or advice and not, for
example, accidentally’. Luffman [2008] EWCA Crim 1739 provides a good example. D
was convicted of counselling murder on the basis that she had asked E to murder her
ex-husband, agreed to pay him £30,000 to do it, and then pestered him to carry out the
killing as quickly as possible, until he eventually did so.
CASE EXAMPLE
Calhaem [1985] 1 QB 808
D wanted a woman, V, killed. She hired a hitman, Z, to murder V and paid a down payment
of £5,000. Subsequently, Z changed his mind about the killing but nevertheless went to V’s
house armed with a hammer, knife and a loaded shotgun with the intention of pretending to
kill V so that he would not forfeit his down payment. When V answered the door, Z apparently
‘went berserk’, hit V several times with the hammer and then stabbed her in the neck. Z
pleaded guilty to murder and D was convicted of counselling. On appeal, she argued that the
causal connection between her instigation of the crime and Z’s killing was broken when Z
decided to kill V of his own accord. This was rejected and her conviction was upheld.
‘Procuring’
In Attorney-General’s Reference (No 1 of 1975) (1975), Lord Widgery CJ said that ‘to procure
means to produce by endeavour. You procure a thing by setting out to see that it happens
and taking the appropriate steps to produce that happening.’ A good example is provided
by the facts of Cogan and Leak (1976), above: L clearly procured the crime of rape by terroris-
ing his wife into having sex with C. However, recent cases have suggested that all that
seems to be required now is a causal connection between D’s act and the principal’s com-
mission of the offence. This is not inconsistent with the Attorney-General’s Reference, above,
where Lord Widgery said that, ‘you cannot procure an offence unless there is a causal link
between what you do and the commission of the offence’. Hence procuring means ‘causing’.
In Millward [1994] Crim LR 527, D, a farmer, had given his employee, E, instructions to drive
a tractor and trailer on a public road. The tractor was poorly maintained and the trailer
became detached, hit a car and killed V, a passenger in the car. E was acquitted of causing
death by reckless driving (there being no suggestion that his driving was to blame), but D
was convicted of procuring the offence and the Court of Appeal upheld the conviction. 119
In Marchant and Muntz [2003] EWCA Crim 2099; [2004] 1 WLR 442, another farmer
was convicted of procuring the offence of causing death by dangerous driving after

instructing an employee, E, to take an agricultural vehicle on to a public road. A motor-
cyclist collided with the vehicle and was killed and it was alleged that simply driving
the vehicle itself on a public road was dangerous. Here D’s conviction was quashed: the
vehicle was authorised for use on a public road and D had not caused the motorcyclist’s
death simply by sending E out on to the public road in the vehicle, which was properly
maintained. (This case is discussed further in Chapter 10.) In the Attorney-General’s Ref-
erence case, above, Lord Widgery CJ also said that ‘It may . . . be difficult to think of a case
of aiding, abetting or counselling when the parties have not met and have not discussed
in some respects the terms of the offence which they have in mind. But we do not see
why a similar principle should apply to procuring.’ This proposition is still correct. D
may be found guilty of procuring an offence by going against the principal’s wishes, as
the facts of the Attorney-General’s Reference illustrate.
CASE EXAMPLE
Attorney-General’s Reference (No 1 of 1975) [1975] QB 773
D surreptitiously added alcohol to the principal’s soft drink, apparently for a joke. When the latter
drove home he was arrested and charged with driving under the influence of alcohol. D was
charged with procuring the offence. D’s addition of alcohol to the principal’s drink was the direct
cause of the offence, and would, the Court of Appeal thought, amount to procuring.
What if the principal lacks mens rea, or has a defence?

The accessory may be liable here: what is crucial is the performance of the actus reus by the
principal. This was seen in Cogan and Leak, above. Lawton LJ said that C’s act of having sex
with L’s wife without her consent ‘was the actus reus; it had been procured by L who had
the appropriate mens rea’, namely an intention that C should have sex with her without her
consent. The Court of Appeal upheld L’s conviction on the basis that he had procured the
actus reus of rape (C’s lack of mens rea – he honestly thought L’s wife was consenting – was
irrelevant to the question of L’s liability). The same principle was used in Millward, above.
The hapless driver of the tractor trailer on the occasion of the fatality was not convicted (he
lacked the mens rea of the offence), but the owner of the machinery was found guilty of
procuring the offence of causing death by reckless driving. Similarly, where the principal
has committed both the actus reus and the mens rea of the offence but has a defence,
D remains liable. In Bourne (1952) 36 Cr App R 125, D forced his wife on two occasions to
commit buggery with a dog. His conviction of aiding and abetting the offence was upheld,
even though the principal, his wife, could not be convicted (had she been prosecuted),
because of his duress. The actus reus (and mens rea) of buggery had been carried out.
5.3.2 Mens rea of secondary parties

The accessory must:
 intend to assist, encourage, etc., the principal to commit the offence;
 have knowledge of the circumstances which constitute the offence.
Intention
D must have intended to participate in the commission of the offence. As was noted in
Chapter 3, intention is a legal concept which includes desire; foresight of consequences
120 as virtually certain to happen is strong evidence of intent. It is enough that D intends to,
for example, supply the principal with a gun; it is no defence that D is utterly indifferent
as to whether the principal commits the offence or not. In National Coal Board v Gamble
[1959] 1 QB 11, an abetting case, Devlin J said:
Parties to a crime
JUDGMENT
‘An indifference to the result of the crime does not of itself negative abetting. If one man
deliberately sells to another man a gun to be used for murdering a third, he may be indifferent
about whether the third man lives or dies and interested only in the cash profit to be made out
of the sale, but he can still be an aider and abetter. To hold otherwise would be to negative
the rule that mens rea is a matter of intent only and does not depend on desire or motive.’
This gives accessorial liability a very wide scope. The House of Lords discussed this
issue in Gillick v West Norfolk and Wisbech AHA [1986] AC 112, a civil case.
CASE EXAMPLE
Gillick v West Norfolk and Wisbech AHA [1986] ac 112
G was seeking a declaration that it would be unlawful for a doctor to give contraceptive advice
to a girl under 16, because this would amount to aiding and abetting the girl’s boyfriend to
commit the offence of unlawful sexual intercourse with a girl under 16. (This offence was
found in s 6 of the Sexual Offences Act 1956, which has since been replaced by s 9 of the
Sexual Offences Act 2003; see Chapter 12.) The House of Lords thought that the doctor would
not be acting illegally, provided what he did was ‘necessary’ for the physical, mental and emo-
tional health of the girl. Lord Scarman said that the ‘bona fide exercise by a doctor of his clini-
cal judgment must be a complete negation of the guilty mind which is an essential ingredient
of the criminal offence of aiding, abetting the commission of unlawful sexual intercourse’.
Subsequently, Lord Hutton approved this decision in English [1999] AC 1; [1997] 4 All
ER 545; [1997] UKHL 45, saying that ‘I consider that a doctor exercising his clinical judg-
ment cannot be regarded as engaging in a joint criminal enterprise with the girl.’
Question
These dicta of Lords Scarman and Hutton suggest that motive can be relevant and that a
‘good’ motive provides a defence. Traditionally, however, motive is regarded as irrele-
vant to the imposition of criminal liability. Motive apart, what difference – in terms of
liability for aiding and abetting – is there between the gun salesman interested only in
cash and the doctor interested only in the girl’s best interests?
Knowledge of the circumstances

D must have knowledge of the circumstances that constitute the offence. In Johnson v
Youden and others [1950] 1 KB 544, Lord Goddard CJ said:
JUDGMENT
‘Before a person can be convicted of aiding and abetting the commission of an offence he
must at least know the essential matters which constitute that offence. He need not actually
know that an offence has been committed, because he may not know that the facts constitute
an offence and ignorance of the law is not a defence.’
Johnson v Youden was followed in Webster [2006] EWCA Crim 415, the facts of which 121
were given above. The Court of Appeal allowed D’s appeal because the judge had
invited the jury to consider whether D knew or ought to have realised that E was drunk.

The Court of Appeal decided that this posed an objective standard instead of a purely
subjective standard for D’s mens rea. The judge compounded this error by inviting the
jury to consider whether D realised (or ought to have realised) that allowing E to drive
was dangerous. This was not the correct question, which should have been whether D
realised that E was likely to drive dangerously.
contemplation Suppose D supplies the principal with a gun – what else does D have to know before
principle he can be held liable as an accessory to murder? The law has developed a contemplation
Mental or fault
element in joint
principle. In Bainbridge [1960] 1 QB 129, Lord Parker CJ said that it was not necessary to
enterprise cases prove that D had ‘knowledge of the precise crime’ or ‘knowledge of the particular crime’.
Conversely, it was insufficient for the prosecution to prove simply that D knew that
‘some illegal venture’ was intended. Rather, a middle ground test was devised, accord-
ing to which D is liable if he had knowledge of ‘the type of crime that was in fact
committed’.
CASE EXAMPLE
Bainbridge [1960] 1 QB 129
D had acquired some oxygen-cutting equipment for the principal, E, who subsequently used
it to carry out a break-in at a bank. The equipment was left behind and it was subsequently
traced back to D. He was convicted of aiding and abetting burglary and the Court of Criminal
Appeal upheld his conviction. So what ‘knowledge’ did D need to have?
 Not enough: if D was aware that S was to use the equipment in some illegal venture, D
would not be guilty.
 More than enough: the prosecution would not need to prove that D knew the details of the
crime (e.g. the date, time of the break-in, the address of the bank, etc.).
 Enough: liability would depend on the prosecution proving that D knew that a crime of the
same ‘type’ as burglary was to be committed.
In DPP of Northern Ireland v Maxwell [1978] 1 WLR 1350, the House of Lords extended the
Bainbridge principle. Lord Fraser said that the ‘possible extent of [D’s] guilt was limited
to the range of crimes any of which he must have known were to be expected that night’.
Lord Scarman said:
JUDGMENT
‘A man will not be convicted of aiding and abetting any offence his principal may commit, but
only one which is within his contemplation. He may have in contemplation only one offence,
or several; and the several which he contemplates he may see as alternatives. An accessory
who leaves it to his principal to choose is liable, provided always the choice is made from the
range of offences from which the accessory contemplates the choice will be made.’
5.3.3 Joint enterprise

In Stewart and Schofield [1995] 3 All ER 159, the Court of Appeal drew a clear distinction
joint
enterprise
between participation in a ‘joint enterprise’ and secondary participation. Hobhouse LJ
Where two or said that joint enterprise entailed taking part ‘in the execution of a crime’. Conversely,
more people ‘a person who is a mere aider or abettor, etc, is truly a secondary party to the commis-
commit an offence sion of whatever crime it is that the principal has committed’. Joint enterprise typically
122 together
involves two parties, D and E, together taking part in a crime (murder, burglary, robbery,
etc.). They both attack V, or burgle V’s house. They are acting ‘jointly’, as part of a team,
as opposed to the secondary liability situation where D is helping or encouraging E but
Parties to a crime
not otherwise taking part.
Actus reus: D must do one of these
Aiding Abetting Counselling Procuring

Providing Providing Providing ‘Producing by
equipment encouragement, encouragement endeavour’,
or assistance, usually at the or persuasion, for example
for example scene of the usually Millward
Bainbridge crime, for beforehand,
example Wilcox for example
v Jeffrey Calhaem
Mens rea: D must possess both of these
Intention (to aid, abet, etc.) Knowledge/contemplation

Gamble of the offence (or ‘range of
offences’) to be committed
Bainbridge, Maxwell
Figure 5.1 Secondary liability.

It should be noted that Lord Hobhouse LJ’s proposition – that secondary participa-
tion and joint enterprise are separate concepts – is not one which is universally accepted.
There is a school of thought which would prefer to say that the line between them is
rather blurred. This was certainly the view of Laws LJ in a recent Court of Appeal case,
Jogee [2013] EWCA Crim 1433, when he said:
JUDGMENT
‘The distinction between [joint enterprise and secondary liability] is, to say the least, permeable.
Encouragement is a form of participation; that is why it is enough to convict a secondary party.
The actus reus of the secondary party’s crime is lending support to the primary actor, whether
by active participation or encouragement or both.’
However, for the purposes of this book they will be treated as separate concepts, albeit
123
concepts raising very similar issues.
Mens rea of joint enterprise

The cases that have arisen before the appeal courts tend to involve the same issues.
Typically, D and E have set out to commit burglary. They disturb the householder, V,
and E produces a knife and stabs V to death. Is D liable for burglary and murder, or just
burglary? The requirements for liability in this situation are as follows:
 D must have foresight (contemplation) that E may commit another crime.
 D must foresee (contemplate) that E will have the requisite mens rea at the time of
committing it.
 The crime foreseen (contemplated) must be committed in the course of the enterprise.
D must have foreseen that E would commit a criminal offence; in other words, that E might
perform the actus reus with the requisite mens rea. In the above burglary scenario, it would
not be enough that D foresaw that E might stab V with a knife; D would only be liable for
murder if he foresaw that E might stab V with the intent to kill or cause really serious harm.
(The scenario is based on the Privy Council case of Chan Wing-Siu and others [1985] 1 AC
168, which will be considered below.) In one of the leading House of Lords cases, English,
Lord Hutton, with whom the rest of the House of Lords agreed, said:
JUDGMENT
‘There is a strong line of authority that where two parties embark on a joint enterprise to
commit a crime and one party foresees that in the course of the enterprise the other party may
commit, with the requisite mens rea, an act constituting another crime, the former is liable for
that crime if committed by the latter in the course of the enterprise.’
English therefore establishes the proposition that, in joint enterprise cases involving
murder, D must foresee that E might kill with malice aforethought. In Rahman and others
[2008] UKHL 45; [2009] 1 AC 129, the House of Lords was asked whether D’s foresight
of what E might do had to be even more specific. It was suggested on appeal that if D
foresaw that E might kill with intent to do grievous bodily harm (GBH), but in the event E
killed with intent to kill, that this would therefore be an unforeseen killing, and hence D
would not be liable. The House of Lords rejected that suggestion and D’s conviction for
murder was upheld.
CASE EXAMPLE
Rahman and others [2008] UKHL 45; [2009] 1 ac 129
The four appellants had all attacked a 16-year-old boy, Tyrone Clarke, in Beeston, near Leeds.
They used a variety of blunt objects, including baseball bats and metal bars. However, Clarke
was killed by two ‘deep’ knife wounds to the back, probably inflicted by someone else who
escaped and was never apprehended. The four appellants denied knowledge of the knife but
were convicted of murder. They appealed, without success, to the Court of Appeal, and again,
to the House of Lords. There, it was asked whether, for D to face liability for murder in a joint
enterprise case where V had been killed by one of the others (E), D had to have foreseen that
E would kill with the intent to kill. The House of Lords unanimously answered that question
‘no’ and dismissed the appeals.
Lord Bingham said:

124
JUDGMENT
Parties to a crime
‘Given the fluid, fast-moving course of events in incidents such as that which culminated in the
killing of the deceased, incidents which are unhappily not rare, it must often be very hard for
jurors to make a reliable assessment of what a particular defendant foresaw as likely or pos-
sible acts on the part of his associates. It would be even harder, and would border on specu-
lation, to judge what a particular defendant foresaw as the intention with which his associates
might perform such acts. It is safer to focus on the defendant’s foresight of what an associate
might do, an issue to which knowledge of the associate’s possession of an obviously lethal
weapon such as a gun or a knife would usually be very relevant.’
Despite Lord Bingham’s attempt to clarify the law, his words – ‘it is safer to focus on the
defendant’s foresight of what an associate might do’ – are potentially ambiguous, as
they could be taken to mean that, in cases of murder by joint enterprise, D could be con-
victed of murder if he foresaw simply that E might kill (whether intentionally or not). In
A and others [2010] EWCA Crim 1622; [2011] QB 841, the Court of Appeal explained that
the House of Lords in Rahman had not intended to change the law as decided in English.
The Court of Appeal explained that what Lord Bingham had meant to say was that D
could be convicted of murder if he participated in a joint enterprise and foresaw that in
the course of it E might commit murder, i.e. kill with the intention to kill or do GBH.
D’s knowledge that E is armed (and, if so, with what weapon)

It is often crucial in joint enterprise cases – typically when E produces a gun or knife and
uses it to kill V during a burglary or robbery – to establish whether or not D knew in
advance that E was armed (and, if so, with what weapon). If D did have this knowledge,
it is much easier for the prosecution to prove that D foresaw the possibility that E might
kill. It is this issue with which the House of Lords in English was primarily concerned.
CASE EXAMPLE
English [1997] UKHL 45; [1999] ac 1; [1997] 4 all er 545
D and E took part in a joint enterprise to attack a police officer, V, with wooden posts. In the
course of the attack, E produced a knife with which he killed V. There was a reasonable pos-
sibility that D did not know that E was armed with the knife. The trial judge nevertheless dir-
ected the jury to convict D of murder if they believed that D knew that E might cause really
serious injury with the wooden post. He also directed them to convict if they believed that D
had participated in the attack realising that there was a substantial risk that in the attack E
might kill or cause serious injury. The Court of Appeal upheld E’s conviction but, on further
appeal, the House of Lords quashed D’s conviction. Because D knew that E intended to attack
V with one weapon but actually attacked him with another, the jury should have received
further direction from the judge on this point.
On this point, Lord Hutton said:
JUDGMENT
‘If the weapon used by the primary party is different to, but as dangerous as, the weapon
which the secondary party contemplated he might use, the secondary party should not escape
liability for murder because of the difference in the weapon, for example, if he foresaw that
the primary party might use a gun to kill and the latter used a knife to kill, or vice versa . . . 125
There will be cases giving rise to a fine distinction as to whether or not the unforeseen use of
a particular weapon or the manner in which a particular weapon is used will take a killing

outside the scope of the joint venture, but this issue will be one of fact for the common sense
of the jury to decide.’
English confirmed a long line of cases in both the Court of Appeal and Privy Council
involving joint enterprise situations.
 Chan Wing-Siu and others [1985] 1 AC 168. D participated in an armed robbery during
which one of his accomplices stabbed the householder to death. The trial judge dir-
ected the jury that D might be convicted of murder if, when he took part in the
robbery, he contemplated that one of his accomplices might use a knife with the
intention of inflicting serious injury. The jury convicted and the Privy Council rejected
the appeal.
 Hyde, Sussex and Collins [1991] 1 QB 134. The three appellants kicked a man into
unconsciousness in a pub car park. He later died, one kick to the forehead having
been fatal. Although they denied joint enterprise, they were convicted of murder
after the jury were directed that each man was guilty either because he delivered the
fatal blow (with intent to cause at least serious injury) or he foresaw that one of the
others might do so. The Court of Appeal upheld the convictions.
 Hui Chi-Ming [1992] 1 AC 34. Six men including D set off to attack V, who had
upset the girlfriend of one of the six. V was struck over the head with a metal pipe
and died. D was convicted of murder after the trial judge directed the jury to
convict if satisfied that D had contemplated that, during the assault, one of the
others might use the pipe with the intention of causing at least really serious bodily
injury. The Privy Council upheld the conviction approving Chan Wing-Siu and
Hyde.
 Perman [1996] 1 Cr App R 24. D and E were engaged on a joint enterprise to rob a
newsagent’s shop. E was carrying a loaded sawn-off shotgun, with which he shot
V, a friend of the newsagent. D was convicted of robbery and manslaughter; he
appealed against the latter conviction on the basis that, although he knew E had
the gun, he did not know it was loaded and thought that it would be used only to
frighten. The Court of Appeal quashed the manslaughter conviction because the
jury had not been directed to consider the exact nature of D’s contemplation of
what E might do.
In all of these cases the appellants challenged murder convictions, although the facts
giving rise to those convictions varied. Nevertheless, in Roberts [1993] 1 All ER 583, Lord
Taylor CJ confirmed that the ‘contemplation’ principles were the same whether:
 the object of the enterprise was to cause physical injury or to do some other unlawful
act, e.g. burglary or robbery;
 weapons were carried or not.
He added that it would ‘be easier for the Crown to prove that [D] participated in the
venture realising that [E] might wound with murderous intent if weapons are carried or
if the object is to attack the victim or both. But that is purely an evidential difference, not
a difference in principle.’ The contemplation principle also represents the law in Aus-
tralia (McAuliffe (1995) 183 CLR 108, High Court of Australia).
In Uddin [1998] EWCA Crim 999; [1998] 2 All ER 744, Beldam LJ attempted to encap-
sulate the law on joint enterprise where a death has occurred into seven principles:
126
 Where several persons join to attack V in circumstances which show that they intend
to inflict serious harm and, as a result of the attack, the victim sustains fatal injury,
they are jointly liable for murder but, if such injury inflicted with that intent is shown
Parties to a crime
to have been caused solely by the actions of one participant of a type entirely differ-
ent from actions which the others foresaw as part of the attack, only that participant
is guilty of murder.
 In deciding whether the actions are of such a different type, the use by that party of a
weapon is a significant factor. If the character of a weapon, e.g. its propensity to cause
death, is different from any weapon used or contemplated by the others and if it is used
with a specific intent to kill, the others are not responsible for the death unless it is
proved that they knew or foresaw the likelihood of the use of such a weapon.
 If some or all of the others are using weapons which could be regarded as equally
likely to inflict fatal injury, the mere fact that a different weapon was used is
immaterial.
 If the jury conclude that the death of the victim was caused by the actions of one
participant which can be said to be of a completely different type to those contem-
plated by the others, they are not to be regarded as parties to the death, whether it
amounts to murder or manslaughter. They may nevertheless be guilty of offences of
wounding or inflicting GBH with intent which they individually commit.
 If, in the course of the concerted attack, a weapon is produced by one of the partici-
pants and the others, knowing that he has it in circumstances where he may use it in
the course of the attack, participate or continue to participate in the attack, they will
be guilty of murder if the weapon is used to inflict a fatal wound.
 In a case in which, after a concerted attack, it is proved that the victim died as a result
of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not estab-
lish which of the participants used the weapon then, if its use was foreseen by the
participants in the attack, they will be guilty of murder – notwithstanding that this
particular participant who administered the fatal blow cannot be identified. If,
however, the circumstances do not show that the participants foresaw the use of a
weapon of this type, none of them will be guilty of murder though they may, indi-
vidually, have committed offences in the course of the attack.
 The mere fact that, by attacking the victim together, each of them had the intention
to inflict serious harm on the victim is insufficient to make them responsible for the
death of the victim caused by the use of a lethal weapon used by one of the partici-
pants with the same or shared intention.
CASE EXAMPLE
Uddin [1998] eWca crim 999; [1998] 2 all er 744
D was one of a group of at least six men who attacked and killed V. They beat him with parts
of a snooker cue and he was also kicked. The medical evidence, however, was that death was
caused by a single stab wound from a flick-knife to the base of the skull which penetrated the
brain. The man who used the knife, E, was convicted of murder. D was also convicted of
murder on the basis of joint enterprise in July 1996 (i.e. before the House of Lords gave judg-
ment in English). D denied knowledge of E being armed. The Court of Appeal, hearing the
case after English, quashed the conviction. The jury’s attention had not been ‘specifically
focussed’ on whether D was aware that E had a knife and also whether D foresaw that he
might use it with intent to cause serious harm or death.
However, there was nevertheless evidence that a jury, directed in accordance with English,
127
could have concluded that D was aware that one of the others had a knife and was pre-
pared to use it and would thus be guilty of murder. Alternatively, it was open to the jury
to say that the use of the knife was not so different from the concerted actions of hitting V

with the snooker cue and kicking him that the actions of E went beyond what had been
contemplated. The court, therefore, ordered a retrial. Other cases have explored this issue,
including Greatrex [1999] 1 Cr App R 126 and O’Flaherty and others [2004] EWCA Crim 526;
[2004] 2 Cr App R 20. In Greatrex, Beldam LJ stated that ‘Foresight by the secondary party
of the possible use of the fatal weapon is required in all cases of joint attack except those in
which the use of a different but equally dangerous weapon is foreseen.’ D had been con-
victed of murder having participated in an attack on V which primarily involved kicking.
However, the fatal blow to V’s head had been delivered by E using a blunt metal object
(possibly a spanner). The Court of Appeal allowed D’s appeal – the jury had not been
invited to decide whether D had foreseen the use of the spanner or, if not, whether a
spanner and a shod foot were ‘equally dangerous’ weapons.
In O’Flaherty and others, Mantell LJ emphasised that the principles set out in Uddin
were ‘matters of evidence’, as opposed to ‘principles of law’. He was keen to avoid ‘the
creation of a complex body of doctrine as to whether one weapon (for instance a knife)
differs in character from another (for example a claw hammer) and which weapons are
more likely to inflict fatal injury’. (This case will be examined in more detail below, in
the context of withdrawal.) Lord Bingham also offered an observation on the Uddin prin-
ciples in Rahman and others (2008). He stated:
JUDGMENT
‘It is, with respect, clearly inappropriate to speak of a weapon’s “propensity to cause death”,
since an inanimate object can have no propensity to do anything. But of course it is clear that
some weapons are more dangerous than others and have the potential to cause more serious
injury, as a sawn-off shotgun is more dangerous than a child’s catapult.’
Justification of the contemplation principle

One of the grounds of appeal in English was that it was anomalous that a less culpable
form of mens rea is required for a secondary party to a joint enterprise. Specifically, it is
enough for D to be guilty of murder if he foresaw the possibility (albeit not a remote
possibility) of the principal committing murder, whereas in the case of the principal the
law insists on proof of intention to kill or cause really serious harm. Lord Steyn took a
forthright view of the implied criticism of the contemplation principle:
JUDGMENT
‘The answer to this supposed anomaly . . . is to be found in practical and policy considerations.
If the law required proof of the specific intention on the part of a secondary party, the utility
of the accessory principle would be gravely undermined. It is just that a secondary party who
foresees that the primary offender might kill with intent sufficient for murder, and assists and
encourages the primary offender in the criminal enterprise on this basis, should be guilty of
murder. He ought to be criminally liable for harm which he foresaw and which in fact resulted
from the crime he assisted and encouraged.’
The reasons for this stance were twofold.

 First, the difficulty in proving that D had the requisite intention. Lord Steyn thought
that it would ‘almost invariably be impossible for a jury to say that the secondary
128 party wanted death to be caused or that he regarded it as virtually certain’.
 Second, the desirability of controlling gangs: Lord Steyn said that ‘The criminal
justice system exists to control crime. A prime function of that system must be to deal
Parties to a crime
justly but effectively with those who join with others in criminal enterprises. Experi-
ence has shown that joint criminal enterprises only too readily escalate into the com-
mission of greater offences. In order to deal with this important social problem the
accessory principle is needed and cannot be abolished or relaxed.’
In Concannon [2001] EWCA Crim 2607; [2002] Crim LR 213, D and E had embarked on a
joint enterprise to commit robbery of V, a drug dealer, but when they reached the latter’s
home, E produced a knife and stabbed V to death. D was convicted of murder following
a trial at which the judge had relied on English. D appealed, arguing that the principles
of joint enterprise were in breach of art 6 of the European Convention on Human Rights,
in that they denied him a ‘fair trial’. The appeal was dismissed. Professor Sir John Smith,
commenting in the Criminal Law Review, observed as follows:
quotation
‘Some lawyers would agree that the law of joint enterprise is unfair and many more would
agree that mandatory penalties requiring the imposition of the same sentence on persons of
widely varying culpability is unfair. But to allow the substantive law to be challenged on such
grounds would throw the whole system into uncertainty and chaos.’
The ‘fundamentally different’ rule

Another way of looking at the liability of the members of a joint enterprise is to use the
‘fundamentally’ or ‘radically’ different rule. It involves asking whether E committed an
act which was ‘fundamentally’ or ‘radically’ different from what D had contemplated in
advance. If so, then D is not liable for that act. A good example of this rule is provided
by Rafferty [2007] EWCA Crim 1846.
CASE EXAMPLE
Rafferty [2007] eWca crim 1846
D, E and F jointly attacked V on a beach in south Wales. While the attack continued, D left
the scene with V’s debit card and tried unsuccessfully to withdraw cash from his bank
account. In D’s absence, V was dragged across the beach by E and F, stripped naked, taken
some distance into the sea and drowned. All three defendants were convicted of murder
but, on appeal, D’s conviction was quashed. D had participated in a joint enterprise involv-
ing the crimes of assault (by kicking and punching) and robbery. The deliberate drowning
of V by E and F was of a ‘fundamentally different’ nature from those crimes and therefore
D was not liable for it.
In Mendez and Thompson (2010), the Court of Appeal allowed the appellants’ appeal
against their murder convictions because the trial judge had failed to explain with suf-
ficient clarity what was meant by the expression ‘fundamentally different’.
CASE EXAMPLE
Mendez and Thompson [2010] eWca crim 516, [2011] QB 876
D1 and D2 went to a party in Sheffield. There, they got involved in a spontaneous group 129
attack on V, during which he suffered numerous minor injuries from kicks and being hit by
pieces of wood and metal bars. The cause of death was a stab wound to the heart, although

it was unclear who actually used the knife. D1 and D2 were charged with murder on the
basis of joint enterprise. The trial judge directed the jury that if they were sure that either
defendant had joined an attack intending to cause really serious harm, or realising that
others might do so, he was liable for murder unless another attacker (E) had produced a
more lethal weapon of which he (the defendant) was unaware and which was more lethal
than any contemplated by him so that the act of using that weapon was regarded as
‘fundamentally different’ from anything he had foreseen. D1 and D2 were convicted of
murder and appealed. The Court of Appeal allowed their appeals (although a retrial for D2
was ordered), because the trial judge had failed to explain joint enterprise in a way that was
sufficiently clear.
Toulson LJ said:
JUDGMENT
‘It would not be just that D should be found guilty of the murder of V by E, if E’s act was of a
different kind from, and much more dangerous than, the sort of acts which D intended or
foresaw as part of the joint enterprise. This is not a difficult idea to grasp and it is capable of
being explained to a jury shortly and simply. It does not call for expert evidence or minute cali-
bration . . . All that a jury can in most cases be expected to do is form a broad brush judgment
about the sort of level of violence and associated risk of injury which they can safely conclude
that D must have intended or foreseen. They then have to consider as a matter of common
sense whether E’s unforeseen act (if such it was) was of a nature likely to be altogether more
life-threatening than acts of the nature which D foresaw or intended. It is a question of degree,
but juries are used to dealing with questions of degree. There are bound to be borderline
cases, but if the jury are left in real doubt they must acquit.’
Joint enterprise and murder: summary

This is, inevitably, quite a complex area of law, as it always involves two (or some-
times more) defendants, whose mens rea is often different. You may find helpful this
summary of the various legal principles provided by Lord Brown in Rahman and others
(2008):
JUDGMENT
‘If D realises that E may kill or intentionally inflict serious injury, but nevertheless continues
to participate with E in the venture, that will amount to a sufficient mental element for D to
be guilty of murder if E, with the requisite intent, kills in the course of the venture unless (i)
E suddenly produces and uses a weapon of which D knows nothing and which is more
lethal than any weapon which D contemplates that E or any other participant may be carry-
ing and (ii) for that reason E’s act is to be regarded as fundamentally different from anything
foreseen by D.’
Remoteness
You should note that, according to Lord Hutton in English, it is sufficient that the Crown
proves that D foresaw that E ‘may’ commit murder. It is not necessary to prove that D
130 foresaw that E would do so (a point made expressly by the Court of Appeal in O’Brien
[1995] Crim LR 734). This begs the question, could D be held liable for any highly improb-
able crimes committed by his accomplices that he had, nevertheless, foreseen? This point
was addressed by the Privy Council in Chan Wing-Siu and others. Sir Robin Cooke said
Parties to a crime
that there was a remoteness principle:
JUDGMENT
‘It is right to allow for a class of case in which the risk was so remote as not to make [D] guilty
of a murder . . . But if [D] knew that lethal weapons, such as a knife or a loaded gun, were to
be carried on a criminal expedition, the defence should succeed only very rarely . . . Various
formulae have been suggested – including a substantial risk, a real risk, a risk that something
might well happen . . . What has to be brought home to the jury is that occasionally a risk may
have occurred to an accused’s mind but may genuinely have been dismissed by him as alto-
gether negligible.’
Liability of principal and accessories/members of joint enterprise for

different offences
In all of the above murder cases the accessory/member of the joint enterprise was
either found guilty of murder along with the principal on the basis that he had fore-
seen that the principal might kill with intent to do at least serious harm (Chan Wing-
Siu; Hyde, Sussex and Collins; Hui Chi-Ming; Rahman and others) or found not guilty of
any offence, on the basis that the principal had unforeseeably departed from the
agreed plan (English; Uddin; Rafferty). Other cases with a similar outcome to that in
English are Anderson and Morris [1966] 2 QB 110 (During a joint enterprise to assault V,
E produced a knife and killed V. D denied knowledge that E was armed, but was con-
victed of manslaughter. The Court of Appeal quashed the conviction.) and Lovesey and
Peterson [1970] 1 QB 352 (During a joint enterprise to commit robbery, E unexpectedly
used extensive force and killed V. D and E were convicted of murder. The Court of
Appeal held that this went beyond the scope of the joint enterprise and thus D was not
guilty of any homicide offence). This suggests that accessorial/joint enterprise liab-
ility is an ‘all-or-nothing’ situation. However, there is another line of case law, which
holds that D might be liable for manslaughter even though the principal has been
convicted of murder (Betty (1964) 48 Cr App R 6; Reid (1975) 62 Cr App R 109).
In Stewart and Schofield, a joint enterprise case, Hobhouse LJ explained how this was
possible:
JUDGMENT
‘The question whether the relevant act was committed in the course of carrying out the joint
enterprise in which [D] was a participant is a question of fact not law. If the act was not so
committed then the joint enterprise ceases to provide a basis for a finding of guilt against [D].
He ceases to be responsible for the act. This is the fundamental point illustrated by Anderson
and Morris and Lovesey and Peterson. But it does not follow that a variation in the intent of
some of the participants at the time the critical act is done precludes the act from having been
done in the course of carrying out the joint enterprise, as is illustrated by Betty and Reid.’
CASE EXAMPLE
Stewart and Schofield [1995] 3 all er 159
D, E and a man called Lambert were engaged in a joint enterprise to rob a delicatessen. While 131
D kept watch outside, E (who was armed with a knife) and Lambert (who was carrying a scaf-
folding pole) entered the shop. There, Lambert viciously beat the 60-year-old owner, V, with
the pole, fatally injuring him. The three fled with £100. At their trial, Lambert pleaded guilty

to robbery and murder. D and E pleaded guilty to robbery but not guilty to murder and were
convicted of manslaughter after the judge directed the jury that they were guilty if they had
realised or, if they had thought about it, must have realised, that Lambert ‘might strike a blow
intended to inflict some bodily injury’. They appealed, arguing that the vicious killing had gone
beyond the scope of the joint enterprise. In particular, they claimed that Lambert was racially
motivated (V was Pakistani). However, the Court of Appeal upheld their convictions.
In Gilmour [2000] 2 Cr App R 407, D drove E to a house in Ballymoney in the early hours of
the morning. E threw a large petrol bomb (a one-and-three-quarter-litre whisky bottle con-
taining petrol) into the house, starting a major fire which killed three of the six occupants,
all young boys. Both D and E were convicted of murder but the Northern Ireland Court of
Appeal quashed D’s murder conviction and substituted a conviction of manslaughter. The
court was satisfied that E, in throwing such a large bomb into a house in the middle of the
night, intended to cause at least serious harm. With respect to D, however, the court decided
that he did not have awareness of the size of the bomb and could not therefore be said to
have appreciated that E intended to cause serious harm (most petrol bombs, apparently, do
not cause death). Carswell LCJ said that ‘It would be difficult to attribute to [D] an intention
that the attack should result in more than a blaze which might do some damage, put the
occupants in fear and intimidate them into moving from the house’. However, the court
held that D was guilty of manslaughter. Carswell LCJ held that cases such as Anderson and
Morris, Lovesey and Peterson and English were distinguishable. He said:
JUDGMENT
‘The line of authority represented by such cases as Anderson and Morris deals with situations
where the principal departs from the contemplated joint enterprise and perpetrates a more serious
act of a different kind unforeseen by the accessory. In such cases it is established that the accessory
is not liable at all for such unforeseen acts. It does not follow that the same result should follow
where the principal carries out the very act contemplated by the accessory, though the latter does
not realise that the principal intends a more serious consequence from the act. We do not consider
that we are obliged by authority to hold that the accessory in such a case must be acquitted of
manslaughter as well as murder . . . We do not . . . see any convincing policy reason why a person
acting as an accessory to a principal who carries out the very deed contemplated by both should
not be guilty of the degree of offence appropriate to the intent with which he so acted.’
The English Court of Appeal adopted similar principles in Day, Day and Roberts [2001]
EWCA Crim 1594; [2001] Crim LR 984. D, E and F jointly attacked V and killed him. The
cause of death was a brain haemorrhage caused by a kick to the side of the head. All
three were charged with murder. However, the jury convicted D of manslaughter while
E and F were convicted of murder. D appealed, arguing that if he was not guilty of
murder then he should be acquitted altogether. The Court of Appeal dismissed D’s
appeal. Laws LJ said that there was ‘a joint enterprise at least to inflict some harm’
involving all three men, which was not negated by ‘the larger intentions’ of E and F to
inflict serious harm. A P Simester and G R Sullivan in Criminal Law Theory and Doctrine
(2nd edn, Hart Publishing, 2003) support this view: ‘In principle it seems possible for [D]
to be guilty of manslaughter in circumstances where [E] is guilty of murder.’ The Court
of Appeal tried to reconcile the various authorities in Parsons [2009] EWCA Crim 64. The
Court held that it all depends on what exactly D had contemplated that E might do, and
that in turn depended on what weapon D contemplated that E might use. Two situ-
132 ations presented themselves (assume in both cases that E killed V with malice afore-
thought and is convicted of murder, and that D was part of a joint enterprise with E):
 If V’s death resulted from the use by E of a blunt instrument (such as a plank of wood
Parties to a crime
or kicking with a boot) or even a knife, then it was a realistic possibility that D might
not have realised that death or GBH might result and hence the jury might convict D
of manslaughter, rather than murder. The killing of V was still within the scope of
the joint enterprise provided that V was killed with the weapon that D contemplated
that E would use, so D cannot escape all liability, but it does not automatically follow
that D’s liability has to be the same as E’s.
 However, if V’s death was caused by a gun, the discharge of which by E was envis-
aged as a possibility by D, and so the killing is within the scope of the joint enterprise,
manslaughter is far less likely to be available as an alternative verdict. It would
require a jury to accept that D foresaw the use of a gun to inflict only minor injuries,
something a jury may find ‘unrealistic’.
CASE EXAMPLE
Parsons [2009] eWca crim 64
D admitted driving E to V’s house. When they got there, E got out of the car and shot V in
the face with a 12-bore shotgun. E was subsequently convicted of murder and D was charged
with the same offence. D claimed that it was only when E came back to the car that he saw
the shotgun, and hence he had not contemplated its use beforehand. The trial judge directed
the jury that (1) if they came to the conclusion that D knew about the shotgun in advance
and contemplated its use then he would be guilty of murder; but (2) if they concluded that
he genuinely did not know about the shotgun until afterwards, then he was not guilty of any
offence. D was convicted of murder and appealed, arguing that a manslaughter verdict
should have been left to the jury, relying on Coutts [2006] UKHL 39 (discussed in Chapter 10).
This intermediate position would arise if the jury concluded that D had thought the gun
might be used to ‘pepper’ or ‘wing’ V, causing him some (but not really serious) injury. The
Court of Appeal rejected his appeal. For the judge to have been obliged to leave the possib-
ility of a manslaughter verdict, the jury would have needed some evidence on which they
could properly have found that D knew that E had a gun, foresaw that he might discharge it
so that shooting was within the scope of the joint enterprise, but had not foreseen that that
would cause death or serious harm to V. Without such evidence there was no basis for a
manslaughter verdict.
In Yemoh and others (2009) and Carpenter (2011), the Court of Appeal confirmed that it
was possible for a jury to convict some members of a joint enterprise of murder and
others of manslaughter, because the verdict for each member depended on his or her
mens rea at the time of the killing.
CASE EXAMPLE
Yemoh and others [2009] eWca crim 930; [2009] crim Lr 888
Several members of a gang, including the appellants, armed themselves with knives, bats and
even a bull terrier dog before attacking V in a street in Hammersmith, west London. One of
the gang stabbed V through the heart. The actual killer was never identified and the murder
weapon was never found. However, several other members of the gang were arrested, and in
due course two were convicted of murder while three others were convicted of manslaughter.
The latter three appealed on the basis that it was inconsistent to convict them of manslaughter 133
when the other two had been convicted of murder. The Court of Appeal dismissed the appeal.
The appellants realised that the knifeman (whoever that was) intended to use the knife to
cause some harm, which was enough to convict them of manslaughter. Moreover, the fact
5.4 WitHdraWaL from ParticiPation

that the knifeman had in fact acted with an intention to kill or cause serious harm did not
make the stabbing ‘fundamentally different’ from what the appellants had foreseen.
CASE EXAMPLE
Carpenter [2011] eWca crim 2568; [2012] 1 cr app r 11
The Carpenter family and the Price family were both members of the travelling community.
The two families had known each other for years and generally got on well. However, a
feud developed between them, which the families decided to settle by their 19-year-old
sons, Joe Carpenter and Shane Price, having a fight. The two families arranged to meet on
a common. The Price family understood that it was meant to be a fistfight, but Joe turned
up armed with a knife. In the ensuing fight, Joe fatally stabbed Shane. At trial, Joe admitted
murdering Shane, and his parents were convicted of manslaughter on the basis of joint
enterprise. Joe’s mother Tracy appealed, arguing that it was inconsistent for the jury to
convict her son of murder but her of manslaughter; it should have been ‘murder or nothing’.
The Court of Appeal dismissed the appeal, holding that there was a ‘clear and well-
established line of authority’ – in particular Day, Day & Roberts and Yemoh and others – to
the effect that one or more members of a joint enterprise might be guilty of manslaughter
(based on their foresight of some harm) even though the killer in fact acted with malice
aforethought and was therefore guilty of murder.
5.4 Withdrawal from participation

5.4.1 Pre-planned criminal activity
An accessory, or a member of a joint enterprise, may withdraw, and escape liability for
the full offence. The principles appear to be identical in either case, as follows:
 Mere repentance without action is not enough.
 D must communicate his withdrawal to E in such a way as to ‘serve unequivocal
notice upon the other party to the common unlawful cause that if he proceeds upon
it he does so without the further aid and assistance of those who withdraw’ (accord-
ing to Dunn LJ in Whitefield (1984) 79 Cr App R 36).
 D must take active steps to prevent the offence (this depends on how advanced the
crime is). McDermott J in Eldredge v United States 62 F.2d 449 (1932) said: ‘A declared
intent to withdraw from a conspiracy to dynamite a building is not enough, if the
fuse has been set; he must step on the fuse.’
These principles are demonstrated in Becerra and Cooper (1975) 62 Cr App R 212.
CASE EXAMPLE
Becerra and Cooper (1975) 62 cr app r 212
D and E were engaged on a joint enterprise to commit burglary of a flat. They got into a
confrontation with the householder and the commotion disturbed her neighbour upstairs,
V, who came down to investigate. At this point D shouted ‘Come on, let’s go’, climbed out
134 of the window and ran off. E tried to escape but was prevented from doing so by V. There
was a struggle and E, who had a knife, stabbed V to death. D and E were convicted of
murder. D appealed on the ground that, by the time E stabbed V, he had withdrawn from
Parties to a crime
the joint enterprise. The Court of Appeal upheld the convictions. Roskill LJ said that some-
thing ‘vastly different and vastly more effective’ was required from D before he could be
said to have withdrawn.
The communication of withdrawal must be ‘unequivocal’. Thus, simply failing to turn

up on the day that the joint enterprise was due to take place does not constitute an
effective withdrawal. This was demonstrated in Rook [1993] 2 All ER 955. A contract
killing had been arranged and D was supposed to participate. However, on the
appointed day, he simply failed to appear. His accomplices carried out the murder
without him. D was convicted and the Court of Appeal rejected his appeal. Lloyd LJ
said that D’s absence ‘could not possibly’ amount to unequivocal communication of
his withdrawal. Although D had made it quite clear ‘to himself ’ that he did not want
to be there, he did not make it clear to the others. Thus, the ‘minimum necessary for
withdrawal from the crime’ was not established. This was confirmed in Baker [1994]
Crim LR 444. Three men including D had taken V to some waste ground and stabbed
him to death. D’s own evidence was that he had reluctantly stabbed V three times
before handing the knife to E, stating ‘I’m not doing it’, moving a short distance away
and turning his back while the others finished the job (death was caused by 48 stab
wounds). D was convicted of murder and appealed on the basis that he had with-
drawn from the joint enterprise before the other 45 stab wounds were inflicted. The
Court of Appeal dismissed his appeal – he had not unequivocally withdrawn from the
joint enterprise. His words, ‘I’m not doing it’, were quite capable of meaning no more
than ‘I will not myself strike any more blows.’
5.4.2 Spontaneous criminal activity

In Mitchell and King [1998] EWCA Crim 2444; [1999] Crim LR 496, the Court of Appeal
held that communication of withdrawal from a joint enterprise was only a necessary
condition for disassociation from pre-planned violence. This was not the case where the
violence is spontaneous. In such cases, it was possible to withdraw from the enterprise
merely by walking away.
CASE EXAMPLE
Mitchell and King [1998] eWca crim 2444; [1999] crim Lr 496
D, E and F were together in an Indian take-away. There was a fight involving other customers,
and damage was caused to the take-away. The three men then left, followed by some of the
staff. Fighting broke out between all the men. Eventually D, E and F walked off, but F returned
and inflicted fatal injuries on one of the staff who had been lying on the ground. F was subse-
quently convicted of murder. The prosecution case against D and E was that they were involved
in a joint enterprise. There was a question as to whether D and E had withdrawn from the
enterprise at the time when the fatal blows were struck. The judge told the jury that there had
to be effective communication and, as there was no evidence of that, D and E were convicted
of murder. However, their appeals were allowed.
Similar principles were used in O’Flaherty and others [2004] EWCA Crim 526; [2004] 2 Cr 135
App R 20. D and two others were convicted using joint enterprise principles of the
murder of V, who was stabbed to death by E after spontaneous violence broke out in the
5.5 assisting an offender

street following a performance by the garage act So Solid Crew. However, on appeal, the
convictions of the two others were quashed. Although they had participated in the initial
violence that broke out immediately outside the club, they had withdrawn from the
enterprise by the time V was fatally wounded in a neighbouring street. D’s conviction
was upheld, however, as CCTV evidence showed that he had followed the disturbance
into the neighbouring street and was actively participating in it at the time of the
stabbing.
In Mitchell [2008] EWCA Crim 2552, spontaneous violence broke out between two
rival groups outside a pub in Bradford, in which D was heavily involved. There was a
temporary ‘lull’ in the violence, but after it resumed V was killed by E, one of D’s group,
who later pleaded guilty to murder. D, who was nearby at the time but no longer partici-
pating in the violence, was charged with murder based on joint enterprise. D claimed to
have withdrawn but the trial judge told the jury that, where a person became party to a
joint enterprise they were still, in law, taken to be participating in it unless they had
demonstrably withdrawn. A mere change of heart was not sufficient. D was convicted
and the Court of Appeal dismissed her appeal.
5.5 Assisting an offender

The above rules (whether on aiding, abetting, counselling and procuring or joint enterprise)
only apply to assistance given to the principal offender either before or during the commis-
sion of a crime. However, a person may be held criminally liable for assisting an offender
after the commission of an offence. Section 4(1) of the Criminal Law Act 1967 states:
SECTION
‘4(1) Where a person has committed an arrestable offence, any other person who, knowing
or believing him to be guilty of the offence or of some other arrestable offence, does without
lawful authority or reasonable excuse any act with intent to impede his apprehension or pro-
secution shall be guilty of an offence.’
5.6 Reform
In May 2007, the Law Commission (LC) published a report, Participation in Crime (Law
Com No 305) in which it made a number of proposals for reforming secondary liability
and joint enterprise. The report includes the following proposals (amongst others):
 The abolition of the offences of aiding, abetting, counselling and procuring, under s 8
of the Accessories and Abettors Act 1861 and s 44 of the Magistrates’ Courts Act
1980.
Did D participate with another D cannot be liable

person (E) in a joint criminal NO under joint enterprise
venture, for example burglary? principles.
136
YES
Parties to a crime
Did D contemplate that E might

commit another, more serious,
offence, for example murder?
D cannot be liable under
(This will not be the case if E joint enterprise principles
NO
departs from the ‘scope’ of the (English).
joint enterprise, e.g. by using a
weapon of which D was
unaware.)
YES
Did D successfully withdraw from

the joint enterprise, by giving
unequivocal notice of his intention D cannot be liable
to disengage? under joint enterprise
YES
principles (Becerra &
(D may withdraw by walking away,
Cooper).
but only in cases of spontaneous
violence.)
NO
D is liable under joint enterprise

principles for the more serious
offence, and faces the same
maximum sentence as if he had
committed the offence himself
(Rahman & others).
Figure 5.2 Joint enterprise.

 The creation of a new secondary liability offence of ‘assisting or encouraging’ the com-
mission of an offence. ‘Encouraging’ would be defined as including (but not limited to)
emboldening, threatening or pressurising someone else to commit an offence.
 The new offence could be committed by omission, if D failed to take ‘reasonable
steps’ to discharge a duty.
 For liability under the new offence, D must intend that the ‘conduct element’ of the
substantive offence be committed.
 The principle of ‘innocent agency’ should be retained.
 Joint enterprise should be retained, but the mens rea required should be modified.
The LC suggest that, for liability as part of a ‘joint criminal venture’, D should either
intend that E should, or believe that E would or might, commit the ‘conduct element’ of
the ‘principal offence’. However, even if D had the required intent or belief, he would
not be liable if E’s conduct ‘fell outside the scope of the joint venture’. 137
 D should be able to withdraw and therefore ‘escape liability as a secondary party if
he or she is able to demonstrate that he or she had negated the effect of his or her acts
5.6 reform
of assistance, encouragement or agreement before the principal offence was
committed’.
 There should be a defence available if D acted for the purpose of ‘preventing the
commission’ of an offence or ‘to prevent or limit the occurrence of harm’, provided
in either case that it was ‘reasonable’ to act as D did in the circumstances.
 The exemption for victims (the Tyrrell principle) should be retained. This would
apply where D assisted or encouraged an offence which existed in order to protect a
‘particular category’ of persons and D fell within that category.
In July 2008, the Ministry of Justice published a Consultation Paper entitled Murder,
Manslaughter and Infanticide: Proposals for Reform of the Law. In the Paper the government
made some proposals of its own for reform of secondary liability and joint enterprise –
but only in the context of murder. The government proposed the creation of two new
statutory offences:
1. assisting and encouraging murder;
2. assisting and encouraging manslaughter.
Both offences require E to kill V with assistance or encouragement from D, with D’s
intent being to assist or encourage E to kill or cause serious injury. The difference
between the offences would be determined by E’s liability. Offence (1) would apply if E
actually committed murder whereas offence (2) would apply if E only committed (invol-
untary) manslaughter. The government also proposed placing the present law of joint
enterprise involving murder on to a statutory basis. The government’s proposed draft
offence, ‘murder in the context of a joint criminal venture’, essentially codifies the prin-
ciples set out in cases such as English (1999) and Rahman and others (2008), above. It
would be committed if E committed murder in the context of a ‘joint criminal venture’,
and D foresaw that either:
 a person might be killed by one of the other participants (not necessarily E) acting
with intent to kill or cause serious injury; or
 serious injury might be caused to a person by one of the other participants (not neces-
sarily E) acting with intent to cause such injury and E’s criminal act was within the
‘scope of the venture’.
E’s criminal act would be within the ‘scope of the venture’ if it did not ‘go far beyond’
that which was planned, or agreed to, or foreseen, by D. Furthermore, D would not
escape liability merely because at the time of the murder he was ‘absent’. This is designed
to place the decision in Rook (1993) on a statutory basis.
ACTIVITy
applying the law
D and E have agreed a plan to burgle a house known to be the home of V, a well-known MP. D
thinks that the house will be empty on the night they plan to burgle it. E, however, is aware that
Parliament will not be sitting that day and that there is a strong possibility that the MP will be at
home. E is fundamentally opposed to V’s stance on a number of political issues and has often
spoken to D of how he would like to ‘finish off’ V. D is unsure whether this means to kill V or just
to destroy his political career. On the night of the burglary D sees E putting a sharp-looking knife
138
into his pocket. D asks what this is for and E says it will only be used in an emergency to ‘warn
off anyone who comes snooping around’. D is satisfied with this explanation. When they reach
the house at 2 a.m. it is in darkness. They break in through a rear window and start looking for a
Parties to a crime
safe or any valuables. In fact, V is at home and is disturbed by the noise. He comes down to
investigate. D hears footsteps coming down the stairs and shouts to E ‘I’m off!’ before climbing
back out of the window. E waits behind and, when V enters the living room, stabs him in the
neck, killing him. D and E are arrested soon after. At trial, E pleads guilty to aggravated burglary
and murder. D pleads guilty to burglary but denies liability for murder.
Discuss D’s liability for murder or manslaughter.
SUMMARy
Secondary liability refers to the imposition of liability on those who help, encourage or
persuade another person to commit a crime or those who cause a crime to be committed
by someone else.
Under s 8 of the Accessories and Abettors Act 1861, it is a crime to aid, abet, counsel or
procure the commission of an offence by another person. The meaning of these four forms
of secondary liability are now defined through case law (Attorney-General’s Reference (No 1
of 1975)) but the Law Commission has proposed their abolition with the repeal of s 8 of the
1861 Act and its replacement with new offences of assisting or encouraging crime.
In addition to secondary liability are separate rules relating to joint enterprise, where
D and E jointly commit a crime as part of a team. The main issue here is dealing with the
situation where D and E set out together to commit one crime (say burglary), but E
commits a more serious crime (typically murder). D’s liability in this situation is gov-
erned by the ‘contemplation’ principle – D is liable only if he contemplated that E might
kill with the mens rea for murder (Chan Wing-Siu; English; Rahman and others). D is also
not liable for E’s criminal conduct if it can be classed as ‘fundamentally different’ from
that which D and E had expressly or impliedly agreed and which therefore falls outside
the ‘scope’ of the joint enterprise (Rafferty).
It is possible for parties to withdraw from secondary liability and a joint enterprise.
Where the criminal activity was pre-planned, unequivocal communication of with-
drawal, as a minimum, is required (Becerra and Cooper). Where the criminal activity was
spontaneous, then D can withdraw simply by walking away, but D must still demon-
strate their withdrawal in some way.
The Law Commission has proposed certain reforms to the principles of joint enter-
prise, but the government has proposed more radical reform through the creation of two
new offences, of assisting and encouraging murder and manslaughter, respectively.
of the articles concerned with the membership and

The ‘contemplation’ principle is too wide in that it is capable of imposing, for example, liab-
ility for murder on those who simply foresaw death or serious injury as a possible outcome
of their involvement in a joint enterprise. Discuss.
Briefly explain the law of joint enterprise:

• Where D and E jointly commit an offence they can be held liable for
each other’s crimes if committed within the ‘scope’ of the enterprise
• D will be liable for all crimes committed by E provided they were
‘contemplated’ by D in advance
• D may withdraw from a joint enterprise
139
Explain the contemplation principle:
• Earlier cases referred to ‘tacit agreement’ (Anderson and Morris
samPLe essay QUestion

(1966))
• Explain the key cases developing the contemplation principle, e.g.
Chan Wing-Sui (1986), Hyde (1991), English (1999), Rahman and
others (2008)
• Discuss cases where D’s liability depends on his knowledge/
contemplation that E is armed and, if so, with what weapon, e.g.
Perman (1996), English, Greatrex (1999), Uddin (1999)
• Explain the ‘fundamentally different’ rule and give examples, e.g.
Rafferty (2007)
Discuss the principles regarding withdrawal, e.g.

• Withdrawal is possible, but in pre-planned criminal enterprises D
must give unequivocal communication as a minimum (Becerra &
Cooper (1976); Rook (1993); Baker (1994))
• Withdrawal in cases of spontaneous violence possible by walking
away (Mitchell & King (1999)) but D must actually disengage from
the violence (O’Flaherty and others (2004); Mitchell (2008))
Analyse the contemplation principle in murder cases:

• The principal (E) must have malice aforethought to be guilty of
murder but D can be convicted of murder under joint enterprise
based on foresight that E might kill (English; Rahman and others)
• This may be justified on the basis that D has agreed to participate in
‘gang crime’ often with knowledge that E is armed
• The contemplation principle is purely subjective so liability can be
imposed only on the basis of D’s actual knowledge/foresight
• D will avoid liability if E commits a ‘fundamentally’ different crime
Discuss reform proposals – refer to e.g.
1. Law Commission Report, Participation in Crime, Law Com No 305
(2007)
2. Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals
for Reform of the Law, Consultation Paper CP19/08 (2008)
Conclude
140
Further reading
Parties to a crime
Books
Chapter 8.
Articles
Buxton, R, ‘Joint enterprise’ [2009] Crim LR 233.
Simester, A P, ‘The mental element in complicity’ (2006) 122 LQR 578.
Smith, J C, ‘Criminal liability of accessories: law and law reform’ (1997) 113 LQR 453.
Smith, K J M, ‘Withdrawal in complicity: a restatement of principles’ [2001] Crim LR
769.
Sullivan, G R, ‘Complicity for first degree murder and complicity in unlawful killing’
[2006] Crim LR 502.
Sullivan, G R, ‘Participating in crime: Law Com No. 305 – joint criminal ventures’ [2008]
Crim LR 19.
Taylor, R, ‘Procuring, causation, innocent agency and the Law Commission’ [2008] Crim
LR 32.
Wilson, W, ‘A rational scheme of liability for participating in crime’ [2008] Crim LR 3.
Internet links
Law Commission, Participation in Crime (Law Com No 305) (2007), available at www.
lawcom.gov.uk.
Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law
(Consultation Paper CP19/08) (2008), available at www.justice.gov.uk.
6
Inchoate offences
AIMS AND OBJECTIVES

 Understand the law on attempts
 Understand the law on conspiracy
 Understand the law on assisting or encouraging crime
 Understand the rules on impossibility
 Analyse critically the rules on inchoate liability
 Apply the law to factual situations to determine whether there is liability for an
inchoate offence
attempt
6.1 Inchoate offences
Trying to commit
an offence, with
Inchoate offences refers to those offences where D has not actually committed a ‘sub-
intent to do so stantive’ crime, such as murder, rape, theft or burglary, but D has done one of the
following three things:
 made an attempt to do so (that is, D has tried to commit the crime but has failed,
conspiracy
for some reason, to complete it);
An agreement to
commit a criminal  entered into a conspiracy with at least one other person to do so (that is, D has
offence entered into an agreement that a criminal offence will be committed);
 assisted or encouraged someone else to commit a crime.
‘Inchoate’ literally means ‘at an early stage’. Inchoate offences are designed to allow for
liability to be imposed on those who have taken some steps towards the commission of
an offence (whether the crime would have been committed by them personally or by
someone else). It allows the police to intervene at an early stage and make arrests before
a substantive crime has occurred, thus making a significant contribution towards public
safety. Of course, where no substantive offence has been committed, obtaining sufficient
evidence that an attempt or a conspiracy has actually occurred can be difficult. As we
shall see, the point at which D can be regarded as having committed an attempt has
troubled courts in England for many years (and the issue cannot be said to be completely
settled even now). Moreover, in a modern democracy where freedom of expression is pro-
tected by law (art 10 of the European Convention on Human Rights, incorporated into
English law by the Human Rights Act 1998), the criminal law has to strike the appropriate
balance between the individual’s right to free speech and society’s interest in ensuring that
those who make agreements with or encourage others to commit crimes are punished.
6.2 Attempt
The offence of attempt existed at common law but is now regulated by statute, the Crim-
inal Attempts Act 1981.
SECTION
‘1(1) If, with intent to commit an offence to which this section applies, a person does an act
which is more than merely preparatory to the commission of the offence, he is guilty of
142 attempting to commit the offence.’
6.2.1 Actus reus of attempt

Inchoate offences
The 1981 Act imposes liability on those who do ‘an act which is more than merely pre-
paratory to the commission of the offence’. Although the judge must decide whether
there is evidence on which a jury could find that there has been such an act, the test of
whether D’s acts have gone beyond the merely preparatory stage is essentially a ques-
tion of fact for the jury (s 4(3) of the 1981 Act). If the judge decides there is no such evid-
ence, he must direct them to acquit; otherwise he must leave the question to the jury,
even if he feels the only possible answer is guilty.
‘More than merely preparatory’

What does this phrase mean? The first thing to note is that the test looks forward from the
point of preparatory acts to see whether D’s acts have gone beyond that stage. Prior to
the 1981 Act there were a number of common law tests, one of which, the ‘proximity’
test, looked backwards from the complete substantive offence to see whether D’s acts
were so ‘immediately connected’ to the actus reus to justify the imposition of liability for
an attempt. Thus, in Eagleton (1855) Dears 515, it was said that:
JUDGMENT
‘Some act is required and we do not think that all acts towards committing a [criminal offence]
are indictable. Acts remotely leading towards the commission of the offence are not to be
considered as attempts to commit it, but acts immediately connected with it are.’
In the years immediately following the 1981 Act, the courts tended to refer back to some
of the common law tests (which were not expressly excluded by the 1981 Act and so had
persuasive value). Hence, in Widdowson (1986) 82 Cr App R 314, the Court of Appeal
adopted Lord Diplock’s ‘Rubicon’ test formulated in DPP v Stonehouse [1978] AC 55 as
representing the law under the Act. Lord Diplock had said:
JUDGMENT
‘Acts that are merely preparatory to the commission of the offence, such as, in the instant case,
the taking out of insurance policies are not sufficiently proximate to constitute an attempt. They
do not indicate a fixed irrevocable intention to go on to commit the complete offence unless
involuntarily prevented from doing so. [D] must have crossed the Rubicon and burnt his boats.’
Shortly afterwards, in Boyle and Boyle [1987] Crim LR 111, the Court of Appeal referred
to a test devised by Stephen known as the ‘series of acts’ test. According to this test, ‘an
attempt to commit a crime is an act done with intent to commit that crime, and forming
part of a series of acts which would constitute its actual commission if it were not inter-
rupted’. As a result the Court of Appeal upheld the appellants’ convictions of attempted
burglary (they had been found by a policeman standing near a door, the lock and one
hinge of which were broken). However, in Gullefer [1990] 3 All ER 882, Lord Lane CJ
tried to devise a new test that incorporated elements of the proximity, Rubicon and
series of acts tests. According to this test D has committed an attempt when he has
‘embarked on the crime proper’. Lord Lane said:
JUDGMENT
‘The words of the Act seek to steer a midway course. They do not provide . . . that the Eagleton
143
test is to be followed, or that, as Lord Diplock suggested, [D] must have reached a point from
which it was impossible for him to retreat before the actus reus of an attempt is proved. On
the other hand, the words give perhaps as clear a guidance as is possible in the circumstances
6.2 attempt
on the point of time at which Stephen’s “series of acts” begins. It begins when the merely
preparatory acts have come to an end and [D] embarks upon the crime proper. When that is
will depend of course upon the facts in any particular case.’
CASE EXAMPLE
Gullefer [1990] 3 all eR 882
D had placed an £18 bet on a greyhound race. Seeing that his dog was losing, he climbed on
to the track in front of the dogs, waving his arms and attempting to distract them, in an effort
to get the stewards to declare ‘no race’, in which case he would get his stake back. D was
unsuccessful in this endeavour but he was prosecuted for attempted theft and convicted. The
Court of Appeal quashed his conviction: D’s act was merely preparatory. In order to have
‘embarked on the crime proper’ the Court thought that D would have to go to the book
makers and demand his money back.
In Jones [1990] 3 All ER 886, Taylor LJ agreed with Lord Lane CJ in Gullefer (1990).
CASE EXAMPLE
Jones [1990] 3 all eR 886
D had been involved for some time in a relationship with a woman, X. When he discovered
that she had started seeing another man, V, and that she no longer wanted to continue their
relationship, D bought a shotgun and shortened the barrel. One morning, he went to confront
V as the latter dropped his daughter off at school. D got into V’s car, wearing overalls and a
crash helmet with the visor down and carrying a bag. He took the sawnoff shotgun (which
was loaded) from the bag and pointed it at V. He said, ‘You are not going to like this.’ At this
point, V grabbed the end of the gun and pushed it sideways and upwards. There was a strug
gle during which V threw the gun out of the window. D was charged with attempted murder.
He was convicted and the Court of Appeal upheld his conviction. Taylor LJ said that obtaining
the gun, shortening the barrel, loading the gun and disguising himself were clearly prepara
tory acts. However, once D had got into V’s car and pointed the loaded gun, then there was
sufficient evidence to leave to the jury.
In the light of the expansive approach seen in Gullefer and Jones, the next Court of Appeal
judgment, Campbell [1991] Crim LR 268, may be regarded as somewhat narrow. D had
been arrested by police when, wearing a motorcycle crash helmet and armed with an
imitation gun, he had approached to within a yard of a post office door. The Court of
Appeal quashed his conviction for attempted robbery. Watkins LJ thought that there
was no evidence on which a jury could ‘properly and safely’ have concluded that his
acts were more than merely preparatory. Too many acts remained undone and those
that had been performed – making his way from home, dismounting from his motorbike
and walking towards the post office door – were clearly acts which were ‘indicative of
mere preparation’.
ACTIVITy
applying the law
144
What should the police have done in order to ensure D’s conviction for attempted robbery?
Wait until D had entered the post office? Wait for him to approach the counter? Wait for him
to make a demand for money?
Inchoate offences
The next case was Attorney-General’s Reference (No 1 of 1992) [1993] 2 All ER 190. D had
been charged with the attempted rape of a young woman, V, but had been acquitted
after the trial judge directed the jury to acquit. The Court of Appeal, however, held that
there was sufficient evidence on which the jury could have rightly convicted. Lord
Taylor CJ stated:
JUDGMENT
‘It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to
prove that D . . . had necessarily gone as far as to attempt physical penetration of the vagina.
It is sufficient if . . . there are proved acts which a jury could properly regard as more than
merely preparatory to the commission of the offence. For example, and merely as an example,
in the present case the evidence of V’s distress, of the state of her clothing, and the position
in which she was seen, together with D’s acts of dragging her up the steps, lowering his trou
sers and interfering with her private parts, and his answers to the police, left it open to a jury
to conclude that D had the necessary intent and had done acts which were more than merely
preparatory. In short that he had embarked on committing the offence itself.’
In Geddes [1996] Crim LR 894, a case of attempted false imprisonment, the Court of
Appeal offered another formulation for identifying the threshold, by postulating the fol-
lowing question: was D ‘actually trying to commit the full offence?’ Lord Bingham CJ
stated:
JUDGMENT
‘The line of demarcation between acts which are merely preparatory and acts which may
amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test.
There must always be an exercise of judgment based on the particular facts of the case. It is,
we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to
ask whether the available evidence, if accepted, could show that [D] has done an act which
shows that he has actually tried to commit the offence in question, or whether he has only got
himself in a position or equipped himself to do so.’
CASE EXAMPLE
Geddes [1996] crim LR 894
D was discovered by a member of staff in the boys’ toilet of a school. He ran off, leaving behind
a rucksack, in which was found various items including string, sealing tape and a knife. He was
charged with attempted false imprisonment of a person unknown. The judge ruled that there
was evidence of an attempt and the jury convicted. On appeal, the conviction was quashed.
Although there was no doubt about D’s intent, there was serious doubt that he had gone
beyond the mere preparation stage. He had not even tried to make contact with any pupils.
More recent cases have continued to apply the test in Geddes. In Tosti and White [1997]
EWCA Crim 222; [1997] Crim LR 746, D and E provided themselves with oxyacetylene
equipment, drove to a barn which they planned to burgle, concealed the equipment in a
hedge, approached the door and examined the padlock using a light, as it was nearly mid- 145
night. They then became aware that they were being watched and ran off. D claimed that
they had gone to the barn to try to find water because their car engine was overheating; E
admitted that they were on a reconnaissance mission with a future aim to burgle the barn.
6.2 attempt
The Court of Appeal, applying Geddes, upheld their convictions of attempted burglary.
There was evidence that D and E were trying to commit the offence. Beldam LJ said that the
question was whether D and E ‘had committed acts which were preparatory, but not merely
so – so that it could be said the acts of preparation amounted to acts done in the commission
of the offence. Essentially the question is one of degree: how close to, and necessary for, the
commission of the offences were the acts which it was proved that they had done.’
In Nash [1998] EWCA Crim 2392; [1999] Crim LR 308, D left three letters addressed to
‘Paper boy’ in a street in Portsmouth. When opened, two were found to contain invitations
to engage in mutual masturbation and/or oral sex with the author; the third, signed ‘JJ’,
purported to offer work with a security company. At the instigation of the police a paper
boy went to meet the writer of the third letter in a local park. There he met D, who asked
him if he was looking for ‘JJ’. D was arrested and convicted of three counts of attempting to
procure an act of gross indecency. On appeal, it was argued that there was no case to
answer with regard to the third letter, which was merely a preparatory act. The Court of
Appeal confirmed the conviction with respect to the first two letters but allowed the appeal,
following Geddes (1996), with respect to the third. Otton LJ said that the third letter ‘was not
sufficiently approximate to the act of procurement to amount to an attempt’. Otton LJ
described Geddes as a ‘helpful decision [that] illustrates where and how the line should be
drawn’.
More than merely preparatory to what?

It is important to be clear exactly what it is that D needs to have gone beyond preparing for.
This entails a clear understanding of the actus reus as opposed to the mens rea of the substan-
tive offence. In Toothill [1998] Crim LR 876, D unsuccessfully appealed against his convic-
tion of attempted burglary. V had seen D standing in her garden at approximately 11 p.m.,
apparently masturbating. She called the police and D was arrested. A knife and a glove
were found in V’s garden and a condom was found in D’s pocket. D admitted knocking on
V’s door but claimed that he was lost and seeking directions. D was convicted and appealed
on the ground that evidence of an attempt to enter V’s home was insufficient; there had to
be evidence of an attempt to commit rape as well. The Court of Appeal dismissed the
appeal. The actus reus of burglary in s 9(1)(a) of the Theft Act 1968 is simply entering a build-
ing as a trespasser: there is no requirement in the actus reus that D actually rape anyone
(indeed there is no requirement that anyone actually be in the building). The actus reus of
attempted burglary was therefore doing an act which was more than merely preparatory to
that entry. On the facts, there was evidence that D had gone beyond the preparatory stage,
by actually knocking on V’s door. (Note: the substantive offence of entering a building as a
trespasser with intent to rape, contrary to s 9(1)(a) of the Theft Act 1968, was repealed by the
Sexual Offences Act 2003. The facts in Toothill would now give rise to a charge of attempted
trespass with intent to commit a sexual offence, contrary to s 63 of the SOA 2003.)
kEy fACTS
Key facts on ‘more than merely preparatory’
Case Offence attempted Test proposed

Gullefer (1990) Theft ‘embarks upon the crime proper’ – Lord
Lane CJ
146
Jones (1990) Murder –
Campbell (1991) Robbery –
Inchoate offences
Att-Gen’s Ref (No 1 of Rape ‘embarked on committing the offence

1992) (1993) itself ’ – Lord Taylor CJ
Geddes (1996) False imprisonment ‘actually tried to commit the offence in
question’ – Lord Bingham CJ
Tosti and White Burglary ‘had started upon the commission of the
(1997) offence’ – Beldam LJ
Nash (1999) Procuring gross –
indecency
6.2.2 Mens rea of attempt

The essence of the mens rea in attempt cases is D’s intention. In Whybrow (1951) 35 Cr
App R 141, the Court of Appeal held that, although on a charge of murder, an intention
to cause grievous bodily harm (GBH) would suffice, where attempted murder was
alleged, nothing less than an intent to kill would do: ‘the intent becomes the principal
ingredient of the crime’. The Nedrick [1986] 3 All ER 1/Woollin [1998] 3 WLR 382 direc-
tion on when a jury may find that D intended a result based on D’s foresight of virtually
certain consequences has been applied to attempts by the Court of Appeal in Walker and
Hayles [1990] Crim LR 44.
Conditional intent
Attempted theft and burglary cases have caused difficulties when it comes to framing
the indictment. The problem is that most burglars, pickpockets, etc. are opportunists
who do not have something particular in mind. The case of Easom [1971] 2 All ER 945
illustrates the problem. D had been observed rummaging in a handbag belonging to a
plain-clothes policewoman. He did not take anything and was subsequently charged
with the theft of the handbag and its contents (a purse, notebook, tissues, cosmetics and
a pen). He was convicted, but the Court of Appeal quashed his conviction following a
misdirection. The Court also declined to substitute a conviction of attempted theft of
those articles: there was no evidence that D intended to steal those specific items.
In Attorney-General’s Reference (Nos 1 and 2 of 1979) [1979] 3 All ER 143, the Court of
Appeal provided a solution to the problem: in such cases D should be charged with an
attempt to steal ‘some or all of the contents’ of the handbag.
Relevance of recklessness
Where an attempt is charged, it may be possible to obtain a conviction even though D
was reckless as to some of the elements of the actus reus. This is illustrated in Attorney-
General’s Reference (No 3 of 1992) [1994] 2 All ER 121.
CASE EXAMPLE
Attorney-General’s Reference (No 3 of 1992) [1994] 2 all eR 121
A petrol bomb had been thrown from a moving car, narrowly missing a parked car in which
four men were sitting and two other men standing nearby, and smashing into a wall. Those
responsible for throwing the bomb were charged with attempted aggravated arson, the court
alleging that, while the criminal damage was intentional, they had been reckless as to whether
life would be endangered. At the end of the Crown case, the judge ruled no case to answer.
He ruled that an attempted crime could not be committed without intent. It was impossible to
intend to be reckless; therefore it had to be shown D both intended to damage property and 147
to endanger life. The Court of Appeal held this was wrong: it was enough that D intended to
damage property, being reckless as to whether life would be endangered.
6.2 attempt
In Khan [1990] 2 All ER 783, four men had been convicted of the attempted rape of a
16-year-old girl. All four had tried to have sex with her, unsuccessfully. Their convic-
tions were upheld despite the trial judge’s direction that, on a charge of attempted rape,
it was only necessary for the Crown to prove that they had intended to have sex, knowing
that the girl was not consenting, or not caring whether she consented or not. Khan was
distinguished in a recent case, Pace and Rogers [2014] EWCA Crim 186, [2014] 1 Cr App
R 34. Davis LJ rejected the notion that, in a case under the Criminal Attempts Act 1981,
it was possible to intend some (but not necessarily all) of the elements of the substantive
offence. He said that ‘as a matter of ordinary language and in accordance with principle,
an “intent to commit an offence” connotes an intent to commit all the elements of the
offence. We can see no sufficient basis, whether linguistic or purposive, for construing it
otherwise’ (emphasis added).
CASE EXAMPLE
Pace and Rogers [2014] eWca crim 186
Martin Pace (P) worked at a scrap yard in Oxford owned by Simon Rogers (R) and his father.
Local police undertook an investigation into scrap metal dealers, using undercover officers to
test whether stolen items would be accepted. On several occasions, two officers visited the
yard with scrap metal which they said was stolen. The metal, which was not in fact stolen, was
purchased by the yard. P and R were charged with attempting to convert criminal property
(the substantive offence found in s 327 of the Proceeds of Crime Act 2002). The Crown’s case
was that P and R suspected that the scrap metal was stolen, and that such mens rea was suf
ficient for attempts liability. P and R were convicted and appealed, successfully, to the Court
of Appeal. The appeal court held that suspicion was too low a level of mens rea for attempted
conversion. It was necessary to prove that P and R intended to convert stolen property, and
that required proof that they believed (and not just suspected) that the property was stolen.
The decision in Pace and Rogers is controversial and almost immediately provoked divided
opinion amongst commentators. On one hand, it is supported by J J Child and A Hunt,
‘Pace and Rogers and the mens rea of criminal attempt: Khan on the scrap heap?’ (2014) 78 J
Crim L 220. They contend that ‘an intention/knowledge based approach is the only one
which properly marries the wording of the Criminal Attempts Act 1981 with the achieve-
ment of a coherent model of attempts liability’. They predict that the case will be appealed
to the Supreme Court and if/when that happens they argue that the Court of Appeal’s
decision should be upheld (and that Khan should be overruled).
On the other hand, Pace and Rogers is criticised by F Stark, ‘The mens rea of a criminal
attempt’ (2014) 3 Arch Rev 7, who argues that it ‘risks setting a dangerous precedent’ and
should not be followed. He points out that attempted rape will be ‘virtually impossible to
prosecute’ if the Crown has to prove both (i) an intention to penetrate the victim and (ii) an
intention that the victim not be consenting. He suggests that, if the case reaches the Supreme
Court, the decision in Khan is the one that should be endorsed instead. Pace and Rogers is
also criticised by M Dyson, ‘Scrapping Khan’ [2014] Crim LR 445. He acknowledges that
the judgment in Pace and Rogers is ‘more faithful to the literal meaning’ of s 1 of the 1981 Act
but contends that ‘as a matter of policy [it] cannot be right’, invoking the same attempted
rape scenario as Stark.
148
6.2.3 Impossibility
If a crime is impossible, obviously no one can be convicted of actually committing it; but
Inchoate offences
it does not follow that no one can be convicted of attempting to commit it. There may be
an attempt where D fails to commit the substantive crime, because he makes a mistake
or is ignorant as to certain facts. The crime may be:
 physically impossible (e.g. D attempts to pick V’s pocket but, unknown to D, the
pocket is in fact empty; D attempts to murder V by stabbing him with a dagger but,
unknown to D, V died that morning of natural causes); or
 legally impossible (e.g. D handles goods, believing them to be stolen, when they are
not in fact stolen).
There are also situations where the crime is physically and legally possible but, in the actual
circumstances, because of the inadequate methods D plans to use, or does use, it is imposs-
ible to commit the substantive offence (e.g. D attempts to break into a three-inch-thick tita-
nium steel safe using a plastic spoon). At common law, there was no liability for attempt if
the crime attempted was physically or legally impossible; only if D used methods that were
simply inadequate to commit the substantive offence could D be liable. This was seen in
White [1910] 2 KB 124, where D was convicted of attempted murder after giving his mother
an insufficient dose of poison. (Had he given her sugar instead, he would have been acquit-
ted.) This rule was confirmed as recently as 1975 by the House of Lords in Haughton v Smith
[1975] AC 476. However, s 1 of the Criminal Attempts Act 1981 was intended to make all
three examples of impossibility capable of leading to liability:
SECTION
‘(1) . . . (2) A person may be guilty of attempting to commit an offence to which this section
applies even though the facts are such that the commission of the offence is
impossible.
(3) In any case where –
(a) apart from this subsection a person’s intention would not be regarded as
having amounted to an intention to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention
would be so regarded,
then, for the purposes of subsection (1) . . . he shall be regarded as having had an intention to
commit an offence.’
However, despite the new provisions above, in Anderton v Ryan [1985] AC 560 the House
of Lords decided that the 1981 Act had not been intended to affect the situations of phys-
ical impossibility. Lord Roskill said that ‘if the action is innocent and [D] does every-
thing he intends to do, s 1(3) does not compel the conclusion that erroneous belief in the
existence of facts which, if true, would have made his completed act a crime makes him
guilty of an attempt to commit that crime’. This decision was overruled less than a year
later. In Shivpuri [1987] AC 1, Lord Bridge said that:
JUDGMENT
‘The concept of “objective innocence” is incapable of sensible application in relation to the
law of criminal attempts. The reason for this is that any attempt to commit an offence which
involves “an act which is more than merely preparatory to the commission of the offence” but
which for any reason fails, so that in the event no offence is committed, must ex hypothesi, 149
from the point of view of the criminal law be “objectively innocent”. What turns what would
otherwise . . . be an innocent act into a crime is the intent of the actor to commit an offence.’
6.2 attempt
CASE EXAMPLE
Shivpuri [1987] ac 1
D was persuaded to act as a drugs courier. He was given instructions to receive drugs and
transport them somewhere else. D duly collected a suitcase which he believed contained either
heroin or cannabis. The suitcase contained several packages of white powder, one of which D
took to the delivery point. There, he was arrested and was subsequently charged with attempt
ing to be ‘knowingly concerned in dealing in prohibited drugs’. This was despite the fact that
the white powder was not drugs at all but perfectly legal snuff or some similar harmless veget
able matter. D was nevertheless convicted and the Court of Appeal and House of Lords upheld
his conviction.
Shivpuri was followed in Jones [2007] EWCA Crim 1118; [2007] 3 WLR 907, in which D
was convicted of attempting to incite a child under 13 to engage in sexual activity, con-
trary to s 8 of the Sexual Offences Act 2003. On the facts, the offence was impossible, as
the ‘child’ whom he thought he was inciting was actually an undercover policewoman.
The Court of Appeal, however, held that he had rightly been convicted of attempting to
commit this impossible offence.
CASE EXAMPLE
Jones [2007] eWca crim 1118; [2007] 3 WLR 907
D wrote graffiti on the walls of train and station toilets seeking girls aged 8 to 13 for sex in
return for payment and requesting contact via his mobile phone. A journalist saw one of the
messages and contacted the police who began an operation using an undercover police
woman pretending to be a 12yearold girl called ‘Amy’. D sent several texts to ‘Amy’ in which
he tried to persuade her to engage in sexual activity. Eventually, ‘Amy’ and D agreed to meet
at a Burger King in Brighton, where he was arrested. At his trial, D pointed out that, as ‘Amy’
didn’t exist, he had not intended to incite any actual person under the age of 13. The judge
rejected the submission. D changed his plea to guilty and appealed, but the Court of Appeal
upheld his conviction.
It has been argued that, in cases like Shivpuri and Jones, D is being punished solely for his
criminal intention. However, this overlooks the fact that, for an attempt, there must be a
‘more than merely preparatory’ act. Furthermore, defendants like Shivpuri and Jones
who intend to smuggle drugs or who intend to have sex with young girls (and are pre-
pared to act on their intentions) are dangerous people; their prosecution and conviction
is in the public interest. In many cases, the ‘objectively innocent’ nature of the acts means
that the attempt will not come to light. But, in those cases where it does, D should not
escape punishment.
6.2.4 Excluded offences

Section 1(4) of the 1981 Act excludes attempts to commit the following:
 conspiracy;
 aiding, abetting, counselling or procuring the commission of an offence (except where
150 this amounts to a substantive offence, e.g. complicity in another’s suicide contrary to s
2(1) Suicide Act 1961, as amended by s 53 of the Coroners and Justice Act 2009).
Moreover, there must be ‘an act’, so it is impossible to attempt to commit a crime

Inchoate offences
which can only be committed by omission (e.g. failing to provide a breath test), or to
attempt to commit a result crime by omitting to act when under a duty to act solely on
that basis. However, in most cases there would presumably be some act to which liab-
ility could be attached.
Because intent is essential, where a crime cannot be committed intentionally, such as
gross negligence manslaughter and reckless manslaughter (see Chapter 10), D cannot be
liable for an attempt to commit it. There is therefore no offence in English law of
‘attempted manslaughter’.
D is not guilty of an
Had D done an act which is ‘more than
NO attempt: Gullefer,
merely preparatory’?
Campbell, Geddes.
YES
Did D intend to commit the substantive

D is not guilty of an
offence? (N.B. in attempted murder NO
attempt: Mohan.
cases this means did D intend to kill.)
YES
D has committed an attempt: White,

Whybrow, Boyle and Boyle, Tosti and
White, Jones (1990).
D is guilty even if the substantive
offence was impossible: Shivpuri,
Jones (2007).
Figure 6.1 Mens rea of attempt.

6.2.5 Successful attempts
Is failure essential to successful conviction for attempt? A doctrine of ‘merger’ existed at
common law, whereby an attempt blended in with the substantive crime, if committed.
This was abolished, for indictable offences, by s 6(4) Criminal Law Act 1967. Now D may
be convicted of an attempt, notwithstanding that he is also shown to be guilty of the
completed offence.
6.2.6 Reform
In September 2007 the Law Commission (LC) published a Consultation Paper Conspiracy
and Attempts (Paper No 183), in which it recommended the following (amongst other
things):
 The present offence of attempt should be abolished and replaced with two new
offences.
 First, a new attempt offence, limited to the situation where D reaches the last acts 151
needed to commit the substantive offence.
 Second, a new offence of ‘criminal preparation’.
6.2 attempt
 Both new offences would require proof of intention to commit the substantive offence
(murder, robbery, etc.). Intention could, as at present, be either direct or oblique
intent. Conditional intent would continue to suffice.
 Both new offences would carry the same (maximum) penalty as the substantive
offence.
 It should be possible to commit either of the new offences by omission.
The LC is trying to resurrect the ‘Last Act’ test as set out in Eagleton (1855), which will
significantly narrow the scope of the offence of attempt. It would not be possible, for
example, to say that D in Jones (1990) would definitely be guilty of attempted murder
under the proposed new attempt offence. In pointing the shotgun at V, he had gone
beyond the ‘merely preparatory’ stage, but had he reached the ‘last act’ stage? However,
if not, D could instead be convicted of ‘preparing to commit murder’.
The LC describes the proposed new ‘criminal preparation’ offence as meaning acts
which could be regarded (as attempt is at present) as part of the execution of D’s inten-
tion to commit the substantive offence. Thus, D will still have to go beyond the ‘merely
preparatory’ stage. The LC gives some examples of situations where D might incur liab-
ility for criminal preparation. One is the situation where D is caught examining or inter-
fering with a door, window or lock. At present, such facts might support a conviction for
attempted burglary (see Boyle and Boyle (1986) and Tosti (1997), above) but under the
LC’s proposals, this would become the offence of ‘preparing to commit burglary’.
The primary motivation for the proposals is the need to address the reluctance of the
Court of Appeal in some cases to accept that D has committed an ‘attempt’, as presently
understood. The LC is confident that, in cases such as Campbell (1990) and Geddes (1996),
discussed above, the courts would be more willing to convict the defendants of ‘preparing
to commit robbery’ and ‘preparing to commit false imprisonment’, respectively, instead.
The proposal to allow for the new attempt/criminal preparation offences to be com-
mitted by omission is interesting and, it is submitted, welcome. For example, under the
present law, it is possible to commit murder by omission (see Gibbins and Proctor (1918),
discussed in Chapter 2), but it is not possible to commit attempted murder by omission.
Yet if there is sufficient evidence that D is trying to kill V by starving them to death (but
has not succeeded), surely D deserves to be punished for this?
6.3 Conspiracy
Where two or more people have agreed to commit a crime then there may be liability for a
conspiracy. Gathering enough evidence to prove that the parties had agreed to commit a
crime can present problems for the police but, where evidence is available, conspiracy is a
valuable weapon for prosecuting those involved in large-scale organised crime. Typical
cases involve prosecutions for conspiring to smuggle drugs (Siracusa (1989) 90 Cr App R
340) or conspiring to launder stolen money (Saik [2006] UKHL 18; [2007] 1 AC 18).
Until 1977, the law of conspiracy was a matter of common law. Since then, although
certain conspiracies continue to exist as common law offences (agreements to defraud
and, possibly, to corrupt public morals; see below), the law is regulated by the Criminal
Law Act 1977. Section 1(1) provides that a person is guilty of conspiracy if he ‘agrees
with any other person or persons that a course of conduct shall be pursued which, if the
agreement is carried out in accordance with their intentions . . . (a) will necessarily
152 amount to or involve the commission of any offence or offences by one or more of the
parties to the agreement’. Despite the statutory framework under the 1977 Act, judicial
reference may be (and is) made to pre-1977 case law in order to help clarify the meaning
Inchoate offences
and scope of the statutory provisions.
6.3.1 Actus reus of statutory conspiracy

‘Agreement’
The offence of conspiracy is complete as soon as there is an ‘agreement’ to commit a
criminal offence (Saik (2006)). This means that the parties must have reached agreement
to commit the same offence. Sometimes this is not as straightforward as it appears. For
example, in Barnard (1980) 70 Cr App R 28, D agreed to assist what he thought was a
conspiracy to commit theft. In fact, the others had agreed to commit robbery. The Court
of Appeal quashed D’s conviction on the basis that an agreement to commit theft was
not equivalent to an agreement to commit robbery (significantly, theft is less serious
than robbery). This was also seen in Taylor [2002] Crim LR 205. The Court of Appeal
decided that an agreement to import class B drugs was not equivalent to an agreement
to import class A drugs (again, importing class B drugs is less serious than importing
class A drugs). Conversely, because the greater includes the lesser, if D agrees to commit
a more serious crime than his co-conspirators, he may be held liable. For example:
 D agrees to commit robbery while E and F have agreed to commit theft. D is guilty of
conspiracy to commit theft.
 D agrees to import class A drugs (e.g. cocaine or heroin) while E and F have agreed
to import class B drugs. D is liable for conspiracy to import class B drugs.
If the parties have reached general agreement to commit an offence, then the courts may be
prepared to overlook disagreements as to the details. Thus, in Broad [1997] Crim LR 666, D
and E were convicted of a conspiracy to produce a class A drug. The fact that D thought
they had agreed to produce heroin while E thought they had agreed to produce cocaine
was irrelevant. A conspiracy comes into existence as soon as there is an agreement between
two or more conspirators, although the agreement continues until the substantive offence
is either performed, abandoned or frustrated (DPP v Doot [1973] AC 807); this means that
further parties may join a subsisting conspiracy at any time until then.
There is certainly no requirement that the substantive offence be committed (Saik).
Indeed, the whole point of the offence of conspiracy is to allow for the prosecution and
conviction of those who agree to commit a crime, even if they do not actually succeed in
committing it.
‘With any other person or persons’
Where more than two parties are involved, it is still a conspiracy even if all the conspira-
tors never meet each other. This could happen in the following situations:
 A ‘wheel’ conspiracy exists where there is a coordinating party, D, who communic-
ates separately with E and F, but E and F never meet.
 A ‘chain’ conspiracy exists where D communicates with E, E communicates with F
and F communicates with G.
What is essential is that there is a common purpose or design, and that each alleged
conspirator has communicated with at least one other (Scott (1979) 68 Cr App R 164). D
must agree with someone, although no one need be identified (Philips (1987) 86 Cr App
R 18). Certain parties are excluded by virtue of the 1977 Act. Section 2(1) provides that
the ‘intended victim’ of an offence cannot be guilty of conspiring to commit it. For
example, D, a 13-year-old girl, agrees to have sex with an E, an older man. D could not
be convicted of conspiring to commit the offence of sexual activity with a child, contrary 153
to s 9 of the Sexual Offences Act 2003 (see Chapter 12), because she would be the
‘intended victim’ of the offence. Section 2(2), as amended by the Civil Partnership Act
6.3 conspIRacy
2004, provides there is also no conspiracy if D agrees with (a) his spouse or civil partner,
(b) a person under the age of criminal responsibility or (c) the intended victim.
Spouse or civil partner (s 2(2)(a))

The exclusion of D’s spouse was a pre-existing common law rule. Thus, in Lovick [1993]
Crim LR 890, Mrs Lovick’s conviction was quashed because it had not been established
that anyone other than she and Mr Lovick were involved. However, if a third party is
involved, spouses may face liability for conspiracy. This was seen in Chrastny [1992] 1
All ER 189. There was evidence that Mrs Chrastny had conspired with her husband (to
supply cocaine) and that she knew he had conspired with others. The Civil Partnership
Act 2004 amended the 1977 Act so that D cannot conspire with his or her civil partner.
A person under the age of criminal responsibility (s 2(2)(b))

This means that D cannot conspire with E if E is under ten years of age.
The intended victim (s 2(2)(c))

‘Victim’ is not defined in the Act. It may be restricted to victims of offences created spe-
cifically to protect that person, as in Tyrrell [1894] 1 QB 710. Here, D, a girl under 16 years
old, had allowed E to have intercourse with her. D was subsequently convicted of aiding
and abetting the offence of unlawful sexual intercourse contrary to s 5 of the Criminal
Law Amendment Act 1885. On appeal, her conviction was quashed: the purpose of the
statute was to protect ‘women and young girls against themselves’, according to Lord
Coleridge, and the policy of the courts is that statutes should be construed so that they
do not criminalise those they were designed to protect. It follows that, on the facts of
Tyrrell, there was no conspiracy to commit unlawful sexual intercourse either, because
D was the victim of the offence. However, the word ‘victim’ could be defined in a broader
sense. If D, a sadist, agrees with V, a masochist, that D will whip V, is this a conspiracy
to commit assault? If V is a ‘victim’, then the answer is ‘no’.
The exclusion in s 2(2)(a) is controversial, because it means that, if Mr and Mrs X
agree to kill their neighbour, no crime has been committed. But if the couple were
unmarried and reached exactly the same agreement then this would be conspiracy to
murder, a very serious offence. The exclusion in s 2(2)(c) is also controversial as it means
that E (the older man in the above example) would also escape liability for conspiracy,
even though he has agreed to have sex with a 13-year-old girl. The Law Commission has
recently proposed abolition of both of these exclusions (see below).
6.3.2 Mens rea of statutory conspiracy
The parties must:
 agree . . . that a course of conduct shall be pursued which,
 if the agreement is carried out in accordance with their intentions,
 will necessarily amount to or involve the commission of any offence or offences by
one or more of the parties to the agreement.
‘Course of conduct’
In Siracusa (1989) 90 Cr App R 340, the Court of Appeal decided that the mens rea suffi-
cient to support the substantive offence would not necessarily be sufficient to support a
charge of conspiracy. The offence charged was a conspiracy to import heroin, contrary
to s 170(2) of the Customs and Excise Management Act 1979, which prohibits the impor-
tation of various classes of drugs, with various penalties attached. As far as the mens rea
154 of the substantive offence is concerned, an intention to import any prohibited drug suf-
fices. The question for the Court of Appeal was whether the same mens rea sufficed for
the conspiracy. O’Connor LJ said that if the prosecution charged a conspiracy to import
heroin, then the prosecution must prove that the agreed course of conduct was the
Inchoate offences
importation of heroin. ‘This is because the essence of the crime of conspiracy is the agree-
ment and, in simple terms, you do not have an agreement to import heroin by proving
an agreement to import cannabis.’
‘In accordance with their intentions’

If D and E agree to commit a crime but D, secretly, has no intention of seeing it through, is
there a conspiracy? Prior to the 1977 Act, the courts had held that D was not liable for con-
spiracy unless he intended that the agreement be seen through to its completion (Thompson
[1965] Cr App R 1). However, in Anderson [1986] AC 27; [1985] 2 All ER 961, the House of
Lords unanimously held that it was not necessary that D intend to see through the com-
mission of the offence. Lord Bridge, giving judgment for the House, stated:
JUDGMENT
‘I am clearly driven by consideration of the diversity of roles which parties may agree to play in
criminal conspiracies to reject any construction of the statutory language which would require
the prosecution to prove an intention on the part of each conspirator that the criminal offence
or offences which will necessarily be committed by one or more of the conspirators if the
agreed course of conduct is fully carried out should in fact be committed . . . In these days of
highly organised crime the most serious statutory conspiracies will frequently involve an elabo
rate and complex agreed course of conduct in which many will consent to play necessary but
subordinate roles, not involving them in any direct participation in the commission of the
offence or offences at the centre of the conspiracy. Parliament cannot have intended that such
parties should escape conviction of conspiracy on the basis that it cannot be proved against
them that they intended that the relevant offence or offences should be committed.’
CASE EXAMPLE
Anderson [1986] ac 27; [1985] 2 all eR 961
D agreed with E and F, for a fee of £20,000, to purchase and supply diamond wire (capable of
cutting through prison bars) which would be used to enable F’s brother, X, who was on remand
in Lewes Prison awaiting trial on charges of serious drug offences, to escape. D was also to
provide rope and a ladder, transport and safe accommodation where X could hide out.
D was charged with conspiracy to effect the escape of a prisoner, but argued that he had no
intention of seeing the plan through to its conclusion. He claimed that he hoped to collect
most of the £20,000 after supplying the diamond wire. He would then use the money to travel
to Spain and would take no further part in the escape plan. Finally, he doubted that the escape
plan would succeed. Therefore, he had no ‘intention’ to see X escape from prison. Despite all
of this, D’s conviction was upheld by the House of Lords.
The issue raises particular difficulty for police officers working undercover trying to
infiltrate drug smuggling operations. It is perhaps inevitable that these officers will
make agreements with criminals in order to lend credence to their undercover story.
Do the officers intend to smuggle drugs? The Privy Council has dealt with such argu-
ments on two occasions. In Somchai Liangsiriprasert [1991] AC 225, the Privy Council
left open the question whether US drug enforcement officers were guilty of conspiracy
when they infiltrated a plot to import drugs into the USA with the object of trapping
the dealers. Then in Yip Chiu-Cheung [1995] 1 AC 111; [1994] 2 All ER 924, which 155
involved a drug smuggling operation between Hong Kong and Australia, the Privy
Council held that a conspiracy between D and E, an undercover agent working for the
6.3 conspIRacy
United States Drug Enforcement Administration, had been committed. A plan had
been agreed upon, whereby E would fly from Australia to Hong Kong, collect the
drugs from D and return to Australia with them. D was convicted of conspiracy and
appealed, unsuccessfully. The Privy Council ruled that the fact that E would not be
prosecuted did not mean that he did not intend to form an agreement with D to trans-
port drugs.
Intention to take part?

In Anderson (1986) Lord Bridge also said, obiter, that ‘beyond the mere fact of agreement,
the necessary mens rea of the crime is, in my opinion, established if, and only if, it is
shown that the accused, when he entered into the agreement, intended to play some part
in the agreed course of conduct in furtherance of the criminal purpose which the agreed
course of conduct was intended to achieve. Nothing less will suffice; nothing more is
required.’ This statement seems to suggest that it is necessary for the Crown to prove
that any particular conspirators actually intended to play some physical part in the com-
mission of the offence. If so, it would undermine what Lord Bridge said earlier in his
speech (quoted above) when he explained that the policy of the 1977 Act was to allow
for the prosecution of those with minor roles in the conspiracy, ‘not involving them in
any direct participation in the commission of the offence’. More seriously, it would
prevent the prosecution for conspiracy of gang leaders or ‘crime lords’ who reach agree-
ments with their subordinates but who deliberately distance themselves from physical
participation in criminal activity.
This prompted the Court of Appeal in Siracusa (1989) (the facts of which were given
above) to explain what Lord Bridge had, apparently, meant to say. The defendant in
Siracusa (1989) had reached an agreement with others to smuggle drugs but it could not
be proven that he intended to play any physical part in the operation. Nevertheless, the
Court of Appeal upheld his conviction of conspiracy. O’Connor LJ said that D’s ‘inten-
tion to participate [was] established by his failure to stop the unlawful activity. Lord
Bridge’s dictum does not require anything more.’
‘If the agreement is carried out’: conditional intent

If D and E agree to rob a bank if it is quiet when they get there, have they agreed on a
course of conduct, which will necessarily amount to the commission of an offence? The
answer, according to Reed [1982] Crim LR 819, would be ‘yes’.
CASE EXAMPLE
Reed [1982] crim LR 819
D and E agreed that E would visit people contemplating suicide. He would then, depending on
his assessment of the most appropriate course of action, either provide faith healing, consola
tion and comfort whilst discouraging suicide, or actively help them to commit suicide. They
were both convicted of several counts of conspiracy to aid and abet suicide. On appeal it was
argued that, if the agreement is capable of being successfully completed without a crime
being committed, there is no conspiracy; moreover, in the present case, the agreement was
capable of execution without the law being broken, and therefore they were wrongly con
victed. The court rejected the argument and upheld the convictions.
In Jackson [1985] Crim LR 442, D and E agreed with V to shoot V in the leg if V, who was
then on trial for burglary, was convicted (in order to encourage the judge to sentence
156
him more leniently). They were convicted of conspiracy to pervert the course of justice.
The Court of Appeal held that:
Inchoate offences
JUDGMENT
‘Planning was taking place for a contingency and if that contingency occurred the conspiracy
would necessarily involve the commission of an offence. “Necessarily” is not to be held to
mean that there must inevitably be the carrying out of the offence; it means, if the agreement
is carried out in accordance with the plan, there must be the commission of the offence
referred to in the conspiracy count.’
In Saik (2006), Lord Nicholls gave another example of a ‘conditional’ agreement. A con-
spiracy ‘to rob a bank tomorrow if the coast is clear when the conspirators reach the
bank is not, by reason of this qualification, any less a conspiracy to rob’. In the same case,
Lord Brown offered a different example: ‘If two men agree to burgle a house but only if
it is unoccupied or not alarmed they are clearly guilty of conspiracy to burgle.’
‘Will necessarily amount to or involve the commission of any

offence or offences’
A conspiracy may involve an agreement to commit one offence, or several offences.
Thus, in Roberts [1998] 1 Cr App R 441, the prosecution alleged a single conspiracy
against several defendants to commit both aggravated and simple criminal damage.
This does not mean that the prosecution cannot allege more than one conspiracy deriv-
ing from the same agreement. In Lavercombe [1988] Crim LR 435, D and E were convicted
of conspiracy to import cannabis into the UK from Thailand. The Court of Appeal upheld
their convictions, despite the fact that they had already been convicted of conspiracy to
possess cannabis by a court in Thailand.
Until quite recently, a conspiracy had to involve an agreement to commit an offence
in England. However, the Criminal Justice (Terrorism and Conspiracy) Act 1998 inserted
a new s 1A into the 1977 Act, allowing for conspiracies made in England to commit
crimes in other jurisdictions to fall within the offence. Thus, for example, ‘an agreement
made in Birmingham to rob a bank in Brussels’ is now a conspiracy contrary to English
law and triable in English courts.
In Kenning and others [2008] EWCA Crim 1534; [2008] 3 WLR 1306, the Court of Appeal
was asked whether the offence of conspiracy to aid, abet, counsel or procure the com-
mission of an offence actually existed in English law. The court ruled not. D and E owned
a shop selling hydroponic equipment, cannabis seeds and cannabis-related literature.
They were convicted of conspiracy to aid and abet the production of cannabis, but their
convictions were quashed on appeal. The Court emphasised that the 1977 Act requires
that the conspirators’ agreement will, if carried out, ‘necessarily’ involve the commis-
sion of an offence. That was not the case where the conspirators simply agreed to aid,
abet or counsel someone else, because there was no guarantee that that other person
would necessarily commit any offence.
Kenning and others was distinguished in a recent case with very similar facts. In Dang
and others [2014] EWCA Crim 348, [2014] 2 Cr App R, the prosecution case was that the
appellants had been engaged in a conspiracy to import and sell hydroponic equipment
for other people to use in order to produce cannabis. However, rather than charging the
appellants with conspiracy to aid and abet others to produce cannabis, the Crown
charged them with conspiracy to be ‘concerned in’ the production of cannabis by others,
contrary to s 4(2)(b) of the Misuse of Drugs Act 1971. The jury convicted and the Court
of Appeal upheld the convictions, distinguishing Kenning and others. Pitchford LJ 157
explained that, by framing the charge by reference to s 4(2)(b), no question of aiding and
abetting arose. He added that, before the jury could convict of conspiracy on the basis of
6.3 conspIRacy
s 4(2)(b), the jury had to be sure that each defendant joined a conspiracy knowing that
its objective was to provide equipment for the production of cannabis by another and
that, when he joined it, the defendant shared that intention. A ‘generalised awareness’
that the equipment may be used for the unlawful purpose would not suffice.
Section 1(2)
Section 1(2) of the 1977 Act adds that ‘Where liability for any offence may be incurred
without knowledge on the part of the person committing it of any particular fact or
circumstance necessary for the commission of the offence, a person shall nevertheless
not be guilty of conspiracy to commit that offence . . . unless he and at least one other
party to the agreement intend or know that that fact or circumstance shall or will exist at
the time when the conduct constituting the offence is to take place’ (emphasis added).
This provision has recently generated a large number of appeals in cases involving con-
spiracies to launder money (i.e. to convert money which is the proceeds of drug traffick-
ing or some other criminal activity). The substantive offence of money laundering (now
set out in the Proceeds of Crime Act 2002) can be committed if D suspects that the money
is the proceeds of some criminal activity. But is suspicion enough for a conspiracy to
launder money?
According to the House of Lords in Saik [2006] UKHL 18; [2007] 1 AC 18, the answer
is ‘no’ – because s 1(2) requires that D must ‘intend or know’ that a fact or circumstance
(such as whether money is the proceeds of drug trafficking or some other criminal activ-
ity) shall or will exist. Suspicion is not enough.
CASE EXAMPLE
Saik [2006] UKhL 18; [2007] 1 ac 18
D operated a bureau de change in Marble Arch, London. It was alleged that, in the course of
his business, he had converted (from pounds into foreign currency) a substantial amount of
cash which was the proceeds of drug trafficking or other criminal activity and he was charged
with conspiracy to launder money. He admitted that he suspected the money may have been
the proceeds of crime but appealed on the basis that he did not ‘know’ that it was. The Law
Lords agreed that without proof that D knew the money was the proceeds of crime, there was
no mens rea of conspiracy and quashed D’s conviction.
Saik was followed in Tree [2008] EWCA Crim 261. D, a businessman who ran a firm
called Performance Cars & Boats, was convicted of conspiracy to convert the proceeds
of crime, specifically an Ebbtide Mystique speedboat, into cash. He had sold the speed-
boat for £14,000 in cash but did not record the transaction in his business accounts. D
was convicted on the basis that he suspected the speedboat was criminal property (the
Crown’s case was that the boat’s owner had bought it with money obtained through
unlawful tax evasion). However, D’s appeal was allowed. Following Saik, the Crown
had to prove that D knew that the speedboat was criminal property – mere suspicion
was not enough.
6.3.3 Common law conspiracy

The Criminal Law Act 1977 abolished the offence of conspiracy at common law, except
for conspiracies:
158  to corrupt public morals or to outrage public decency;

 to defraud.
Inchoate offences
Had D made an ‘agreement’ with any D is not guilty of

NO
‘other person’? conspiracy.
YES
Is the ‘other person’ D’s spouse, D’s

D is not guilty of
civil partner, a child under 10 or the YES
conspiracy.
intended victim of the offence?
NO
Have they agreed on a ‘course of

conduct’ which will necessarily amount
D is not guilty of
to or involve the commission of an NO
conspiracy.
offence, if the agreement is carried out
‘in accordance with their intentions’?
YES
D is guilty of conspiracy. It is immaterial

whether the agreement is ever acted
upon – the offence has been committed
(Saik).
Figure 6.2 Conspiracy.

Conspiracy to corrupt public morals or outrage public decency
This is defined (by s 5(3) of the Criminal Law Act 1977, but preserving the common law
nature of the offence) as an agreement ‘to engage in conduct which (a) tends to corrupt
public morals or outrages public decency; but (b) would not amount to or involve the
commission of an offence if carried out by a single person otherwise than in pursuance
of an agreement’. These types of common law conspiracy were retained because it was
unclear at the time (1977) whether corrupting public morals or outraging public decency
constituted substantive crimes. However, in Gibson and another [1990] 2 QB 619, the
Court of Appeal held that outraging public decency was a substantive offence in its own
right. Conspiracy to outrage public decency therefore now falls under the statutory
offence, but conspiracy to corrupt public morals remains a common law offence. In Shaw
v DPP [1962] AC 220, D had published a magazine entitled Ladies Directory containing
the names and addresses of prostitutes and certain details of sexual perversions which
they were willing to practise. The House of Lords upheld D’s conviction for conspiracy
to corrupt public morals. 159
In Knuller (Publishing, Printing & Promotions) Ltd v DPP [1973] AC 439, the House of
Lords held that a finding that conduct was liable to corrupt public morals was not to be
6.3 conspIRacy
lightly reached. It was not enough that it is liable to ‘lead morally astray’. Lord Simon
said that the words ‘corrupt public morals’ suggested ‘conduct which a jury might find
to be destructive of the very fabric of society’.
Conspiracy to defraud
Actus reus
In Scott v MPC [1975] AC 818, Viscount Dilhorne said ‘it is clearly the law that an agree-
ment by two or more persons by dishonesty to deprive a person of something which is
his or to which he is, or would be, entitled, and an agreement by two or more by dishon-
esty to injure some proprietary right of his, suffices to constitute the offence of conspir-
acy to defraud’.
Mens rea
There are two elements: D must intend to defraud, and must do so dishonestly.
Intention
In Scott (1975), Lord Diplock stated that the ‘purpose of the conspirators must be to cause
the victim economic loss’. However, it is doubtful whether many conspirators had as
their purpose causing economic loss to anyone. Typically, defendants involved in fraud
operations operate out of greed, not spite. D’s purpose is almost inevitably to make profit
for himself although, in many cases, he will recognise that it is an inevitable consequence
that loss will be caused to V. This is illustrated in Cooke [1986] 2 All ER 985.
CASE EXAMPLE
Cooke [1986] 2 all eR 985
D, a British Rail steward, was charged, along with a number of his colleagues, with conspiracy
to defraud British Rail. The allegation was that they had taken their own supplies of tea, coffee
powder, cheese and beefburgers into the buffet car crew of a Penzance to Paddington train,
intending to sell these to passengers as if they were BR’s products and pocketing the proceeds.
Although the others were acquitted, D was convicted and the House of Lords upheld the
conviction. D’s fraud involved fraudulent conduct going ‘substantially’ beyond cheating British
Rail’s passengers; the Crown was entitled to charge him with conspiracy to defraud.
Dishonesty
In Ghosh [1982] 2 All ER 689 the Court of Appeal held that the test was the same as in
theft. The standard is that of ordinary decent people; if D knows he is acting contrary to
that standard, he is dishonest (see Chapter 13).
6.3.4 Impossibility
At common law, impossibility was a defence to a charge of conspiracy except where it
was down to D and E’s choice of method being inadequate. This was seen in DPP v Nock
[1978] AC 979.
CASE EXAMPLE
DPP v Nock [1978] ac 979
160 D and E resolved to extract cocaine from a powder, which they believed was a mixture of
cocaine and lignocaine. In fact the powder was pure lignocaine hydrochloride, an anaesthetic
used in dentistry, which contains no cocaine at all. Their convictions for conspiracy to produce
Inchoate offences
a controlled drug were quashed: it was physically impossible to extract cocaine from the
powder.
Now, however, s 1(1) of the Criminal Law Act 1977 (as amended by the Criminal
Attempts Act 1981) provides that a person is guilty of statutory conspiracy even if it
would be impossible for the agreement to be carried out as intended. You will recall that
s 1(1)(a) of the Act states that a person is guilty of conspiracy if he agrees with at least
one other person that a course of conduct shall be pursued which will necessarily amount
to the commission of an offence. Section 1(1)(b) goes on to provide ‘or would do so but
for the existence of facts which render the commission of the offence or any of the
offences impossible’.
Reform
In September 2007 the Law Commission (LC) published a Consultation Paper Conspiracy
and Attempts (Paper No 183), in which it recommended the following (amongst other
things):
 Abolition of the spousal immunity in s 2(2)(a) of the Criminal Law Act 1977, which
the LC describes as ‘anomalous and anachronistic’.
 Abolition of the exemptions in s 2(1) and s 2(2)(c) of the 1977 Act for the ‘intended
victim’ and for those who conspire with the ‘intended victim’. But the LC also recom-
mend the creation of a specific statutory defence for victims charged with conspiracy
based on their ‘protected’ status. However, the immunity for agreements between an
adult and a child under the age of criminal responsibility in s 2(1)(b) would be
retained, on the basis that in such a case there is no meeting of two ‘criminal’
minds.
 Repeal of s 1(2) of the 1977 Act. The LC recommends that where a substantive
offence requires proof of a circumstance element, a person conspiring to commit
that offence must be shown to have been reckless as to the possible existence of
that element (unless a higher degree of fault, e.g. purpose, intention or know-
ledge, regarding that circumstance is required for the substantive offence, in
which case it would be required for conspiracy as well). If s 1(2) is repealed, then
defendants in cases like Saik (2006) and Tree (2008) would in the future be guilty of
conspiracy.
6.4 Assisting or encouraging crime
6.4.1 Background
At common law it was an offence to ‘incite’ someone to commit any offence. This was
committed if D encouraged or persuaded someone else to commit an offence, whether
or not that offence actually took place. However, the general offence of incitement was
abolished by s 59 of the Serious Crime Act 2007 and three new offences of encouraging
or assisting crime have been created instead (see below). However, various specific
incitement offences survive, including:
 Soliciting murder (s 4, Offences Against the Person Act 1861). In Abu Hamza [2006]
EWCA Crim 2918; [2007] QB 659, D, the Imam of Finsbury Park mosque in north
London, was convicted of six counts of this offence.
 Incitement to commit various offences involving the production, possession or
supply of controlled drugs (s 19, Misuse of Drugs Act 1971). 161
 Incitement to commit certain sexual acts outside the United Kingdom, contrary to s
2 of the Sexual Offences (Conspiracy and Incitement) Act 1996.
6.4 assIstIng oR encoURagIng cRIme

 Inciting a child to engage in sexual activity (s 10, Sexual Offences Act 2003). In Hinton-
Smith [2005] EWCA Crim 2575, D was convicted of this offence after he sent dozens
of text messages to V, a 14-year-old girl, seeking to persuade her to perform acts of
masturbation upon him or to engage in full sexual intercourse with him.
 Inciting a child under 13 to engage in sexual activity (s 8, SOA 2003). In Jones [2007]
EWCA Crim 1118; [2007] 3 WLR 907, discussed above, D was convicted of attempt-
ing to commit this offence.
 Inciting a child family member to engage in sexual activity (s 26, SOA 2003).
 Inciting a person with a mental disorder to engage in sexual activity (s 31, SOA
2003).
 Inciting another person to become a child prostitute or to be involved in child porno-
graphy (s 48, SOA 2003).
 Inciting a person to become a prostitute (s 52, SOA 2003).
 Encouraging terrorism (s 1, Terrorism Act 2006).
6.4.2 Liability under the Serious Crime Act 2007

Sections 44–46 of the Serious Crime Act 2007 (SCA) create three new offences of doing
an act ‘capable of encouraging or assisting’ crime. The new offences came into force in
October 2008. The sections provide as follows:
SECTION
‘44(1) A person commits an offence if –
(a) he does an act capable of encouraging or assisting the commission of an offence;
and
(b) he intends to encourage or assist its commission.
(2) But he is not to be taken to have intended to encourage or assist the commission of
an offence merely because such encouragement or assistance was a foreseeable con
sequence of his act.
45 A person commits an offence if –
(a) he does an act capable of encouraging or assisting the commission of an offence;
and
(b) believes
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission.
46(1) A person commits an offence if –
(a) he does an act capable of encouraging or assisting the commission of one or more
of a number of offences; and
(b) he believes –
(i) that one or more of those offences will be committed (but has no belief as to
which); and
(ii) that his act will encourage or assist the commission of one or more of them.
162 (2) It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any
belief as to which offence will be encouraged or assisted.
(3) If a person is charged with an offence under subsection (1) –
Inchoate offences
(a) the indictment must specify the offences alleged to be the “number of offences”
mentioned in paragraph (a) of that subsection; but
(b) nothing in paragraph (a) requires all the offences potentially comprised in that
number to be specified.
(4) In relation to an offence under this section, reference in this Part to the offences speci
fied in the indictment is to the offences specified by virtue of subsection (3)(a).’
In summary, the new offences require the doing of an act ‘capable of encouraging or
assisting’ the commission of:
 an offence, with intent to encourage or assist (s 44);
 an offence, believing it will be committed and believing that the act will encourage or
assist (s 45);
 one or more offences, believing that one or more of them will be committed and
believing that the act will encourage or assist (s 46).
The first cases to reach the Court of Appeal involving the SCA were Blackshaw; Sutcliffe
[2011] EWCA Crim 2312; [2012] 1 WLR 1126. Both cases occurred at the height of the
riots in England in August 2011. The two defendants were sentenced to four years’
imprisonment. They appealed, unsuccessfully, against sentence.
CASE EXAMPLE
Blackshaw; Sutcliffe [2011] eWca crim 2312; [2012] 1 WLR 1126
Blackshaw. On 8 August 2011, Jordan Blackshaw used Facebook to post a public event called
‘Smash down in Northwich Town’. It called for participants to meet at the McDonalds in
Northwich, Cheshire, at lunchtime the next day. The posting was aimed at his close associates,
who he referred to as the ‘Mob Hill Massive’, and his friends, but he also opened it to public
view. The post included a message: ‘We’ll need to get on this, kicking off all over.’ Some
members of the public alerted the police and the site was closed down, but not before nine
people had confirmed their intention to attend. Blackshaw was arrested the next morning. He
admitted to police that the effect of his actions was to encourage rioting and looting. In due
course he pleaded guilty to encouraging or assisting riot, burglary and criminal damage, believ
ing that one or more would be committed, contrary to s 46 SCA.
Sutcliffe. On 9 August 2011, Perry Sutcliffe created a Facebook page called ‘The Warrington
Riots’. He sent invitations to 400 contacts to meet at a Carvery in Warrington at 7 p.m. the
next day. He also opened it to public view. Some members of the public alerted the police and
the site was closed down, but not before 47 people had confirmed their intention to attend.
Sutcliffe was arrested the next morning. In due course he pleaded guilty to encouraging or
assisting riot, contrary to s 44 SCA.
After dismissing their appeals, the Court rejected any suggestion that these cases should
be dealt with more leniently because the defendants had encouraged illegal activity via
social media websites as opposed to face to face. Lord Judge CJ said:
JUDGMENT
‘We are unimpressed with the suggestion that in each case the appellant did no more than
make the appropriate entry in his Facebook. Neither went from door to door looking for 163
friends or likeminded people to join up with him in the riot. All that is true. But modern tech
nology has done away with the need for such direct personal communication. It can all be
done through Facebook or other social media. In other words, the abuse of modern techno

logy for criminal purposes extends to and includes incitement of very many people by a single
step. Indeed it is a sinister feature of these cases that modern technology almost certainly
assisted rioters in other places to organise the rapid movement and congregation of disorderly
groups in new and unpoliced areas.
6.4.3 Actus reus elements

The actus reus of ss 44 and 45 is identical: they both require that D ‘does an act capable of
encouraging or assisting the commission of an offence’. The actus reus of s 46 is slightly
broader; it requires that D ‘does an act capable of encouraging or assisting the commis-
sion of one or more of a number of offences’.
‘Doing an act’
All three of the new offences require that D ‘does an act’. This does not mean, however,
that the new offences cannot be committed by an omission to act, as s 65(2)(b) provides
that ‘doing an act’ includes ‘failing to take reasonable steps to discharge a duty’. An
example of a situation where this might occur is provided by the facts of Du Cros v Lam-
bourne [1907] 1 KB 40, examined in Chapter 5. D takes E, a learner driver, for a driving
lesson in D’s car. D notices that E is accelerating and the car’s speed is approaching the
speed limit for that stretch of road but D fails to do or say anything, intending that this
failure (to discharge D’s duty as the owner of the vehicle) will encourage or assist E to
commit a driving offence. D would appear to be liable under s 44.
Another example might be a cleaner with the keys to an office block who deliberately
fails to lock the back door to the building after she finishes her shift so that E can slip into
the building to burgle it. D’s liability (if any), under s 44, of intentionally ‘failing to take
reasonable steps to discharge a duty’ in a way which is capable of assisting the commis-
sion of an offence (burglary) would depend on (i) whether the cleaner was under a duty
to her employer and (ii) whether she had failed to take reasonable steps to discharge it.
Whether or not a duty exists is normally a question of law for the judge. Whether or not
D has failed to take reasonable steps would be a question of fact for the magistrates or
jury. If D had failed to take reasonable steps to discharge a duty then she would be liable
whether or not E actually committed the burglary (see s 49(1)).
Section 67 further provides that a ‘reference to an act includes a reference to a course
of conduct’. No further explanation is given and the meaning of this section remains
somewhat opaque.
‘Capable’
It is worth emphasising that D’s act need only be ‘capable’ of encouraging or assisting E.
Thus, if D shouts encouragement to E who is about to punch V, this is an act (shouting)
which is obviously ‘capable’ of encouraging E to commit an offence (battery). It is entirely
irrelevant whether or not E does then attack V, or even whether or not E hears D’s
shouts.
‘Encouraging’
Section 65(1) provides that ‘doing an act that is capable of encouraging the commission
of an offence’ includes (but is not limited to) ‘doing so by threatening another person or
otherwise putting pressure on another person to commit the offence’. This is a very
broad definition of ‘encouraging’ but is consistent with cases under the old incitement
offence (Race Relations Board v Applin [1973] 2 All ER 1190, a civil case, approved in
Invicta Plastics Ltd v Clare [1976] RTR 251).
164
6.4.4 Mens rea elements
The mens rea requirements of ss 44 and 45 are different. Section 44(1) states that D must
Inchoate offences
intend to encourage or assist commission of the offence, while s 44(2) adds that D is not
to be taken to have the necessary intent ‘merely because such encouragement or assist-
ance was a foreseeable consequence of his act’. However, it is not necessary that D
intended to encourage or assist E to break the law; it is sufficient to prove that he intended
to encourage or assist the doing of an act which would amount to the commission of that
offence (s 47(2)).
Under s 45, D must believe both (i) that the offence would be committed and (ii) that
his act would encourage or assist its commission. As with s 44, it is not necessary that D
believed he was encouraging or assisting E to break the law. Instead, it is enough to
prove that D believed (a) that an act would be done which would amount to the commis-
sion of that offence; and (b) that his act would encourage or assist the doing of that act
(s 47(3)).
To illustrate the operation of these provisions, imagine that one night D drives E to a
factory which E plans to burgle. Here, D’s act (driving the car to the factory) is clearly
‘capable’ of assisting burglary, but is D liable under s 44 or s 45? This will depend on D’s
mens rea (if any). For example:
 If D and E and friends and have planned the whole thing in advance, then D is prob-
ably liable under s 44 – he intends to assist E.
 If D is sure that E is going to burgle the factory, perhaps because D knows that E has
committed several burglaries before, but drives E to the factory anyway, then D is
probably liable under s 45 – he believes that burglary (or rather, an act which would
amount to the commission of burglary, i.e. entering a building as a trespasser) will be
committed.
 If D is a taxi driver and does not think, or even suspect, that E plans a burglary then
he has no mens rea and is not liable under either ss 44 or 45.
The mens rea of s 46 is that D believes that one or more of those offences will be committed
(but has no belief as to which) and that his act will encourage or assist the commission
of one or more of them. Under s 46, it is not necessary that D believed he was encourag-
ing or assisting E to break the law. Instead, it is sufficient to prove that D believed (a) that
one or more of a number of acts would be done which would amount to the commission
of one or more of those offences; and (b) that his act would encourage or assist the doing
of one or more of those acts (s 47(4)). An example of a situation where s 46 might apply
is where D lends a knife to E believing that E will use it to commit either wounding or
robbery (but D is unsure which).
Section 47(5)(a) applies to all three of the new offences. It states that, where the
act(s) that D is assisting or encouraging E to commit requires some element of ‘fault’
in order for it to be a criminal offence (i.e. it is not a strict liability offence), then D
must believe that (or be reckless whether) it would be done with that fault, were the
act to actually be done by E. Thus, for example, if D assists E to commit burglary by
providing him with a ladder, then D must believe that (or be reckless whether) E is
going to enter a building as a trespasser with intent to steal, inflict GBH or do unlaw-
ful damage. It would be insufficient to prove that D believed that (or was reckless
whether) E was going to enter the building for some other purpose as that would not
constitute the ‘fault’ required.
Section 47(5)(b) further provides that if the offence is one requiring ‘proof of par-
ticular circumstances or consequences (or both)’, it must be proved that D believed that
(or was reckless whether) it would be done in those circumstances or with those con- 165
sequences, were the act to actually be done by E. Thus, for example, if D intentionally
does an act capable of assisting E to stab V by providing E with a knife, D is liable for

assisting wounding, but D is not liable for assisting murder (should V bleed to death)
unless D believed that V would die or he had foreseen V’s death (i.e. he would have been
reckless as to that particular consequence).
‘Doing of acts’ (s 47(8))

Section 47(8) provides that:
SECTION
‘Reference in this section to the doing of an act includes reference to –
(a) a failure to act;
(b) the continuation of an act that has already begun;
(c) an attempt to do an act (except an act amounting to the commission of the offence of
attempting to commit another offence).’
The words ‘in this section’ are important, as it means that this subsection actually applies
only to E’s acts, not D’s.
Section 47(8)(a) presumably only applies where E would be under a duty to act and
D tries to encourage or assist E to breach that duty by failing to act. Thus, s 47(8) (a)
might apply where D is watching a building that has caught fire when the fire brigade
arrive, and D shouts encouragement to the firemen to stand back and let the fire burn. D
could be convicted under s 44 of intentionally doing an act capable of encouraging a
fireman, E, to fail to do an act which would amount to the commission of an offence
(arson), E being under a contractual duty to take reasonable steps to put the fire out.
Section 47(8)(b) is more straightforward. If D sees E, a 14-year-old schoolboy, in the
act of throwing rocks through the windows of a school building, and starts gathering
more rocks for E to throw, this would seem to be a straightforward application of s 47(8)
(b) – D has intentionally done an act which is capable of assisting E to continue an act
(which E had already begun) and which would amount to the commission of an offence
(criminal damage).
In the above two situations it would be irrelevant whether or not E took any notice of
D’s acts of encouragement or assistance or even whether or not E was aware of D’s act
– D is liable if his act is ‘capable’ of encouraging or assisting, not whether it actually does
encourage or assist.
‘Belief ’
Sections 45 and 46 both refer to D’s ‘belief ’, but this word is not defined anywhere in the
2007 Act. D Ormerod and R Fortson, ‘Serious Crime Act 2007: the Part 2 offences’ [2009]
Crim LR 389, suggest that belief ‘constitutes a state of subjective awareness short of
knowledge, but greater than mere suspicion’.
6.4.5 No requirement for substantive offence to be

committed (s 49)
A key provision in the 2007 Act is s 49(1). This states that:
SECTION
‘49(1) A person may commit an offence under this Part whether or not any offence capable of
166 being encouraged or assisted by his act is committed.’
Thus, if D provides E with a gun to be used in a bank robbery then D is liable under ss
44 or 45, depending on D’s mens rea, regardless of whether or not the robbery goes ahead.
Inchoate offences
D commits the ss 44 or 45 offence as soon as he hands over the gun. Of course, if the
robbery did go ahead, then D could also be convicted, under secondary liability
principles, of aiding the offence (see Chapter 5). There is therefore considerable overlap
between the Accessories and Abettors Act 1861 and the Serious Crime Act 2007.
6.4.6 Defence of ‘acting reasonably’ (s 50)

Section 50 provides a defence of ‘acting reasonably’ to anyone charged under ss 44–46.
The section provides that:
SECTION
‘50(1) A person is not guilty of an offence under this Part if he proves –
(a) that he knew certain circumstances existed; and
(b) that it was reasonable for him to act as he did in those circumstances.
(2) A person is not guilty of an offence under this Part if he proves –
(a) that he believed certain circumstances to exist;
(b) that his belief was reasonable; and
(c) that it was reasonable for him to act as he did in the circumstances as he believed
them to be.
(3) Factors to be considered in determining whether it was reasonable for a person to act
as he did include –
(a) the seriousness of the anticipated offence (or, in the case of an offence under s 46,
the offences specified in the indictment);
(b) any purpose for which he claims to have been acting;
(c) any authority by which he claims to have been acting.’
Note that the burden of proof is on D, albeit on the balance of probabilities. Without the
benefit of case law it is a matter of speculation when (if at all) these defences might
operate. One possible scenario where s 50(2) might apply involves D, a shopkeeper, who
sells tools to E, believing that E is going to use the tools to commit a burglary. D might
face liability under s 45 unless he can prove that it was ‘reasonable’ to act as he did in the
circumstances that he believed to exist.
6.4.7 Defence for victims (s 51)
Section 51 provides a defence, in certain circumstances, for victims:
SECTION
‘51(1) In the case of protective offences, a person does not commit an offence under this Part
by reference to such an offence if –
(a) he falls within the protected category; and
(b) he is the person in respect of whom the protective offence was committed or
would have been if it had been committed.
(2) “Protective offence” means an offence that exists (wholly or in part) for the protection
of a particular category of persons (“the protected category”).’
If D is accused of intentionally doing an act capable of encouraging or assisting E to 167

commit an offence, but that offence exists for ‘the protection of a particular category of
persons’, and D falls within the ‘protected category’, then D has a defence. Thus, where

D, a 13-year-old girl, sends a text message to E, an older man, suggesting that they have
sex, D would appear not to be guilty under s 44 of intentionally doing an act which is
capable of encouraging E to commit an offence (specifically, sexual activity with a child,
contrary to s 9 of the Sexual Offences Act 2003). The 2003 Act is designed to protect
people like D, so it would be paradoxical to convict her in those circumstances.
6.4.8 Impossibility
The SCA is silent on the question of impossibility. For example, if D is charged under s
44 with intentionally doing an act capable of encouraging or assisting E to murder V by
selling a handgun to E, does it matter if V is (unknown to either of them) already dead,
killed the previous day in a road traffic accident? A literal reading of s 44 would suggest
that D is liable. He has intentionally done ‘an act’ (selling the gun) and that act is clearly
‘capable of encouraging or assisting the commission of an offence’. The imposition of
liability on D in such circumstances would also be consistent with the purpose of the
Act, which is to criminalise those who assist or encourage others to commit crimes,
whether or not those crimes are committed (as s 49(1) makes explicit). This would also
bring the SCA provisions in line with attempts and conspiracy, where impossibility is
not a defence. However, under the old law of incitement, impossibility was a defence
(Fitzmaurice [1983] QB 1083) and the Act’s silence on this point will allow defendants to
at least try to argue that impossibility is a defence under the SCA.
6.4.9 Attempt liability

Prior to its abolition it was possible for D to be convicted of attempted incitement and it
is perfectly possible for D to be charged (under s 1 of the Criminal Attempts Act 1981)
with attempting to do an act that is capable of encouraging or assisting the commission
of an offence. Thus, for example, in the scenario given earlier (where D drives E to a
factory which E plans to burgle), it appears that D will be liable (for an attempt) even if
on the way the car breaks down, or they are involved in a car crash, or simply get lost,
so that they never reach their destination. In each situation, D has probably not done an
act which is ‘capable’ of assisting E to commit burglary, but he has gone beyond the
‘merely preparatory’ stage and has therefore attempted to do so. Another example might
be D trying to send an email or text to E encouraging E to commit an offence, but D
mistypes the address or phone number and the message is sent but never received.
6.4.10 Evaluation of the Serious Crime Act 2007
The provisions described above have been heavily criticised by a number of leading
academics. For example, D Ormerod and R Fortson, ‘Serious Crime Act 2007: the Part
2 offences’ [2009] Crim LR 389, describe the new legislation as ‘complex’, ‘convo-
luted’, ‘tortuously difficult’ and containing ‘some of the worst criminal provisions to
fall from Parliament in recent years . . . These are offences of breathtaking scope and
complexity. They constitute both an interpretative nightmare and a prosecutor’s
dream.’ J Spencer and G Virgo agree, describing the new provisions as ‘complicated
and unintelligible . . . over-detailed, convoluted and unreadable’ (‘Encouraging and
assisting crime: legislate in haste, repent at leisure’ (2008) 9 Arch News 7). Section 47
is singled out as an ‘example of impenetrable drafting’; Spencer and Virgo admit that
even they cannot ‘make sense’ of s 47(8)(c) and suggest that a prize be awarded to
anyone who can!
In Sadique and Hussain [2011] EWCA Crim 2872; [2012] 1 WLR 1700, the Court of
168 Appeal rejected an argument that s 46 was so vague and uncertain as to be contrary to
art 7 of the European Convention on Human Rights (which provides that ‘No one shall
be held guilty of any criminal offence on account of any act or omission which did not
Inchoate offences
constitute a criminal offence under national or international law at the time when it was
committed’). Hooper LJ explained the operation of the allegedly vague provision as
follows (emphasis in the original):
JUDGMENT
‘Section 46 should only be used, and needs only to be used, when it may be that D, at the time
of doing the act, believes that one or more of either offence X, or offence Y or offence Z will
be committed, but has no belief as to which one or ones of the three will be committed. To
take an example. D gives P a gun. Giving P a gun is, we shall assume, capable of encouraging
or assisting the commission of offences X, Y and Z and the prosecution specify those three
offences in the indictment. If it may be that D, at the time of giving the gun, believes that one
or more of offences X, Y and Z will be committed but has no belief as to which will be com
mitted, s 46 should be used.’
That much is clear enough. Unfortunately, certain other observations in Sadique and
Hussain led to a second appeal, Sadique (No 2) [2013] EWCA Crim 1150; [2014] 1 WLR
986, which provided the Court of Appeal with another opportunity to clarify the opera-
tion of s 46. This time, the Lord Chief Justice gave the judgment of the appeal court. Lord
Judge CJ said:
JUDGMENT
‘Section 46 creates the offence of encouraging or assisting the commission of one or more
offences. Its specific ingredients and the subsequent legislative provisions underline that an
indictment charging a s 46 offence of encouraging one or more offences is permissible. This
has the advantage of reflecting practical reality. A defendant may very well believe that his
conduct will assist in the commission of one or more of a variety of different offences by
another individual without knowing or being able to identify the precise offence or offences
which the person to whom he offers encouragement or assistance intends to commit, or will
actually commit.’
CASE EXAMPLE
Sadique (No 2) [2013] eWca crim 1150; [2014] 1 WLR 986
Omar Sadique (S) was charged under s 46 with doing acts capable of assisting one or more
offences involving the supply of Class A and/or Class B controlled drugs. The Crown case was
that S operated a national distribution business and in the course of it he had supplied chemical
‘cutting agents’ (benzocaine, lignocaine and other chemicals) to drug dealers. S was convicted
but appealed, inter alia, on the basis that the trial judge’s summing up on the mens rea of s 46
was incorrect. The appeal was rejected; the trial judge had directed the jury correctly.
The above-quoted academics all agree that the new offences were largely unnecessary.
Whilst there were some problems with certain aspects of the old offence of incitement, it
was simple, well established and understood. All that the law actually needed was an
offence of ‘facilitation’. This would cover the situation where, for example, D provides E
169
with a gun intending for E to use it as part of a bank robbery. If E never uses the gun then
D cannot be prosecuted under secondary liability (he has not aided, abetted or counselled
the commission of an offence), nor can he be prosecuted for conspiracy unless there is evid-

ence that D and E agreed that E would commit robbery. Finally, there would be no guar-
antee of an incitement conviction as the handing over of the gun would not necessarily
amount to encouragement. The creation of a new facilitation offence might have been
achieved with a simple provision; instead, we have the Serious Crime Act to deal with.
kEy fACTS
Impossibility a
Inchoate offence Authority
defence?
Attempt No Criminal Attempts Act 1981; Shivpuri (1987)
Conspiracy No Criminal Law Act 1977 (as amended)
Assisting or Unknown Fitzmaurice (1983) decided that impossibility was
encouraging crime a defence to incitement but the Serious Crime Act
2007 is silent on the subject
ACTIVITy
applying the law
1. D is an expert in bank security systems, now retired. E is a former racing driver. They are
both in need of cash having lost heavily on the stock market and gambling, respectively.
They agree to form a team to steal money from a bank: D will provide the knowledge
required to get past the bank’s security systems and into the safe; E will be the getaway
driver in the event that a highspeed escape is required. D is reluctant to actually enter the
bank himself and E must wait outside in the getaway car. They therefore ‘advertise’ their
plan in underworld circles, and invite a third party to join them to do the physical task of
entering the bank and stealing from the safe. F, who has recently been released from
prison having served eight years for armed robbery, responds to their ‘advertisement’. F
believes that D and E plan to carry out an armed robbery in broad daylight; D and E actually
intend to quietly break into the bank during the night.
At this point, consider whether D and E, and F, have committed conspiracy and, if so,
conspiracy to commit which offence(s)?
2. The police, who have been tipped off, think they know what D, E and F are plotting and
set up observation of the bank. The police observe F walk up to a bank in the early
hours of the morning. F, who is dressed all in black and carrying a black holdall, stops
next to a rear window of the bank and is examining it when the police rush from their
hiding place and arrest him. D and E are also arrested in a car parked nearby. Diagrams
showing the position of security cameras and alarms for the bank are found in the car.
D, E and F do not deny that they planned to burgle the bank but insist that they intended
to carry out the burglary the next night and that F was simply making a reconnaissance
trip.
Consider whether D, E and F have committed attempted burglary. (If necessary,
refer back to Chapter 5 for a reminder of the principles of secondary participation/joint
enterprise.)
3. F was also found to have a loaded firearm hidden in an inside jacket pocket. He admits to
police that he would have used this to shoot any security guard who might have been in
170 the bank when the burglary went ahead.
Consider whether D, E and F have committed conspiracy to murder.
Note: For the purposes of the above activities, theft is the dishonest appropria
Inchoate offences
tion of property belonging to another; burglary involves entering a building as a

trespasser with intent to steal; robbery is theft with the use of or threat of force;
murder is causing the death of another human being with intent to kill or cause
serious harm.
SUMMARy
The law of attempts is set out in the Criminal Attempts Act 1981. D is guilty of an attempt
if he does an act that is more than merely preparatory to the commission of an offence,
with intent to commit it. The phrase ‘more than merely preparatory’ has proven difficult
to define and apply consistently (see Gullefer, Campbell, Jones and Geddes), prompting the
Law Commission to recommend reform, including the creation of a new offence of crim-
inal preparation. Intention has been described as the ‘principal ingredient of the crime’
(Whybrow).
The law of statutory conspiracy is set out in the Criminal Law Act 1977. D will be
guilty of conspiracy if he agrees with any other person or persons that a course of
conduct shall be pursued which, if the agreement is carried out in accordance with
their intentions, will necessarily amount to or involve the commission of any offence
or offences by one or more of the parties to the agreement. The essence of the offence
is the agreement (Saik). The Law Commission has recommended some reform of
the 1977 Act, including the rewording of s 1(2) and the abolition of spousal immunity
in s 2(2).
There are also two forms of common law conspiracy: conspiracy to corrupt public
morals and conspiracy to defraud.
The Serious Crime Act 2007 (SCA) created three new offences of doing an act capable
of encouraging or assisting the commission of an offence. The SCA also abolished the
common law offence of incitement. The SCA has been heavily criticised for its breadth,
complexity and convoluted structure.
Impossibility is not a defence under the Criminal Attempts Act 1981 (Shivpuri) nor is
it a defence under the Criminal Law Act 1977. However, it was a defence under the
common law of incitement (Fitzmaurice) and the SCA is silent on this issue. It is therefore
a moot point as to whether or not impossibility provides a defence to anyone charged
with encouraging or assisting an offence.

In an offence of attempt ‘the intent becomes the principal ingredient of the crime’ (Whybrow
(1951)). Critically consider the extent to which you agree with this statement.
Briefly explain the law of attempt:

• Define liability for attempts under s 1, Criminal Attempts
Act 1981
• D must have intent
• D must do an act which is more than merely preparatory
to the commission of the offence
• Liability may be imposed for an impossible attempt
171
Explain the meaning of ‘more than merely
preparatory’ (note focus of the question is on the
sampLe essay qUestIon

mens rea so this should be fairly brief):
• Refer to case law, e.g. Boyle & Boyle (1987), Gullefer
(1990), Jones (1990), Campbell (1991), A-G’s Reference
(No 1 of 1992), Geddes (1996)
• Contrast with the tests used pre-1981 Act
Discuss the element of intention, and consider

whether intent is the ‘principal’ ingredient, e.g.
• Note that Parliament and the courts regard the
attempted offence as potentially as serious as the
substantive offence. Presence of the intent means that D
is just as ‘morally culpable’ (Mohan (1976))
• Note that intention to kill is essential for an attempted
murder case (White (1910), Whybrow (1951)). In Gotts
(1992), a duress case (see Chapter 8), the intent of an
attempted murderer was said to be ‘more evil’ than that
of a murderer
• Note that conditional intent may suffice (Walkington
(1979), A-G’s Ref (Nos 1 and 2 of 1979))
• Note that oblique intent may suffice (Walker and Hayles
(1990))
• Discuss how liability can be imposed for impossible
attempts and the key role played here by D’s intention
(Shivpuri (1987), Jones (2007))
• Note that a lesser mens rea (recklessness) may suffice in
relation to circumstances (Khan and others (1990), A-G’s
Ref (No 3 of 1992))
Conclude
Further Reading
Books
Chapter 13.
Articles
Arenson, K, ‘The pitfalls in the law of attempt: a new perspective’ (2005) 69 JoCL 146.
Christie, S A, ‘The relevance of harm as the criterion for the punishment of impossible
attempts’ (2009) 73 JoCL 153.
Horder, J, ‘Reforming the auxiliary part of the criminal Law’ (2007) 10 Arch News 6.
Jarvis, P and Bisgrove, M, ‘The use and abuse of conspiracy’ [2014] Crim LR 261.
Ormerod, D and Fortson, R, ‘Serious Crime Act 2007: the Part 2 offences’ [2009] Crim
LR 389.
172 Rogers, J, ‘The codification of attempts and the case for “preparation” ’ [2008] Crim
LR 937.
Spencer, J and Virgo, G, ‘Encouraging and assisting crime: legislate in haste, repent at
Inchoate offences
leisure’ (2008) 9 Arch News 7.

Sullivan, G R, ‘Inchoate liability for assisting and encouraging crime’ [2006] Crim LR 1047.
Virgo, G, ‘Laundering conspiracy’ (2006) 65 CLJ 482.
Internet links
Law Commission Consultation Paper, Conspiracy and Attempts (Paper No 183) (2007),
available at www.lawcom.gov.uk.
7
Capacity
AIMS AND OBJECTIVES

 Understand the limitations on liability of children in criminal law
 Understand the effects a person’s mental state may have on their criminal
liability
 Understand the concept and basic principles of vicarious liability in the criminal
law
 Analyse critically the concept of vicarious liability
 Understand the basic principles of corporate liability in the criminal law
 Analyse critically the need for corporate liability and the tests used in establishing
it
There are some circumstances in which the law rules that a person is not capable of
committing a crime. The main limitations are on:
 children under the age of ten;
 mentally ill persons;
 corporations.
On the other hand, there are some circumstances in which a person may be liable for
the actions of another under the principle of vicarious liability.
Capacity to commit a crime is important, as one of the principles of justice is that
only those who are blameworthy should be liable for their crimes. Without capacity
to understand or be responsible for his actions, a person has no moral blame. For this
reason English law recognises categories of those without capacity and they are
generally not held to be criminally responsible for their actions. This means that if,
for example, a five-year-old child takes some sweets from a counter in a shop, he
cannot be guilty of theft. He has done the actus reus of theft (appropriation of prop-
erty belonging to another), but the law automatically assumes that he is not capable
of forming the necessary mens rea.
7.1 Children
7.1.1 Children under the age of ten
The age of criminal responsibility in England and Wales is ten. This age was set by the
Children and Young Persons Act 1933, which states in s 50 that:
SECTION
‘50 It shall be conclusively presumed that no child under the age of ten years can be guilty of
any offence.’
This is known as the doli incapax presumption. Children under the age of ten cannot be
doli incapax
criminally liable for their acts. This conclusive presumption that a child under ten cannot
Incapable of
wrong commit a crime means that those who use children to do the act of an offence are liable as
174 principals, rather than as secondary participants in the offence. For example, if two teenage
boys get a child aged eight to enter into a house through a small window and bring out to
them money or other valuables, the eight-year-old cannot be guilty of burglary. Normally
CapaCity
anyone who waited outside during a burglary would be a secondary participant in the
offence, but in this case the teenagers are guilty as principal offenders.
Prior to the Children and Young Persons Act 1933 the age of criminal responsibility in
England and Wales was eight. This was thought to be too low. The age of ten is now the
lowest age of criminal responsibility in any Western European country, and many critics
think that it should be increased to 12. In fact as long ago as 1960 the Ingelby Committee,
Cmnd 1911 (1960) recommended that it should be increased to 12 in England and Wales.
Recently Heather Keeting has itemised criticism of the age made by major bodies in
her article ‘Reckless children’ (2007) Crim LR 547:
quotation
‘The Government has increasingly come under fire both internationally and domestically in
relation to this low age of criminal responsibility: the United Nations Committee on the Rights
of the Child; the European Committee on Social Rights which stated in 2005 that the age of
criminal responsibility “is manifestly too low and . . . not in conformity with Article 17 of the
[Social] Charter” which assures the right of children to social and economic protection.’
She also points out that the low age of responsibility is in breach of human rights. In 2003
the Parliamentary Joint Committee on Human Rights criticised the age in their Tenth
Report of Session 2002–03 HL1 17/High Court 81 at paras 35 to 38. Also, in 2006, the
Council of Europe Commissioner for Human Rights commented on the low age in a
speech, ‘The Human Rights Dimension of Juvenile Justice’.
Interestingly, Scotland used to have an even lower age of criminal responsibility at eight
years of age. However, in 2010 the Scottish Executive passed the Criminal Justice and
Licensing (Scotland) Act in the Scottish Parliament which raised the age to 12 in Scotland.
Care orders
Children under ten who have committed criminal-type behaviour can be dealt with in
other ways. The local authority can bring proceedings in the family court under s 31 of
the Children Act 1989 asking for an order that the child be placed in the care of the local
authority or for an order placing the child under the supervision of the local authority or
a probation officer. Such an order will only be made if it is in the interests of the child’s
welfare and the court is satisfied under s 31(2) of the Children Act 1989:
SECTION
‘31(2) (a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that harm, or the likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not
made, not being what it would be reasonable to expect a parent to give to
him; or
(ii) the child’s being beyond parental control.’
7.1.2 Child safety orders

The other area where the law allows orders to be made in respect of children under ten
is in respect of child safety orders under s 11 of the Crime and Disorder Act 1998. This
focuses on behavioural problems of the child and an order can be made if:
 the child has committed an act which, if he had been aged ten or over, would be an 175
offence; or
 a child safety order is necessary to prevent the child committing an act which, if he
7.1 Children
had been aged ten or over, would be an offence.
The local authority has to apply to a Magistrates’ Family Proceedings Court for an order.
If it is granted the magistrates can place the child under the supervision of a social
worker or a member of a youth offending team for a period of up to three months. This
period can be extended to 12 months if the court is satisfied that the circumstances of the
case are exceptional. The magistrates can also add on other conditions.
Child safety orders are aimed at preventing children from becoming criminal offend-
ers when they are older.
7.1.3 Children aged ten and over

In the legal system there are different terms for different age groups. These are the
following:
 Those aged ten but under 14 are known as ‘children’.
 Those aged 14 but under 17 are known as ‘young persons’.
 Those offenders aged 14 but under 21 are known as ‘young offenders’.
Until 1998 there was a rebuttable presumption that those aged 10 to 13 inclusive were
doli incapax. This meant that they were presumed not to be capable of committing an
offence but the prosecution could rebut this presumption by bringing evidence that the
child knew that what he did was seriously wrong. The need for such a presumption was
challenged by the Queen’s Bench Divisional Court in C v DPP [1995] 2 All ER 43.
CASE EXAMPLE
C v DPP [1995] 2 all er 43
D, a boy aged 12, was seen tampering with a motorcycle and, when challenged, ran away.
The prosecution relied on the fact that he had run away as evidence that he knew that what
he was doing was seriously wrong. The Divisional Court held that this was insufficient to rebut
the presumption of doli incapax, as it could show mere naughtiness rather than a realisation
that what he was doing was seriously wrong.
However, the judges in the Divisional Court thought that the presumption was out of
date and should no longer be part of our law. Mann LJ said:
JUDGMENT
‘Whatever may have been the position in any earlier age, when there was no system of uni-
versal compulsory education and when perhaps children did not grow up as quickly as they do
nowadays, this presumption at the present time is a serious disservice to our law . . . it is unreal
and contrary to common sense.’
When the case was appealed to the House of Lords, they held that it was not the judges’
role to abolish such a long-standing law. If the government thought it should be abol-
ished, then the government could do so democratically through Parliament. The gov-
ernment did take action and s 34 Crime and Disorder Act 1998 abolished the rebuttable
176
presumption that a child aged 10 to 13 is incapable of committing an offence.
Doubts were raised as to whether s 34 completely abolished the doli incapax rule or
whether only the presumption had been abolished. Professor Walker in ‘The end of an old
song’ (1999) 149 NLJ 64 put forward the view that all that had been abolished was the pre-
CapaCity
sumption that a child aged 10 to 13 did not know that his act was seriously wrong. The
abolition of the presumption did not mean that the ‘defence’ of ‘ignorance of serious wrong’
had been abolished. In DPP v P [2007] EWHC 946 Admin, Smith LJ thought that it was pos-
sibly still open to a child defendant to prove that he did not know his act was seriously
wrong.
However, the issue was finally settled by the House of Lords in JTB [2009] UKHL 20.
CASE EXAMPLE
JTB [2009] UKhl 20
D, aged 12 at the time of the offences, was charged under s 13(1) of the Sexual Offences Act
2003 with causing or inciting children under 13 to engage in sexual activity. When interviewed
by police, D admitted the activity but said that he had not thought that what he was doing
was wrong.
D wished to rely on the defence of doli incapax. The trial judge ruled that this defence was
not available to him. On appeal, both the Court of Appeal and the House of Lords upheld D’s
conviction. In their judgment, the House of Lords looked at the wording and the background
of s 34 of the Crime and Disorder Act 1998.
The Law Lords thought that it was not possible to decide from the wording of the Act
whether both the presumption and the ‘defence’ of doli incapax had been abolished. They,
therefore, looked at the legislative background to s 34. In the government’s consultation
paper, Tackling Youth Crime (1997), the government put forward alternative options for
reform. These were (1) that the presumption could be abolished and (2) that the presumption
could be reversed assuming that a child aged 10 to 13 was capable of forming criminal intent,
but allowing him to prove that he did not know what he was doing was seriously wrong. The
government stated that its preferred option was to abolish the defence.
Following consultation, a White Paper was issued, No More Excuses: A New Approach to
Tackling Youth Crime in England and Wales (1997), which made it plain that the government
intended to abolish the defence. The Crime and Disorder Bill was then introduced into Parlia-
ment. During the passage of this Bill through Parliament amendments were proposed to reverse
the presumption rather than completely abolish it. These amendments were defeated.
The Law Lords held that this legislative background showed that Parliament had clearly
intended the presumption to be completely abolished.
Not everyone agreed that the presumption should have been abolished. One view is that
the abolition means that a child aged ten and over is considered to be ‘as responsible for
his actions as if he were 40’. This was particularly so for offences in which the concept of
objective recklessness used to apply the standards of the reasonable adult and the fact
that the defendant was a child was ignored. However, since G and another [2003] UKHL
50, in which the House of Lords effectively abolished the concept of objective reckless-
ness at least as far as criminal damage is concerned, this objection is no longer valid.
In any case the normal burden of proof applies, so the prosecution has to prove the
relevant mens rea for the offence charged and a child defendant, like any other defend-
ant, will only be found guilty if he or she is proved to have had the necessary intent.
Rape cases
There also used to be an irrebuttable presumption that boys under the age of 14 were
incapable of having sexual intercourse and therefore incapable of committing as prin-
cipal the offence of rape or any other offence requiring proof of sexual penetration. This 177
presumption was felt to be out of date due to the fact that physical development can be
much earlier and it seemed unjust to have a rule which prevented prosecution for such
7.1 Children
serious offences. The presumption was eventually abolished by s 1 of the Sexual Offences
Act 1993 and since then there have been a number of convictions for rape by boys
between the ages of 10 and 13.
Trial
One way in which child defendants are dealt with differently from older offenders is
that, for all but the most serious offences, children and young persons are tried in the
Youth Court. The procedure here is more informal and in private. For some very serious
offences, including murder, manslaughter and rape, a child defendant must be tried in
the Crown Court. It is also possible for them to be sent for trial at the Crown Court
where the offence would, if the defendant was an adult, carry a maximum penalty of 14
years’ imprisonment. Where a child or young person is being tried in the Crown Court,
special arrangements must be made to allow him to participate effectively in the trial. In
T v UK; V v UK (1999) 7 EHRR 659 it was held that if this is not done, there may be a
breach of art 6 of the European Convention on Human Rights.
There are also different sentencing powers for child offenders and young offenders
compared to those for adults. Most sentences for children are aimed at reforming their
behaviour. However, for serious offences or for repeat offenders, custodial sentences
can be imposed.
kEy fACTS
Key facts on the liability of children for criminal offences
Age Law Comment

Under 10 They are doli incapax, that is deemed Is 10 the right age? Should it be raised to
incapable of committing a crime (s 50 12?
Children and Young Persons Act 1933).
Liable to a child safety order (s 11 Is the use of a child safety order merely a
Crime and Disorder Act 1998). way round the doli incapax rule?
Or does it serve a useful purpose in
preventing young children from becoming
criminal offenders when they are older?
10–13 Now fully responsible for their actions Is it right that the level of responsibility for
inclusive (s 34 Crime and Disorder Act 1998 and their actions be the same as for an adult?
JTB (2009)).
Previously there was a rebuttable Should the rebuttable presumption have
presumption that they were doli been abolished?
incapax.
14–17 Fully responsible for their actions. Allowance for their age can be made in
inclusive sentencing.
7.2 Mentally ill persons

The defendant’s mental capacity is relevant at three different stages in the criminal
178 justice process. These are:
 at the point of the commission of the offence;
 at the time of trial;
CapaCity
 when the defendant is sentenced.
There is also a special defence to murder of diminished responsibility, where the defend-
ant’s mental state may provide a partial defence so that the offence is reduced to
manslaughter.
7.2.1 Unfitness to plead

Even before the trial, there are procedures for dealing with mentally ill defendants.
Under the Mental Health Act 1983 it is possible for a defendant who has been refused
bail to be detained in a mental hospital, instead of on remand in prison. This can only
occur where the Home Secretary has reports from at least two medical practitioners and
is satisfied that the defendant is suffering from mental illness or severe mental impair-
ment. The Home Secretary will only exercise this power,
quotation
‘where the prisoner’s condition is such that immediate removal to a mental hospital is neces-
sary, that it would not be practicable to bring him before a court, or that the trial is likely to
have an injurious effect on his mental state.’
Report of the Royal Commission on Capital Punishment, Cmd 8932 (1953)
If the Home Secretary uses this power, then the defendant will still be brought to trial
when he is well enough.
At the trial
When the defendant is brought up for trial the court may consider the question of
whether he is fit to plead. This can occur whether or not the accused has been sent to a
mental hospital under the power above.
The criteria for deciding whether D is unfit to plead originate from the case of Pritch-
ard (1836) 7 C & P 303 in which the defendant was a deaf mute. The ruling was made
when there was very limited knowledge about mental illness and the effect it might
have on a defendant.
The criteria set by Pritchard were restated in John M [2003] EWCA Crim 3452. They set
out that D must have sufficient ability in the following six matters:
 to understand the charges;
 to understand the plea;
 to challenge jurors;
 to instruct counsel and his solicitor;
 to understand the course of the trial;
 to give evidence if he so wishes.
Where he is unable to defend himself properly because of his mental state the Criminal
Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and
Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004,
allows him to be found unfit to plead.
179
The issue is decided by a judge without a jury. There must be evidence of at least two
medical practitioners, at least one of whom is approved by the Home Office as having
special experience in the field of mental disorder.
7.2 Mentally ill persons

Burden of proof
If the defence raises the issue that the defendant is unfit to plead, then the burden of
proof is on the defence, but it need only prove it to the civil standard of the balance of
probabilities (see Chapter 1, section 1.8.2). If the prosecution raises the issue then it must
prove it beyond reasonable doubt.
Finding of unfitness to plead

If the defendant is found unfit to plead then a jury must be sworn in to decide whether
the defendant ‘did the act or made the omission charged against him’. This provision is
in the Criminal Procedure (Insanity) Act 1964 as amended. In Antoine [2000] 2 All ER 208
it was decided that the words ‘did the act or made the omission’ mean that the jury only
have to consider the actus reus of the offence. It is not necessary for the jury to consider
the mental element of the crime. If the jury find that the defendant did not do the actus
reus, then the defendant cannot be held under any criminal law provision, though he
may still be detained in a mental hospital if his condition warrants this under the Mental
Health Act 1983.
When a defendant is found unfit to plead and the jury decide that he or she did do the
relevant actus reus, the judge has the power to make one of the following orders:
 a hospital order (with or without a restriction order);
 a supervision order;
 an absolute discharge.
If the offence is one for which the sentence is fixed by law, for example murder, where
there is a mandatory sentence of life imprisonment, and the court has the power to make
a hospital order, then the judge must make a hospital order with a restriction order.
The defendant has a right to appeal to the Court of Appeal against a finding of unfit-
ness to plead.
The Law Commission’s proposals

In October 2010 the Law Commission issued a consultation paper, Unfitness to Plead
(2010) CP 197. In this it pointed out the problems in the existing law. The main problem
the Commission highlighted is that the Pritchard criteria were formulated in 1836 at a
time when mental illness and its effects on a defendant’s ability were not properly
understood. As the Law Commission points out at para 2.47:
quotation
‘The Pritchard test really only addresses extreme cases of a particular type (usually bearing on
cognitive deficiency) and . . . it continues to set a high threshold for finding an accused unfit to
plead.’
The Law Commission’s main proposal is to replace the Pritchard test with a new test
based on whether the accused has decision-making capacity for the trial. The test should
take into account all the requirements for meaningful participation in the criminal
proceedings.
180 Where a defendant is found unfit to plead, the Law Commission proposes that on the
trial of the facts, the prosecution should have to prove not only that D has done the act
or made the omission charged but also that there are no grounds for an acquittal.
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7.2.2 Insanity at time of offence

Where a person is fit to plead but is found to be insane at the time he committed the
offence, a special verdict of ‘Not guilty by reason of insanity’ is given by the jury. The
rules on insanity come from the M’Naghten Rules (see Chapter 8). Where the verdict is
‘Not guilty by reason of insanity’, the judge has the same powers of disposal under
the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 as set out above in
section 7.2.1.
7.2.3 Diminished responsibility

This is a partial defence which is only available on a charge of murder. It is set out in s 2
Homicide Act 1957 and operates where a person suffers from an abnormality of mental
functioning, arising from a recognised medical condition which substantially impaired
D’s ability to:
 understand the nature of his conduct, or
 form a rational judgment, or
 exercise self-control,
and which provides an explanation for D’s acts and omissions. (see Chapter 10 for full
discussion of the defence). If the defence is successful the charge of murder is reduced to
manslaughter.
7.2.4 Sentencing mentally ill offenders

As well as the normal range of custodial and community penalties there are also special
powers available to the courts when dealing with mentally ill people who have been
convicted of an offence. The aim is to provide treatment and help for such people while
at the same time balancing the need for society to be protected from any danger posed
by the person. The main additional powers available to the courts are:
 a community sentence with a treatment requirement;
 a hospital order;
 a restriction order under s 41 of the Mental Health Act 1983.
This last order can only be made in the Crown Court when the offender is considered to
be a danger to the community. The order means that the offender is sent to a secure hos-
pital for a set period or, where necessary, for an indefinite period.
ACTIVITy
self-test questions
1. What is the doli incapax presumption and at what age does it cease to apply in England and
Wales?
2. What other differences are there in the way children and young people are dealt with in
the criminal justice system?
3. What is the purpose of the unfitness to plead procedure?
4. What safeguards are there for defendants when the unfitness to plead procedure is used?
5. Apart from the unfitness to plead procedure when is the mental health of the defendant a 181
relevant matter in criminal proceedings?
7.3 Vicarious liability
7.3 ViCarioUs liability

There is a rule in the law of torts that one person can be liable for the torts committed by
another. This is known as vicarious liability. It usually occurs in the employer/employee
relationship where the employer is liable for any torts committed by an employee in the
course of his employment. However, in criminal law the normal rule is that one person
is not liable for crimes committed by another. This was illustrated nearly 300 years ago
in Huggins (1730) 2 Strange 883, where the warden of Fleet prison was acquitted of the
murder of a prisoner who had been placed in an unhealthy cell by one of the turnkeys
(gaolers). The warden did not know that this had been done. Raymond CJ in this 1730
case pointed out the difference between civil and criminal law when he said:
JUDGMENT
‘It is a point not to be disputed but that in criminal cases the principal is not answerable for the
act of the deputy as he is in civil cases; they must each answer for their own acts and stand or
fall by their own behaviour. All the authors that treat of criminal proceedings proceed on the
foundation of this distinction; that to affect the superior by the act of the deputy there must
be command of the superior which is not found in this case.’
However, there are some situations in criminal law where one person can be liable for
the acts or omission of another. These are:
 common law crimes of public nuisance and criminal libel;
 statutory offences where a statute imposes vicarious liability.
At common law the principle expressed in Huggins nearly always applies. The only
exceptions are the offences of public nuisance and criminal libel where the actions of an
employee can make his employer vicariously liable. Causing a public nuisance on the
highway can be disruptive to the general public and a reason for having vicarious liab-
ility for public nuisance is that it is likely to encourage employers to take steps to prevent
their employees from creating the nuisance.
In statute law Parliament can make any offence it thinks appropriate one of vicarious
liability by including such words as ‘person, himself or by his servant or agent’ in the
offence. As well as having clear wording imposing vicarious liability it also imposed in
two other ways. These are:
 through the extended meanings of words;
 under the principle of delegation.
Who can be vicariously liable?

The main categories of people who can be vicariously liable are:
 principals, including corporations, for acts of their agents;
 employers, including corporations, for acts of their employees;
 licensees for acts of others employed in the business for which the licensee holds the
licence where they have delegated control of the business. This is so even though the
licensee may himself be an employee of the brewer or other owner of the premises
which are licensed.
182
Vicarious liability can make principals responsible for the actions of their agents. In Duke
of Leinster [1924] 1 KB 311 the Duke was bankrupt. He was convicted of obtaining credit
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without disclosing his bankrupt status. In fact it was his agent who, contrary to the Duke’s
instructions, had obtained the credit without disclosing the facts. The Duke was guilty
because he was vicariously liable for his agent’s failure to disclose the bankruptcy.
The main area in which vicarious liability exists is where employers are liable for the
actions of their employees.
7.3.1 Extended meaning of words

Words such as ‘sell’ and ‘use’ are usually taken to include the employer (or principal or
licensee), even though the actual sale or use is by an employee. These are strict liability
offences where there is no need to prove any mental element. In such a case the act of the
employee (selling, using, etc.) is the act of the employer. However, vicarious liability can
only occur where an employee is doing an act which he is employed or authorised to do.
Where the employee is not authorised to carry out the act then the employer is not liable.
In Adams v Camfoni [1929] 1 KB 95, D was a licensee who was charged with selling
alcohol outside the hours permitted by the licence. The sale had been made by a mes-
senger boy who had no authority to sell anything. D was held to be not guilty.
If the employee is carrying out an authorised act then the employer will be liable even
though the employee does it in a way which has not been authorised. This was seen in
Coppen v Moore (No 2) [1898] 2 QB 306 where a sales assistant sold ham which she wrongly
described as ‘Scotch ham’ against instruction of the employer. The employer was liable
because the assistant was authorised to sell the item.
Vicarious liability still exists even where the employer has taken steps to ensure that
such an offence is not committed. In Harrow LBC v Shah and Shah [1999] 3 All ER 302 the
Shahs were newsagents who were convicted of selling a lottery ticket to a boy under 16.
They had instructed their staff not to sell tickets to underage children and also told the
staff that if they were not sure, they should ask the Shahs to check that it was all right to
sell a ticket. An employee sold a ticket to a boy whom he reasonably thought was 16 or
over, when the boy was in fact under 16. One of the Shahs was on the premises, though
not in the shop when the sale was made. Despite these facts the Shahs were still held to
be vicariously liable for the sale.
7.3.2 Delegation principle

Where an offence requires proof of mens rea then vicarious liability can only exist if the
principal has delegated responsibility. In such instances the acts and intention of
the person to whom responsibility has been delegated are imputed to the principal. This
was demonstrated in Allen v Whitehead [1930] 1 KB 211.
CASE EXAMPLE
Allen v Whitehead [1930] 1 Kb 211
The defendant owned a cafe which was run by a manager. He was charged under s 44 of the
Metropolitan Police Act 1839 with the offence of knowingly permitting or suffering prostitutes
to meet together and remain in a place where refreshments are sold and consumed. D had been
warned by the police that prostitutes were meeting in his cafe and had instructed his manager
not to allow this. D also had a notice displayed on the wall of the cafe forbidding prostitutes to
meet at the cafe. He visited the cafe once or twice a week and there was no evidence that there
had been any breach of the 1839 Act while he was on the premises. However, the manager
allowed prostitutes to stay at the cafe for several hours on eight consecutive days. D was charged 183
and it was held by the Divisional Court that both the acts and knowledge of his manager were
to be imputed to D. The fact that he did not know of the breach was not a defence. He had
delegated the management of the cafe to the manager and this made D liable.

In Linnett v Metropolitan Police commissioner [1946] 1 All ER 380 the same principle was
used to make a co-licensee liable for the acts of his fellow co-licensee. He had delegated
the management of a refreshment house to his co-licensee and was absent from the
premises but was still held guilty of ‘knowingly permitting disorderly conduct’, even
though he personally had no knowledge of it.
There must be complete delegation for the principal to be vicariously liable, as seen
in the case of Vane v Yiannopoullos [1964] 3 All ER 820.
CASE EXAMPLE
Vane v Yiannopoullos [1964] 3 all er 820
D was the licensee of a restaurant. He had given instructions to the waitress in the restaurant
not to serve alcoholic drinks to people unless they ordered a meal as well. While D was on
another floor of the building a waitress served alcohol to two youths who did not order a
meal. D was charged with the offence of ‘knowingly selling intoxicating liquor to persons to
whom he was not entitled to sell’, contrary to s 22 of the Licensing Act 1961, but acquitted.
The prosecution appealed against this but the Divisional Court dismissed the appeal. The pro-
secutor appealed to the House of Lords. The Lords dismissed the appeal, holding that there
had not been sufficient delegation to make D vicariously liable for the employee’s actions.
The House of Lords pointed out that the principle had never been extended to cover the
case where the whole of the authority has not been transferred to another. In fact Lord Reid
appeared to confine the principle to situations in which the licensee was not on the premises
but had left someone else in charge. However, in Howker v Robinson [1972] 2 All ER 786 the
Divisional Court found that the magistrates had correctly decided that a licensee was
guilty when an illegal sale was made by a barman in the lounge, even though the licensee
was present (and working) in the public bar of the business. This decision is contrary to the
House of Lords’ judgment in Vane and is unlikely to be followed in future cases. Indeed, in
the later case of Bradshaw v Ewart-Jones [1983] 1 All ER 12, the Divisional Court did not
apply the doctrine but held that the master of a ship was not liable for breach of statutory
duty when he had delegated performance of the duty to his chief officer. The master was
still on board the ship and in command, so the delegation was only partial.
Cannot be
Is D a principal, employer or licensee? NO vicariously
liable
YES
Cannot be
Can there be extended Has there been vicariously
OR NO
meaning of words? delegation? liable
YES YES
Cannot be
Is agent/employee Has there been complete NO vicariously
OR
184 doing an authorised act? delegation? liable
YES
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YES
Can be vicariously liable
Figure 7.1 Flow chart on vicarious liability.
Should delegation impose liability?

In most of the offences where the delegation principle is used there is no provision for
making the servant himself liable to prosecution. So, unless the licensee is made liable,
it would be impossible to enforce the law adequately. The main problem comes where
the particular offence includes the word ‘knowingly’. If the licensee does not know the
relevant facts, should the knowledge of the person to whom he has delegated control be
imputed to him? In Vane v Yiannopoullos (1964) the House of Lords was unhappy about
the use of the delegation principle where the offence charged included the word ‘know-
ingly’. Lord Reid, who gave the leading judgment, pointed out that there had been only
four cases in the 60 years before Vane in which the offence used the word ‘knowingly’.
Two of these were Allen v Whitehead (1930) and Linnett v Metropolitan Police Commissioner
(1946), which are explained above. Lord Reid, in Vane, said:
JUDGMENT
‘[T]he courts adopted a construction which on any view I find hard to justify. They drew a
distinction between acts done by a servant without the knowledge of the licence holder while
the licence holder was on the premises and giving general supervision to his business, and acts
done without the knowledge of the licence holder but with the knowledge of a person whom
the license holder had left in charge of the premises. In the latter case they held that the know-
ledge of the person left in charge must be imputed to the licence holder . . . If this were a new
distinction recently introduced by the courts I would think it necessary to consider whether a
provision that the licence holder shall not knowingly sell can ever make him vicariously liable
by reason of the knowledge of some other person; but this distinction has now been recog-
nised and acted on by the courts for over half a century. It may have been unwarranted in the
first instance, but I would think it now too late to upset so long-standing a practice.’
7.3.3 Reasons for vicarious liability
The main reason for vicarious liability is that it makes it easier to enforce regulations
about such matters as selling food and alcohol and using vehicles. Modern regulatory
legislation in these areas is aimed at protecting consumers and promoting public health
and safety and preventing pollution. If employers were not liable for the acts of their
employees then it would be virtually impossible to enforce such legislation. It is fair and
just that those who make the profits from a business should also pay for any breaches of
standards in that business. Without the principle of vicarious liability, it would be dif-
ficult to convict those responsible for the business. By imposing liability on the principal,
employer or licensee this will make him do all he can to prevent breaches of the legisla-
tion by his agents, servants or delegates. Employers are more likely to train and control
staff properly and the principle of delegation makes a licensee retain proper control over
his business even when he is not there.
185
kEy fACTS
Key facts on vicarious liability

Law Cases
Who can be Principals for acts of their agents. Duke of Leinster (1924)
vicariously Employers for acts of their employees. Coppen v Moore (No 2) (1898)
liable?
Licensees for acts of those to whom Allen v Whitehead (1930)
they delegate responsibility.
When does Common law offences of public Very rare
vicarious liability nuisance and criminal libel.
exist? Extended meaning of words in statutory Coppen v Moore (No 2) (1898) –
offences where an employee is acting owner of business was liable for a
within the scope of his employment. sale made by employee
Delegation principle. Allen v Whitehead (1930)
The extended An employer is liable even though the Coppen v Moore (No 2) (1898)
meanings of employee is disobeying instructions.
words An employer is not liable if the employee Adams v Camfoni (1929)
is not acting within the scope of his
employment.
The delegation A licensee is liable where there is full Allen v Whitehead (1930)
principle delegation.
A licensee is not liable where there is Vane v Yiannopoullos (1964)
partial delegation.
7.3.4 Criticisms of vicarious liability

The main criticism is that it is unjust to penalise someone for the actions of another. This
is especially so where the principal has taken steps to ensure that no offence is commit-
ted. For example in Coppen (1898) the sales assistant had disobeyed the instructions of
her employer and yet the employer was still liable. Also in Duke of Leinster (1924) the
agent had acted contrary to the Duke’s instructions when he obtained credit without
disclosing the bankruptcy. Again in Harrow LBC (1999) the owners of the newsagent
business had done all that was within their power to prevent the sale of lottery tickets to
underage children yet were still convicted of the offence.
These criticisms would be avoided if a defence of ‘due diligence’ were available for
all regulatory offences. Some statutes do contain this defence which can be used if the
employer can show that he exercised all due diligence in the management of the busi-
ness and that there was nothing more that could reasonably have been done to prevent
a breach.
Where an offence requires mens rea it is even more unjust to convict someone who
had no knowledge of the offence. This is the effect of the delegation principle as illus-
trated in the cases of Allen (1930) and Linnett (1946). In both those cases the licensee had
no knowledge of the offence but was convicted of ‘knowingly permitting’ it. It should
also be considered that the rules of vicarious liability have not been created by Parlia-
ment; they are judge-made. In some cases where Parliament has used the word ‘know-
ingly’ in an offence, the concept of vicarious liability appears to be contrary to the
intentions of Parliament.
186
ACTIVITy
self-test questions
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1. Who can be held vicariously liable for a criminal offence?

2. Explain with examples the two ways in which vicarious liability may be imposed for statu-
tory offences.
3. What problems have the courts identified with the use of the delegation principle in vicari-
ous liability?
4. Why is vicarious liability used in criminal law?
7.4 Corporate liability

A corporation is a legal person. Corporations include limited companies, public corpo-
Corporation
rations and local authorities. It was established in Salomon v Salomon & Co Ltd [1897] AC
A non-human
body which has a 22 that on incorporation, a company acquires a separate legal personality from its
separate legal members.
personality from As a corporation is a legal person, it can be criminally liable even though it has no
its human
members physical existence. This ability to be liable for statutory offences is set out in the Interpre-
tation Act 1978, which provides that in every Act, unless the contrary intention appears,
‘person’ includes a body of persons, corporate or unincorporate. This rule has existed for
over 100 years as it existed in the previous Interpretation Act of 1889. In fact the inter-
pretation is even wider than making corporations liable, as it also includes unincorpo-
rated bodies such as a partnership. As well as being liable for statutory offences the law
also recognises that a corporation can be criminally liable for common law offences.
There are three different principles by which a corporation may be liable. These are:
 the principle of identification;
 vicarious liability;
 breach of statutory duty.
These are considered separately in sections 7.4.2–7.4.4.
7.4.1 Exceptions to the general rule of liability

There are two general exceptions to corporate liability for criminal offences. First, a cor-
poration cannot be convicted of an offence where the only punishment available is
physical, such as imprisonment or community service. Effectively the only offence that
is currently eliminated by this rule is murder, which carries a mandatory sentence of life
imprisonment. Corporations can be liable for any offence which has a discretionary
maximum penalty of life imprisonment, since for these the judge can impose alternative
penalties such as a fine.
Second, a corporation cannot be liable as a principal for crimes such as bigamy, rape,
incest or perjury, which by their physical nature can only be committed by a real person.
A corporation, however, may be liable as a secondary participant in such offences. J C
Smith in Criminal Law: Cases and Materials (8th edn, Oxford University Press, 2002) puts
forward the example that a corporation could be liable as a secondary participant for
bigamy if the managing director of an incorporated marriage advisory bureau were to
arrange a marriage which he knew to be bigamous.
In Robert Millar (Contractors) Ltd [1971] 1 All ER 577 a company was convicted of
being a secondary participant to the offence of causing death by dangerous driving. The
managing director of the company had sent a lorry on a long journey, knowing that it
had a seriously defective tyre. The tyre burst and the lorry crashed causing six deaths. 187
The driver was convicted as principal of six offences of causing death by dangerous
driving and the managing director and the company were convicted of counselling and

procuring those offences.
7.4.2 The principle of identification

Where an offence requires mens rea it is necessary to show that the corporation had the
required mens rea. As a corporation has no body and no mind this causes problems in
making corporations liable. In order to hold corporations liable the courts have sought
to identify a person (or persons) within the company structure whose mind is the ‘direct-
ing mind and will’ of the corporation. This phrase was first used in Lennard’s Carrying Co
Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, but the identification principle was really
established by three cases in 1944. These were:
 DPP v Kent and Sussex Contractors Ltd [1944] KB 146;
 ICR Haulage Ltd [1944] KB 551;
 Moore v I Bresler Ltd [1944] 2 All ER 515.
In each case one or more senior members of the management of the company were
identified as the directing mind and will, so that their intent was deemed to be the
intent of the company. For example in DPP v Kent and Sussex Contractors Ltd (1944) the
offence required an intent to deceive, and the courts held that the intent of the trans-
port manager of the company was the intent of the company. It could, however, be
argued that a transport manager is not sufficiently senior for his intent to be the intent
of the company. In ICR Haulage Ltd (1944) the company was convicted of a common
law conspiracy to defraud. The act and the intent of the managing director were held
to be the act and intent of the company. In Moore v I Bresler Ltd (1944) the company
was convicted of making false returns with intent to deceive, contrary to the Finance
(No 2) Act 1940. The returns had been made by the company secretary and a branch
sales manager. There is no doubt that a company secretary is an official whose acts
and intent will be viewed as the company’s acts and intent. However, this case can be
criticised for including a branch sales manager in the category of the directing mind
and will of the company.
As a corporation has no physical existence it is always necessary to identify those
people within the corporation who can be considered as the directing mind and will of
the company. In H L Bolton (Engineering) Co. Ltd v TJ Graham & Sons Ltd [1956] 3 All ER
624 Denning LJ pointed out that:
JUDGMENT
‘A company may in many ways be likened to a human body. It has a brain and a nerve centre
which controls what it does. It also has hands which hold the tools and act in accordance with
directions from the centre. Some of the people in the company are mere servants and agents
who are nothing more than hands to do the work and cannot be said to represent the mind
or will. Others are directors and managers who represent the directing mind and will of the
company and control what it does. The state of mind of these managers is the state of mind
of the company and is treated by the law as such.’
This concept was used by the courts in subsequent cases, but in very large companies with
several layers of management, there can be difficulties in deciding who exactly is the
‘brain’, in Lord Denning’s analogy, as against those who are ‘nothing more than hands to
do the work’. For example, in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Tesco adver-
188 tised packs of washing powder in the shop window of one of their stores at a reduced
price. An employee failed to tell the store manager when all the packs were sold, so that
the advertisement continued even though there were no reduced packs left. A shopper
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who tried to buy a reduced priced pack was told that the only packets left were full price.
The shopper complained to the Inspector of Weights and Measures, and Tesco was pros-
ecuted under s 11 of the Trade Descriptions Act 1968, which provides that:
SECTION
‘11 If any person offering to supply any goods gives, by whatever means, any indication likely
to be taken as an indication that the goods are being offered at a price less than that at which
they are in fact being offered he shall . . . be guilty of an offence.’
Tesco accepted that this had happened, but claimed a defence under s 24(1) of the Trade
Descriptions Act, that the fault was due to another person. As it was the fault of the
manager for not adequately supervising the employee who had failed to check the packs,
the question for the courts to decide was whether the store manager was identified as
the company, or whether he was ‘another person’ for the purpose of s 24(1). Tesco was
convicted and appealed. The Divisional Court held that the store manager was ‘the
embodiment of the company’ and dismissed the appeal. The case was then appealed to
the House of Lords, who ruled that a store manager was not sufficiently senior for his
acts to be the acts of the company.
Lord Reid started his judgment by considering the nature of corporate personality.
He said:
JUDGMENT
‘A living person has a mind which can have knowledge or intention or be negligent and he has
hands to carry out his intentions. A corporation has none of these; it must act through living
persons, though not always one or the same person. Then the person who acts is not speaking
or acting for the company. He is acting as the company and his mind which directs his acts is
the mind of the company. There is no question of the company being vicariously liable. He is
not acting as a servant, representative, agent or delegate. He is an embodiment of the company
or, one could say, he hears and speaks through the persona of the company, within his appro-
priate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is
the guilt of the company.’
Lord Reid also referred to Lord Denning’s comparison of a company to a human body
in H L Bolton (Engineering) Co Ltd (1956). He pointed out that there had been attempts to
apply Lord Denning’s words to all servants of a company whose work was brainwork
or who exercised some managerial discretion under the direction of superior officers of
the company. Lord Reid felt that this was not what had been intended. Lord Denning
had limited the category to those ‘who represent the directing mind and will of the
company and control what it does’. For this reason the manager of a local store could not
be identified with the company and so, for the purposes of s 24(1) of the Trade Descrip-
tions Act 1968, the manager was ‘another person’. Effectively this case decided that only
those in senior positions or those who have been given power to act as the company can
be considered as the ‘controlling mind’ of a corporation.
Lord Reid thought that those who would be the embodiment of the company were:
JUDGMENT 189
‘the board of directors, the managing director and perhaps other superior officers of a company
[who] carry out the functions of management and speak and act as the company.’

However, other judges in the House of Lords gave slightly different definitions. Viscount
Dilhorne thought that it was a person:
JUDGMENT
‘who is in actual control of the operations of a company or of part of them and who is not
responsible to another person in the company for the manner in which he discharges his
duties in the sense of being under orders.’
Lord Diplock thought that it was necessary to identify:
JUDGMENT
‘those natural persons who by the memorandum and articles of association or as a result of
action taken by the directors or by the company in general meeting pursuant to the articles are
entrusted with the exercise of the powers of the company.’
Problems of the principle of identification

Apart from deciding who exactly can be identified as being the company, the principle
of identification causes problems in the following three areas.
1. The bigger the company and the more layers of management, the less likely it is that
a senior officer will have made a decision (or have the required mens rea) to make the
company liable. This means that bigger companies are more likely to avoid
prosecution.
2. The principle of identification does not work where several people have combined to
create a dangerous situation, but individually they have not got the required mens
rea. This was seen in P & O European Ferries (Dover) Ltd (1991) where there were
several failures by different levels of staff which resulted in the cross-channel ferry,
the Herald of Free Enterprise, leaving the port of Zeebrugge with her bow doors open.
As a result the ship sank and 193 people were killed. The company was not crimi-
nally liable for the deaths as there was no individual whose negligence could be
identified as the negligence of the company. It can be argued that the faults of differ-
ent people should be aggregated to prove the guilty mind of the company. The
opposite view was put by Devlin J in Armstrong v Strain [1952] 1 All ER 139, when he
said that:
JUDGMENT
‘You cannot add an innocent state of mind to an innocent state of mind and get as a result a
dishonest state of mind.’
3. The principle in Tesco v Nattrass (1972) could lead to companies being found not
guilty of regulatory offences and this would make regulation ineffective against big
companies. However, in Tesco v Brent LBC [1993] 2 All ER 718 this result was avoided
by the Divisional Court. In this case Tesco was convicted of supplying a pre-recorded
190 video with an 18 rating to someone under the age of 18, contrary to s 11(1) of the
Video Recordings Act 1984. The Act allowed a defence if the defendant ‘neither knew
nor had reasonable grounds to believe that the person concerned had not attained
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that age’. Tesco argued that the directing minds of the company, in other words the
board and managing director, would have no way of knowing the age of the pur-
chaser. They would not be present at the store, but worked from the London head-
quarters of the company. The Divisional Court dismissed Tesco’s appeal. They held
it was impracticable to suppose that those who controlled a large company would
have any knowledge or information about the age of a purchaser. The only person
who could have that knowledge was the cashier who served the purchaser. As the
magistrates had been satisfied that the cashier had reasonable grounds to believe that
the purchaser was under 18, then that was enough to make the company liable. This
can be viewed as an extension of the principle of vicarious liability where a company
is responsible for the acts of its employees (see section 7.4.3).
In addition to the above problems, Lord Denning’s analogy in H L Bolton (Engineering)

(1956) has been criticised by the Privy Council in Meridian Global Funds Management Asia
Ltd v Securities Commission [1995] 3 All ER 918.
CASE EXAMPLE
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3
all er 918
The chief investment officer and the senior portfolio manager of Meridian used funds managed
by the company to acquire shares in a public issue. They did not give notice as required by s 20
of the New Zealand Securities Amendment Act 1988. The board of directors and managing
director were not aware of the purchase or the failure to give notice. The trial judge found the
company guilty of a breach of s 20 as he held that the knowledge of the chief investment
officer and the senior portfolio manager was to be attributed to the company. On appeal to
New Zealand’s Court of Appeal the conviction was upheld on the basis that the chief invest-
ment officer was the directing mind and will of the company. The case was then appealed to
the Privy Council.
In the Privy Council Lord Hoffmann pointed out that the phrase ‘directing mind and
will’ had first been used by Viscount Haldane in Lennard’s Carrying Co Ltd (1915) in a
very specific circumstance. Lord Hoffmann said of Denning LJ’s comments:
JUDGMENT
‘But this . . . by the very power of the image, distracts attention from the purpose for which
Viscount Haldane said he was using the notion of the directing mind and will, namely to apply
the attribution rule derived from s 502 [of the Merchant Shipping Act 1894] to the particular
defendant in the case:
“For if Mr Lennard was the directing mind of the company, then his action must, unless a
corporation is not to be liable at all, have been an action which was the action of the company
itself within the meaning of section 502.” ’
Instead of using the identification principle, the Privy Council relied on the idea of the
‘rules of attribution’. Lord Hoffmann explained what was meant when he said:
JUDGMENT 191
‘Any proposition about a company necessarily involves a reference to a set of rules. A company

exists because there is a rule (usually in a statute) which says that a persona ficta [fictional
person] shall be deemed to exist and to have certain of the powers, rights and duties of a
natural person. But there would be little sense in deeming such a persona ficta to exist unless
there were also rules to tell one what acts were to count as acts of the company. It is therefore
a necessary part of corporate personality that there should be rules by which acts are attrib-
uted to the company. These may be called “the rules of attribution”. The company’s primary
rules of attribution will generally be found in its constitution, typically the articles of associ-
ation, and will say things such as “for the purpose of appointing members of the board, a
majority vote of shareholders shall be a decision of the company” or “the decisions of the
board in managing the company’s business shall be the decisions of the company” . . .
The company’s primary rules of attribution together with the general principles of agency,
vicarious liability and so forth are usually sufficient to enable one to determine its rights and
obligations.’
Lord Hoffmann did accept that there would be exceptional cases where these rules
would not provide an answer. In these cases he thought that the normal rules of inter-
pretation would provide the answer:
JUDGMENT
‘Given that it was intended to apply to a company, how was it intended to apply? Whose act (or
knowledge, or state of mind) was for this purpose intended to count as the act etc of the
company? One finds the answer to this question by applying the usual canons of interpretation,
taking into account the language of the rule (if it is a statute) and its contents and policy.’
The main problem with this is that it appears to ignore common law offences where
there is no written version of the offence to be interpreted. A major area where very few
prosecutions have succeeded against corporations is in the common law offence of
involuntary manslaughter. In view of the difficulty of establishing liability for man-
slaughter, the Law Commission recommended a new offence of corporate killing where
a management failure is the cause (or one of the causes) of death, and that failure consti-
tutes conduct falling far below what can reasonably be expected (see section 7.5 for
further discussion on corporate manslaughter).
7.4.3 Vicarious liability
As already seen in section 7.3 the law recognises situations where one person may be liable
for offences committed by another under the principles of vicarious liability. The principles
of vicarious liability apply equally to corporations. So corporations may be vicariously
liable for the acts of their employees in the same way as a natural person may be liable for
his employee or agent. Liability of corporations by way of vicarious liability was first
recognised many years ago in Great North of England Railway Co (1846) 9 QB 315.
Corporations can be liable where a statute imposes vicarious liability or, in rare instances,
under the common law, for example the offence of creating a public nuisance. Examples of
corporations being vicariously liable include Coppen v Moore (No 2) (1898), where a sales
assistant sold ham which she wrongly described as ‘Scotch ham’, against instruction of the
employer. The employer was convicted of selling goods to which a false trade description
applied because the assistant had sold the ham. The court pointed out that:
192 JUDGMENT
‘It cannot be doubted that the appellant sold the ham in question, although the transaction
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was carried out by his servants. In other words he was the seller, although not the salesman.’
Another example is National Rivers Authority v Alfred McAlpine Homes (East) Ltd (1994)
158 JP 628, in which employees of the company were constructing a water feature on the
site. In doing this they discharged wet cement into it. The company was convicted of
polluting a river. The judge said:
JUDGMENT
‘to make an offence an effective weapon in the defence of environmental protection, a
company must, by necessary implication, be criminally liable for the acts and omissions of its
servant or agents during activities being done for the company. I do not find that this affects
our concept of a just or fair criminal justice system, having regard to the magnitude of environ-
mental pollution.’
Distinction between the identification principle and vicarious

liability
The liability of corporations under vicarious liability is quite different from the way in
which liability arises under the identification principle. This was explained in HM
Coroner for East Kent, ex parte Spooner (1989) 88 Cr App R 10 by Bingham LJ when he
distinguished between the identification principle and a company being vicariously
liable, saying:
JUDGMENT
‘A company may be vicariously liable for the negligent acts and omissions of its servants and
agents, but for a company to be criminally liable for manslaughter it is required that mens rea and
actus reus should be established not against those who acted for or in the name of the company
but against those who were to be identified with the embodiment of the company itself.’
So for liability by the principle of identification it is necessary to prove mens rea and
actus reus in someone who can be considered the company, whereas under the princi-
ples of vicarious liability the acts and omissions of employees or agents can make the
company liable.
7.4.4 Breach of statutory duty
A statute or regulation can make a corporation liable for offences. In particular this
can happen where the statute (or regulation) makes the occupier liable. If the corpo-
ration is the occupier of premises then it is liable for offences committed in relation to
those premises. Equally a law may make an employer liable. If the corporation is the
employer then it is liable. An important statute is the Health and Safety at Work etc
Act 1974. In Attorney-General’s Reference (No 2 of 1999) [2000] 3 All ER 187, where a
train crash killed seven people, the company was found not guilty of manslaughter.
However, the company pleaded guilty to a breach of statutory duty under the Health
and Safety at Work etc Act 1974 and was fined £1.5 million.
This rule of liability for statutory breach also applies to unincorporated bodies if
they are the occupier or employer. This was seen in Clerk to the Croydon Justices, ex
parte Chief Constable of Kent [1989] Crim LR 910, where the Queen’s Bench Divisional
Court held that if an unincorporated body was the ‘registered keeper’ of a vehicle
then it was liable for fixed penalties for illegal parking under the Transport Act 193
1982.

A corporation can be criminally liable through
the following three principles
The principle of Breach of statutory

Vicarious liability
identification duty
This identifies a The corporation is This mostly occurs

person(s) who is the liable for offences where a statute makes
‘directing mind and committed by an a corporation liable as
will’ and their act and employee occupier or employer,
intent are deemed to Very rare at common e.g. under the Health
be the act and intent of law and Safety at Work etc.
the corporation: Act 1974
Occurs frequently in
H L Bolton Engineering statutory offences Can also make
(1957) Tesco where the forbidden unincorporated bodies
Supermarkets v Nattrass act is ‘using’ or ‘selling’ liable: Clerk to the
(1972) Croydon Justices, ex
Will still be liable
parte Chief Constable
But it is difficult to do where someone
of Kent (1989)
this in large companies employed to do the act
disobeys instructions:
Coppen v Moore (No 2)
(1898)
Figure 7.2 Corporate liability.

7.5 Corporate manslaughter
7.5.1 Previous law
During the last two decades of the twentieth century there were a number of high-profile
disasters in which people died as a result of poor practice by a corporation. These
included:
 the Herald of Free Enterprise disaster in 1987, in which 193 people died;
 the King’s Cross fire in 1987, in which 31 people were killed;
 the Clapham rail crash in 1988 when 35 people died and nearly 500 others were
injured;
 the Southall rail crash in 1997 when seven people were killed and 150 injured.
Initially it was thought that a corporation could not be liable for manslaughter. However,
this was resolved in P & O European Ferries (Dover) Ltd (1990) when, following the Herald
194 of Free Enterprise disaster, P & O (who had taken over Townsend Car Ferries Ltd, the
operators of the ferry at the time of the disaster) was charged with manslaughter.
CASE EXAMPLE
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P & O European Ferries (Dover) Ltd (1990) 93 Cr app r 72

The car ferry sailed from Zeebrugge harbour with its inner and outer bow doors (through
which the cars were loaded) still open. The assistant bosun should have closed the doors but
he failed to do so because he had overslept. The Chief Officer who was in charge of loading
the car deck was responsible for checking that the doors were closed, but in practice he inter-
preted this as checking that the assistant bosun was at the controls. The Master of the day was
responsible for the safety of the ship on that sailing, but he merely followed the system
approved by the Senior Master who had overall responsibility for coordinating the practice of
all crews and Masters who worked in the Herald of Free Enterprise. Shore management had
not provided any instructions on this aspect of ship safety.
The causes of the disaster were investigated by the Sheen Inquiry. The investigation
reached the conclusion that the immediate cause of the sinking was the Chief Officer’s
failure to ensure that the doors were closed. It also concluded that the Senior Master
should have introduced a ‘fail-safe system’ so that the Master of the day knew when the
doors were closed and it was safe to sail. However, the Sheen Report also found that the
company’s management had failed in their duties. The Report stated:
quotation
‘At first sight the faults which led to this disaster were the . . . errors of omission on the part of
the Master, the Chief Officer and the assistant bosun, and also the failure by Captain Kirby
[Senior Master] to issue and enforce clear orders. But a full investigation into the circumstances
of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay
higher up in the Company. The Board of Directors did not appreciate their responsibility for
the safe management of their ships. They did not apply their minds to the question: What
orders should be given for the safety of our ships? The directors did not have any proper com-
prehension what their duties were . . . All concerned in the management, from the members
of the board down to junior superintendents, were guilty of fault in that all must be regarded
as sharing responsibility for the failure of management. From the top to the bottom the body
corporate was infected with the disease of sloppiness. The failure on the part of the shore
management to give proper and clear directions was a contributory cause of the disaster.’
The Sheen Report (Department of Transport, Report of the Court No 8074, 1987), para 14.1
The Report went on to highlight three management failures. The first was that, although
a proposal had been made by Masters that a warning light should be fitted on the bridge
so that the Master on duty would know when the bow doors were shut, the manage-
ment had failed to give this proposal serious consideration. Second, there had been five
or six previous incidents when ferries had sailed with doors open but these incidents
had not been documented and collated. If they had been then the management of the
company would have been alerted to the risk of disaster. Third, there was a lack of any
proper system within the company to ensure that their ships were operated in accord-
ance with the highest standards of safety.
Ruling that a corporation could be charged with manslaughter

The company and seven individuals were charged with manslaughter. At the start of the
trial the company submitted that the counts for manslaughter should be quashed for
two reasons. First, that English law did not recognise the offence of corporate man-
slaughter, and, second, that manslaughter could only be committed by a natural person. 195
The trial judge ruled that it was possible through the principle of identification for a
corporation to be liable for manslaughter. He rejected the argument that manslaughter
7.5 Corporate ManslaUghter

could only be committed by a natural person, pointing out that the old definitions of
‘homicide’ which use the words a killing by a human being were formulated when corpo-
rations did not exist. He held that where a corporation, through the controlling mind of
one of its agents, did an act which fulfilled the definition of manslaughter, then the cor-
poration could properly be indicted for the offence.
Although this case established that a corporation could be liable for manslaughter
there has been only a very small number of prosecutions and even fewer convictions.
This is because the way the principle of identification works makes it difficult to obtain
a conviction against a corporation for manslaughter. For example, in the Clapham rail
crash no prosecution was brought even though an inquiry into the matter criticised
British Rail for allowing working practices which were ‘positively dangerous’. Again, in
the King’s Cross fire no prosecution was brought because no one person had responsib-
ility for fire precautions.
In the P & O case, although the company was prosecuted, the charge was eventu-
ally dismissed by the judge because it was not possible to identify one person who
was the controlling mind and will of the company and who had been grossly negli-
gent. The disaster had occurred because of errors by a number of people, some of
whom were very junior. The judge dismissed the case against all the defendants except
the bosun and the Chief Officer. The prosecution then withdrew the charges against
these two.
Successful prosecutions for manslaughter prior to 2007 were nearly all of small com-
panies where the managing director could easily be identified as the ‘mind and will’ of
the company. The first successful prosecution was of OLL Ltd, The Independent, 9
December 1994. In this case four teenagers had died in a canoeing tragedy because of the
risks taken by the leisure company who organised the activity. The company was a one-
man outfit run by Kite. His gross negligence was attributed to the company and both he
and the company were convicted of manslaughter.
Southall rail crash case

A prosecution was also brought in the Southall rail crash, where a high-speed train col-
lided with a freight train, causing the deaths of seven people. There was evidence that
two safety devices on the train which would have prevented the train from passing a
signal at danger were switched off. The driver failed to see a sequence of signals (green,
double yellow, yellow and red) until it was too late to avoid the collision. He gave
evidence that he remembered seeing the green signal and the next signal he could recall
was the red one. There was no second driver in the cab. The judge ruled that to establish
a charge for gross negligence manslaughter it was necessary to prove a guilty mind.
Where the defendant was a company it could only be convicted if a person with whom
it was identified had the necessary guilty mind. As no such person could be identified
(the train driver was too junior for his mind to embody the mind and will of the company),
the judge dismissed the case against the company.
Following the judge’s ruling, the Attorney-General referred two questions of law to
the Court of Appeal (Attorney-General’s Reference (No 2 of 1999) [2000] 3 All ER 187).
These were:
JUDGMENT
‘a. Can a defendant be properly convicted of manslaughter by gross negligence in the
196 absence of evidence as to that defendant’s state of mind?
b. Can a non-human defendant be convicted of the crime of manslaughter by gross negli-
gence in the absence of evidence establishing the guilt of an identified human individual
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for the same crime?’
The Court of Appeal answered the first question ‘yes’ and the second question ‘no’.
There was considerable criticism of the decision on this second point. It created a further
limitation on the possibility of convicting a corporation of manslaughter.
7.5.2 Reform of corporate manslaughter

The problems highlighted in the P & O (1991) case led to the Law Commission consider-
ing corporate manslaughter in a general review of the law on manslaughter. The Law
Commission consulted on the problems before producing its report: Legislating the Crim-
inal Code: Involuntary Manslaughter (Law Com No 237) (1996). It was noticeable that the
Health and Safety Executive put in a response to the consultations and commented that
death or personal injury resulting from a major disaster is rarely due to the negligence
of a single individual. In the majority of cases the disaster is caused as a result of the
failure of systems controlling the risk with the carelessness of individuals being a con-
tributing factor.
The Law Commission’s main proposals for corporate liability were that:
 There should be a special offence of corporate killing and this should broadly corres-
pond to the Law Commission’s proposal of a new offence of killing by gross
carelessness.
 The offence would be committed only where the corporation’s conduct in causing
death fell far below what could reasonably be expected.
 A death should be regarded as having been caused by the conduct of the corporation
if it is caused by a ‘management failure’. A management failure is described as occur-
ring if the way in which its activities are managed or organised fails to ensure the
health and safety of persons employed in or affected by its activities.
 Such a failure would be regarded as a cause of a person’s death even if the immediate
cause is the act or omission of an individual.
 Individuals within a company could still be liable for offences of reckless killing and
killing by gross carelessness (which the Law Commission had recommended should
replace the current offence of manslaughter but has never done so) as well as the
company being liable for the offence of corporate killing.
tutor tip The Law Commission’s report was published in 1996. In 2000 the government issued a
‘Make sure you consultation paper on the matter, Reforming the Law on Involuntary Manslaughter: The
understand the Government’s Proposals. Finally in 2007, the Corporate Manslaughter and Corporate
Corporate
Homicide Act was passed by Parliament.
Manslaughter and
Corporate
Homicide Act
2007.’
7.5.3 Corporate Manslaughter and Corporate Homicide
Act 2007
The offence of corporate manslaughter is set out in s 1(1) of the Act which states:
SECTION
‘1(1) An organisation to which this section applies is guilty of an offence if the way in which
any of its activities are managed:
(a) causes a person’s death, and 197
(b) amounts to gross breach of a relevant duty of care owed by the organisation to the
deceased.’

...
1(3) An organisation is guilty of an offence under this section only if the way in which its
activities are managed or organised by its senior management is a substantial element
in the breach referred to in subsection (1).’
Who can be liable?

The Act makes ‘organisations’ liable. This is considerably wider than the previous
common law where only corporations could be liable for manslaughter. The Act states
that it applies to:
 corporations;
 government departments or other bodies listed in Schedule 1;
 police forces;
 partnerships, trade unions or employers’ associations.
The government departments and bodies listed in Schedule 1 include such wide-ranging
bodies as the Department for Transport, the Department for Work and Pensions, the
Department of Health, the Ministry of Defence, the Crown Prosecution Service and the
Office for National Statistics. There are 48 bodies listed in Schedule 1 and the list can be
added to or amended by the Secretary of State if required, for example where a govern-
ment department is reorganised or renamed or a new department created.
Liability on police forces was only included through a House of Lords amendment to
the Bill when it was going through Parliament. The government was reluctant to agree
to this, but did eventually allow the amendment. There is an exemption for the police
where a death is caused in terrorist cases.
Partnerships, trade unions and employers’ associations can now be prosecuted for
corporate manslaughter. This was not possible under the previous law.
Individuals cannot be liable for corporate manslaughter.
How liability exists

The key factor is the way in which the organisation’s activities are ‘managed or organ-
ised’ by its senior managers. No single individual has to be identified as having any
mens rea for the offence. The senior management contribution need only be a ‘substantial
element’ in the breach of duty leading to the death. Conduct of other ‘non-senior’
managers is also relevant and may be substantial provided it does not render the senior
management involvement something less than substantial.
Senior management
Senior management is defined as being persons who play significant roles in:
 the making of decisions about how the whole or a substantial part of its activities are
to be managed or organised; or
 the actual managing or organising of the whole or a substantial part of those activities.
This definition is an effort to prevent the problems that have arisen over identification of
the ‘brain’ of a corporation. It covers a wider section of managers than that under the
identification principle. However, it still restricts the range of people whose acts or omis-
sions can make an organisation liable for corporate manslaughter. The Law Commission
had proposed that individuals could also be liable for corporate manslaughter as sec-
198 ondary parties. However, the government decided not to implement this proposal. So,
the Act does not provide for individual senior managers to be liable for corporate
manslaughter.
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Relevant duty of care

The relevant duty of care means any of the following duties owed under the law of
negligence:
 a duty owed to employees or to other persons working for the organisation or per-
forming services for it;
 a duty owed as occupier of premises;
 a duty owed in connection with:
(i) the supply by the organisation of goods and services (whether for consideration
or not),
(ii) the carrying on by the organisation of any construction or maintenance
operations,
(iii) the carrying on by the organisation of any other activity on a commercial basis,
or
(iv) the use or keeping by the organisation of any plant, vehicle or other thing;
 a duty owed to those in detention.
The duty of care is based on the civil law of negligence. However, the Act specifically
ex turpi causa
excludes two rules that apply in civil negligence cases. These are the ex turpi causa rule
From his own
wrong act and the volenti rule. The first is the common law rule whereby a duty of care is pre-
vented from being owed by one person to another by reason of the fact that they are
jointly engaged in unlawful conduct. The second is the common law rule that has the
effect of preventing a duty of care from being owed to a person by reason of his accept-
ance of a risk of harm.
volenti By excluding the defence that D and V were engaged jointly in criminal activity, the
Willingly (or offence of corporate manslaughter is in line with the law on gross negligence man-
consenting)
slaughter. It was ruled in Wacker [2003] EWCA Crim 1944 that the civil law defence of ex
turpi causa did not apply to the criminal offence. (See section 10.4.2 for more details on
the case of Wacker.)
The judge decides whether there is a relevant duty of care and the judge must make
the findings of fact necessary to determine this question. This is contrasted with gross
negligence manslaughter where the jury decide if a duty of care is owed.
Gross breach
Once a relevant duty of care has been established, then, under s 8(1)(b), the jury decide
if there has been a gross breach.
Section 8 sets out matters that the jury must consider and those that they may
consider.
SECTION
‘8(2) The jury must consider whether the evidence shows that the organisation failed to comply
with any health and safety legislation that relates to the alleged breach, and if so:
(a) how serious that failure was,
(b) how much of a risk of death it posed.
8(3) The jury may also:

(a) consider the extent to which the evidence shows that there were attitudes, policies, 199
systems or accepted practices within the organisation that were likely to have
encouraged any such failure as is mentioned in subsection (2), or to have produced

tolerance of it,
(b) have regard to any health and safety guidance that relates to the alleged breach.’
The jury are not limited to considering only the matters in subclauses (2) and (3). In fact
s 8(4) states that the section does not prevent the jury from having regard to any other
matters they consider relevant.
The factors in s 8(3) are an attempt to cover situations such as the Herald of Free Enter-
prise case. (See P & O European Ferries (Dover) (1990) 93 Cr App R 72 at section 7.5.1.)
Penalties
The Act provides that organisations found guilty of corporate manslaughter can be fined
an unlimited amount. In addition, it gives the court power to order the organisation to
take specific steps to remedy the gross breach of a relevant duty of care or any other
matter that appears to have resulted from that breach and been a cause of the death.
The Guidelines for sentencing say:
quotation
‘The offence of corporate manslaughter, because it requires gross breach at a senior level, will
ordinarily involve a level of seriousness significantly greater than a health and safety offence.
The appropriate fine will seldom be less than £500,000 and may be measured in millions of
pounds.’
Sentencing Guidelines Council, Definitive Guideline: Corporate Manslaughter and Health and Safety
Offences Causing Death (2010), para 24
7.5.4 Is the Act working?

There are several problems apparent in the working of the Corporate Manslaughter and
Corporate Homicide Act. These include:
(a) is the Act being sufficiently used?
(b) the difficulty of prosecuting the corporate body under the Act and in the same trial
prosecuting directors or managers for gross negligence manslaughter;
(c) plea bargaining;
(d) the level of fines.
The use of the Act
The Act came into force in 2008. Since then there has not been any significant increase in
the number of prosecutions for corporate manslaughter. The government had stated in
its Regulatory Impact Assessment, issued when the Act was being proposed, that it
would be likely to result in 10 to 13 additional prosecutions for corporate manslaughter
each year. In reality, in the first six years from the Act coming into force there have only
been four prosecutions in total.
The first corporation to be convicted under the Act was Cotswold Geotechnical Hold-
ings Ltd in 2011. The company appealed against both its conviction and sentence.
CASE EXAMPLE
Cotswold Geotechnical Holdings Ltd [2011] eWCa Crim 1337
200 A geologist went into a ‘trial pit’ which had been dug in order to obtain soil samples. The pit
was at least 3.5 metres deep and the sides were not shored up. Pits over a depth of 1.2 metres
should be shored up for safe working. The sides collapsed and the geologist was killed.
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The company was small (only eight employees) and run by a Mr Eaton who had many
years of experience with trial pits. The evidence was that Mr Eaton himself had entered
the trial pit earlier the same day without any safety precautions. There had also been a
previous incident in which a young employee had complained about being expected to
go into unshored pits. The Health and Safety Executive had on that occasion reminded
Mr Eaton of the need for shoring and he had given them assurances that in the future
shoring would be used. The company was convicted of corporate manslaughter.
The other prosecutions to date have been:
(a) JMW Farms Ltd (unreported, 8 May 2012, Crown Court Belfast) where the company
was convicted of corporate manslaughter under the provisions applying to North-
ern Ireland after an employee was killed in a forklift truck incident.
(b) Lion Steel Equipment Ltd (unreported, 20 July 2012, Manchester Crown Court) in
which the company was convicted when a factory worker was killed falling through
a roof. He had not been provided with walking boards or safety line and harness,
nor had he been given any relevant training.
(c) MNS Mining Ltd (unreported, 19 June 2014, Swansea Crown Court) where the
company was found not guilty of corporate manslaughter when four miners
drowned following a controlled explosion underground in order to link two shafts
and improve ventilation in the mine.
Although there have been very few prosecutions, the number of deaths at work is still
high. The Fatal Accidents figures provided by the Health and Safety Executive show
that, for 2012–2013, 148 people were killed in the course of their employment (49 of these
were self-employed so corporate manslaughter would not be relevant). In the five years
before that there was an average of 181 deaths per year (with an average of 52 being self-
employed). In addition, for 2011–2013, 113 members of the public were fatally injured in
accidents related to work and for the previous five years there had been an average of 67
members of the public killed in work-related incidents. These figures suggest that there
are many more cases where prosecutions for corporate manslaughter might be
brought.
Another noticeable feature is that none of the companies prosecuted were particu-
larly large. This seems to undermine what was intended by the enactment of the Act.
The creation of the Act followed a series of high-profile cases where there had been
unsuccessful prosecutions of large organisations under the common law of manslaugh-
ter (see section 7.5). It was hoped that it would make it easier to establish liability for
deaths caused through bad management practice and result in more successful
convictions.
Difficulty of prosecuting under two laws

The Act created a statutory offence whereby a corporation can be convicted of man-
slaughter. The Act did not create any corresponding liability for managers/directors. So
while the corporate body is prosecuted under the Act, individuals have to be charged
with the common law offence of gross negligence manslaughter. In the Cotswold case
and the Lion Steel Equipment Ltd case (and also MNS Mining Ltd) the prosecutors charged
directors of the companies with gross negligence manslaughter. In addition, it is usual
for both the organisation and the directors to be charged with offences under the health
and safety legislation. This means that a jury will have to consider and apply three dif- 201
ferent areas of law in a case.
In Lion Steel Equipment Ltd, as well as charging the company with corporate man-
slaughter, the prosecution sought the conviction of three directors for gross negligence

manslaughter on the basis that each director owed every employee a duty to keep them
safe. The judge rejected this argument stating that the office of director did not of itself
create a duty, but that the evidence must be examined against each director individu-
ally. The judge also emphasised how high the threshold is for gross negligence man-
slaughter to be established. In addition, there were three further counts on the indictment
under health and safety legislation. There was the extra complication in this case that
there would be evidence on the gross negligence manslaughter and health and safety
counts of events which occurred prior to the commencement of the 2007 Act. That evid-
ence would not be admissible in relation to the corporate manslaughter charge. The
judge took the view that a joint trial would have required directions to the jury of ‘baf-
fling complexity’ and ordered that the corporate manslaughter count should be severed
from the other counts. This meant that there would be a separate trial for the corporate
manslaughter charge.
In the Cotswold case the manslaughter charge against the director was stayed because,
by the time the trial took place, he was terminally ill. In the MNS Mining case the jury
acquitted the director of gross negligence manslaughter.
Plea bargaining
The prosecution of directors also leads to the question of whether this puts pressure on
them to enter a plea of guilty on behalf of the company. In Lion Steel Equipment Ltd (2012)
three out of the company’s four statutory directors were charged with gross negligence
manslaughter and also under health and safety legislation. One of the directors was a
financial director with no involvement in how the workforce operated. A second was in
charge of a factory some 50 miles from where the accident had occurred. The judge
found that there was no case to answer in respect of gross negligence manslaughter for
the finance director and the director of the other factory. At the end of the prosecution
case and before any defence evidence was called, the prosecution agreed not to pursue
either the gross negligence manslaughter charge against the third director or the health
and safety charges against all the directors. At the same time the company pleaded
guilty to corporate manslaughter. Commentators have suggested that it is possible an
informal bargain was struck between the prosecution and the defence, in order to secure
a conviction against the company in return for the cases against the individuals being
dropped.
Does this eagerness to charge directors even though they clearly are not involved in
the day-to-day operations where the fatal accident took place suggest that pressure is
being brought to bear on individuals (after all, manslaughter carries a maximum penalty
of life imprisonment). Thus, as they are the decision-makers of the corporate body, they
may decide on a guilty plea, in order that they as individuals are acquitted.
Level of fines
In 2010 the Sentencing Guidelines Council (now the Sentencing Council) issued guide-
lines on sentencing for corporate manslaughter. Paragraph 24 of the guidelines on sen-
tencing for corporate manslaughter states:
quotation
‘The offence of corporate manslaughter, because it requires gross breach at a senior level, will
202 ordinarily involve a level of seriousness significantly greater than a health and safety offence.
The appropriate fine will seldom be less than £500,000 and may be measured in millions of
pounds.’
CapaCity
However, the guidelines also allow the court to consider whether the fine would have
the effect of putting the defendant out of business and whether that would be desirable.
If the fine is so high that the business cannot continue to operate, then employees would
lose their jobs.
In the cases to date the fines have not effectively been over £500,000. In the Cotswold
case the fine was £385,000. This amount was two-and-a-half times the amount of the
company’s annual turnover, so in relation to the company’s finance it was a large
amount. The judge took into account the relatively small turnover of the company and
the fact that it had financial problems. He allowed the fine to be paid off over a period of
ten years. However, he recognised that the effect of the fine would probably be that the
company would go into liquidation. That would be an unavoidable consequence. One of
the reasons for the relatively high level of fine was that there had been a previous inci-
dent following which the director had promised that shoring would be used in future,
but had not done this. The company appealed in respect of the level of the fine but the
Court of Appeal upheld it.
Lion Steel Equipment Ltd was fined £480,000 to be paid in four instalments. The amount
of the fine included a 20 per cent reduction for the company’s guilty plea, so that the
original starting point was £600,000. The company’s annual profit was £1.5 million, so
compared to the Cotswold case the fine was one which the company was able to pay.
JMW Farms Ltd was fined £187,500 with six months to pay. In this case a 25 per cent
reduction had been given for the guilty plea with the starting point being £250,000. The
low level of fines in respect to the guidelines is partly accounted for by the fact that none
of the companies were large organisations. Even so the levels can be criticised as being
too low, particularly in respect of JMW Farms Ltd which had made a profit of £1.5 million
in the previous financial year.
7.5.5 Why make organisations criminally liable for

manslaughter?
It is sometimes argued that it is pointless making an organisation criminally liable. After
all, the act and the intention are those of a human person within the organisation. Since
that person can be prosecuted as an individual, why is it necessary to prosecute the
organisation as well? For example, in Kite and OLL Ltd (1994) (unreported), the first
successful prosecution of a corporation for manslaughter under the common law prior
to the 2007 Act, the managing director was also convicted of manslaughter and given a
prison sentence. The company was fined £60,000. Was it necessary or worthwhile to pro-
secute the company in addition to prosecuting the managing director? In that case, the
company was very small and it did not have enough funds to pay the fine, so it was
forced into liquidation. Fines on bigger companies are often too small to be effective.
Imposing criminal liability on an organisation can be justified for three main reasons:
 Many of the recent disasters have not been caused by one individual. The poor prac-
tices throughout the company have contributed; in such circumstances it is just that
the company should be liable.
 Many offences involve breaches of laws relating to health and safety; companies
should be encouraged to take their responsibilities in these areas seriously and not to
put profits before health and safety.
 The public perceive large companies and organisations as being above the law; when 203
there has been a death through poor practice, relatives of victims want to see the
company ‘named and shamed’.

In addition, on a successful prosecution, the 2007 Act gives power to the court to order
the organisation to take specific steps to remedy any matter that appears to the court to
have caused the relevant breach and led to the death. This includes remedying any defi-
ciency as regards health and safety matters in the organisation’s policies, systems or
practices which the breach appears to indicate.
ACTIVITy
self-test questions
1. What exceptions are there to the general rule that a corporation can be criminally liable?
2. What difficulties are there in using the principle of identification to decide whether or not
a corporation is criminally liable?
3. Apart from the principle of identification, in what other two ways can a corporation be
criminally liable?
4. What has to be proved for the offence of corporate manslaughter to be established?
5. Why is it considered necessary to be able to make corporations liable for manslaughter?
ACTIVITy
applying the law
In each of the following situations, explain whether the law will operate to impose criminal
liability.
1. Crazy Golf Club is a members’ club with a management committee of seven members. The
club has a bar and employs a full-time steward and two part-time stewards to work there.
The club has a licence to sell alcohol to members only. One of the part-time stewards sells
an alcoholic drink to a non-member. Can the club be held criminally liable for the sale?
2. Getupandgo Ltd is a company which owns and operates leisure and activity centres. The
company has a board of directors and a managing director. In addition, each centre has a
manager. The board operates very tight financial controls over the amount to be spent at each
centre on general maintenance, and centre managers who overspend know that they will
face dismissal. Many of the activity centres have climbing walls. The board of directors
has never issued any directions about safety or the level of supervision for the use of these
climbing walls. At one of the centres there have been no maintenance checks on the climb-
ing wall and it has become unsafe. Safety helmets are provided for climbers but the centre
manager has not instructed the staff to ensure that they are used. Harry, aged 14, climbs
the wall without using a safety helmet. When he is near the top, part of the wall becomes
detached, causing him to fall and be killed. The problem with the wall would have been
discovered if there had been a maintenance check.
The company faces prosecution for:
a. manslaughter of Harry;
b. breach of safety legislation as the occupier of the building.
3. Den owns a newsagents’ shop. He employs Ella as a sales assistant and Freddy as a cleaner.
Cigarettes are sold in the shop and Den has told Ella that she must not sell these to anyone
under the age of 16, and if she is not sure then she must ask for proof of age. Ella sells a
packet to a boy who looks at least 18. She is so convinced that he is over 16 she does not
204 ask him for proof of his age. Later in the day Ella cuts her finger and needs to leave the till.
As she does not want to leave it unattended she asks Freddy to mind it for her. During the
time that Ella is absent Freddy sells a packet of cigarettes to a girl aged 12.
CapaCity
Will liability be imposed on Den for:

a. the sale by Ella?
b. the sale by Freddy?
SUMMARy
Children
Children under ten are presumed incapable of forming the mens rea for any offence – doli
incapax.
 Civil law allows care proceedings to be taken or a ‘child safety order’ to be made
where a child under ten has committed an act which would have been an offence had
he been aged ten or over.
 Children aged ten and over are responsible for the crimes.
 Trial arrangements are different from those for adults – trial for all but most serious
offences will be in the Youth Court. When a child is tried in the Crown Court then
special arrangements must be made to ensure that the child can participate effectively.
Mentally ill offenders

Unfitness to plead
Where because of his mental state the defendant is unable to understand the charge
against him so as to be able to make a proper defence, he may be found unfit to plead. If
D is so found then a jury must then decide whether D ‘did the act or made the omission
charged against him’. If so the judge can then make:
 a hospital order (with or without a restriction order);
 a supervision and treatment order;
 an absolute discharge.
The Law Commission has consulted on reform of the law.
Insanity
Where a person is fit to plead but it is found that he was insane at the time of the offence
D is found ‘not guilty by reason of insanity’. The judge can make a hospital order, a
supervision order or an absolute discharge.
Diminished responsibility
This only applies where D is charged with murder. If established it reduces the charge
to manslaughter.
Vicarious liability
The normal rule is that one person cannot be liable for crimes of another.
 Exceptions are for common law offences of public nuisance and criminal libel and
statutory offences through the extended meanings of words or under the principle of
delegation.
 The main categories of people who can be vicariously liable are principals, employ-
ers and licensees.
 Vicarious liability helps enforce regulations about such matters as selling food and
alcohol and using vehicles.
205
 It can be criticised where the person has taken all reasonable precautions to ensure
that no offence is committed.

Corporate liability
A corporation has a legal personality. It can be criminally liable through:
 the principle of identification;
 vicarious liability;
 breach of statutory duty.
Identification is where senior managers can be identified as the ‘directing mind and will’
of the corporation. This can be difficult if there are many layers of management or where
several people have contributed to the making of a dangerous situation.
Vicarious liability is where the acts or omissions of its employees can make the corpo-
ration liable.
Breach of statutory duty mostly occurs where a statute makes the corporation liable as
occupier or employer.
Corporate manslaughter
Because of the difficulty of proving manslaughter against big corporations the govern-
ment passed the Corporate Manslaughter and Corporate Homicide Act 2007.
 This makes a corporation guilty of manslaughter if the way in which any of its activ-
ities are managed or organised causes a death and amounts to gross breach of a rel-
evant duty.
 A corporation will only be liable if the way in which its activities are managed or
organised by its senior management is a substantial element in the breach.
 The jury must consider whether the evidence shows that the organisation failed to
comply with any health and safety legislation that relates to the alleged breach, and
if so –
(a) how serious that failure was;
(b) how much of a risk of death it posed.
 The jury may consider the extent to which the evidence shows that there were atti-
tudes, policies, systems or accepted practices within the organisation that were likely
to have encouraged or tolerated any such failure.

To what extent has the Corporate Manslaughter and Corporate Homicide Act 2007 satis-
factorily reformed the law on corporate manslaughter?
State the law before the 2007 Act:

• Offence of gross negligence at common law
• The principle of vicarious liability
• The need to identify the ‘brain’ of the corporation
• Expand identification principle with cases, e.g. ICR
Haulage Ltd (1944), Tesco v Nattrass (1972), P & O
European Ferries (Dover) (1991)
206
Explain difficulties of previous law especially:

CapaCity
• Problem where failures by a number of people in the

corporation had led to the situation causing death
• The decision in A-G’s Ref (No 2 of 1999) (2000) that
there must be evidence of guilt of a human person
before the corporation could be liable
• Very few successful prosecutions
State the law under the 2007 Act:

Definition of offence s 1(1)
Expand on elements:
• relies on way in which activities are managed
• gross breach of a duty of care
• way in which activities are managed or organised by
senior management must be a substantial element in the
breach
Discuss points such as:

• 2007 Act applies to organisations not just corporations
• Points jury must/may consider for gross breach
• Concept of management failure
• No longer need to identify a specific individual as ‘mind
and will’
• Senior management failure need only be a substantial
element
• The power of the court to make a remedial order
Consider potential problems in new law – e.g.:
• Jury to decide if there is gross negligence – will this be
consistent?
• Still need to identify senior management but wider than
under identification principle
• Act does not provide for individuals to be liable,
although Law Commission recommended this
• Will relatives of V be satisfied if no individual is charged?
Conclude
207
FUrther reading
Further reading
Books
Chapter 10.
Articles
Forlin, G, ‘A softly, softly approach’ (2006) NLJ 907.
Griffin, S, ‘Corporate manslaughter: a radical reform? (2007) 71 J Crim L 151.
Keeting, H, ‘Reckless children’ (2007) Crim LR 547.
Jefferson, M, ‘Corporate liability in the 1990s’ (2000) 64 J Crim L 106.
Mackay, R D, ‘Unfitness to plead: some observations of the Law Commission’s
consultation paper’ (2011) Crim LR 433.
Pace, P J, ‘Delegation – A doctrine in search of a definition’ (1982) Crim LR 627.
Slapper, G, ‘Justice is mocked if an important law is unenforced’ (2013) J Crim L 91.
Sullivan, R, ‘Corporate killing: some government proposals’ (2001) Crim LR 31.
Woodley, M, ‘Bargaining over corporate manslaughter: what price a life? (2013) J Crim
L 33.
Internet links
http://lawcommission.justice.gov.uk for Law Commission reports and consultation
papers.
http://sentencingcouncil.judiciary.gov.uk for sentencing guidelines.
www.hse.gov.uk for statistics on fatal accidents at work.
8
General defences
AIMS AND OBJECTIVES

 Understand the law on duress and necessity
 Understand the law on mistake
 Understand the law on self-defence
 Understand the law on consent
 Analyse critically the scope and limitations of the general defences and the reform
proposals for the general defences
 Apply the law to factual situations to determine whether liability can be avoided
by invoking a defence
8.1 Duress
duress With this defence, D is admitting that he committed the actus reus of the offence,
General defence with mens rea, but is claiming that he did so because he was faced with threats of
where D is forced
by threats or immediate serious injury or even death, either to himself or to others close to him,
circumstances to if he did not commit the offence. Duress is not a denial of mens rea, like intoxica-
commit an offence tion (see Chapter 9), or a plea that D’s act was justified, as is the case with self-
defence (see below). Rather, D is seeking to be excused, because his actions were
involuntary – not in the literal, physical sense of the word, but on the basis that D
had no other choice. In Lynch v DPP of Northern Ireland [1975] AC 653, Lord Morris
said:
JUDGMENT
‘It is proper that any rational system of law should take fully into account the standards of
honest and reasonable men . . . If then someone is really threatened with death or serious
injury unless he does what he is told is the law to pay no heed to the miserable, agonising
plight of such a person? For the law to understand not only how the timid but also the stalwart
may in a moment of crisis behave is not to make the law weak but to make it just.’
8.1.1 Sources of the duress
Duress comes in two types:
 Duress by threats: here, D is threatened by another person to commit a criminal
offence. For example, D is ordered at gunpoint to drive armed robbers away from the
scene of a robbery or he will be shot.
 Duress of circumstances (sometimes referred to as ‘necessity’, but in this chapter
necessity will be dealt with separately): here, the threat does not come from a person,
but the circumstances in which D finds himself.
The principles applying are identical in either case of duress. The principles were origin-
ally established in duress by threat cases and subsequently applied to duress of
circumstances.
210
8.1.2 The seriousness of the threat
The threats must be of death or serious personal injury (Hudson and Taylor [1971] 2 QB
General defences
202; Hasan [2005] UKHL 22; [2005] 2 AC 467). In A [2012] EWCA Crim 434; [2012] 2 Cr
App R 8, Lord Judge CJ stated that duress ‘involves pressure which arises in extreme
circumstances, the threat of death or serious injury, which for the avoidance of any mis-
understanding, we have no doubt would also include rape’. Strictly speaking, this
comment was obiter, because the Court of Appeal rejected A’s appeal against her convic-
tion on the ground of lack of evidence that she had, in fact, been threatened with rape.
However, it seems perfectly sensible to regard rape as an example of ‘serious personal
injury’. In A, the Court of Appeal emphasised that ‘pressure’ falling short of a threat of
death or serious injury did not support a plea of duress. This was designed to prevent
the floodgates being opened because, as Lord Judge stated, ‘the circumstances in which
different individuals are subject to pressures, or perceive that they are under pressure,
are virtually infinite’.
A threat to damage or destroy property is therefore insufficient (M’Growther [1746]
Fost 13). In Lynch (1975), Lord Simon said: ‘The law must draw a line somewhere; and
as a result of experience and human valuation, the law draws it between threats to
property and threats to the person.’ Similarly, threats to expose a secret sexual orien-
tation are insufficient (Singh [1974] 1 All ER 26; Valderrama-Vega [1985] Crim LR 220).
In Baker and Wilkins [1996] EWCA Crim 1126; [1997] Crim LR 497, a duress of circum-
stances case, the Court of Appeal refused to accept an argument that the scope of the
defence should be extended to cases where D believed the act was immediately neces-
sary to avoid serious psychological injury as well as death or serious physical injury.
More recently, in Dao, Mai and Nguyen [2012] EWCA Crim 1717, the Court of Appeal
was asked whether a threat of false imprisonment would support a plea of duress.
The Court found it unnecessary to reach a firm decision on the point – there was insuf-
ficient evidence of the appellants having been threatened with imprisonment, as they
claimed – but did express a ‘provisional’ view, namely, that ‘we would have been
strongly disinclined to accept that a threat of false imprisonment suffices for the
defence of duress . . . In our judgment, even if only provisionally, policy considera-
tions point strongly towards confining the defence of duress to threats of death or
serious injury.’
Although there must be a threat of death or serious personal injury, it need not be the
sole reason why D committed the offence with which he is charged. This was seen in
Valderrama-Vega.
CASE EXAMPLE
Valderrama-Vega [1985] crim lr 220
D claimed that he had imported cocaine because of death threats made by a Mafia-type
organisation. But he also needed the money because he was heavily in debt to his bank. Fur-
thermore, he had been threatened with having his homosexuality disclosed. His conviction
was quashed by the Court of Appeal: the jury had been directed he only had a defence if the
death threats were the sole reason for acting.
ACTIVITy
In the light of the House of Lords’ decision in Ireland, Burstow [1998] AC 147 to extend the
scope of the phrase ‘bodily harm’ in the context of s 20 and s 47 OAPA 1861 to include psy-
chiatric harm, discuss whether the Court of Appeal’s decision in Baker and Wilkins is
211
justifiable.
8.1.3 Threats against whom?
8.1 duress
At one time it seemed that, in cases of duress by threats, the threat had to be directed at
D personally. However, in Ortiz (1986) 83 Cr App R 173, D had been forced into taking
part in a cocaine-smuggling operation after he was told that, if he refused, his wife and
children would ‘disappear’. At his trial, D pleaded duress by threats, but the jury rejected
the defence. The trial judge had directed them that ‘duress is a defence if a man acts
solely as a result of threats of death or serious injury to himself or another’. The Court of
Appeal did not disapprove of the inclusion in the direction of ‘threats . . . to another’. The
view that the threats could be directed at someone other than D was confirmed in the
early duress of circumstances cases, Conway [1988] 3 All ER 1025 and Martin [1989] 1 All
ER 652. In the former case, the defence was allowed when D’s passenger in his car was
threatened and in the latter case D’s wife threatened to harm herself. It is now well estab-
lished that the threats can be directed towards members of D’s immediate family, or
indeed to ‘some other person, for whose safety D would reasonably regard himself as
responsible’, according to Kennedy LJ in Wright [2000] Crim LR 510.
CASE EXAMPLE
Wright [2000] crim lr 510
D had been arrested at Gatwick Airport with four kilos of cocaine worth nearly £0.5 million
hidden under her clothing, having just flown in from St Lucia. She was charged with trying to
import unlawful drugs and pleaded duress. She claimed that she had flown to St Lucia in order
to bring back the drugs under threat of violence from her drug dealer, to whom she was £3,000
in debt. In St Lucia, D was threatened with a gun and told that her boyfriend Darren (who had
flown out to join her) would be killed if she did not go through with the trip; she was also told
that Darren would only be allowed to return to the United Kingdom once she had reached
Gatwick. This meant that when she was arrested at Gatwick, she was still fearful for Darren’s life.
However, she was convicted after the trial judge directed the jury that duress was only available
if a threat was directed at D herself or at a ‘member of her immediate family’. He reminded the
jury that D did not live with Darren and was not married to him. D was convicted but the Court
of Appeal allowed her appeal (although it ordered a retrial). Kennedy LJ said that ‘it was both
unnecessary and undesirable for the judge to trouble the jury with the question of Darren’s prox-
imity. Still less to suggest, as he did, that Darren was insufficiently proximate.’ The question for
the jury should simply have been whether D had good cause to fear that if she did not import the
drugs, she or Darren would be killed or seriously injured.
ACTIVITy
applying the law
1. D is accosted in his car by armed robbers who direct him to drive them away, or they will
shoot randomly into a group of schoolchildren at a bus stop. Should D have a defence of
duress if charged with aiding and abetting armed robbery?
2. This question was posed by Professor Sir John Smith in his commentary on Wright in the
Criminal Law Review: could a fan of Manchester United be reasonably expected to resist a
threat to kill the team’s star player if he did not participate in a robbery?
8.1.4 Imminence of the threat, opportunities to escape

and police protection
Imminence of the threat
212 The threat must have been operative on D, or other parties, at the moment he committed
the offence. This was established in Hudson and Taylor [1971] 2 QB 202.
General defences
CASE EXAMPLE
Hudson and Taylor [1971] 2 QB 202
D, aged 17, and E, aged 19, were the principal prosecution witnesses at the trial of a man
called Jimmy Wright. He had been charged with malicious wounding. Both D and E had been
in the pub where the wounding was alleged to have occurred and gave statements to the
police. At the trial, however, the girls failed to identify Wright, and, as a result, he was acquit-
ted. In due course, the girls were charged with perjury (lying in court). D claimed that another
man, F, who had a reputation for violence, had threatened her that if she ‘told on Wright in
court’ she would be cut up. She passed this threat on to E, and the result was that they were
too frightened to identify Wright (especially when they arrived in court and saw F in the public
gallery). The trial judge withdrew the defence of duress from the jury because the threat of
harm could not be immediately put into effect when they were testifying in the safety of the
courtroom. Their convictions were quashed.
Lord Widgery CJ said:
JUDGMENT
‘When . . . there is no opportunity for delaying tactics and the person threatened must make
up his mind whether he is to commit the criminal act or not, the existence at that moment of
threats sufficient to destroy his will ought to provide him with a defence even though the
threatened injury may not follow instantly but after an interval.’
In Abdul-Hussain and others [1999] Crim LR 570, confirmed in Safi and others [2003] EWCA
Crim 1809, the Court of Appeal decided that, for the defence of duress to be available,
the threat to D (or other persons) had to be believed by D to be ‘imminent’ but not neces-
sarily ‘immediate’. This led the Court of Appeal to quash hijacking convictions in both
cases because the trial judge had directed the jury to disregard the threat to the defend-
ants unless the threat was believed by D to be ‘immediate’. However, when the House
of Lords came to examine this issue, in Hasan [2005] UKHL 22; [2005] 2 AC 467, that
court decided that the correct test was that the threat had to be believed by D to be
‘immediate’ or ‘almost immediate’. Giving the leading judgment, Lord Bingham said:
JUDGMENT
‘It should be made clear to juries that if the retribution threatened against the defendant or his
family or a person for whom he reasonably feels responsible is not such as he reasonably expects
to follow immediately or almost immediately on his failure to comply with the threat, there may
be little if any room for doubt that he could have taken evasive action, whether by going to the
police or in some other way, to avoid committing the crime with which he is charged.’
The Hasan case will be examined in more detail below.
Opportunities to escape and police protection

D will be expected to take advantage of any reasonable opportunity that he has to escape
from the duressor and/or contact the police. If he fails to take it, the defence may fail.
This was illustrated in Gill [1963] 2 All ER 688. D claimed that he had been threatened
with violence if he did not steal a lorry. The Court of Criminal Appeal expressed doubts 213
whether the defence was open, as there was a period of time in which he could have
raised the alarm and wrecked the whole enterprise. In Pommell [1995] 2 Cr App R 607,
8.1 duress
Kennedy LJ accepted that ‘in some cases a delay, especially if unexplained, may be such
as to make it clear that any duress must have ceased to operate, in which case the judge
would be entitled to conclude that . . . the defence was not open’.
CASE EXAMPLE
Pommell [1995] 2 cr app r 607
Police found D at 8 a.m. lying in bed with a loaded gun in his hand. He claimed that, during
the night, a man called Erroll had come to see him, intent on shooting some people who had
killed Erroll’s friend. D had persuaded Erroll to give him the gun, which he took upstairs. This
was between 12.30 a.m. and 1.30 a.m. D claimed that he had intended to hand the gun over
to the police the next day. D was convicted of possessing a prohibited weapon, contrary to the
Firearms Act 1968, after the trial judge refused to allow the defence of duress to go to the
jury. This was on the basis that, even if D had been forced to take the gun, he should have
gone immediately to the police. The Court of Appeal allowed the appeal on the basis that this
was too restrictive and ordered a retrial.
In Hudson and Taylor (1971), the Crown contended that D and E should have sought
police protection. Lord Widgery CJ rejected this argument, which, he said ‘would, in
effect, restrict the defence . . . to cases where the person threatened had been kept in
custody by the maker of the threats, or where the time interval between the making of
the threats and the commission of the offence had made recourse to the police imposs-
ible’. Although the defence had to be kept ‘within reasonable grounds’, the Crown’s
argument would impose too ‘severe’ a restriction. He concluded that ‘in deciding
whether [an escape] opportunity was reasonably open to the accused the jury should
have regard to his age and circumstances and to any risks to him which may be involved
in the course of action relied upon’.
8.1.5 Duress does not exist in the abstract

It is only a defence if the defendant commits some specific crime which was nominated
by the person making the threat. This was seen in Cole [1994] Crim LR 582, where money-
lenders were pressuring D for money. They had threatened him, as well as his girlfriend
and child, and hit him with a baseball bat. Eventually, D robbed two building societies.
To a charge of robbery he pleaded duress, but the judge held that the defence was not
available and withdrew it from the jury. D’s conviction was upheld by the Court of
Appeal: the defence was only available where the threats were directed to the commis-
sion of the particular offence charged. The duressors had not said ‘Go and rob a building
society or else . . . ’.
This was also the outcome in a recent case in the Supreme Court of Canada, Ryan
[2013] 1 SCR 14. D was charged with counselling murder. She had agreed to pay a
hitman $25,000 to have her husband, V, who was violent and abusive, killed. In fact,
the ‘hitman’ was an undercover police officer, and D was arrested. In her defence she
pleaded duress on the basis that V had often made threats to kill her and their daugh-
ter. The trial judge accepted this and ordered an acquittal. The Crown appealed, and
the Supreme Court allowed the appeal on the basis that the defence of duress by
threats was only available when a person committed an offence whilst under compul-
sion of a threat made for the purpose of compelling him or her to commit a specific
214 offence.
8.1.6 Voluntary exposure to risk of compulsion

General defences
D will be denied the defence if he voluntarily places himself in such a situation that he
risks being threatened with violence to commit crime. This may be because he joins a
criminal organisation. In Fitzpatrick [1977] NI 20, D pleaded duress to a catalogue of
offences, including murder, even though he was a voluntary member of the IRA. The
trial judge rejected the defence, stating that ‘If a man chooses to expose himself and still
more if he chooses to submit himself to illegal compulsion, it may not operate even in
mitigation of punishment.’ Any other conclusion he said ‘would surely be monstrous’.
The Northern Ireland Court of Appeal dismissed the appeal. In Sharp [1987] 3 All ER
103, the Court of Appeal confirmed that duress was not available where D had voluntar-
ily joined a ‘criminal organisation or gang’.
CASE EXAMPLE
Sharp [1987] 3 all er 103
D and two other men had attempted an armed robbery of a sub-post office but were thwarted
when the sub-postmaster pressed an alarm. As they made their escape, one of the others fired
a shotgun in the air to deter pursuers. Three weeks later they carried out a second armed
robbery, which resulted in the murder of the sub-postmaster. D claimed that he was only the
‘bagman’, that he was not armed and only took part in the second robbery because he had
been threatened with having his head blown off by one of the others if he did not cooperate.
The trial judge withdrew the defence, and D was convicted of manslaughter, robbery and
attempted robbery. The Court of Appeal upheld the convictions. The Court treated it as signi-
ficant that D knew of the others’ violent and trigger-happy nature several weeks before he
attempted to withdraw from the enterprise.
Lord Lane CJ said:
JUDGMENT
‘Where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation
or gang which he knew might bring pressure on him to commit an offence and was an active
member when he was put under such pressure, he cannot avail himself of the defence.’
This principle has been confirmed, and extended, in a number of subsequent cases. It is
now firmly established that D does not necessarily have to have joined a criminal organ-
isation (as in Lynch (1975) or Sharp). Voluntarily associating with persons with a propen-
sity for violence (typically, by buying unlawful drugs from suppliers) may well be
enough to deny the defence.
 Ali [1995] Crim LR 303 and Baker and Ward [1999] EWCA Crim 913; [1999] 2 Cr App
R 335 both concerned drug users who pleaded duress to robbery, having become
indebted to their supplier and having then been threatened with violence if they did
not find the money. In each case the Court of Appeal confirmed the defence would
be denied in situations where D voluntarily placed himself in a position where the
threat of violence was likely.
 In Heath [1999] EWCA Crim 1526; [2000] Crim LR 109, D was a drug user who had
become heavily indebted to a man with a reputation for violence and who had threat-
ened D with violence if he did not deliver a consignment of 98 kilos of cannabis from
215
Lincolnshire to Bristol. D was caught and charged with being in possession of cannabis.
He pleaded duress, but the defence was denied and he was convicted. The Court of
Appeal rejected his appeal. D had voluntarily associated himself with the drug world,
8.1 duress
knowing that in that world, debts are collected via intimidation and violence.
 Harmer [2001] EWCA Crim 2930; [2002] Crim LR 401 was factually very similar to
Heath. D had been caught at Dover docks trying to smuggle cocaine, hidden inside a
box of washing-up powder, into the United Kingdom. At his trial D pleaded duress
on the basis that his supplier had forced him to do it or suffer violence. D admitted
that he had knowingly involved himself with criminals (he was a drug addict and
had to have a supplier to get drugs) and knew that his supplier might use or threaten
violence. However, he said that he had not appreciated that his supplier would
demand that he get involved in crime. The defence was denied, and D was convicted;
the Court of Appeal upheld his conviction, following Heath. Voluntary exposure to
unlawful violence was enough to exclude the defence.
Professor Sir John Smith was critical of the decision in Harmer. He wrote in the commentary
to the case in the Criminal Law Review that ‘the joiner may know that he may be subjected
to compulsion, but compulsion to pay one’s debts is one thing, compulsion to commit
crime is quite another’. Given the judicial uncertainty and academic criticism of the law, it
was perhaps inevitable that the House of Lords would eventually be asked to clarify the
position regarding the availability of duress when D voluntarily associates himself with a
criminal gang or organisation. In Hasan [2005] UKHL 22; [2005] 2 AC 467, the Court of
Appeal had quashed D’s conviction of aggravated burglary but certified a question for the
consideration of the House of Lords, seeking to establish whether the defence of duress is
excluded when, as a result of the accused’s voluntary association with others
1. he foresaw (or possibly should have foreseen) the risk of being then and there sub-
jected to any compulsion by threats of violence; or
2. only when he foresaw (or should have foreseen) the risk of being subjected to com-
pulsion to commit criminal offences; and, if the latter
3. only if the offences foreseen (or which should have been foreseen) were of the same
type (or possibly the same type and gravity) as that ultimately committed.
The Lords reinstated D’s conviction after taking the view that option (1) above correctly
stated the law. By a four to one majority, the Lords confirmed that it was sufficient if D
should have foreseen the risk of being subjected to ‘any compulsion’.
CASE EXAMPLE
Hasan [2005] uKHl 22; [2005] 2 ac 467
Z, a driver and minder for Y, a prostitute, had been threatened by Y’s boyfriend, X, who had
a reputation as a violent gangster and drug dealer, to carry out a burglary. Z attempted to
burgle a house, armed with a gun, but was scared off by the householder. Z was charged with
aggravated burglary and pleaded duress. The trial judge directed the jury that the defence was
not available if Z had voluntarily placed himself in a position in which threats of violence were
likely. Z was convicted, and although the Court of Appeal quashed his conviction, it was
reinstated by the House of Lords.
Lord Bingham stated:
216 JUDGMENT
‘The defence of duress is excluded when as a result of the accused’s voluntary association with
others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk
General defences
of being subjected to any compulsion by threats of violence.’
Only Baroness Hale departed from the majority: she would have preferred to take option
(2). None of the five judges chose option (3). The case of Baker and Ward [1999] EWCA
Crim 913, in which the Court of Appeal had decided that D had to foresee that he would
be compelled to commit offences of the type with which he was charged (i.e. option (3)),
was therefore overruled. However, the judgments in the other Court of Appeal cases,
including Heath and Harmer, have now been confirmed.
Hasan was applied in Ali [2008] EWCA Crim 716, where D was charged with robbery.
He had taken a Golf Turbo car on a test drive but then forced the car salesman out of the
car at knifepoint before driving off. At his trial, D claimed that he had been threatened
with violence by a man called Hussein if he did not commit the robbery. However, his
duress defence was rejected on the basis that he had been friends with Hussein, who had
a violent reputation, for many years. In the words of the trial judge, D had chosen to join
‘very bad company’. Dismissing D’s appeal, Dyson LJ stated:
JUDGMENT
‘The core question is whether [D] voluntarily put himself in the position in which he foresaw
or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats
of violence. As a matter of fact, threats of violence will almost always be made by persons
engaged in a criminal activity; but in our judgment it is the risk of being subjected to compul-
sion by threats of violence that must be foreseen or foreseeable that is relevant, rather than
the nature of the activity in which the threatener is engaged.’
One case in which the defence of duress succeeded, despite D voluntarily associating
himself with a criminal gang, is Shepherd [1987] Crim LR 686. The decision in Hasan
confirms that this case, too, was correctly decided. In Shepherd, D had joined a gang of
apparently non-violent shoplifters. When charged with theft, D had pleaded duress
on the basis that when he tried to leave the gang, one of the other members had
threatened him and his family with violence. The trial judge had refused to put the
defence to the jury, and D was convicted. The Court of Appeal allowed his appeal.
Mustill LJ said:
JUDGMENT
‘Common sense must recognise that there are certain kinds of criminal enterprises the joining
of which, in the absence of any knowledge of propensity to violence on the part of one
member, would not lead another to suspect that a decision to think better of the whole affair
might lead him into serious trouble. The logic which appears to underlie the law of duress
would suggest that if trouble did unexpectedly materialise and if it put the defendant into a
dilemma in which a reasonable man might have chosen to act as he did, the concession to
human frailty should not be denied to him.’
8.1.7 Should D have resisted the threats?

The defence is not available just because D reacted to a threat; the threat must be one that
the ordinary man would not have resisted. In Graham [1982] 1 All ER 801, Lord Lane CJ
laid down the following test to be applied by juries in future cases whenever duress was 217
pleaded:
8.1 duress
JUDGMENT
‘The correct approach on the facts of this case would have been as follows: (1) Was [D], or may
he have been, impelled to act as he did because, as a result of what he reasonably believed
[the duressor] had said or done, he had good cause to fear that if he did not so act [the dures-
sor] would kill him or . . . cause him serious physical injury? (2) If so, have the prosecution made
the jury sure that a sober person of reasonable firmness, sharing the characteristics of [D],
would not have responded to whatever he reasonably believed [the duressor] said or did by
taking part in the killing?’
In Howe and Bannister [1987] AC 417, the House of Lords approved the Graham test. It is
clear that the same test applies (with appropriate modification to the wording to indicate
the source of the threats) to duress of circumstances. The test is carefully framed in such
a way to ensure the burden of proof remains on the prosecution at all times (although D
must raise evidence of duress). If the jury believe that D may have been threatened and
that the reasonable man might have responded to it, then they should acquit.
The first question

The first question, relating to D’s belief, is essentially (if not entirely) subjective. That is,
if the jury are satisfied that D reasonably believed he faced a threat of death or serious
injury and that the belief gave him ‘good cause’, then the first question is answered in
D’s favour. This issue was examined by the Court of Appeal in Nethercott [2001] EWCA
Crim 2535; [2002] Crim LR 402. D had been convicted of attempting to dishonestly obtain
jewellery in May 1999. At his trial he had pleaded duress, relying on evidence that his
co-accused, E, had stabbed him (a separate offence for which E had been charged with
attempted murder) and that he therefore reasonably believed that if he did not take part
in the crime, he had good cause to fear death or serious injury. The only problem for D
was that the stabbing took place in August 1999 – three months after the alleged attempt.
The trial judge refused to admit this evidence, and D was convicted. However, the Court
of Appeal quashed his conviction. Evidence that E had stabbed D in August was rel-
evant to the question whether, in May, he reasonably believed that E might kill or ser-
iously injure him. It must be emphasised that there is no requirement that what D feared
actually existed. This point was made clear in Cairns [1999] EWCA Crim 468; [1999] 2 Cr
App R 137, a duress of circumstances case.
CASE EXAMPLE
Cairns [1999] eWca crim 468; [1999] 2 cr app r 137
V, who was inebriated, stepped out in front of D’s car, forcing him to stop. V climbed on to
the bonnet and spread-eagled himself on it. D drove off with V on the bonnet. A group of V’s
friends ran after the car, shouting and gesticulating (they claimed later that they just wanted
to stop V, not do any harm to D). D had to brake in order to drive over a speed bump, V fell
off in front of the car, and was run over, suffering serious injury. D was convicted of inflicting
grievous bodily harm (GBH) with intent contrary to s 18 OAPA 1861, after the trial judge ruled
that the defence of duress of circumstances was only available when ‘actually necessary to
avoid the evil in question’. However, the Court of Appeal quashed the conviction. It was not
necessary that the threat (or, in the judge’s words, ‘evil in question’) was, in fact, real.
218 The principle that it is D’s belief in the existence of a threat, as opposed to its existence in
fact, was confirmed in Safi and others (2003).
General defences
CASE EXAMPLE
Safi and others [2003] eWca crim 1809
The appellants in this case had hijacked a plane in Afghanistan and ordered it to be flown to
the United Kingdom, in order to escape the perceived threat of death or injury at the hands of
the Taliban. (The facts of the case occurred in February 2000, i.e. before the overthrow of the
Taliban regime by American-led military forces in 2002.) At their trial for hijacking, false impris-
onment (relating to the appellants’ failure to release the other passengers after the plane’s
arrival in the United Kingdom until three days had elapsed) and other charges, the appellants
pleaded duress of circumstances. This was disputed by the Crown, and the jury at the first trial
failed to agree. At the retrial, the trial judge told the jury to examine whether the appellants
were in imminent peril (as opposed to whether they reasonably believed that they were in
imminent peril). The Court of Appeal allowed the appeal and quashed the convictions. Long-
more LJ suggested that, if public policy demanded the existence of an actual threat, as opposed
to a reasonably perceived one, it was for Parliament to change the law.
The subjective limb as defined in Graham (1982) and approved in Howe and Bannister
(1987) does have two objective aspects. First, D’s belief must have been reasonable. Thus,
if D honestly (but unreasonably) believes that he is being threatened and commits an
offence, the defence is not available. Hence, if D’s belief was based purely on his own
imagination, it would not be difficult for a jury to conclude that his (honest) belief was
unreasonable. This may be contrasted with the position in self-defence. There, if D
believes he is being attacked and reacts in self-defence, he is entitled to be judged as if
the facts were as he (honestly) believed them to be (Williams [1987] 3 All ER 411). One
rationale for this difference could be that self-defence is a justification, while duress is
‘only’ an excuse. After a period of doubt on this point, in Hasan [2005] UKHL 22; [2005]
2 AC 467, the House of Lords confirmed that D’s belief must be reasonable. Giving the
leading judgment, Lord Bingham said that ‘It is of course essential that the defendant
should genuinely, that is actually, believe in the efficacy of the threat by which he claims
to have been compelled. But there is no warrant for relaxing the requirement that the
belief must be reasonable as well as genuine.’
A recent case demonstrates that, if D’s belief is genuine – but unreasonable – then it
will not support a plea of duress.
CASE EXAMPLE
S [2012] eWca crim 389; [2012] 1 cr app r 31
S was charged with abducting her own daughter, L, contrary to s 1 of the Child Abduction Act
1984. S was divorced from L’s father, but both parents shared custody. Under the terms of the
divorce, neither parent was allowed to take L out of the country without the prior permission
of the other parent or the High Court. In fact, S took her daughter to Spain without permis-
sion. S was tracked down in Gibraltar and ordered to return L to the United Kingdom, which
she did. At her trial, S pleaded duress (of circumstances), based on her belief that there was an
imminent risk of serious physical harm to L from sexual abuse from L’s father. This was rejected,
and the Court of Appeal upheld the guilty verdict. Sir John Thomas said that ‘there could be
no reasonable belief that a threat was imminent nor could it be said that a person was acting
reasonably and proportionately by removing the child from the jurisdiction in order to avoid
the threat of serious injury’. 219
The second objective aspect is that D’s belief must have given him ‘good cause’ to fear
death or serious injury. Thus, even if D genuinely (and reasonably) believed that death
8.1 duress
or serious injury would be done to him but, objectively (i.e. in the opinion of the jury),
death or serious injury was unlikely, then the defence fails.
The second question

This question is objective, although certain characteristics of D will be attributed to the
reasonable person. In Graham (1982), Lord Lane CJ said:
JUDGMENT
‘As a matter of public policy, it seems to us essential to limit the defence of duress by means
of an objective criterion formulated in terms of reasonableness . . . The law [of provocation]
requires a defendant to have the self-control reasonably to be expected of the ordinary citizen
in his situation. It should likewise require him to have the steadfastness reasonably to be
expected of the ordinary citizen in his situation.’
Thus, if the ordinary person, sharing the characteristics of D, would have resisted the
threats, the defence is unavailable. The relevant characteristics will include age and sex
and, potentially at least, other permanent physical and mental attributes which would
affect the ability of D to resist pressure and threats. In Hegarty [1994] Crim LR 353,
however, the Court of Appeal held that the trial judge had correctly refused to allow D’s
characteristic of being in a ‘grossly elevated neurotic state’, which made him vulnerable
to threats, to be considered as relevant. Similarly, in Horne [1994] Crim LR 584, the Court
of Appeal agreed that evidence that D was unusually pliable and vulnerable to pressure
did not mean that these characteristics had to be attributed to the reasonable man. In
Bowen [1996] Crim LR 577, the Court of Appeal said that the following characteristics
were obviously relevant:
 Age, as a young person may not be so robust as a mature one.
 Pregnancy, where there was an added fear for the unborn child.
 Serious physical disability, as that might inhibit self-protection.
 Recognised mental illness or psychiatric condition, such as post-traumatic stress
disorder leading to learned helplessness. Psychiatric evidence might be admissible to
show that D was suffering from such condition, provided persons generally suffering
them might be more susceptible to pressure and threats. It was not admissible simply
to show that in a doctor’s opinion D, not suffering from such illness or condition, was
especially timid, suggestible or vulnerable to pressure and threats.
Finally, D’s gender might possibly be relevant, although the court thought that many
women might consider that they had as much moral courage to resist pressure as men. The
Court of Appeal dismissed D’s appeal holding that a low IQ – falling short of mental
impairment or mental defectiveness – could not be said to be a characteristic that made
those who had it less courageous and less able to withstand threats and pressure. The deci-
sion in Bowen to allow evidence of post-traumatic stress disorder leading to learned help-
lessness as a characteristic is interesting, and not particularly easy to reconcile with the
earlier decisions of Hegarty and Horne. A jury faced with the question, ‘Would the ordinary
person, displaying the firmness reasonably to be expected of a person of the defendant’s
age and sex suffering from learnt helplessness have yielded to the threat?’ is almost certain
220 to answer in the affirmative, except if the threat was very trivial indeed.
8.1.8 The scope of the defence

General defences
Duress (either by threats or circumstances or both) has been accepted as a defence to man-
slaughter (Evans and Gardiner [1976] VR 517, an Australian case), causing GBH with intent
(Cairns (1999)), criminal damage (Crutchley (1831) 5 C & P 133), theft (Gill (1963)), handling
stolen goods (Attorney-General v Whelan [1934] IR 518) and obtaining property by deception
(Bowen (1996)). It has also been accepted as a defence to the following: perjury (Hudson and
Taylor (1971)), drug offences (Valderrama-Vega (1985)), firearms offences (Pommell (1995)),
driving offences (Willer (1986) 83 Cr App R 225; Conway (1988); Martin [1989] 1 All ER 652),
hijacking (Abdul-Hussain (1999); Safi and others (2003)), kidnapping (Safi and others) and
breach of the Official Secrets Act (Shayler [2001] EWCA Crim 1977; [2001] 1 WLR 2206: see
below). Indeed, it seems that duress (both forms) will be accepted as a defence to any crime
except murder and attempted murder (and possibly some forms of treason).
Murder
The case of Dudley and Stephens (1884) 14 QBD 273 is often cited as authority for the pro-
position that necessity is not a defence to murder (a view not accepted by the Court of
Appeal (Civil Division) in Re A (Children) (Conjoined Twins: Surgical Separation) [2000]
EWCA Civ 254; [2000] 4 All ER 961, a case which will be discussed in section 8.2). Dudley
and Stephens was, however, relied upon by Lords Hailsham, Griffiths and Mackay in
Howe and Bannister (1987) as authority for the proposition that the defence of duress by
threats was also unavailable to those charged with murder.
CASE EXAMPLE
Dudley and Stephens (1884) 14 QBd 273
D and S had been shipwrecked in a boat with another man and a cabin boy. After several days
without food or water, they decided to kill and eat the boy, who was the weakest of the four.
Four days later they were rescued. On the murder trial, the jury returned a special verdict,
finding that they would have died had they not eaten the boy (although there was no greater
necessity for killing the boy than anyone else). Lord Coleridge CJ agreed with the last point,
adding that as the mariners were adrift on the high sea, killing any one of them was not going
to guarantee their safety, and thus it could be argued that it was not necessary to kill anyone.
D and S were sentenced to hang, but this was commuted to six months’ imprisonment after
Queen Victoria intervened and exercised the Royal Prerogative.
Was D or someone for whom D
feels responsible threatened?
NO
YES D cannot plead duress

(Hasan)
Was the threat of immediate NO

(or almost immediate) death
or serious injury?
YES
221
Is D charged with murder or D cannot plead duress (Howe
YES and Bannister ; Gotts)
attempted murder?
8.1 duress
NO
Might the sober person of D cannot plead duress

reasonable firmness have also NO (Graham)
acceded to the threat?
YES
Did D have an opportunity to D cannot plead duress (Gill;

escape/call the police? YES Pommell)
NO
Was D a member of a violent

D cannot plead duress (Sharp,
criminal gang or had he
YES Heath, Hasan, Ali)
associated himself with violent
criminals?
NO
Was there a nexus between NO D cannot plead duress (Cole)

the threat and the offence?
YES
D can plead duress
Figure 8.1 Can D plead duress?

In Howe and Bannister, the Lords gave various reasons for withdrawing the defence of
duress by threats from those charged with murder.
 The ordinary man of reasonable fortitude, if asked to take an innocent life, might be
expected to sacrifice his own. Lord Hailsham could not ‘regard a law as either “just”
or “humane” which withdraws the protection of the criminal law from the innocent
victim, and casts the cloak of protection on the cowards and the poltroon in the name
of a concession to human frailty’.
ACTIVITy
self-test question
Discuss whether the law should require heroism. Refer back to Lord Lane’s test in Graham
(approved in Howe and Bannister) which sets a standard of the ‘sober person of reasonable
222 firmness’. If the reasonable man would have killed in the same circumstances, why should D
be punished – with a life sentence for murder – when he only did what anyone else would
have done?
General defences
 One who takes the life of an innocent cannot claim that he is choosing the lesser of
two evils (per Lord Hailsham).
This may be true if D alone is threatened; but what if D is told to kill V and that if he does
not, a bomb will explode in the middle of a crowded shopping centre? Surely that is the
lesser of two evils? The situation where D’s family are threatened with death if D does
not kill a third party is far from uncommon.
 The Law Commission (LC) recommended in 1977 that duress be a defence to murder.
That recommendation was not implemented; this suggested that Parliament was
happy with the law as it was.
Parliament’s lack of legislative activity in various aspects of criminal law, despite numer-
ous promptings from the LC and others, is notorious (e.g. failure to reform non-fatal
offences, discussed in Chapter 11). So its failure to adopt one LC proposal should not be
taken to indicate Parliament’s satisfaction instead of its intransigence.
 Hard cases could be dealt with by not prosecuting or by action of the Parole Board or
exercise of the Royal Prerogative of Mercy in ordering D’s early release.
But D still faces being branded as, in law, a ‘murderer’, and a morally innocent man
should not have to rely on an administrative decision for his freedom.
 To recognise the defence would involve overruling Dudley and Stephens. According
to Lord Griffiths, the decision was based on ‘the special sanctity that the law attaches
to human life and which denies to a man the right to take an innocent life even at the
price of his own or another’s life’.
The basis of the decision in Dudley and Stephens is in fact far from clear. It would be pos-
sible to recognise a defence of necessity to murder without overruling Dudley and
Stephens.
 Lord Griffiths thought the defence should not be available because it was ‘so easy to
raise and may be difficult for the prosecution to disprove’.
This argument applies to most defences! It also ignores the fact that in Howe and Bannister
itself, the jury had rejected the defence and convicted. Indeed, Lord Hailsham said that
‘juries have been commendably robust’ in rejecting the defence on other cases.
 Lord Bridge thought that it was for Parliament to decide the limits of the defence.
Why should this be? Duress is a common law defence, so the judges should decide its
scope.
CASE EXAMPLE
Howe and Bannister [1987] ac 417
D, aged 19, and E, aged 20, together with two other men, one aged 19, and the other,
Murray, aged 35, participated in the torture, assault and then strangling of two young male
victims at a remote spot on the Derbyshire moors. At their trial on two counts of murder and 223
one of conspiracy to murder, they pleaded duress, arguing that they feared for their lives if
they did not do as Murray directed. He was not only much older than the others but had
8.1 duress
appeared in court several times before and had convictions for violence. D and E were con-
victed of all charges, and their appeals failed in the Court of Appeal and House of Lords.
Howe and Bannister was followed in Wilson [2007] EWCA Crim 1251; [2007] 2 Cr App R
31, where the Court of Appeal confirmed that duress was never a defence to murder,
even though D was a 13-year-old boy. D and his father E murdered E’s neighbour, V,
using various weapons. At trial, D pleaded duress, on the basis that E had threatened
him with violence if he did not participate. The defence was rejected. Lord Phillips CJ
stated:
JUDGMENT
‘There may be grounds for criticising a principle of law that does not afford a 13-year-old boy
any defence to a charge of murder on the ground that he was complying with his father’s
instructions, which he was too frightened to refuse to disobey. But our criminal law holds that
a 13-year-old boy is responsible for his actions and the rule that duress provides no defence to
a charge of murder applies however susceptible D may be to the duress.’
The decision in Wilson reveals the arbitrary nature of the availability of duress, largely
attributable to its common law development. Suppose that V had survived, and D had
been charged with causing GBH with intent, instead of murder. D’s conduct (he admit-
ted hitting V, once, with a metal bar), and his mens rea at the time of doing so, would
have been exactly the same. However, instead of facing indefinite detention for murder,
there is a good chance that D would have been acquitted.
 First, duress would, in principle, have been available (Cairns (1999)).
 Second, the Graham/Bowen test would have applied. The jury would have been asked
to decide (1) whether D may have been impelled to act as he did because, as a result
of what he reasonably believed E had said or done, he had good cause to fear that if
he did not so act E would kill or seriously injure him; (2) whether a sober 13-year-old
boy of reasonable firmness might have taken part in the attack.
The failure of the judiciary to provide a defence to murder for those acting under duress
was recently criticised by Arenson, ‘The paradox of disallowing duress as a defence to
murder’ (2014) 78 J Crim L 65. He condemned their ‘hypocrisy and sheer folly’ in
allowing provocation (originally a common law defence but now abolished and replaced
by the statutory defence of loss of control – see Chapter 10) to provide a defence to
murder but not allowing duress to do so. He contends that those who kill under duress
are ‘far less morally culpable’ than those who kill having lost their self-control – yet it is
the latter who have a defence, and not the former. There is undoubtedly strength in the
argument that it is indeed paradoxical to excuse (albeit partially) those who kill having
lost their self-control but not to excuse (even partially) those who kill having been forced
by threats of death or serious injury to do so – especially when the person threatened
with death or injury is not necessarily D but could be their spouse or child.
Arenson also flatly disagrees with Lord Hailsham’s proposition in Howe and others
that the law should expect D to sacrifice his own life rather than kill V if forced into
choosing one or the other. It is difficult to disagree with the following proposition:
224
quotation
General defences
‘[It] requires nothing more than a rudimentary understanding of basic human instinct to appre-
ciate that it is unrealistic to expect any person . . . to refuse to follow a direction to take an
innocent life when the consequence of that refusal is all but certain to result in the loss of
one’s own life or that of a close friend or family member.’
Duress and attempted murder

In Howe and Bannister, Lord Griffiths said, obiter, that the defence of duress was not avail-
able to charges of attempted murder. This was confirmed in Gotts [1991] 2 All ER 1,
where Lord Jauncey said that he could ‘see no justification in logic, morality or law in
affording to an attempted murderer the defence which is withheld from a murderer’.
CASE EXAMPLE
Gotts [1991] 2 all er 1
D, aged 16, had been threatened with death by his father unless he tracked his mother down
to a refuge and killed her. D did as directed but, although seriously injured, his mother sur-
vived. The trial judge withdrew the defence and D was convicted. The Court of Appeal and
House of Lords upheld his conviction.
ACTIVITy
self-test question
D1, with intent to do serious harm, attacks and kills V. He appears to be guilty of murder and
would have no defence of duress to murder (Howe and Bannister (1987)) and would face life
imprisonment. D2, with intent to do serious harm, attacks V and causes serious injury but not
death. He could plead duress to a charge under s 18 OAPA 1861 (Cairns (1999)) and, if suc-
cessful, would receive an acquittal. (D2 could not be convicted of attempted murder because
this requires proof of intent to kill.) D1 and D2 have the same mens rea, but one is labelled a
murderer and faces a long prison term; the other escapes with no punishment at all. Is this
justifiable? Bear in mind that the difference between the two cases is simply whether V sur-
vives, which is subject to a number of variables (V’s age and state of health, the quality of
medical treatment available, etc.).
Reform
In its 2005 Consultation Paper, A New Homicide Act? the LC suggested that duress should
be made available as a partial defence to murder. However, by the time of its 2006
Report, Murder, Manslaughter and Infanticide, the LC had changed its position and instead
recommended that duress should be a full defence to both murder and attempted
murder. This would entail abolishing the principles established by the House of Lords
in Howe and Bannister (1987) and Gotts (1991). However, the Ministry of Justice Consulta-
tion Paper, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (July
2008), made no reference to these proposals, and since then there has been a change of
government. It appears unlikely that Parliament will be invited to change the law on
duress any time soon.
8.1.9 The development of duress of circumstances

Duress of circumstances has really only received official recognition from the appellate
courts in the last 25 years. The first cases all, coincidentally, involved driving offences. 225
 Willer (1986). D was forced to drive his car on the pavement in order to escape a gang
of youths who were intent on attacking him and his passenger. The Court of Appeal
8.1 duress
allowed D’s appeal against a conviction for reckless driving, on the basis of duress of
circumstances. Watkins LJ said that D was ‘wholly driven by force of circumstance
into doing what he did and did not drive the car otherwise than under that form of
compulsion, ie under duress.’
 Conway (1988). D again successfully appealed against a conviction for reckless
driving. He had driven his car at high speed to escape what he thought were two
men intent on attacking his passenger (in fact they were police officers).
 Martin (1989). D’s conviction for driving while disqualified was quashed. He had
only driven his car after his wife became hysterical and threatened to kill herself if D
did not drive his stepson to work.
 DPP v Bell [1992] Crim LR 176. D’s conviction for driving with excess alcohol was
quashed. He had only got into his car and driven it (a relatively short distance) in
order to escape a gang who were pursuing him.
 DPP v Davis; DPP v Pittaway [1994] Crim LR 600. Both appellants had convictions for
driving with excess alcohol quashed on the basis that they had only driven to escape
perceived violence from other people.
In Conway, Woolf LJ (as he then was) spelled out the ingredients of the new defence as
follows:
JUDGMENT
‘Necessity can only be a defence . . . where the facts establish “duress of circumstances”, that
is, where [D] was constrained to act by circumstances to drive as he did to avoid death or
serious bodily injury to himself or some other person . . . This approach does no more than
recognise that duress is an example of necessity. Whether “duress of circumstances” is called
“duress” or “necessity” does not matter. What is important is that it is subject to the same
limitations as the “do this or else” species of duress.’
In Martin (1989), Simon Brown J said that English law did ‘in extreme circumstances
recognise a defence of necessity. Most commonly this defence arises as duress [by
threats]. Equally, however, it can arise from other objective dangers threatening the
accused or others. Arising thus it is conveniently called “duress of circumstances”.’ For
a time there was a perception that duress of circumstances might be limited to driving
offences, but in Pommell (1995), the Court of Appeal confirmed that the defence was of
general application. It has subsequently been pleaded (not necessarily successfully) in
cases of hijacking (Abdul-Hussain (1999); Safi and others (2003)) and breach of the Official
Secrets Act 1989 (Shayler (2001)).
Duress of circumstances and necessity: are they the same thing?

You will have noted that in several of the above cases the courts have tended to describe
duress of circumstances and necessity as the same thing. You are referred in particular
to Lord Woolf ’s comments in Conway (1988) and Shayler (2001). In the latter case D, a
former member of the British Security Service (MI5), was charged (and ultimately con-
victed of ) disclosing confidential documents in breach of the Official Secrets Act 1989.
Unusually, his defence (whether it is properly regarded as duress of circumstances or
226 necessity is perhaps a moot point) was considered both by the Court of Appeal and by
the House of Lords before the actual trial. Lord Woolf CJ, giving judgment in the Court
of Appeal, gave a very strong indication that duress of circumstances and necessity were
General defences
interchangeable. He stated:
JUDGMENT
The distinction between duress of circumstances and necessity has, correctly, been by and large
ignored or blurred by the courts. Apart from some of the medical cases like Re F [1990] 2 AC 1,
the law has tended to treat duress of circumstances and necessity as one and the same.
Another, more recent example, comes from the case of Quayle and others [2005] EWCA
Crim 1415; [2005] 1 WLR 3642, discussed in section 8.2, where Mance LJ referred to a
defence called ‘necessity by circumstances’, which seems to conflate ‘duress of circum-
stances’ and ‘necessity’ into a single defence. However, in this book they will be regarded
as separate defences. There are two reasons for this.
 It is clear that duress, whether by threats or of circumstances, cannot be a defence to
murder (or attempted murder). However, according to the case of Re A (Children) (Con-
joined Twins) (2000), discussed in section 8.2, ‘necessity’ may be a defence to murder.
 Duress (again whether by threats or of circumstances) exists only where D or someone
he is responsible for is in immediate danger of death or serious injury. This is not neces-
sarily the case in necessity, a point for which Re A is again authority.
Academic support for the position adopted in this book comes from F Stark, ‘Necessity
and Nicklinson’ [2013] Crim LR 949. Stark concedes that what he labels ‘excusatory neces-
sity’ can be regarded as being synonymous with duress of circumstances, but contends
that there is a separate defence which he labels ‘justificatory necessity’. Stark’s labels are
significant as they indicate a deeper doctrinal distinction between the two defences:
 Excusatory necessity (also known as duress of circumstances) – this is categorisable
as an excuse. In English law (and other common law jurisdictions) this signifies that
D has committed a wrongful act or omission but, because of the prevailing circum-
stances at the time, D does not deserve to be blamed, either at all or at least not to the
full extent of the law. Other examples of excuses are duress by threats (discussed
above), automatism and insanity (discussed in Chapter 9) and diminished respons-
ibility and loss of control (discussed in Chapter 10).
 Justificatory necessity – this is categorisable as a justification. This signifies that D has
not committed a wrongful act at all. Other examples of justifications include self-
defence (discussed below) and consent (discussed below).
It should be noted that (i) the categories of ‘excuse’ and ‘justification’ have been
advanced by academics, rather than the courts, (ii) there is not necessarily a consensus
amongst all academics about which crimes are excuses and which are justifications
and (iii) the distinction between ‘excuses’ and ‘justifications’ itself is not accepted by
all academics either.
kEy fACTS
Key facts on duress
Elements Comment Cases 227

Source of By threats Lynch (1975)
duress By circumstances Willer (1986), Conway
8.1 duress
(1988), Martin (1989)
Degree of Threat or danger posed must be of death or Hasan (2005), A (2012)
duress serious personal injury (including rape)
This means physical injury not psychological Baker and Wilkins (1997)
injury
Threat of exposure of secret sexual orientation Valderrama-Vega (1985)
insufficient
Duress Usually D personally Graham (1982), Cairns (1999)
against Also includes duress against family Ortiz (1986), Conway (1988),
whom? Martin (1989)
Even persons for whom defendant reasonably Wright (2000)
feels responsible
Imminence Threat or danger must be believed to be Hasan (2005)
immediate or almost immediate.
Defendant should alert police as soon as Gill (1963), Pommell (1995)
possible; delay in doing so does not necessarily
mean defence fails.
Association Voluntarily joining a violent criminal gang means Fitzpatrick (1977), Sharp
with crime defendant may not have the defence. (1987)
Voluntary association with violent criminals has Ali (1995), Baker and Ward
the same effect. (1999), Heath (2000)
But only if the defendant foresaw (or should Shepherd (1987), Hasan
have foreseen) that he may be subjected to (2005)
duress.
Reasonable Defendant must have reasonably believed that a Cairns (1999), Safi (2003),
man test threat/danger existed. Hasan (2005)
Defence fails if a sober person of reasonable Graham (1982), Howe and
firmness would have resisted the threats. Bannister (1987)
The reasonable man shares some of D’s Bowen (1996)
characteristics, such as age and physical
disability.
Availability Defence available to most crimes except Howe and Bannister
murder … (1987), Wilson (2007)
… and attempted murder. Gotts (1991)
Burden of It is for the prosecution to disprove beyond
proof reasonable doubt.
Effect of Defendant is not guilty.
defence
8.2 Necessity
Ammunition for the proposition that ‘necessity’ is a separate defence comes from Re A
(2000). There, Brooke LJ said, ‘In cases of pure necessity the actor’s mind is not irresist-
228 ibly overborne by external pressures. The claim is that his or her conduct was not harmful
because on a choice of two evils the choice of avoiding the greater harm was justified.’
He went on to summarise the position as follows, by stating that ‘there are three neces-
sary requirements for the application of the doctrine of necessity’:
General defences
 The act is needed to avoid inevitable and irreparable evil.

 No more should be done than is reasonably necessary for the purpose to be
achieved.
 The evil inflicted must not be disproportionate to the evil avoided.
This definition is very different from that regarded as the classic test for duress of cir-
cumstances, which requires that D must have acted in order to avoid a perceived threat
of immediate death or serious injury and with no reasonable opportunity for escaping
from the threat or contacting the authorities.
CASE EXAMPLE
Re A (Conjoined Twins: Surgical Separation) [2000] eWca civ 254; [2000] 4 all
er 961
J and M were conjoined twin girls; that is, they were physically joined at the lower abdomen. J was
capable of independent existence; M was not. An operation to separate the twins was deemed
appropriate in order to give J a chance of a separate life. This operation would inevitably result in
the death of M, who was alive only because of a common artery, through which J’s stronger heart
circulated enough oxygenated blood for both of them. Both girls would die, within six months at
the outside, if the operation did not take place, because J’s heart would eventually lack strength
to pump blood around both bodies. However, the girls’ parents, who were both Catholics, refused
to give their consent. The hospital authorities therefore applied for a declaration that the proposed
operation would be lawful. The Court of Appeal (Civil Division) found that the operation was a
positive act and therefore had to be justified to prevent the surgeons from facing liability for
murder. Justification came in the form of the necessity defence. The operation was carried out
successfully, in that J survived (M died) and was released from hospital shortly afterwards.
Strictly speaking, as a matter of precedent, this case involved a decision of the Civil Divi-
sion of the Court of Appeal and is only persuasive on criminal courts. In Shayler (2001), a
decision of the Criminal Division of the Court of Appeal, Lord Woolf CJ gave a definition
of the ingredients of ‘necessity’ in exactly the same terms as Brooke LJ in Re A (although,
as noted above, he regarded necessity and duress of circumstances as interchangeable).
In Quayle and others [2005] EWCA Crim 1415; [2005] 1 WLR 3642, however, a defence
of necessity was recognised, although the appeals were rejected, by the Court of Appeal
(Criminal Division). The appellants had been charged with various offences relating to
the ‘cultivation, production, importation and possession’ of cannabis. They were con-
victed and appealed, claiming that, because they used cannabis not as a recreational
drug but for the purposes of relieving painful symptoms of conditions such as multiple
sclerosis, a defence of necessity should be available. The Court of Appeal dismissed the
appeals. Mance LJ said that whatever benefits there might be (real or perceived) for any
individual patients, such benefits were regarded by Parliament as outweighed by dis-
benefits ‘of sufficient strength to require a general prohibition in the national interest’.
The suggested defence of ‘necessitous medical use’ on an individual basis was in conflict
with the purpose of the legislation, for two reasons.
1. No such use was permitted under the legislation, even on doctor’s prescription,
except for medical research trials.
229
2. It would involve unqualified individuals prescribing cannabis to themselves as
patients or assuming the role of unqualified doctors by obtaining, prescribing and
supplying it to other individual ‘patients’.
8.2 necessity
CASE EXAMPLE
Quayle and others [2005] eWca crim 1415; [2005] 1 Wlr 3642
The case involved five appellants. Barry Quayle (a 38-year-old amputee who was still in
considerable pain), Reay Wales (a 53-year-old man who suffered from various back injuries
and illnesses which led to him becoming depressed and alcoholic and which in turn led to a
condition called pancreatitis which left him in ‘chronic’ pain) and Graham Kenny (a 25-year-
old man who had injured his back at work) had all been convicted of cultivating cannabis for
their own use, contrary to the Misuse of Drugs Act 1971. Anthony Taylor, the manager of
Tony’s Holistic Clinic in London, a treatment centre for people with HIV and AIDS, had been
stopped by customs officers at Luton Airport returning from Switzerland and Taylor was found
to be carrying 20.5 kilos of cannabis worth £35,000, an offence under the Customs & Excise
Management Act 1979. A month later, one of Taylor’s employees, May Po Lee, was also
caught at Luton Airport returning from Switzerland with just over five kilos of cannabis. At
trial, the judge refused to allow any of the accused a defence of ‘medical necessity’ to be left
to the jury and all were convicted. The Court of Appeal dismissed their appeals.
Mance LJ summarised the judgment as follows:
JUDGMENT
‘The law has to draw a line at some point in the criteria which it accepts as sufficient to satisfy any
defence of duress or necessity. Courts and juries have to work on evidence. If such defences were
to be expanded in theory to cover every possible case in which it might be felt that it would be
hard if the law treated the conduct in question as criminal, there would be likely to be arguments
in considerable numbers of cases, where there was no clear objective basis by reference to which
to test or determine such arguments. It is unlikely that this would lead overall to a more coherent
result, or even necessarily to a more just disposition of any individual case. There is, on any view,
a large element of subjectivity in the assessment of pain not directly associated with some current
physical injury. The legal defences of duress by threats and necessity by circumstances should in
our view be confined to cases where there is an imminent danger of physical injury.’
Quayle and others was followed in Altham [2006] EWCA Crim 7; [2006] 2 Cr App R 8.
CASE EXAMPLE
Altham [2006] eWca crim 7; [2006] 2 cr app r 8
D had been involved in a road traffic accident some 15 years earlier which left him with both
hips dislocated; subsequently, his left hip had to be surgically removed altogether leaving him
‘in chronic pain in his lower limbs ever since’. After several pain-relieving strategies including
acupuncture and prescribed antidepressants had failed, D turned to cannabis, which appar-
ently provided the first form of pain relief since his accident. However, he was eventually
prosecuted for and convicted of possessing a controlled drug.
The Court of Appeal upheld his conviction, relying heavily upon the judgment in Quayle
and others. In addition, the Court held that a person who used cannabis for pain relief
could not raise a defence of necessity by relying on art 3 of the European Convention on
Human Rights (the prohibition of inhuman or degrading treatment or punishment).
230
Baker LJ stated:
JUDGMENT
General defences
‘In our judgment the state has done nothing to subject the appellant to either inhuman or
degrading treatment and thereby engage the absolute prohibition in Article 3. If the true posi-
tion is that, absent a defence of necessity, the appellant will either break the criminal law or
continue to suffer degrading treatment, the state is not in breach of its Article 3 obligation . . .
We do not think that this is a case in which . . . the state is properly to be regarded as respons-
ible for the harm inflicted on the appellant. Nor do we think that Article 3 requires the state
to take any steps to alleviate the appellant’s condition.’
It is submitted that the cases of Quayle and others and Altham are authority for the pro-
position that ‘necessity’ exists as a defence in English law separate from ‘duress of cir-
cumstances’. In his commentary in the Criminal Law Review on the former case,
Professor David Ormerod argued that the case could be regarded as one of ‘pure neces-
sity’ (Quayle and others [2006] Crim LR 149). He referred to the ‘general principles of
necessity’ identified by Brooke LJ in Re A (2000) and added that:
quotation
‘Applying those criteria it would come as no surprise if a jury, having heard expert evidence of
the genuine nature and severity of pain being avoided, regarded the action of breaking the
law as justified. A plea of necessity avoids many of the restrictions which constrain duress of
circumstances: there is no requirement of a threat of death or serious injury . . . the defence is
potentially available to all crimes, even murder, and there is no requirement of immediacy . . .
Clarification from the House of Lords as to the elements of the defence of necessity, its ration-
ale, and its relationship with duress of circumstances is urgently needed. If necessity is to be
subsumed within duress of circumstances it should, it is submitted, only be by express pro-
nouncement of the House.’
(Note: Professor Ormerod’s references to ‘the House of Lords’ should now be read as
‘the Supreme Court’.) It follows that older cases which indicated that it did not exist
should not now be relied upon. For example, in Buckoke v GLC [1975] Ch 655, Lord
Denning stated, obiter, that the driver of a fire engine who crossed a red traffic light to
rescue a man from a blazing building on the other side of the junction would commit an
offence against the road traffic regulations.
ACTIVITy
applying the law
If the circumstances described by Lord Denning in Buckoke (1975) did occur, discuss whether
the driver would have a defence of necessity under the criteria laid down by Brooke LJ in Re A
(2000).
Note: this particular issue is now a moot point, as reg 33(1)(b) of the Traffic Signs
Regulations and General Directions (SI 1994 No 1519) 1994 provides that fire brigade,
ambulance or police vehicles may cross red lights if stopping ‘would be likely to 231
hinder the use of that vehicle for the purpose for which it is being used’. However, the
vehicle must not cross the red light ‘in a manner or at a time likely to endanger any
person’ or cause another vehicle ‘to change its speed or course in order to avoid an
8.2 necessity
accident’.
In Southwark LBC v Williams [1971] Ch 734, a civil case, it was held that the defence of
necessity did not apply to enable the homeless to enter and occupy empty houses owned
by the local authority. Lord Denning MR justified the rule on the ground that:
JUDGMENT
‘If hunger were once allowed to be an excuse for stealing, it would open a door through
which all kinds of lawlessness and disorder would pass . . . If homelessness were once admit-
ted as a defence to trespass, no one’s house could be safe. Necessity would open a door
which no man could shut. It would not only be those in extreme need who would enter.
There would be others who would imagine that they were in need, or would invent a need,
so as to gain entry.’
ACTIVITy
applying the law
Would homeless people seeking shelter in empty properties now be able to satisfy the criteria
for necessity laid down by Brooke LJ in Re A (2000)? What other information might you wish
to have in order to be able to answer this question?
Even assuming that necessity – as a distinct defence – does exist, questions remain as to
its scope. In particular, the question whether it provides a potential defence to a charge
of murder is a particularly complicated one, as it inevitably raises ethical, moral and
religious issues as well as legal ones. This question was recently put to the Court of
Appeal in Nicklinson v Ministry of Justice [2013] EWCA Civ 961; [2014] 2 All ER 32. The
court decided that, apart from a case such as Re A (2000), the answer was ‘no’. The
Court explained that the question whether the law should be changed so as to allow a
defence of necessity in murder cases was one that could only be answered (if at all) by
Parliament.
CASE EXAMPLE
Nicklinson v Ministry of Justice [2013] eWca civ 961; [2014] 2 all er 32
Tony Nicklinson, aged 57, suffered a stroke while on a business trip to Athens in 2005 which
left him with ‘locked-in’ syndrome, almost completely paralysed – he was only able to com-
municate by blinking and with limited head movement, although his mental capacity was
unimpaired. After seven years, he applied to the High Court for a declaration that it would not
be unlawful, on the grounds of necessity, for a doctor to terminate or assist in the termination
of his life. The Ministry of Justice responded that the law on murder was clear and settled and
any change was a matter for Parliament. The High Court rejected his application and held that
allowing a doctor to deliberately take Nicklinson’s life would be murder. The Court distin-
guished the superficially similar case of Re A on the basis of its ‘highly unusual’ facts.
232 On hearing this news, Nicklinson effectively committed suicide by refusing all food and
fluids. He died of pneumonia a week after the judgment. However, his widow, Jane,
continued the legal fight on his behalf by appealing to the Court of Appeal (Civil Divi-
General defences
sion). However, that court rejected her appeal, primarily on the basis that such a radical
change in the law required the approval of Parliament. Lord Dyson MR and Lord Elias
(with whom Lord Judge CJ agreed) stated:
JUDGMENT
[The appellant’s] submission that the common law should recognise a defence of necessity to
apply to certain cases of euthanasia is wholly unsustainable . . . It is simply not appropriate for
the court to fashion a defence of necessity in such a complex and controversial field; this is a
matter for Parliament . . . Parliament as the conscience of the nation is the appropriate con-
stitutional forum, not judges who might be influenced by their own particular moral perspec-
tives; the judicial process which has to focus on the particular facts and circumstances before
the court is not one which is suited to enabling the judges to deal competently with the range
of conflicting considerations and procedural requirements which a proper regulation of the
field may require; and there is a danger that any particular judicial decision, influenced perhaps
by particular sympathy for an individual claimant, may have unforeseen consequences, creat-
ing an unfortunate precedent binding in other contexts.
F Stark, ‘Necessity and Nicklinson’ [2013] Crim LR 949 suggests that an (implicit) reason
for the Court of Appeal’s rejection of necessity was the concern for setting too dangerous
a precedent. He contends that, were the courts to allow Nicklinson’s doctors a defence
of necessity, it would open the floodgates to other cases involving patients with life-
limiting or terminal conditions seeking the court’s approval to be lawfully killed. He
writes:
quotation
‘Lurking behind the refusal to engage in a discussion [about necessity in euthanasia cases] is
the danger of repetition of the facts of Nicklinson. Justificatory necessity is a defence that can
only really be endorsed in truly exceptional circumstances, lest the law’s authority be under-
mined. The danger is that the law would find itself having to discuss arguments which were
. . . irresolvable, leading to inconsistency and instability.’
Jane Nicklinson was granted leave to appeal to the Supreme Court, but did not pursue
the necessity argument before that court. Instead, the appeal was focused exclusively on
whether the offence of assisted suicide, contrary to s 2 of the Suicide Act 1961, was com-
patible with the European Convention on Human Rights (in particular the right to
privacy in art 8). The Supreme Court ruled that s 2 was not in breach of the ECHR (Nick-
linson v Ministry of Justice [2014] UKSC 38; [2014] 3 WLR 200). For further discussion of
the Nicklinson case, and the arguments for and against the legalisation of euthanasia and
‘mercy killings’, see Chapter 10 (section 10.2.4).
Support for a change in English law comes from across the Atlantic. In Canadian
law, necessity has long been established, not just as a general defence in its own right
but as a potential defence to murder. In the leading case, Perka [1984] 2 SCR 232, the
Supreme Court of Canada explained that the defence only applied where three con-
ditions were met. First, action had to have been taken to avoid a direct and immediate
peril. Second, the act in question had to be inevitable, unavoidable and where no reas-
onable opportunity for an alternative course of action that did not involve a breach of 233
the law was available. Finally, the harm inflicted by the violation of the law had to be
less than the harm that the accused sought to avoid. These constraints mean that the
8.2 necessity
defence is rarely successful, as the three leading Canadian Supreme Court decisions
illustrate:
 Perka: a boat carrying a consignment of cannabis from Colombia to Alaska was forced
to seek shelter in Canadian waters during bad weather, but ran aground. The smug-
glers unloaded drugs worth $6 million on to the shore to avoid it being washed away
into the Pacific Ocean. They were caught and charged with trafficking cannabis into
Canada, to which they pleaded necessity. Defence rejected on the facts: it was not
necessary to smuggle the drugs.
 Latimer [2001] 1 SCR 3: D was charged with murdering his 12-year-old daughter,
Tracy. She had a ‘severe’ form of cerebral palsy which meant that she had the mental
capacity of a four-month-old baby, was completely dependent on others for her care
and could communicate only by means of facial expressions, laughter and crying.
She suffered five to six seizures daily, and it was thought that she experienced a great
deal of pain. Eventually, on being told that an operation to insert a feeding tube into
her stomach was required, D killed her by placing her in his truck with the engine
running and a hose attached to the exhaust. Defence rejected on the facts: it was not
necessary to kill Tracy.
 Kerr [2004] 2 SCR 371: D, an inmate in a maximum security jail, killed a fellow inmate
with a weapon made from sharpened prison cutlery. D was charged with murder (to
which he pleaded self-defence) and possession of a dangerous weapon (to which he
pleaded necessity on the basis that the victim had made death threats against him).
Both defences accepted.
Latimer is clearly the closest case, factually, to Nicklinson. The defence was rejected for
several reasons: Tracy’s medical condition did not pose an imminent threat to her life; D
had at least one reasonable legal alternative to killing his daughter: he could have helped
Tracy by minimising her pain as much as possible or by permitting an institution to do
so; the harm inflicted (killing Tracy) was ‘immeasurably’ more serious than the harm
avoided (relieving her perceived suffering). Whilst leaving open the question whether
necessity could ever be available in homicide cases, the Supreme Court concluded that
killing a person in order to relieve the suffering produced by a medically manageable
physical or mental condition was not a proportionate response to the harm represented
by the non-life-threatening suffering resulting from that condition.
All of this suggests that, even if the Supreme Court and/or Parliament in the UK
explicitly endorse a defence of necessity in cases involving the deliberate ending of
another person’s life (i.e. murder) it is only going to be available in ‘truly exceptional
circumstances’.
8.3 Marital coercion

A defence of marital coercion was created in common law that provided a presump-
tion that any crime committed by a married woman in the presence of her husband
was done under ‘coercion’. The presumption was abolished by Parliament in the
Criminal Justice Act 1925, s 47, but the defence itself survived until 2014, when it was
abolished by the Anti-social Behaviour, Crime and Policing Act 2014, s 177. The Law
Commission had twice recommended its abolition (in 1977 and in 1993) on the basis
that it was anachronistic to have a special defence for married women (but not for
234 unmarried women, or men). Successive governments had ignored those recommen-
dations and the law was only changed after an independent peer, Lord Pannick, intro-
duced the clause that was to become s 177 as a Lords’ amendment to the Bill that
General defences
became the 2014 Act.

In March 2013, the defence was relied on, possibly for the last time, in the high-profile
trial of Vicky Pryce, the former wife of ex-Liberal Democrat MP and Cabinet Minister
Chris Hulme, for perverting the course of justice. During her trial, Ms Pryce claimed that
Hulme, when the couple were still married, had forced her to claim that she was driving
their car over the speed limit on the M11, whereas in fact he was the driver. This meant
that she, and not he, had her driving licence endorsed with penalty points, which in turn
allowed him to keep his licence (Huhne’s licence already had nine points on it and an
extra three might have meant a driving ban). The defence was rejected and Ms Pryce
was sentenced to imprisonment.
With the defence abolished, married women are now placed in the same position as
every other member of English and Welsh society who claims to have been forced to
commit a crime: plead duress.
8.4 Mistake
8.4.1 Mistakes of fact
‘Mistake of fact’ is not really a ‘defence’ as such; it operates by preventing the prosecu-
tion from establishing that D possessed the relevant mens rea at the time of the offence.
At one time only mistakes of fact that were reasonably made could operate to negate
liability. However, that was changed by the leading case, DPP v Morgan [1976] AC 182,
where it was held that mistakes of fact may negate liability provided they were honestly
made. Lord Hailsham said:
JUDGMENT
‘Either the prosecution proves that [D] had the requisite intent, or it does not. In the former
case it succeeds, and in the latter it fails. Since honest belief clearly negatives intent, the
reasonableness or otherwise of that belief can only be evidence for or against the view that
the belief and therefore the intent was actually held.’
Morgan was a rape case, but the proposition of Lord Hailsham, above, extends to
most criminal offences. It was followed in the indecent assault case of Kimber [1983]
3 All ER 316, a Court of Appeal judgment concerning D’s mistaken belief that V was
consenting. Morgan has now been overruled by Parliament’s enactment of the Sexual
Offences Act 2003, which restores a requirement that, in rape cases, D’s belief as to
whether or not V was consenting to sexual intercourse must be a reasonable one (see
Chapter 12). However, the principle stated above remains applicable to other crimes
and, therefore, D will have a good defence if he honestly believed in a mistaken set
of facts such that he did not have the mens rea. A good example of the continuing
legacy of Morgan is any case where D is charged with murder, manslaughter or some
non-fatal offence and claims to have acted in self-defence, having used force in the
mistaken belief about the need to use (a) any force, or (b) the amount of force he did
in fact use. In Williams [1987] 3 All ER 411, the Court of Appeal held that D had a
good defence provided his belief that he was under attack was honestly held. Lord
Lane CJ said:
235
JUDGMENT
8.4 MistaKe
‘The mental element necessary to constitute guilt is the intent to apply unlawful force to the
victim. [The] question is, does it make any difference if the mistake of [D] was . . . an unrea-
sonable mistake? . . . The reasonableness or unreasonableness of [D]’s belief is material to
the question of whether the belief was held by [D] at all. If the belief was in fact held, its
unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is
irrelevant.’
student In Beckford [1988] AC 130, in which D was accused of murder but pleaded honest
mentor tip
mistaken belief in the need to act in self-defence, the Privy Council approved both
‘Look for the Morgan and Williams. Lord Griffiths said that ‘If then a genuine belief, albeit without
factors that link to reasonable grounds, is a defence to rape because it negatives the necessary intention,
other areas; you
simply cannot pick so also must a genuine belief in facts which if true would justify self-defence be a
and choose but defence to a crime of personal violence because the belief negates the intent to
have to act unlawfully.’ The cases of Williams and Beckford will be further discussed in
understand the
basic law in all section 8.5.
areas and build up
your knowledge
from there.’
Intoxicated mistakes
Pelena, University An intoxicated defendant is often really pleading mistake. If this is the case, then the
of Surrey rules described above do not apply; instead the intoxication rules as set out in DPP v
Majewski [1977] AC 443, apply instead (see Chapter 9, in particular the case of Lipman
[1970] 1 QB 152).
8.4.2 Mistakes of law

It is no defence for D who causes the actus reus of an offence with mens rea to say that
he did not know the actus reus was an offence, ignorance of the law being no excuse.
Thus, in Esop (1836) 7 C & P 456, D, from Iraq, buggered a man on board a ship lying
in an English port. Buggery was not illegal in Iraq and D assumed it was lawful
in England. He was convicted. A similar decision was reached in Lee [2000] Crim
LR 991.
CASE EXAMPLE
Lee [2000] crim lr 991
D was convicted of two offences of assault with intent to resist arrest (contrary to s 38 OAPA
1861). He had given a roadside breathalyser test which the two police officers had said was
positive. D said it was not clear that the crystals had changed colour beyond the red line. There
was no doubt he had assaulted the officers; the question was whether he had the mens rea,
the intent to resist arrest. The defence case was that, because he thought the test was negative,
the officers had no power of arrest and therefore he could not have intended to resist arrest.
However, under s 6(5) of the Road Traffic Act 1988, a power of arrest arises provided that the
police officer, as a result of a breath test, ‘has reasonable cause to suspect’ that D was over
the limit. He was convicted. On appeal it was submitted that the trial judge should have dir-
ected the jury to acquit unless sure that D had no honest belief that he had passed the
236 breathalyser test. However, the Court of Appeal dismissed the appeal, distinguishing Morgan,
Williams and Beckford. D’s mistake was not one of fact but one of law, that is, the lawfulness
of his arrest. Once the lawfulness of his arrest was established (and it was conceded on appeal
that there was evidence on which the jury could conclude that the officers were acting law-
General defences
fully), then the mens rea required was an intent to resist arrest with knowledge that the person
was seeking to arrest him.
8.5 Self-defence and related defences

Causing injury or even death to other persons may be justified if the force was reason-
ably used in self-defence or to protect another person. The term ‘self-defence’ will be
used in this section, although it should be remembered that D may use force to defend
others (the term ‘private defence’ is sometimes used instead for this reason). Self-defence
is a common law defence (although it has been ‘clarified’ by s 76 of the Criminal Justice
and Immigration Act 2008 (as amended)). It overlaps to some extent with the prevention
of crime defence, which is covered by s 3 of the Criminal Law Act 1967, which
provides:
SECTION
‘3(1) A person may use such force as is reasonable in the circumstances in the prevention of
crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large.’
Section 3(2) of the 1967 Act adds that s 3(1) ‘shall replace the rules of common law on the
question when force used for a purpose mentioned in the subsection is justified by that
purpose’. Despite that, the courts have accepted that self-defence remains and that the
two justifications operate in parallel (Cousins [1982] QB 526). Where there is evidence of
self-defence, this must be left to the jury (DPP v Bailey [1995] 1 Cr App R 257). However,
there must be evidence before the court on which a jury might think it was reasonably
possible that D was acting in self-defence. If it was ‘a mere fanciful and speculative
matter’, the judge could withdraw the defence (Johnson [1994] Crim LR 376). Self-defence
or the s 3 defence are usually raised to charges of homicide or non-fatal offences against
the person, but are not confined to them. Thus the s 3 defence was pleaded to a charge
of reckless driving in Renouf [1986] 2 All ER 449 (D had driven his car at speed in attempt-
ing to prevent people who had assaulted him from escaping in another vehicle).
Self-defence was pleaded to a charge of dangerous driving in Symonds [1998] Crim LR
280 (D had driven away in his car at speed to escape from someone who he thought was
trying to attack him).
The Criminal Justice and Immigration Act 2008, s 76

In an unusual move, Parliament has enacted most (but not all) of the common law
principles on self-defence, but without amending them. The stated purpose of doing
so is to ‘clarify’ the law. Section 76 of the Criminal Justice and Immigration Act 2008
(as amended by s 148 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 and by s 43 of the Crime and Courts Act 2013) should therefore be referred to
alongside the case law.
In McGrath; Keane [2010] EWCA Crim 2514; [2011] Crim LR 393, the Court of Appeal
offered some guidance as to the relationship between the common law defence of self-
defence and s 76. Hughes LJ said:
237
JUDGMENT
8.5 self-defence and related defences

‘For the avoidance of doubt, it is perhaps helpful to say of s 76 three things: (a) it does not alter
the law as it has been for many years; (b) it does not exhaustively state the law of self-defence
but it does state the basic principles; (c) it does not require any summing-up to rehearse the
whole of its contents just because they are now contained in statute. The fundamental rule of
summing-up remains the same. The jury must be told the law which applies to the facts which
it might find; it is not to be troubled by a disquisition on the parts of the law which do not
affect the case.’
8.5.1 The necessity of force

The use of any force is not justified if it is not necessary, and this depends on whether D
thought that the use of force was necessary. A good example of this principle is pro-
vided by Hussain and others [2010] EWCA Crim 94; [2010] Crim LR 428.
CASE EXAMPLE
Hussain and others [2010] eWca crim 94; [2010] crim lr 428
One night, V and two others disguised themselves with balaclavas, armed themselves with
knives and burgled D’s home. D, his wife and son were ordered to lie on the floor and threat-
ened that if they moved they would be killed. However, D and his son managed to overpower
V, who ran off. V was chased by a group of men including D. He was caught and attacked
using various weapons including a cricket bat and a pole. V suffered a fracture of the skull with
consequent brain injury, and fractures to his ribs, jaw, elbow and a finger. D and another man
were convicted of causing GBH with intent. They appealed, but their convictions were upheld.
The Court of Appeal held that, when V was lying on the ground, none of his assailants were
acting in self-defence or, in D’s case, in defence of his wife, children, himself or his home.
According to Lord Judge CJ, ‘the burglary was over. No one was in any danger. The purpose
of the appellants’ violence was revenge.’
It does not matter if D wrongly imagined that a threat existed. Moreover, there is no
requirement that D’s mistaken belief be based on reasonable grounds. These principles
were set out in Williams [1987] 3 All ER 411, a decision of the Court of Appeal.
CASE EXAMPLE
Williams [1987] 3 all er 411
D was charged with an assault occasioning actual bodily harm (ABH) on a man called Mason.
His defence was that he was preventing Mason from assaulting and torturing a black youth.
D claimed that he had seen Mason dragging the youth along and repeatedly punching him.
The youth was struggling and calling for help. D approached Mason to ask him what on earth
he was doing; Mason replied that he was arresting the youth for mugging an old lady (which
was true) and that he was a police officer (which was not true). D asked to see Mason’s
warrant card, which was of course not forthcoming, at which point a struggle broke out
between them. As a result of this altercation, Mason sustained injuries to his face, loosened
teeth and bleeding gums. D did not deny punching Mason but claimed that he did so in order
to save the youth from further beatings and torture. The jury were directed that D only had a
238 defence if he believed on reasonable grounds that Mason was acting unlawfully. The Court of
Appeal quashed his conviction.
The decision in Williams was approved by the Privy Council in Beckford [1988] AC 130.
General defences
Thus, if D is walking alone along a road late at night and sees what he thinks is a large
man about to attack him with a club, but in reality, D had made a foolish mistake and the
‘large man’ was in fact an elderly woman and the ‘club’ was actually an umbrella, the
defence is available. It therefore follows that D can use force to repel what is in fact per-
fectly lawful behaviour, provided D honestly thinks that force is necessary. This was
made explicit in the case of Re A (Children) (Conjoined Twins) (2000), discussed above in
the context of necessity. Ward LJ adopted a different approach from that of Brooke LJ,
although he reached the same conclusion. Ward LJ equated M’s dependence on blood
from J’s heart as, in effect, a potentially fatal attack upon J, which entitled doctors to
intervene and use force to save her.
In McGrath [2010] EWCA Crim 2514; [2011] Crim LR 393, the Court of Appeal
emphasised that it was wrong for a trial judge to direct a jury about the law on mis-
taken belief in the need to use self-defence in a case where D’s defence was based on a
genuine need. In the case, D had pleaded self-defence to a charge of murder after stab-
bing her boyfriend through the heart when he attacked her. She was convicted (of
manslaughter), but only after the trial judge directed the jury with reference to a mis-
taken belief in self-defence. However, the Court of Appeal upheld the conviction.
Although the introduction of the possibility of mistaken belief was an ‘unnecessary
complication which should not have been present’, it was not sufficient to render D’s
conviction unsafe.
In Rashford [2005] EWCA Crim 3377; [2006] Crim LR 547, the Court of Appeal decided
that – in principle at least – it was possible to plead self-defence to a charge of murder,
even though D admitted that he had gone out looking for revenge. Dyson LJ stated
that:
JUDGMENT
‘The mere fact that a defendant goes somewhere in order to exact revenge from the victim
does not of itself rule out the possibility that in any violence that ensues self-defence is
necessarily not available as a defence. It must depend on the circumstances. It is common
ground that a person only acts in self-defence if in all the circumstances he honestly believes
that it is necessary for him to defend himself and if the amount of force that he uses is
reasonable.’
In the event, the Court of Appeal upheld D’s murder conviction on the basis that, accord-
ing to his own testimony, he had not actually been placed in a position where it was
necessary to use force at the time when he stabbed V through the heart.
Pre-emptive strike
It is not necessary for there to be an attack in progress; it is sufficient if D apprehends
an attack. In Beckford, Lord Griffiths said, ‘A man about to be attacked does not have
to wait for his assailant to strike the first blow or fire the first shot; circumstances may
justify a pre-emptive strike.’ In DPP v Bailey [1995] 1 Cr App R 257, Lord Slynn said
‘Self-defence as a concept embraces not only aggressive action such as a pre-emptive
strike or aggressive reaction but applies equally to a wholly defensive posture.’ It
follows that it will be permissible for D to issue threats of force, even death, if that
might prevent an attack upon himself or prevent a crime from taking place (Cousins
(1982)).
239
Preparing for an attack

Where D apprehends an attack upon himself, may he make preparations to defend

himself, even where that involves breaches of the law? In Attorney-General’s Reference
(No 2 of 1983) [1984] QB 456, the Court of Appeal answered this question in the
affirmative.
CASE EXAMPLE
Attorney-General’s Reference (No 2 of 1983) [1984] QB 456
D’s shop had been attacked and damaged by rioters. Fearing further attacks, he made petrol
bombs. D was charged with possessing an explosive substance in such circumstances as to
give rise to a reasonable suspicion that he did not have it for a lawful object, contrary to s 4(1)
of the Explosive Substances Act 1883. He pleaded self-defence and the jury acquitted. The
Court of Appeal accepted that this was correct.
Lord Lane CJ stated:
JUDGMENT
‘D is not left in the paradoxical position of being able to justify acts carried out in self-defence
but not acts immediately preparatory to it. There is no warrant for the submission . . . that acts
of self-defence will only avail [D] when they have been done spontaneously . . . [A person] may
still arm himself for his own protection, if the exigency arises, although in doing so he may
commit other offences.’
A duty to retreat?
At one time, it had been thought that the law required D to retreat as far as possible
before resorting to violence (Julien [1969] 1 WLR 839). However, this is no longer the test.
In Bird [1985] 2 All ER 513, D was convicted after the trial judge directed the jury that it
was necessary for D to have demonstrated by her actions that she did not want to fight.
The Court of Appeal, allowing the appeal, made it clear that this direction ‘placed too
great an obligation’ on D. In particular, it was going too far to say that it was ‘necessary’
for her to demonstrate a reluctance to fight.
CASE EXAMPLE
Bird [1985] 2 all er 513
D was at a house party when a former boyfriend of hers, V, arrived. An argument broke out
between D and V which became heated; eventually V slapped D. At this D lunged forward
with her hand, which held an empty glass. The glass broke in V’s face and gouged his eye out.
At D’s trial for malicious wounding, the prosecution claimed that she knew she had a glass;
the defence claimed that it was self-defence. D’s conviction was quashed on appeal.
Lord Lane CJ said:
JUDGMENT
240 ‘If [D] is proved to have been attacking or retaliating or revenging himself, then he was not truly
acting in self-defence. Evidence that [D] tried to retreat or tried to call off the fight may be a cast-
iron method of casting doubt on the suggestion that he was the attacker or retaliator or the
person trying to revenge himself. But it is not by any means the only method of doing that.’
General defences
Self-induced self-defence
In a recent case, the Court of Appeal considered the situation where D self-induces an
attack on himself. There appear to be two situations where this might occur: (1) where D
was the aggressor in a fight with V; and (2) where D provoked V into attacking him. In
such situations, it appears that self-defence is still available to D but only in circum-
stances where ‘the tables had been turned’ or ‘the roles were reversed’. In Keane [2010]
EWCA Crim 2514; [2011] Crim LR 393, D had been charged with inflicting GBH. He had
punched V once in the face, knocking him on to the ground where he hit his head, suf-
fering serious injury. At trial, D relied on self-defence but was convicted after the trial
judge directed the jury that self-defence was unavailable where D was ‘the aggressor’ or
had ‘successfully and deliberately provoked a fight’. D appealed, but the Court of Appeal
dismissed his appeal. The Court ruled that where D deliberately provoked V into punch-
ing him, that did not provide D with a guaranteed plea of self-defence were he to punch
V in return. However, the Court acknowledged that there may be situations where self-
induced self-defence might be available. Hughes LJ stated:
JUDGMENT
‘Self-defence may arise in the case of an original aggressor but only where the violence offered
by [V] was so out of proportion to what the original aggressor did that in effect the roles were
reversed . . . We need to say as clearly as we may that it is not the law that if [D] sets out to
provoke another to punch him and succeeds, [D] is then entitled to punch the other person.
What that would do would be to legalise the common coin of the bully who confronts [V] with
taunts which are deliberately designed to provide an excuse to hit him. The reason why it is
not the law is that underlying the law of self-defence is the commonsense morality that what
is not unlawful is force which is reasonably necessary . . . On the contrary, it has been engi-
neered entirely unreasonably by [D].’
Self-defence and third parties

The case of Hichens [2011] EWCA Crim 1626; [2011] Crim LR 873 raised the interesting
question whether D may use force in self-defence against an entirely innocent third
party. The Court of Appeal answered the question ‘yes’.
CASE EXAMPLE
Hichens [2011] eWca crim 1626; [2011] crim lr 873
D shared a flat with V. She had an on–off relationship with X, who objected to the fact that D
and V were living together. One day, X called at the flat and V wished to let him in. D thought
that if she did so, X would assault him, and so he slapped V across the face. D was charged
with assault occasioning ABH, and pleaded self-defence, but the judge withdrew it from the
jury. D was convicted of battery and appealed. The Court of Appeal dismissed his appeal on
the basis that, in his particular case, it was unnecessary for D to have used force against V.
However, the Court did state that, in some situations at least, it would be possible to plead
self-defence and/or crime prevention in a case where force had been used against an innocent
third party.
Gross LJ stated: 241
JUDGMENT

‘Although we suspect that the facts capable realistically of giving rise to such a defence will
only rarely be encountered, examples can be adduced and two will suffice: (1) A police con-
stable bundles a passerby out of the way to get at a man he believes about to shoot with a
firearm or detonate an explosive device. (2) Y seeks to give Z car keys with Z about to drive. X,
believing Z to be unfit drive through drink, knocks the keys out of Y’s hands and retains
them.’
8.5.2 The reasonableness of force

This is a question for the jury. The general principle is that only such force may be used
as is reasonable in the circumstances. However, as with the question of whether any
force was necessary, it is critical that the jury put themselves in the circumstances which
D perceived (whether reasonably or not) to exist. In Palmer [1971] AC 814, Lord Morris
said:
JUDGMENT
‘If there has been attack so that defence is reasonably necessary it will be recognised that a
person defending himself cannot weigh to a nicety the exact measure of his necessary defen-
sive action. If a jury thought that in a moment of unexpected anguish a person attacked had
only done what he honestly and instinctively thought was necessary that would be most
potent evidence that only reasonable defensive action had been taken.’
The Court of Appeal affirmed this proposition in Shannon [1980] Cr App R 192, where a
conviction of murder was quashed after the trial judge told the jury simply to consider
whether D had used more force than was necessary in the circumstances, neglecting to
remind them to consider this from D’s perception of events. Similarly, in Whyte [1987] 3
All ER 416, Lord Lane CJ held that ‘where the issue is one of self-defence, it is necessary
and desirable that the jury should be reminded that [D]’s state of mind, that is his view
of the danger threatening him at the time of the incident, is material. The test of reason-
ableness is not . . . a purely objective test.’
In Owino [1996] 2 Cr App R 128, Collins LJ summarised the law as follows:
JUDGMENT
‘The essential elements of self-defence are clear enough. The jury have to decide whether
[D] honestly believed that the circumstances were such as required him to use force to
defend himself from attack or threatened attack. In this respect [D] must be judged in
accordance with his honest belief, even though that belief may have been mistaken. But the
jury must then decide whether the force used was reasonable in the circumstances as he
believed them to be.’
The principles established in cases such as Palmer (1971), Bird (1985), Williams (1987) and
Owino (1996) have now been incorporated into legislation. Sections 76(3), (4), (6), (6A),
(7) and (8) of the Criminal Justice and Immigration Act 2008 state as follows:
242
SECTION
‘(3) The question whether the degree of force used by D was reasonable in the circum-
stances is to be decided by reference to the circumstances as D believed them to be, and
General defences
subsections (4) to (8) also apply in connection with deciding that question.
(4) If D claims to have held a particular belief as regards the existence of any circumstances –
(a) the reasonableness or otherwise of that belief is relevant to the question whether D
genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the pur-
poses of subsection (3), whether or not –
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
(6) In a case other than a householder case, the degree of force used by D is not to be
regarded as having been reasonable in the circumstances as D believed them to be if it
was disproportionate in those circumstances.
(6A) In deciding the question mentioned in subsection (3), a possibility that D could have
retreated is to be considered (so far as relevant) as a factor to be taken into account,
rather than as giving rise to a duty to retreat.
(7) In deciding the question mentioned in subsection (3) the following considerations are to
be taken into account (so far as relevant in the circumstances of the case) –
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety
the exact measure of any necessary action; and
(b) that evidence of a person’s having only done what the person honestly and instinc-
tively thought was necessary for a legitimate purpose constitutes strong evidence
that only reasonable action was taken by that person for that purpose.
(8) Subsections (6A) and (7) are not to be read as preventing other matters from being
taken into account where they are relevant to deciding the question mentioned in
subsection (3).’
QUESTION
Given that these legislative provisions simply restate the common law, without amending it,
what was the point of s 76?
Relevance of D’s characteristics

In Martin [2001] EWCA Crim 2245; [2002] 2 WLR 1, the Court of Appeal held that psy-
chiatric evidence that caused D to perceive much greater danger than the average person
was irrelevant to the question of whether D had used reasonable force. In a case of self-
defence the question was whether the amount of force used was (objectively) reason-
able, according to what D (subjectively) believed. Lord Woolf CJ said that the jury are
entitled to take into account D’s physical characteristics (this might have an impact on
D’s perception of events). However, he said that the Court did not accept that it was
‘appropriate . . . in deciding whether excessive force has been used to take into account
whether [D] is suffering from some psychiatric condition’.
CASE EXAMPLE
Martin [2001] eWca crim 2245; [2002] 2 Wlr 1
D lived alone at a remote farmhouse in Norfolk. One night two men, V and W, broke into D’s
farmhouse. D was awakened by the break-in and, armed with a pump-action shotgun, went
downstairs to investigate. There was a dispute about exactly what happened next, but what is
243
undisputed is that D fired the shotgun three times, hitting both men. V was wounded in the legs
and W, who had been shot in the back, died shortly afterwards. D was convicted of murder and
wounding after the jury rejected his plea of self-defence. On appeal, he argued (amongst other

things) that psychiatric evidence had emerged after the trial showing that he suffered from a
paranoid personality disorder with recurrent bouts of depression. This meant that he may have
genuinely (but mistakenly) thought he was in an extremely dangerous situation on the night in
question. The Court rejected his appeal on the basis of self-defence, for the reasons given above,
but did quash the murder conviction (substituting one of manslaughter), on the basis that the
evidence would instead have supported a plea of diminished responsibility at his trial.
In Canns [2005] EWCA Crim 2264, the Court of Appeal followed Martin in holding that,
when deciding whether D had used reasonable force in self-defence, it was not appro-
priate to take into account whether D was suffering from some psychiatric condition (in
the present case, paranoid schizophrenia, which may have produced delusional beliefs
that he was about to be attacked), except in ‘exceptional circumstances which would
make the evidence especially probative’. The Court held that, generally speaking, it was
for the jury, considering all the circumstances – but not evidence of D’s psychiatric con-
dition – to set the standards of reasonableness of force.
Martin and Canns were both followed in Oye [2013] EWCA Crim 1725; [2014] 1 All ER
902. D, who had been convicted of inflicting GBH and affray, appealed. He argued that,
if a person reacted violently to a genuine, but insanely deluded, belief that he was being
attacked or threatened, and used force that was reasonable in the circumstances as he
believed them to be, he was entitled to an acquittal on the basis of self-defence. The
Court of Appeal rejected his appeal, following Martin and Canns. Davis LJ said:
JUDGMENT
‘[Accepting D’s argument] could mean that the more insanely deluded a person may be in using
violence in purported self-defence the more likely that an entire acquittal may result. It could mean
that such an individual who for his own benefit and protection may require hospital treatment or
supervision gets none. It could mean that the public is exposed to possible further violence from
an individual with a propensity for suffering insane delusions, without any intervening preventa-
tive remedies being available to the courts in the form of hospital or supervision orders. Thus,
whatever the purist force in the argument, there are strong policy objections to the approach
advocated on behalf of the appellant. In our view it is not right . . . An insane person cannot set the
standards of reasonableness as to the degree of force used by reference to his own insanity.’
CASE EXAMPLE
Oye [2013] eWca crim 1725; [2014] 1 all er 902
Seun Oye, a 29-year-old man of previous good character, had been discovered behaving oddly
in a café in west London. The police were called. Oye hid in a void in the ceiling, giving non-
sensical reasons for his refusal to come down, and throwing crockery at the police officers. He
was arrested and detained but his disconcerting behaviour continued in the police station. At
one point he tried to escape, knocking a male police officer to the ground and punching a
female officer, fracturing her jaw. As other officers arrived, he fought violently, lashing out
and shrieking. He was eventually hospitalised under the Mental Health Act. Oye was charged
with inflicting GBH and affray, to which he pleaded self-defence and insanity. He claimed that
the police officers had ‘demonic faces’ and to be the agents of ‘evil spirits’ against whom he
needed to protect himself. Medical experts agreed that Oye had experienced a ‘psychotic
244 episode’. The jury rejected both of his defences and convicted. On appeal, the Court of Appeal
agreed that Oye was not entitled to plead self-defence because of his psychotic delusions but
did allow his appeal on the basis of insanity. The Court quashed his convictions and substi-
tuted a ‘special verdict’ of not guilty by reason of insanity (see Chapter 9 for a discussion of
General defences
the implications of this).
In Martin (2001), Lord Woolf said that, although it was a general principle that evidence
of psychiatric disorder could not be adduced to support a plea of self-defence, such
evidence might nevertheless be admissible ‘in exceptional circumstances which would
make the evidence especially probative’. In Oye, D sought to distinguish Martin and
Canns on the basis that his case involved ‘exceptional circumstances’. This was rejected.
The Court of Appeal acknowledged that what exactly Lord Woolf in Martin had meant
by ‘exceptional circumstances’ was ‘unexplained’, but Davis LJ said that ‘at all events if
Martin was not considered an exceptional case then we do not see how or why the
present case should be’.
QUESTIONS
(a) What ‘exceptional circumstances’ might trigger the admission of psychiatric disorder in
self-defence cases?
(b) The principles set out in Martin, Canns and Oye remain purely common law and have not
(yet) been incorporated into the Criminal Justice and Immigration Act 2008. Should Par-
liament amend s 76 again, perhaps along the following lines?
‘Subsection (4)(b) does not enable D to rely on any mistaken belief induced by psychosis or any
other psychiatric disorder, unless there are exceptional circumstances which would make the
evidence especially probative.’
8.5.3 Intoxication, mistake and self-defence

It was seen, above, that D can plead self-defence even where there was no actual attack,
provided that D genuinely believed that he was under attack, and the force used was
reasonable in the circumstances that D genuinely believed to exist (Williams, Beckford
and Owino). However, according to the Court of Appeal in O’Grady [1987] QB 995, a
mistaken belief in the need to use force in self-defence is no defence if that mistake was
caused by D’s voluntary intoxication. Lord Lane CJ was concerned that, because self-
defence is a full defence, if the principles described above were to be applied to intoxi-
cated defendants, then dangerous criminals could go unpunished.
CASE EXAMPLE
O’Grady [1987] QB 995
D and his friend V had been drinking heavily when they fell asleep in the former’s flat. D, who
claimed that he awoke when V began hitting him with a piece of glass, picked up an ashtray and
hit V with it, killing him. The judge’s direction suggested that D would have a defence if his intoxi-
cation caused him to believe he was under attack; but not if his intoxication caused him to use
unreasonable force. He was convicted of manslaughter. The Court of Appeal held that this direc-
tion in fact erred in favour of D. Instead, they concluded that where the jury are satisfied that D
was mistaken either that any force or the force which he in fact used was necessary and, further-
more, that the mistake was caused by intoxication, the defence must fail.
Lord Lane CJ said:

245
JUDGMENT

‘This brings us to the question of public order. There are two competing interests. On the one
hand the defendant who has only acted according to what he believed to be necessary to
protect himself, and on the other hand that of the public and the victim in particular who
probably through no fault of his own, has been injured or perhaps killed because of the
defendant’s drunken mistake. Reason recoils from the conclusion that in such circumstances a
defendant is entitled to leave the court without a stain on his character.’
Lord Lane’s opinion in O’Grady, that a drunken mistake was no basis for a defence of
self-defence, was applied by the Court of Appeal in O’Connor [1991] Crim LR 135 and
Hatton [2005] EWCA Crim 2951; [2006] 1 Cr App R 16. In Hatton, D was charged with
murder. The defence suggested that D, who was drunk, may have believed that V was
attacking him with a sword. The trial judge, however, ruled that a mistaken belief in the
need to use force in self-defence, where the mistake was due to intoxication, provided
no defence – even to murder. The jury convicted D of murder and the Court of Appeal
upheld his conviction.
CASE EXAMPLE
Hatton [2005] eWca crim 2951; [2006] 1 cr app r 16
One night D battered V to death with a sledgehammer. The pair had only met that evening,
at a nightclub, before returning to D’s flat. During the evening V, who was a manic depressive,
had been behaving ‘strangely’, falsely representing that he had been an SAS officer, striking
martial art poses and exhibiting a hatred of homosexuals. After D’s arrest he claimed to have
no recollection of the killing because he had been drinking heavily beforehand (some 20 pints
of beer according to his own evidence). However, he did claim to have a ‘vague recollection
of being involved in an altercation’ with V and that he may have been acting in self-defence.
A stick, which had been fashioned into the shape of a samurai sword, belonging to D was
found under V’s body and provided the basis for D’s claim that he may have been attacked by
V. D’s murder conviction was upheld.
The O’Grady/Hatton principle has now been enacted. Section 76(5) of the Criminal
Justice and Immigration Act 2008 states that s 76(4)(b) ‘does not enable D to rely on any
mistaken belief attributable to intoxication that was voluntarily induced’.
8.5.4 ‘Grossly disproportionate’ force in ‘householder’
cases
Section 43 of the Crime and Courts Act 2013 inserted new provisions into s 76 of the Crimi-
nal Justice and Immigration Act 2008. Section 76(5A) of the 2008 Act now provides:
SECTION
‘In a householder case, the degree of force used by D is not to be regarded as having been
reasonable in the circumstances as D believed them to be if it was grossly disproportionate in
those circumstances.’
The effect of this amendment is to allow a ‘householder’ to use ‘disproportionate’ force

against an intruder and still be entitled to plead self-defence. Only if the ‘householder’
uses ‘grossly disproportionate’ force will the defence be rendered unavailable. The new
246
legislation was designed to clarify the law in cases where homeowners use force, poten-
tially lethal force, against burglars. The changes will undoubtedly attract popular
support. In 2003, listeners to the BBC Radio 4 programme Today were invited to suggest
General defences
new laws; the most popular suggestion involved this very issue (see M Jefferson, ‘House-
holders and the use of force against intruders’ (2005) 69 J Crim L 405). Nevertheless, to
say that this is a controversial development is an understatement.
First, there are questions about whether the new law is right in principle. Is it right
that the law should afford one, relatively small, category of potential defendant (i.e. the
‘householder’) a better chance of avoiding criminal liability than other categories? As
one commentator has pointed out, the 2013 amendments place ‘the “startled house-
holder” in a better position than every other defendant in cases involving self-defence’ (N
Wake, ‘Battered women, startled householders and psychological self-defence: Anglo-
Australian perspectives’ (2013) 77 J Crim L 433, emphasis added).
There is also an argument that the new law, ostensibly designed to protect home-
owners, might actually have the opposite effect. This argument postulates that, once
burglars become aware that homeowners can use ‘disproportionate’ force against them,
some of those burglars might be more likely to arm themselves with weapons, creating
more danger for homeowners.
There is also an argument that, by sanctioning the use of ‘disproportionate’ force, the
state is encouraging a more dangerous, revenge-driven, vigilante culture. If a house-
holder stabs a burglar to death with a kitchen knife using ‘disproportionate’ force in
self-defence, this is lawful under s 76(5A). Does this mean that Parliament has effectively
reintroduced the death penalty for burglary?
Second, there are numerous ambiguities in the legislation which raise questions about
the practical application of the new law and which will inevitably attract litigation.
Section 76(8A) of the 2008 Act (as amended by the 2013 Act) does provide some clarifica-
tion of what is meant by ‘a householder case’:
SECTION
‘For the purposes of this section “a householder case” is a case where –
(a) the defence concerned is the common law defence of self-defence,
(b) the force concerned is force used by D while in or partly in a building, or part of a building,
that is a dwelling . . .
(c) D is not a trespasser at the time the force is used, and
(d) at that time D believed V to be in, or entering, the building or part as a trespasser.’
Section 76(8D) provides that ‘subsections (4) and (5) apply for the purposes of subsec-
tion (8A)(d) as they apply for the purposes of subsection (3)’ and s 76(8F ) adds that
‘building’ includes a ‘vehicle or vessel’.
These provisions do help, to an extent, but do they go far enough? Some comment-
ators think not. In particular, it has been pointed out that there is no explanation in the
Act as to the difference between ‘disproportionate’ force (which is permitted in ‘house-
holder’ cases) and ‘grossly disproportionate’ force (which is not). I Dobinson and E
Elliott, ‘A householder’s right to kill or injure an intruder under the Crime & Courts Act
2013: an Australian comparison’ (2014) 78 J Crim L 80, comment:
quotation
‘The amendments are not only vague in terms of “disproportionate” force, but also in terms
of the circumstances of a so-called “householder case” . . . There appears to be no require-
247
ment that the householder be attacked or threatened with violence.’
To similar effect, see S Miller, ‘Grossly disproportionate: home owners’ legal licence to

kill’ (2013) 77 J Crim L 299, who notes:
quotation
‘It is difficult to see how the amendments to s 76 of the Criminal Justice and Immigration Act
2008 will help clarify the law in this area. Widening the scope with regard to what home-
owners can do to intruders only extends the permitted violence – it does not clarify the law any
further. It is still within the court’s discretion to judge what is “grossly disproportionate” rather
than “reasonable”.’
Notwithstanding this criticism, the following points should be noted about the scope of
the ‘householder case’.
(a) Need to be acting in ‘self-defence’

Section 76(5A) only concerns ‘the common law defence of self-defence’. At first glance,
this appears to rule out cases where D was acting in defence of others, for example his
or her children. However, this is not the case: s 76(10) of the 2008 Act states that ‘refer-
ences to self-defence include acting in defence of another person’. Thus, D is entitled to
use ‘disproportionate’ force in protecting themselves and/or other people in a
dwelling.
On the other hand, D cannot use ‘disproportionate’ force in order to defend property
– only ‘proportionate’/‘reasonable’ force may be used here.
(b) Need to be in – or partly in – a ‘dwelling’

D must be in, or partly in, a ‘building’ which is also a ‘dwelling’. Most obviously, this
means that if D is in his or her own home, s 76(5A) will apply. However, there is no
requirement that it be D’s own dwelling. For example, if D is staying as a guest with
friends or relatives in their home and uses ‘disproportionate’ force against a burglar, it
will still be classed as a ‘householder case’. Vehicles and vessels are included as ‘build-
ings’, which means that if D is in, or partly in, a caravan or houseboat, s 76(5A) will
apply. But it would appear that D could not invoke s 76(5A) if they were in, or partly in,
a tent, for example.
The concept of being ‘partly in’ a building is undefined in the Act and may well
attract litigation. However, it is clearly designed to deal with cases where D uses
‘disproportionate’ force against a burglar (or attempted burglar) whilst stood in the
doorway or other entrance of a dwelling – perhaps even whilst leaning out of a
window. As long as D was at least ‘partly’ in a building which is also a ‘dwelling’, s
76(5A) will apply.
(c) Need to believe that V was trespassing

Although s 76(5A) is clearly designed to deal with householders who use force against
burglars, there is no requirement that V actually was trespassing, or even that V was in
the building, at the time. It is sufficient that D believed that V was in, or was entering, the
building as a trespasser. To reiterate, s 76(8D) of the 2008 Act states that ‘subsections (4)
and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of
subsection (3)’. This means that:
248
 D’s belief may be mistaken, even unreasonably mistaken; provided it is a genuinely
held (and sober) belief, D can rely upon it.
General defences
 D cannot rely upon a mistaken belief if that belief was induced by voluntary
intoxication.
It is useful to consider how s 76(5A) might apply to some of the pre-existing cases,
discussed above, involving householders and burglars. In Martin (2001), D’s plea of
self-defence was rejected and he was convicted of murder (and wounding with intent)
on the basis that he used excessive force in shooting at two burglars in his home,
killing one of them and injuring the other. Under the new law, Tony Martin may well
have been acquitted on the basis that the force used was not ‘grossly disproportionate’
according to the facts as he believed them to be. In Hussain and another (2010), however,
the outcome would be exactly the same. In that case, the defendants chased a burglar
down the street before attacking him with a cricket bat and other weapons, causing
serious injury. Their self-defence plea failed and it is clear that s 76(5A) would not
alter this verdict: at the time of the force being used, the defendants were not ‘in or
partly in a building’.
8.5.5 Should excessive force in homicide reduce murder

to manslaughter?
In Palmer, Lord Morris said that if the prosecution proves that D had used excessive
force in self-defence, then ‘that issue is eliminated from the case’. He added that ‘self-
defence either succeeds so as to result in an acquittal or it is disproved in which case as
a defence it is rejected’. That principle of law has the potential to produce harsh results,
particularly in murder cases where the use of some force was necessary, but D has used
more force than was reasonable. It has therefore been suggested that the use of excessive
force in murder cases should result in a conviction of manslaughter (which would allow
the judge to exercise sentencing discretion). The House of Lords in Clegg [1995] 1 AC 482
considered this question. On the facts of the case, the Lords found that, as the danger
had passed, the issue of excessive force did not, strictly speaking, arise. The Lords never-
theless reviewed the authorities on the use of excessive force in self-defence. Their
speeches, although obiter, are obviously very persuasive. According to Lord Lloyd, if
excessive force is used in self-defence, this did not justify reducing liability from murder
to manslaughter.
CASE EXAMPLE
Clegg [1995] 1 ac 482
D, a soldier of the Parachute Regiment, was on duty at a checkpoint in west Belfast one night.
The purpose of the checkpoint was to catch joyriders, although this had not been explained to
D. A car (which turned out to be stolen) approached D’s section of patrol at speed with its
headlights full on. Someone from a different section shouted to stop the car. All four members
of D’s section fired at the car. D fired three shots through the windscreen as the car approached
and a fourth at the car as it passed. This last shot hit a female passenger in the back and killed
her. Forensic evidence showed that the last shot was fired after the car had passed and would
already have been ten yards away on the road to Belfast. On trial for murder of the passenger
and the attempted murder of the driver, D pleaded self-defence of himself and a fellow soldier.
He was convicted after the trial judge found that this last shot was fired with the intention of
causing death or serious harm and that D could not have fired in self-defence because, once 249
the car had passed, none of the soldiers were in any danger. The Northern Ireland Court of
Appeal upheld the conviction, on the basis that the last shot was a ‘grossly excessive and dis-
proportionate’ use of force. The House of Lords rejected D’s appeal.

kEy fACTS
Key facts on self-defence
Elements Comment Case

Must be Purely subjective test, based on D’s Williams (1987), Beckford (1988)
necessary to genuine belief. D may be mistaken but
use some force is still entitled to plead the defence.
D may make a pre-emptive strike. Beckford
D may prepare for an attack. A-G’s Ref (No 2 of 1983) (1984)
There is no ‘duty’ to retreat. Bird (1985), s 76(6A) Criminal Justice
and Immigration Act 2008
Amount of Objective test (decided by jury) but Palmer (1971), Shannon (1980),
force used must based on D’s genuine perception of Whyte (1987), Owino (1996),
be reasonable events, whether or not D was s 76(3), (4) and (7) Criminal Justice
mistaken. and Immigration Act 2008
D’s psychological characteristics are Martin (2001), Canns (2005), Oye
not relevant. (2013)
The use of ‘disproportionate’ force S 76(6) Criminal Justice and
means that the defence fails. Immigration Act 2008
The use of excessive force cannot Clegg (1995) (but see s 54 of the
reduce murder to manslaughter. Coroners and Justice Act 2009)
Role of If D pleads self-defence based on an O’Grady (1987), O’Connor (1991),
intoxication intoxicated mistake, then the defence Hatton (2005), s 76(5) Criminal
fails. Justice and Immigration Act 2008
Special rules ‘Disproportionate’ force may be used s 76(5A) Criminal Justice and
apply in against an intruder. Only ‘grossly Immigration Act 2008
‘householder disproportionate’ force negates the
cases’ defence in ‘householder’ cases.
However, Parliament has now provided a partial defence where D kills but used exces-
sive force in doing so. The defence, found in s 54 of the Coroners and Justice Act 2009,
will be discussed in more detail in Chapter 10. In essence it provides a defence where D
lost self-control as the result of a ‘fear of serious violence’, provided that a person of D’s
age and sex, with a ‘normal degree of tolerance and self-restraint’, and in the circum-
stances of D, might have reacted in ‘the same or in a similar way’. If these elements are
satisfied (and the burden of proof is on the prosecution to disprove them), then D will be
found not guilty of murder but guilty of manslaughter.
8.6 Consent
Consent is a defence to, in theory at least, all non-fatal offences and even homicides. The
onus of proving lack of consent rests on the prosecution (Donovan [1934] 2 KB 498). Is
consent a defence, or is lack of consent an element of the offence? In the leading House
250 of Lords case, Brown and others [1994] 1 AC 212, the majority (Lords Templeman, Lowry
and Jauncey) assumed that all physical contact is assault unless a specific defence (here
consent) applied; the minority assumed that it is a prerequisite of assault that there is no
General defences
consent.
8.6.1 Consent must be real

The fact that V apparently consents to D’s act does not mean that the law will treat that
consent as valid. If V is a child, or has learning difficulties, this apparent consent may not
suffice (Howard [1965] 3 All ER 684). The question is whether V was able to comprehend
the nature of the act. Thus, in Burrell v Harmer [1967] Crim LR 169, D was convicted of
assault occasioning ABH after tattooing two boys aged 12 and 13, the result being that
their arms became inflamed and painful. The court held there was no consent, as the
boys did not understand the nature of the act. Presumably they understood what a tattoo
was, but they would not have understood the level of pain involved.
8.6.2 Consent and fraud

Fraud does not necessarily negative consent. It only does so if it deceives V as to the
identity of the person or the ‘nature and quality’ of the act. In Clarence (1888) 22 QBD 23,
D had sexual intercourse with his wife (with her consent), having failed to reveal to her
the fact that he was infected with gonorrhoea, a sexually transmittable disease. D was
convicted of inflicting GBH and ABH, but, on appeal, these convictions were quashed.
Stephen J said:
JUDGMENT
‘Is the man’s concealment of the fact that he was infected such a fraud as vitiated his wife’s
consent to his exercise of marital rights and converted the act of connection into an assault?
It seems to me the proposition that fraud vitiates consent in criminal matters is not true if
taken to apply in the fullest sense of the word and without qualification . . . If we apply it . . .
to the present case, it is difficult to say that the prisoner was not guilty of rape, for the defini-
tion of rape is having connection with a woman without her consent; and if fraud vitiates
consent, every case in which a man infects a woman . . . is also a case of rape.’
On similar reasoning there was no offence committed in the following cases:

 Bolduc and Bird (1967) 63 DLR (2d) 82. D, a doctor, by falsely telling V that E was a
medical student, obtained her consent to the latter’s presence at a vaginal examination.
In fact E was a musician. The Supreme Court of Canada held that there was no assault
because the fraud was not as to the ‘nature and quality’ of what was to be done.
 Richardson [1998] EWCA 1086; [1998] 2 Cr App R 200. D was a dentist until August
1996 when the General Dental Council suspended her from practice. However, she
continued to treat patients. She was subsequently charged with six counts of ABH
following treatment given to six patients in September 1996. She was convicted, but
the Court of Appeal allowed the appeal. The Court held that, where the patients’
consent to treatment was procured only by a failure to inform them that she was no
longer qualified to practice, she could not be guilty of an assault. The Court con-
firmed that fraud only negatived consent to an assault if V was deceived as to the
identity of the person concerned or the ‘nature and quality’ of the act performed. The
concept of ‘identity of the person’, moreover, could not be extended to cover D’s
qualifications or other attributes.
However, in Tabassum [2000] 2 Cr App R 328, the Court of Appeal distinguished both 251
Clarence (1888) and Richardson (1998). The Court of Appeal drew a distinction between
consent to the ‘nature’ of a touching and consent as to its ‘quality’. Rose LJ said that the
8.6 consent
victims were ‘consenting to touching for medical purposes not to indecent behaviour,
that is, there was consent to the nature of the act but not its quality’.
CASE EXAMPLE
Tabassum [2000] 2 cr app r 328
D had a degree in chemistry and postgraduate qualifications on the use of IT in training
doctors. However, he had no medical training or qualifications. Over a period of some
months in 1997 he examined the breasts of three women, in two cases using his hands and
on the third and final occasion with a stethoscope. He obtained their consent on the pretext
that the examinations were part of a survey he was conducting, leading ultimately to the
production of a computer software package for sale to doctors, to assist in the diagnosis of
breast cancer. He did not actually tell them that he was medically qualified, although he did
tell two of the women that he had worked at Christie’s cancer hospital in Manchester and
was a breast cancer specialist. When arrested he denied touching the women’s breasts for
sexual gratification but had done it in order to show them how to do it for themselves. He
also denied acting or pretending to be a doctor. The prosecution case was that all three
women would not have consented, had they known the truth about D. The defence case
was that the women had all consented to D touching their breasts; he had touched their
breasts; but he had done nothing for which he had not been given consent. He was con-
victed on three counts of indecent assault (an offence which has since been abolished by
the Sexual Offences Act 2003; see Chapter 12), and the Court of Appeal upheld all three
convictions. As the women were only consenting for medical purposes, they had been
deceived as to the ‘quality’ of D’s act, and hence there was no consent.
Support for the decision in Tabassum came from the Supreme Court of Canada. In
Cuerrier [1998] 2 SCR 371, D had unprotected sex with two women, despite knowing that
he had contracted HIV and despite having been warned by a nurse to always use a
condom when having sexual intercourse. He obtained their consent, but did not tell
either woman of his condition (he actually told one of the women that he was not HIV
positive when she asked him). Both women testified in court that they would never have
consented to unprotected sex with D had they known of his condition. By a majority, the
court ruled that Clarence was distinguishable and that, on the facts, it was possible that
D had committed a form of aggravated assault. Justifying the decision, L’Heureux-Dube
J said that ‘those who know they are HIV-positive have a fundamental responsibility to
advise their partners of their condition and to ensure that their sex is as safe as
possible’.
The doctrine of informed consent

The decisions in Cuerrier and Tabassum suggested that the decision in Clarence was open
to review. In Dica [2004] EWCA Crim 1103; [2004] QB 1257, the Court of Appeal con-
firmed that Clarence was, indeed, wrongly decided. In Dica, the facts of which are virtu-
ally identical to Cuerrier, D was convicted of two counts of inflicting ‘biological’ GBH
contrary to s 20 OAPA 1861 and, although his convictions were quashed by the Court of
Appeal because of a judicial misdirection, the Court took the opportunity to overrule
Clarence.
252
CASE EXAMPLE
Dica [2004] eWca crim 1103; [2004] QB 1257
General defences
Mohammed Dica had been diagnosed with HIV in 1995. Despite this knowledge, he had
unprotected sex on a number of occasions with two women, V and W, who had been willing
to be sexual partners with D but were unaware of his condition at the time. V claimed that D
insisted that they have unprotected sex because he had had a vasectomy. According to V, each
time they had sex, D said ‘Forgive me in the name of God’. After some time V noticed that her
glands were swollen; she went to hospital and was diagnosed with HIV. W’s story was similar.
D was charged with two offences of inflicting GBH, contrary to s 20 OAPA 1861. He denied
the offences contending that any sexual intercourse which had taken place had been consen-
sual. The trial judge made two legal rulings (a) that it was open to the jury to convict D of the
charges, notwithstanding the decision in Clarence, and (b) that any consent by V and W was
irrelevant and provided no defence, because of the serious nature of the disease. D was con-
victed in October 2003. The Court of Appeal allowed D’s appeal, but only on the basis that the
trial judge had erred in withdrawing the issue of consent from the jury. If V and/or W had
consented to the risk, that continued to provide a defence under s 20. However, the Court
confirmed that Clarence was no longer good law. Finally, the Court ordered a retrial.
Judge LJ held as follows:
JUDGMENT
‘The effect of this judgment . . . is to remove some of the outdated restrictions against the suc-
cessful prosecution of those who, knowing that they are suffering HIV or some other serious
sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict GBH on
a person from whom the risk is concealed and who is not consenting to it. In this context,
Clarence has no continuing relevance. Moreover, to the extent that Clarence suggested that
consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent
disease, again, it is no longer authoritative.’
At Dica’s retrial in March 2005, he was again convicted of inflicting ‘biological’ GBH and
sentenced to four-and-a-half years in prison. He then appealed against that conviction
and sentence, unsuccessfully, to the Court of Appeal (Dica [2005] EWCA Crim 2304).
The Dica (2004) ruling was relied on shortly afterwards in the similar case of Konzani
[2005] EWCA Crim 706; [2005] 2 Cr App R 14.
Although Cuerrier, Dica and Konzani all involved HIV, the decisions in those cases
could be applied to any life-threatening sexually transmitted disease.
In the first edition of this book, a question was posed whether the defendant in Dica
could be guilty of rape, on the basis that the victims in that case had not consented to the
‘quality’ of the act in question, namely sex. That question has now been answered by the
Court of Appeal. The answer is ‘no’. In B [2006] EWCA Crim 2945; [2007] 1 WLR 1567, D
– who had previously been diagnosed as HIV positive – was charged with rape contrary
to s 1 of the Sexual Offences Act 2003 (see Chapter 12) after having sex with V without
disclosing his medical condition. The prosecution’s case was that D had subjected V to a
prolonged assault; this was denied by D who claimed that V had consented to sex. The
prosecution therefore pursued an alternative argument that, notwithstanding V’s
consent to the physical act of sex, she had not consented to the risk of contracting a
potentially fatal disease. This lack of consent meant that D was guilty of rape. The trial
judge allowed this argument to go to the jury, and D was convicted of rape, but the
Court of Appeal allowed his appeal (although it confirmed that the facts could support 253
a conviction of inflicting GBH contrary to s 20 OAPA 1861, following Dica, and ordered
a retrial on that charge).
8.6 consent
Latham LJ added that the question whether the facts of the B case could amount to
rape was a matter requiring debate not in a court of law but as a matter of public and
social policy, bearing in mind all the facts concerning, inter alia, ‘questions of personal
autonomy in delicate personal relationships’. In other words, that was a matter for Par-
liament to decide.
The cases of Cuerrier, Dica, Konzani and B all involved the situation where D had
unprotected sex with V, knowing that he had a sexually transmittable disease before-
hand. This knowledge appears to be essential in order for the prosecution to establish
subjective recklessness, the minimum mens rea state for all non-fatal offences. It follows
that, if D did not know (or even suspect) that he was HIV positive, no charge could be
brought against him for assaulting V. Authority for this proposition comes from the
Supreme Court of Canada case of Williams [2003] 2 SCR 134. Here, D had unprotected
sex with V despite his knowledge that he was HIV positive. After she contracted the
disease as well, D was prosecuted but his conviction of aggravated assault was quashed
because the couple had been having unprotected sex for six months prior to D learning
of his HIV status. Binnie J (with whom the rest of the Supreme Court of Canada agreed)
said that, although D had shown a ‘shocking level of recklessness and selfishness’, the
prosecution could not prove that D’s conduct after he learned of his condition had
harmed V, because at that point she was possibly, and even probably, already HIV pos-
itive herself. The Court accepted medical evidence that a single act of unprotected sex
carried a ‘significant risk’ of HIV transmission. It was therefore at least doubtful that V
was free of HIV infection on the date when D learned of his condition. However, the
Court convicted D of an attempted aggravated assault (for the law on attempt in English
law, see Chapter 6). It is therefore quite possible that, should a case on similar facts occur
in England, the court would be required to distinguish Dica and Konzani but could follow
Williams and convict D of attempted ABH, attempted GBH – or even attempted
murder.
8.6.3 The scope of consent

There are limits to anyone’s right to consent to the infliction of harm upon themselves.
Consensual killing is still murder (or possibly manslaughter on the ground of dimin-
ished responsibility), or euthanasia as it is popularly known. According to Lord Mustill
in Brown and others [1994] 1 AC 212, ‘The maintenance of human life is “an overriding
imperative”.’ However, V may consent to a high risk of injury, or even death, if justified
by the purpose of D’s act. This depends on the social utility of the act. Where the act has
some social purpose, it is a question of balancing the degree of harm which will or may
be caused, against the value of D’s purpose. In Attorney-General’s Reference (No 6 of 1980)
[1981] 2 All ER 1057, two youths, aged 17 and 18, decided to settle an argument with a
bare-knuckle fist fight. One had sustained a bloody nose and a bruised face. Following
acquittals, the Court of Appeal held that the defence of consent was not available in this
situation. Lord Lane CJ said:
JUDGMENT
‘It is not in the public interest that people should try to cause or should cause each other actual
bodily harm for no good reason . . . Nothing we have said is intended to cast doubt on the
accepted legality of properly conducted games and sports, lawful chastisement or correction,
254
reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be
justified as involving the exercise of a legal right, in the case of chastisement or correction, or
as needed in the public interest, in the other cases.’
General defences
In Brown and others [1994] 1 AC 212, the majority’s view was that consent was a defence
to a charge of common assault, but not to any offence under s 47, s 20 or s 18 OAPA 1861
unless a recognised exception applied. These, according to Lord Templeman, related to
‘lawful activities’ which carried a risk of harm. He listed the following examples:
 contact sports, including boxing
 surgery
 ritual circumcision
 tattooing
 ear-piercing.
The appellants argued for a different test altogether. They suggested that GBH should
always be unlawful but that the infliction of wounds or ABH would not be unlawful,
provided there was consent. The majority rejected the argument, holding that precedent
drew the line below ABH. The majority seemed concerned that if the law was drawn too
high, it might encourage more serious behaviour, with the attendant risk that even more
serious harm might occur. Lord Jauncey said, ‘An inflicter who is carried away by sexual
excitement or by drink or drugs could very easily inflict pain and injury beyond the level
to which the receiver had consented.’
Contact sports
No prosecutions have ever been brought in respect of boxing matches conducted within
the Queensberry Rules. The high entertainment value and popularity of the sport is
taken to justify V’s consent to D trying to inflict serious injury potentially amounting to
GBH. The enormously popular ‘sport’ of professional wrestling is regarded in the same
light. However, fights conducted outside the scope of the Rules (sometimes referred to
as ‘prize fights’) are not regarded as justifying V’s consent. Any entertainment value
they may have is far outweighed by the risk of injury to the fighters. Thus, in Coney
(1882) 8 QBD 534, prosecutions were brought against various spectators at a bare-
knuckle prize fight, for aiding and abetting the unlawful activities. One question for the
court was whether the consent of the participants negated the unlawful element of
assault. Cave J said:
JUDGMENT
‘The true view is that a blow struck in anger, or which is likely or is intended to do corporal
hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily
harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the
consent of the person struck is immaterial. If this view is correct, a blow struck in a prize-fight
is clearly an assault; but . . . wrestling [does] not involve an assault, nor does boxing with gloves
in the ordinary way.’
More recently, in Lee [2006] 3 NZLR 42, Glazebrook J in the New Zealand Court of
Appeal attempted to rationalise the distinction between (lawful) boxing matches and
(unlawful) street-fighting or prize-fights. He said:
JUDGMENT 255
‘In organised matches, opponents are usually properly matched by weight and skill level and the
rules are designed to minimise the risk of GBH occurring. There is a referee to ensure that the
8.6 consent
rules are complied with and thus that the level of violence does not exceed that consented to by
the protagonists. There seems minimal risk that those participating in organised bouts are not
truly consenting . . . In addition, organised properly, such sports do not have a tendency to lead
to a breach of the peace, one of the reasons given in Coney for outlawing prize fights. There also
remains a significant portion of the community who consider that such fights are acceptable
forms of entertainment and therefore (presumably) that they have some social utility.’
With other contact sports such as football, rugby and ice hockey, a clear distinction must
be drawn between two situations. An off-the-ball incident is in principle no different to
any other assault, involving as it does the deliberate use of unlawful force. There is no
suggestion that players consent, impliedly or otherwise, to the use of force in such situ-
ations. This is shown by Billinghurst [1978] Crim LR 553.
CASE EXAMPLE
Billinghurst [1978] crim lr 553
D punched V in an off-the-ball incident during a rugby union match, fracturing his jaw in two
places. He was convicted of inflicting GBH. The only defence was consent. D gave evidence
that on previous occasions he had been punched and had himself punched opponents on the
rugby field. The trial judge directed the jury that rugby was a contact sport involving the use
of force and that players are deemed to consent to force ‘of a kind which could reasonably be
expected to happen during a game’. He went on to direct them that a rugby player has no
unlimited licence to use force and that ‘there must obviously be cases which cross the line of
that to which a player is deemed to consent’. A distinction that the jury might regard as deci-
sive was that between force used in the course of play and force used outside the course of
play. The jury convicted.
The commentary to Billinghurst (1978) gives another example, contrasting a batsman in

cricket being accidentally hit on the head by a ‘fast’ delivery (no assault, regardless of
the seriousness of the injury) and another batsman being hit on the head after the bowler
picked up a ‘dead’ ball and deliberately threw it at his head (assault). Problems arise
where the alleged assault occurs on-the-ball, during play. The players in modern contact
sports impliedly consent to D doing what the rules of the particular game permit, and
even to go beyond the rules – in other words, to commit fouls. Otherwise, every time a
foul was committed in football or rugby it would constitute a criminal offence, which
would rapidly turn contact sports into non-contact sports, completely defeating the
object of having a contact sport in the first place.
The rules themselves, therefore, only provide a guide as to what has been consented
to. In Bradshaw (1878) 14 Cox CC 83 and Moore (1898) 14 TLR 229, it was said that ‘no
rules or practice of any game whatever can make lawful that which is unlawful by the
law of the land’. Therefore where an alleged criminal assault has occurred during play,
this should be assessed independently of the rules. Lord Mustill in Brown and others
(1994) referred to a series of Canadian decisions on ice hockey, including Ciccarelli (1989)
54 CCC (3d) 121. There the courts accept that all the players consent to a certain level of
violence. Each particular case should be treated on its facts: could V be said to have
tacitly accepted a risk of violence at the level that actually occurred? The Canadian
courts have provided a helpful list of criteria to determine the scope of implied consent
256 in sport, including:
 the nature of the game played, whether amateur or professional league and so on;
 the nature of the particular acts(s) and their surrounding circumstances;
General defences
 the degree of force employed;

 the degree of risk of injury;
 the state of mind of the accused.
Ice hockey is a particularly violent sport, and in one Canadian case, Moloney (1976) 28
CCC (2d) 323, the judge ruled that ice hockey players impliedly consented to ‘body con-
tacts, boardings [i.e. being shoved into the boards around the rink] and maybe even a
fight if it is two players consenting to the fight with each other’. In another case, Gray
(1981) 24 CR (3d) 109, the judge said that ‘it might well be that it would be extremely
difficult to convict any hockey player of a common assault for his play during a game’.
The position is obviously different if the referee’s whistle has been blown to stop play
before the alleged assault occurred. In Ciccarelli (1989), D was a professional ice hockey
player with the Minnesota North Stars. He was convicted of assaulting V, a player with
the Toronto Maple Leafs, during a game. The whistle had blown for offside against D
when V, who had been skating across to block D, was unable to stop and they collided.
D retaliated, using his stick to hit V over the head three times. The officials intervened to
separate the pair but D punched out at them too. D was convicted of assault and his
appeal dismissed.
In Barnes [2004] EWCA Crim 3246; [2005] 1 WLR 910, the Court of Appeal held that
prosecutions should only be brought against a player who injured another player in the
course of a sporting event if his conduct was ‘sufficiently grave to be properly catego-
rised as criminal’, where what had occurred had gone beyond what the injured player
could reasonably be regarded as having accepted by taking part in the sport.
CASE EXAMPLE
Barnes [2004] eWca crim 3246; [2005] 1 Wlr 910
Mark Barnes was convicted of inflicting GBH under s 20 OAPA 1861 following a tackle in the
course of an amateur football match. The prosecution alleged that it was the result of a ‘late,
unnecessary, reckless and high crashing tackle’. D claimed that the tackle was a fair, if hard,
challenge in the course of play and that any injury caused was accidental. The Court of Appeal
allowed the appeal.
Lord Woolf CJ said that the starting point was the fact that most organised sports had
their own disciplinary procedures for enforcing their particular rules and standards
of conduct. There was also the possibility of an injured player obtaining damages in
a civil action. A criminal prosecution should be reserved for situations where the
conduct was sufficiently grave to be properly categorised as criminal. In all contact
sports, the participants impliedly consent to the risk of certain levels of harm.
However, according to Lord Woolf, what was implicitly accepted in one sport would
not necessarily be covered by the defence in another sport. In highly competitive
sports, such as rugby, football and ice hockey conduct outside the rules could be
expected to occur in the ‘heat of the moment’ and, even if the conduct justified a
warning or a sending off, it still might not reach the threshold level required for it to
be criminal. That level was an objective one and did not depend on the views of indi-
vidual players.
The type of sport, the level at which it was played, the nature of the act, the degree of
force used, the extent of the risk of injury and D’s state of mind were all likely to be rel- 257
evant in determining whether D’s actions went beyond the threshold. Whether conduct
reached the required threshold to be criminal would therefore depend on all the circum-
8.6 consent
stances. There would be cases that fell within a ‘grey area’ and then the tribunal of fact
would have to make its own determination as to which side of the line the case fell. In
such a situation the jury would need to ask themselves, among other questions, whether
the contact was so ‘obviously late and/or violent’ that it could not be regarded as ‘an
instinctive reaction, error or misjudgment in the heat of the game’.
In Attorney-General’s Reference (No 6 of 1980), ‘games and sports’ were the first exam-
ples provided by the Court of Appeal of situations where there is a ‘good reason’ for
people to consent to the risk of being injured, because it was in ‘the public interest’ to do
so. But what, exactly, is that ‘interest’? The Court of Appeal did not explain but com-
mentators have attempted to do so instead. S Cooper and M James, ‘Entertainment: the
painful process of rethinking consent’ [2012] Crim LR 188, for example, contend that
‘Sport is socially beneficial because it promotes health, exercise and principles, such as
teamwork and fair play, which are valued by society.’
Surgery
With ‘reasonable surgical interference’ there is really no issue of consent as a defence to
bodily harm, given that no harm is caused or inflicted. But in surgery there is certainly a
‘wounding’, and the patient must consent to that. Consent to any recognised surgical
procedure is effective; this includes sex-change operations (Corbett v Corbett [1971] P 83)
and probably cosmetic surgery and organ transplants. In Bravery v Bravery [1954] 3 All
ER 59, which concerned the legality of a sterilisation operation, Denning LJ stated:
JUDGMENT
‘When it is done with the man’s consent for a just cause, it is quite lawful, as, for instance,
when it is done to prevent the transmission of an hereditary disease. But when it is done
without just cause or excuse, it is unlawful, even though the man consents to it. Take a case
where a sterilisation operation is done so as to enable a man to have the pleasure of sexual
intercourse without shouldering the responsibilities attaching to it. The operation is then injuri-
ous to the public interest.’
The point was reversed by the National Health Service (Family Planning) Amendment
Act 1972, but the view of the court and the influence of public policy are nevertheless
interesting.
It is important to note that the Court of Appeal referred to ‘reasonable surgical inter-
ference’, the implication being that not all surgery is ‘reasonable’. One example of
‘unreasonable’ surgery is female circumcision. This is undoubtedly ‘surgical interfer-
ence’ but it is only lawful in certain specific circumstances, i.e. when necessary for a
girl’s ‘physical or mental health’ or for ‘purposes connected with labour or birth’. Other-
wise, female circumcision is a criminal offence (s 1(1), Female Genital Mutilation Act
2003).
Horseplay
Society accepts that community life, such as in the playground, may involve a mutual
risk of deliberate physical contact and that the criminal law may distance itself. Honest
belief, even if based on unreasonable grounds, that the others consent, will negative
recklessness. In Jones and others [1987] Crim LR 123, some boys were injured having been
tossed into the air by schoolmates. Despite not consenting to being thrown in the air at
258 all, never mind the height at which they were thrown, the Court of Appeal held that
there was no assault. A similar result was achieved in Aitken and others [1992] 1 WLR
1006.
General defences
CASE EXAMPLE
Aitken and others [1992] 1 Wlr 1006
All those involved were RAF officers who attended a party where they all became drunk and
engaged in an ‘initiation ceremony’ which involved setting fire to V’s fire-resistant suit. The
appellants overcame V’s resistance and poured a large quantity of white spirit on to his suit
before igniting it. He was severely burned. Nevertheless, the Courts-Martial Appeal Court
quashed convictions of GBH on the basis that the question of whether or not the appellants
genuinely believed V to be consenting had not been put to the court.
The presence of ‘horseplay’ on the list of ‘good reasons’ where consent to the risk of
injury is valid is controversial. There is a school of thought which suggests that tolerat-
ing ‘rough’ physical activity presents bullies with an opportunity to use violence against
other (typically, physically and/or psychologically weaker) people with legal impunity.
C Stychin, ‘Unmanly diversions’ (1994) 32 Osgood Hall LJ 503, categorises the events in
Aitken and others as involving a ‘brutalization’ of the victim. He contends that the Court
of Appeal reduced the activity to ‘mere’ or ‘friendly’ horseplay, a term which ‘conjures
up innocent schoolboys’.
In a number of cases involving off-the-ball incidents in contact sports, the judiciary
has observed that lawful activities such as rugby do not provide the participants with
a ‘licence for thuggery’ (see e.g. Pill LJ in Lloyd (1989) 11 Cr App R (S) 36). One could
argue that, whereas in sports like football and rugby where there are rules and a
referee to at least try to ensure that the players do not cross the line between robust
physical activity (lawful) and thuggery (unlawful), with ‘rough horseplay’ there are
no such protections. As Stychin observes about Aitken and others, V’s injuries were ‘the
result of a controlled activity that got out of hand. The rules of the game, if they ever
existed, were transgressed as the thrill of victimization caused the limits to be crossed’
(emphasis added).
So, what justification is there for tolerating horseplay? Cooper and James (2012)
suggest that ‘it appears that this category of activity is exempted because one must
expect a bit of rough play in life and that this is a normal and healthy part of growing
up, provided that the injury is not inflicted intentionally’.
Sexual activity
In Boyea [1992] Crim LR 574, D inserted his hand into V’s vagina, and twisted it causing
injuries consistent with the use of force. He was convicted of indecent assault and the
Court of Appeal dismissed his appeal, which was based on his belief that V was consent-
ing. The court held that V’s consent to an assault was irrelevant if the jury were satisfied
that the assault was intended to, or likely to, cause harm, provided the injury was not
‘transient or trifling’. In Slingsby [1995] Crim LR 570, the question was whether D had
committed an unlawful act for the purposes of constructive manslaughter (see Chapter
10). The answer was ‘no’, because V had given a valid consent in the context of sexual
activity.
CASE EXAMPLE
Slingsby [1995] crim lr 570
259
D had met the deceased, V, at a nightclub and later had vaginal and anal intercourse with her,
with her consent. Subsequently, also with her consent, he had penetrated her vagina and
8.6 consent
rectum with his hand. V suffered internal cuts caused by a ring on D’s hand. She was unaware
how serious these were and, although she was eventually admitted to hospital, she died of
septicaemia. The trial judge held that it was clearly established that the deliberate infliction of
bodily harm on another without good reason was unlawful. Furthermore, the infliction of viol-
ence for the purposes of sexual gratification, whether that be the gratification of either party,
is unlawful (relying on Boyea (1992) and Brown and others (1994)). However, in this case it
was clear that all the activities were consented to by V; consequently, there was no assault,
and therefore D was not guilty of manslaughter.
Tattooing and other forms of branding

Consent is a valid defence to tattooing. The majority of the Lords in Brown and others
(1994) accepted that much. The Court of Appeal confirmed and extended this proposi-
tion in Wilson [1997] 3 WLR 125, saying that branding was no more hazardous than a
tattoo.
CASE EXAMPLE
Wilson [1997] 3 Wlr 125
D had branded his initials, ‘A’ and ‘W’, on to his wife’s buttocks using a hot blade. She
regarded the branding as ‘a desirable personal adornment’ and had apparently originally
requested that the branding be on her breasts. It was D who persuaded her to have the brand-
ing on her buttocks instead. The matter only came to light when her doctor reported the
incident to the police. D was convicted of assault occasioning ABH and appealed. The Court
of Appeal allowed the appeal.
In R v Barker [2009] NZCA 186; [2010] 1 NZLR 235, a majority of the Court of Appeal
of New Zealand held that consent was available in a case involving ‘scarification’ (the
cutting of skin to produce scars). D was a 50-year-old man who had an interest in
bondage, discipline and sadomasochism (BDSM), including scarification. There were
two alleged victims. The first victim, A, was a 15-year-old girl who had gone to D’s
house and allowed herself to be tied up and whipped, and to have D cut a dragon
symbol into her back using a scalpel. The second alleged victim, B, a 17-year-old girl,
allowed D to cut at her breasts and wrists then place her against a mirror to create a
‘blood angel’. Both A and B were left with scars. D was convicted of various non-fatal
offences under New Zealand’s Crimes Act 1961 after the trial judge withdrew consent
as a defence, but successfully appealed. Hammond J emphasised the importance of
‘personal autonomy’ which, he said, outweighed the interest of the state in protecting
members of society from harm (the ‘ethical paternalistic objection’). Hammond J
stated:
JUDGMENT
‘Body ornamentation of one form or another – including scarification – appears to be remark-
ably commonplace today, including amongst young people. Undoubtedly, resort to these
practices is seen in many instances as having distinct social utility, for a variety of reasons. The
particular practice may be a form of communication, it may be a form of ornamentation, or it
260 may be a cultural practice which may go as far as rites of initiation or personhood. Persons
resorting to the practice of scarification are undoubtedly exercising their right to personal
autonomy in having recourse to such practices.’
General defences
The majority of the New Zealand Court of Appeal in Barker followed an earlier decision
of the same court, R v Lee [2006] 3 NZLR 42, in which Glazebrook J said:
JUDGMENT
‘There is an ability to consent to the intentional infliction of harm short of death unless there
are good public policy reasons to forbid it and those policy reasons outweigh the social utility
of the activity and the value placed by our legal system on personal autonomy. A high value
should be placed on personal autonomy.’
Sadomasochism is beyond acceptable limits

As seen above, the courts do accept that injury accidentally inflicted during the course
of sexual activity between consenting adults does not amount to assault (even where
one of the parties dies). However, the law does not tolerate the idea of consent being a
defence to injuries inflicted for the sexual gratification of either party. This was shown
by Donovan [1934] 2 KB 498.
CASE EXAMPLE
Donovan [1934] 2 KB 498
D had been convicted of common and indecent assault. He had, apparently for his own sexual
gratification, beaten a 17-year-old prostitute on the buttocks with a cane ‘in circumstances of
indecency’. A doctor examined her two days later and concluded that she had had a ‘fairly
severe beating’. D’s convictions were quashed but only because the trial judge had failed to
direct the jury that the issue of disproving consent was on the Crown.
In Brown and others, when the case was still in the Court of Appeal, Lord Lane CJ said, ‘It
is not in the public interest that people should try to cause or should cause each other
actual bodily harm for no good reason.’ This was confirmed by a majority of the Law
Lords when the case reached the House of Lords.
CASE EXAMPLE
Brown and others [1994] 1 ac 212
The appellants belonged to a group of sadomasochistic homosexuals who, over a ten-year
period, willingly and enthusiastically participated in acts of violence against each other for
sexual pleasure. Many of these acts took place in rooms designed as torture chambers. The
activities included branding with wire or metal heated by a blowlamp, use of a cat o’nine tails
and genital torture. All the activities were carried out in private with the consent of the passive
partner or ‘victim’. There were no complaints to the police, no medical attention was ever
sought and no permanent injury suffered. The police discovered the activities by accident. All
members were charged with various offences, including wounding contrary to s 20 and
assaults contrary to s 47 OAPA 1861. They were convicted and their appeals dismissed by the
Court of Appeal and House of Lords (albeit by a three to two majority).
261
Lord Templeman said:
JUDGMENT
8.6 consent
‘In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also con-
cerned with violence . . . The violence of sado-masochistic encounters involves the indulgence
of cruelty by sadists and the degradation of victims. Such violence is injurious to the partici-
pants and unpredictably dangerous.’
Justifying their decision, the majority referred to the risk of infection and the possible
spread of AIDS. They did not comment about the role the criminal law should play in
tackling the spread of AIDS; rather, no doubt, it was raised in order to make it even harder
for the appellants to argue that their activities were a justifiable exception in the public
interest. Lord Lowry commented that homosexual sadomasochism could not be regarded
as a ‘manly diversion’, nor were they ‘conducive to the enhancement of enjoyment of
family life or conducive to the welfare of society’. For Lord Jauncey the corruption of young
men was a real danger to be considered. This harks back to the 1957 Wolfenden Report
(Committee on Homosexual Offences and Prostitution), which commented that the crimi-
nal law in relation to homosexual behaviour was designed ‘to preserve public order and
decency, to protect the citizen from what is offensive or injurious, and to provide sufficient
safeguards against exploitation and corruption of others, particularly those who are espe-
cially vulnerable because they are young, weak in body or mind, inexperienced, or in a
state of special, physical, official or economic dependence’.
ACTIVITy
self-test question
Do you agree that the activities in Brown and others (1994) can be described as ‘offensive or
injurious’? Bear in mind everything took place in private. No one was induced or coerced into
the activities; there was no evidence that anyone was ‘exploited’ or ‘corrupted’.
The minority (Lords Mustill and Slynn), meanwhile, treated the question as whether the
particular activities should be treated as included within the offences charged and con-
cluded that they should not. Lord Mustill said, ‘This is not a case about the criminal law
of violence. In my opinion it should be about the criminal law of private sexual relations,
if about anything at all.’ After analysing the authorities, the minority found that there
were none binding the House, which was therefore free to decide. Both Law Lords
decided that a victim’s consent to the infliction of GBH was ineffective but that consent
was not necessarily ineffective to the occasioning of ABH. They were clear about what
they were being asked to decide. Despite their disgust at the conduct, and their disap-
proval of it, the only issue was whether the activities were criminal. Lord Mustill identi-
fied the specific policy considerations that might point towards criminal liability.
 First, the risk of infection and septicaemia. This was, Lord Mustill said, greatly
reduced by modern medicine.
 Second, contrary to what Lord Jauncey said about risks of more serious harm, Lord
Mustill thought that the possibility that things might get out of hand with grave
results was no reason for criminalising the appellants’ conduct. If grave results did
occur, however, then they would, of course, attract criminal sanctions.
 Third, the evidence adduced in the case did not support the risk of the spread of
262 AIDS. Such evidence as there was suggested that consensual buggery was the main
cause of transmission, and this was, of course, legal.
 Fourth, the possibility of corrupting the young was already provided for by existing
General defences
legislation.
Defence of consent impliedly

Has V suffered at least ABH? NO available in ‘everyday touching’:
Collins v Wilcock.
YES
Was V deceived either as to D’s Defence of consent not

identity or as to the ‘nature or YES available: Tabassum, Dica,
quality’ of the act? Konzani, B.
NO
Did the ABH, GBH or wounding Defence of consent not

occur in a socially acceptable available: Donovan, A-G’s Ref
situation, e.g. contact sport, NO (No 6 of 1980), Brown and
surgery, horseplay, etc.? others.
YES
Defence of consent available

either expressly (surgery) or
impliedly (sport, horseplay):
Jones and others, Wilson,
Barnes.
Figure 8.2 The defence of consent.

kEy fACTS
Key facts on consent
Elements Comment Cases

Scope of There is implied consent available to all Collins v Wilcock (1984)
defence batteries.
For ABH, GBH and wounding, consent is Attorney-General’s Reference (No 6 of
only available when there is a ‘good 1980)
reason’.
Consent may be a defence to Slingsby (1995)
manslaughter . . .
. . . but not deliberate killing. Pretty (2002) (see Chapter 2)
Good Sport (including boxing) is a good Billinghurst (1978), Barnes (2004)
263
reasons reason, but not if defendant is involved
in ‘off-the-ball’ incident.
Horseplay is a good reason, whether Jones and others (1987), Aitken and
8.6 consent
involving children or adults. others (1992)
Surgery is a good reason, as is tattooing Wilson (1997)
and branding.
Sexual contact is a good reason. Slingsby (1995)
Reasons Boxing is good but street fighting is not Coney (1882), Attorney-General’s
which are a good reason. Reference (No 6 of 1980)
not good Sadomasochistic behaviour is not a Donovan (1934), Brown and others
good reason. (1994), Emmett (1999)
Consent Victim must have consented to the Clarence (1888), Bolduc and Bird
and fraud nature and quality of the defendant’s (1967), Richardson (1998)
act.
‘Nature’ and ‘quality’ are separate Cuerrier (1998), Tabassum (2000),
elements and victim must have Dica (2004), Konzani (2005)
consented to both of them.
Lord Slynn thought that the whole area was for Parliament to decide. In Wilson (1997), the
Court of Appeal distinguished Brown and others on its facts but in Emmett [1999] EWCA
Crim 1710, The Times, 15 October 1999, the Court of Appeal applied the House of Lords’
judgment. D and his girlfriend, G, enjoyed sadomasochistic sex. On one occasion D had
placed a plastic bag over G’s head and tied it tightly around her neck. As a result of lack of
oxygen, she nearly lost consciousness and suffered bruising to the neck and ruptured blood
vessels in her eyes. On another occasion D poured lighter fluid over G’s left breast and
ignited it. As a result of that injury, D persuaded her to go to the doctor, who informed the
police. D was charged with two counts of s 47 ABH. D was convicted and appealed. He
sought to rely on Jones and others (1986), but the Court of Appeal dismissed the appeal. The
acts in the present case could not be construed as ‘rough and undisciplined love-play’.
8.6.4 The impact of the European Convention on Human

Rights (1950) and the Human Rights Act 1998
In Laskey v UK (1997) 24 EHRR 39, the European Court of Human Rights in Strasbourg
upheld the judgment of the majority in Brown and others. It had been argued before the
Strasbourg Court that the imposition of criminal punishment constituted a breach of art
8(1) of the European Convention, which provides that ‘Everyone has the right to respect
for his private and family life, his home and his correspondence.’ However, the Stras-
bourg court applied art 8(2), which justifies interference by the State in the art 8(1) rights
which ‘is necessary in a democratic society . . . for the protection of health or morals’. The
court ruled that, once conduct had gone beyond a potential risk with a sufficient degree
of seriousness, it could not possibly amount to a breach of art 8(1). The Court of Appeal
in Emmett reached the same conclusion.
JUDGMENT
Extract adapted from the judgment in R v Brown and others [1994] 1 AC 212, House of Lords
Facts
264
The appellants, a group of sadomasochists, willingly and The significant facts
enthusiastically participated in the commission of acts of violence were:
against each other for the sexual pleasure it engendered in the the appellants were
General defences
giving and receiving of pain. They were charged with various sadomasochists
offences under ss 20 and 47 of the Offences Against the Person
they enjoyed giving
Act 1861, relating to the infliction of wounds or actual bodily
and receiving pain,
harm on genital and other areas of the body of the consenting
victim. After the trial judge ruled that, in the particular the trial judge ruled
circumstances, the prosecution did not have to prove lack of that consent was no
consent by the victim, the appellants changed their pleas to guilty, defence in the
but appealed against conviction on the ground that the judge had circumstances,
erred in his rulings, in that the willing and enthusiastic consent of the appellants claimed
the victim to the acts on him prevented the prosecution from that all the participants
proving an essential element of the offence. The Court of Appeal had given consent.
(Criminal Division) dismissed the appeal. The appellants appealed
to the House of Lords.
Judgment
LORD TEMPLEMAN:
In some circumstances violence is not punishable under the Whether or not
criminal law. When no actual bodily harm is caused, the consent consent is a valid
of the person affected precludes him from complaining. There defence depends on
can be no conviction for the summary offence of common policy and the public
assault if the victim has consented to the assault. Even when interest.
violence is intentionally inflicted and results in actual bodily
harm, wounding or serious bodily harm the accused is entitled to
be acquitted if the injury was a foreseeable incident of a lawful
activity in which the person injured was participating. Surgery
involves intentional violence resulting in actual or sometimes
serious bodily harm but surgery is a lawful activity. Other
activities carried on with consent by or on behalf of the injured
person have been accepted as lawful notwithstanding that they
involve actual bodily harm or may cause serious bodily harm.
Ritual circumcision, tattooing, ear-piercing and violent sports
including boxing are lawful activities. The question whether the
defence of consent should be extended to the consequences of
sado-masochistic encounters can only be decided by
consideration of policy and public interest.
In my opinion sado-masochism is not only concerned with sex. Sadomasochism
Sado-masochism is also concerned with violence. The evidence involves violence and is
discloses that the practices of the appellants were unpredictably ‘unpredictably
dangerous and degrading to body and mind and were developed dangerous’.
with increasing barbarity and taught to persons whose consents
were dubious or worthless.
The charges against the appellants were based on genital torture The appellants’
and violence to the buttocks, anus, penis, testicles and nipples. The activities created a
victims were degraded and humiliated sometimes beaten, sometimes danger of physical
wounded with instruments and sometimes branded. Bloodletting injury and blood
and the smearing of human blood produced excitement. There were infection.
obvious dangers of serious personal injury and blood infection.
In principle there is a difference between violence which is Violence alone is
incidental and violence which is inflicted for the indulgence of insufficient reason to
cruelty. The violence of sado-masochistic encounters involves deny the consent 265
the indulgence of cruelty by sadists and the degradation of defence, but when it is
victims. Such violence is injurious to the participants and combined with ‘the
unpredictably dangerous. I am not prepared to invent a defence indulgence of cruelty’
8.6 consent
of consent for sado-masochistic encounters which breed and and the ‘degradation’
glorify cruelty and result in offences under sections 47 and 20 of of victims, the defence
the Act of 1861. of consent is invalid.
The appellants’ counsel relied on article 8 of the European There was no breach
Convention for the Protection of Human Rights and Fundamental of the appellants’
Freedoms (1953) (Cmd. 8969). It is not clear to me that the activities human rights (the right
of the appellants were exercises of rights in respect of private and to privacy).
family life. But assuming that the appellants are claiming to exercise
those rights I do not consider that article 8 invalidates a law which
forbids violence which is intentionally harmful to body and mind.
Society is entitled and bound to protect itself against a cult of Lord Templeman
violence. Pleasure derived from the infliction of pain is an evil thing. (along with Lord
Cruelty is uncivilised. I would answer the certified question in the Jauncey and Lord
negative and dismiss the appeals of the appellants against Lowry) dismissed the
conviction. appeals.
LORD SYLNN (dissenting):

In the present case there is no doubt that there was consent; indeed
there was more than mere consent. Astonishing though it may
seem, the persons involved positively wanted, asked for, the acts to
be done to them, acts which it seems from the evidence some of
them also did to themselves. All the accused were old enough to
know what they were doing. The acts were done in private. Neither
the applicants nor anyone else complained as to what was done.
The matter came to the attention of the police ‘coincidentally’; the
police were previously unaware that the accused were involved in
these practices though some of them had been involved for many
years. The acts did not result in any permanent or serious injury or
disability or any infection and no medical assistance was required
even though there may have been some risk of infection, even
injury.
My conclusion is thus that as the law stands, adults can consent to Lord Slynn (along with
acts done in private which do not result in serious bodily harm, so Lord Mustill) would
that such acts do not constitute criminal assaults for the purposes of have allowed the
the Act of 1861. appeals.
Key points from Brown and others
 Consent is generally available as a defence to common assault.
 When injuries are inflicted which amount to ABH, GBH or wounding, and charges
are brought under ss 20 or 47 OAPA 1861, then consent is only available as a defence
when it is in the context of a ‘lawful’ activity.
 Whether an activity is lawful depends on considerations of policy and the public
interest.
 Recognised lawful activities include surgery, tattooing, ear-piercing and ‘violent’
sports including boxing.
 Sadomasochistic activities involve violence and are ‘unpredictably’ dangerous. There
is a danger of physical injury and blood infection.
 The fact that violence is involved is not reason enough to rule out consent (otherwise
boxing would be unlawful). However, it is a different situation when violence is
266 combined with ‘the indulgence of cruelty’.
 Sadomasochism is unpredictably dangerous and glorifies cruelty. Consent is there-
fore not available as a defence to charges under ss 20 or 47 OAPA 1861 when injuries
General defences
are inflicted in that context.

 There is no breach of the European Convention on Human Rights, specifically art 8
(the right to respect for privacy), in bringing charges in such cases.
Apply the above principles in the following factual situations

(a) Gary, a boxer, punched Henrik in the head during a bout at their local gym. The punch
caused a broken nose, which required hospital treatment.
(b) Jason and his girlfriend Kia enjoy sadomasochistic sex, including ‘scarification’ (the
cutting of skin to produce scars). One evening, in the bedroom of their flat, Jason delib-
erately cut Kia’s arms and breasts several times with a scalpel in order to produce
scars.
(c) Tariq went to see a concert by a heavy metal band at the Student Union. During the
show, the people on the dance floor enthusiastically and willingly shoved and pushed
each other around. Tariq joined in with the crowds. He shoved Ulrich, who then
slipped in a puddle of beer on the dance floor and fell over. Fortunately, Ulrich was not
injured.
SUMMARy
 Duress (whether by threats or from circumstances) is a full defence. It requires a
threat of immediate (or almost immediate) death or serious injury to D or to someone
for whom D reasonably feels responsible (Hasan). The defence may fail if D joined a
violent criminal gang or associated with a violent criminal (Hasan). It is no defence to
murder (Howe and Bannister, Wilson) or attempted murder (Gotts). The jury have to
test D’s susceptibility to threats against the standards of a reasonable man sharing
some (but not all) of D’s characteristics (Graham, Bowen).
 Necessity is a full defence. It applies where D acted to avoid ‘inevitable and irrepara-
ble evil’ (Re A: Conjoined Twins). Apart from the ‘unusual’ case of Re A, it is not a
defence to murder (Nicklinson).
 Mistake of fact is really not a ‘defence’ as such but rather a denial of mens rea (DPP v
Morgan). It is often used in conjunction with self-defence – an honest, mistaken belief
in the need to use force is a good defence (Williams), unless D’s mistake was caused
by intoxication, in which case the defence fails (O’Grady). Ignorance of the law is not
a defence (Esop).
 Self-defence is a full defence. It must be necessary for D to use some force and the
amount of force used must be ‘reasonable’ (Palmer). That is a jury question, although
the jury must place themselves in the position that D honestly – and not necessarily
reasonably – believed to exist (Williams, Owino). The law on the use of reasonable
force was ‘clarified’ in s 76 of the Criminal Justice and Immigration Act 2008. Exces-
sive force is, generally speaking, no defence, although (i) disproportionate force may
be used in ‘householder’ cases and (ii) if D uses excessive force and kills, he may be
able to rely on the loss of control defence in s 54 of the Coroners and Justice Act
2009.
 Consent is a full defence. It is impliedly available in all assault and battery cases. If
the injuries caused amount to ABH (or worse), then consent is only available in
socially acceptable situations such as contact sports (Barnes), surgery, ‘vigorous’
sexual activity (Slingsby), horseplay (Jones and others), tattooing and branding (Wilson),
etc. It is not available as a defence to injuries inflicted in street or prize fights (Coney)
or in sadomasochistic encounters (Brown and others).Critically analyse
Fraud ascase lawidentity
to D’s on the rights
(Rich-of shareholders
267
ardson) or as to the nature or quality of D’s act will invalidate any consent from V demonstrate
to enforce the articles of association to
(Tabassum, Dica, Konzani). why you agree or disagree with the proposition that the
saMple essay Question

 There are a number of controversial aspects to the defences, for example the non-
availability of duress as a defence to murder or attempted murder (prompting the
LC in 2006 to propose reform); discrepancies in the defence of consent, for example
its availability in boxing matches but not prize fights, and its availability in ‘vigorous’
sexual activities but not sadomasochistic encounters.
SAMPLE ESSAy QUESTION

The parameters of the consent defence are vague and lead to inconsistency in the courts –
for example compare Brown and others (1994) with Wilson (1996) and compare Richardson
(1998) with Tabassum (2000). Legislative action is required to bring clarity. Discuss.
Explain the law relating to consent:

• Implied consent available to all ‘everyday’ touchings (Collins v
Wilcock (1984))
• For ABH, GBH and wounding, consent is only available in
acceptable situations (A-G’s Reference (No 6 of 1980)), which are
determined by the courts
• The Sexual Offences Act 2003 introduces a definition of consent
(s 74) but this does not apply to non-sexual offences
Explain situations when general defence is available:

• Contact sports (Barnes (2004)), but not ‘off-the-ball’ incidents
• Surgery
• Tattooing and branding (Wilson (1996))
• ‘Horseplay’ (Jones and others (1986); Aitken and others (1992))
• ‘Vigorous’ sexual activity (Slingsby (1995))
• This list is not closed
Explain situations when defence is not available:
• Sadomasochism (Donovan (1934); Brown and others (1993))
• Street fighting or prize fighting (Coney (1882))
• When V does not understand the nature of the act (Burrell v
Harmer (1967))
• When V has been deceived as to D’s identity and/or the nature or
quality of D’s act (Tabassum (2000); Dica (2004); Konzani (2005);
B (2006)). See also s 76 of the Sexual Offences Act 2003
• Deception as to D’s qualifications does not negate V’s consent
(Richardson (1998))
268
Discuss problems with the law, e.g.
• Is there a clear distinction between sadomasochistic practices
General defences
(unlawful) and branding /‘vigorous’ sexual activity (both lawful)?

• Why should street fighting be illegal while boxing is lawful?
• Why should V’s consent obtained by deception as to D’s identity
be negated but not when V is deceived as to D’s qualifications?
Discuss possible reform options, e.g.

• The SOA 2003 defines consent (s 74) and introduces ‘evidential
presumptions’ when consent is not available, e.g. where V or
another person is threatened with violence, V is asleep or
unconscious, V is unlawfully detained, V is unable to
communicate because of physical disability, V is involuntarily
intoxicated (s 75)
• Should these presumptions also apply to non-sexual offences?
Conclude
Further reading
Articles
Anderson, J, ‘No licence for thuggery: violence, sport and the criminal law’ [2008] Crim
LR 751.
Arenson, K, ‘The paradox of disallowing duress as a defence to murder’ (2014) 78 J Crim
L 65.
Cooper, S and James, M, ‘Entertainment: the painful process of rethinking consent’
[2012] Crim LR 188.
Dingwall, G, ‘Intoxicated mistakes about the need for self-defence’ (2007) 70 MLR 127.
Dobinson, I and Elliott, E, ‘A householder’s right to kill or injure an intruder under the
Crime & Courts Act 2013: an Australian comparison’ (2014) 78 J Crim L 80.
Elliott, T, ‘Body dysmorphic disorder, radical surgery and the limits of consent’ (2009)
17 Med L Rev 149.
Huxtable, R, ‘Separation of conjoined twins: where next for English law?’ [2002] Crim
LR 459.
Miller, S, ‘Grossly disproportionate: home owners’ legal licence to kill’ (2013) 77 J Crim
L 299.
Ryan, S, ‘Reckless transmission of HIV: knowledge and culpability’ [2006] Crim LR 981.
Stark, F, ‘Necessity and Nicklinson’ [2013] Crim LR 949.
Tolmie, J, ‘Consent to harmful assaults: the case for moving away from category based
decision making’ [2012] Crim LR 656.
Wake, N, ‘Battered women, startled householders and psychological self-defence: Anglo-
Australian perspectives’ (2013) 77 J Crim L 433.
Weait, M, ‘Criminal law and the sexual transmission of HIV: R v Dica’ [2005] 68 MLR
121; ‘Knowledge, autonomy and consent: R v Konzani’ (2005) Crim LR 763.
269
furtHer readinG
9
Mental capacity defences
AIMS AND OBJECTIVES

 Understand the law on insanity and automatism
 Understand the law on intoxication
 Analyse critically the scope and limitations of the mental capacity defences and
the reform proposals
 Apply the law to factual situations to determine whether liability can be avoided
by invoking a defence
9.1 Insanity
Although the insanity defence is rarely used and is therefore of little real practical
insanity
significance, it nevertheless raises fundamental questions about criminal responsib-
General defence
where D suffers a ility and the role of criminal law in dealing with violent people. Its importance had
‘defect of reason’ been much reduced, particularly in murder cases, by two developments:
caused by a
‘disease of the  the introduction of the diminished responsibility defence in 1957 (see Chapter 10);
mind’
 the abolition of the death penalty in 1965.
It is a general defence and may be pleaded as a defence to any crime requiring mens
rea (including murder), whether tried on indictment in the Crown Court or summar-
ily in the magistrates’ court (Horseferry Road Magistrates’ Court, ex parte K [1996] 3 All
ER 719). However, it is not, apparently, a defence to crimes of strict liability (see
Chapter 4). In DPP v H [1997] 1 WLR 1406, the High Court held that insanity was no
defence to a charge of driving with excess alcohol contrary to s 5 of the Road Traffic
Act 1988. Medical evidence that D was suffering manic depressive psychosis with
symptoms of distorted judgment and impaired sense of time and of morals at the
time of the offence was, therefore, irrelevant.
9.1.1 Procedure
Often D does not specifically raise the defence of insanity but places the state of his
mind in issue by raising another defence such as automatism. The question whether
such a defence, or a denial of mens rea, really amounts to the defence of insanity is a ques-
tion of law to be decided by the judge on the basis of medical evidence (Dickie [1984] 3 All
ER 173). Whether D, or even his medical witnesses, would call it insanity or not is irrele-
vant. According to Lord Denning in Bratty v Attorney-General of Northern Ireland [1963] AC
386, in such cases the prosecution may – indeed must – raise the issue of insanity.
Importance of medical evidence

If the judge decides that the evidence does support the defence, then he should leave it
to the jury to determine whether D was insane (Walton [1978] 1 All ER 542). In practice,
the evidence of medical experts is critically important. Section 1 of the Criminal Pro-
cedure (Insanity and Unfitness to Plead) Act 1991 provides that a jury shall not return a
special verdict (see below) except on the written or oral evidence of two or more regis-
tered medical practitioners, at least one of whom is approved as having special expertise
in the field of medical disorder.
272
9.1.2 The special verdict
If D is found to have been insane at the time of committing the actus reus, then the jury
should return a verdict of ‘not guilty by reason of insanity’ (s 1 Criminal Procedure

(Insanity) Act 1964), otherwise referred to as the special verdict. Until quite recently this
verdict obliged the judge to order D to be detained indefinitely in a mental hospital. In
many cases the dual prospect of being labelled ‘insane’ and indefinite detention in a
special hospital such as Broadmoor or Rampton discouraged defendants from putting
their mental state in issue. In some cases it led to guilty pleas to offences of which defend-
ants were probably innocent (Quick [1973] QB 910; Sullivan [1984] AC 156; Hennessy
[1989] 1 WLR 287, all of which will be considered below).
The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

The position described above was modified by the 1991 Act. The Act made a number of
changes but, most significantly, substituted a new s 5 into the Criminal Procedure (Insan-
ity) Act 1964. The new section allowed the judge considerable discretion with regard to
disposal on a special verdict being returned. That section has since been replaced by
another version of s 5 following the enactment of the Domestic Violence, Crime and
Victims Act 2004. Now, following a special verdict, the judge may make:
(a) a hospital order (with or without a restriction order);
(b) a supervision order; or
(c) an order for absolute discharge.
This is particularly useful where the offence is trivial and/or the offender does not
require treatment. The new power was first utilised in Bromley (1992) 142 NLJ 116.
This new power does not, however, apply to murder cases when indefinite hospitali-
sation is unavoidable. However, as noted above, defendants charged with murder are
far more likely to plead diminished responsibility under s 2 of the Homicide Act 1957
than insanity.
This much broader range of disposal options should make the insanity defence more
attractive. Nevertheless, the 1991 Act does not tackle the definition of insanity, and so
the stigma of being labelled ‘insane’ remains. This issue will be addressed below.
M’Naghten
Rules 9.1.3 The M’Naghten Rules
The legal principles
The law of insanity in England is contained in the M’Naghten Rules, the result of the
governing the
insanity defence deliberations of the judges of the House of Lords in 1843. Media and public outcry at one
Daniel M’Naghten’s acquittal on a charge of murder led to the creation of rules to clarify
the situation. Lord Tindal CJ answered on behalf of himself and 13 other judges, while
Maule J gave a separate set. The Rules are not binding as a matter of strict precedent.
Nevertheless, the Rules have been treated as authoritative of the law ever since (Sullivan
(1984)). The Rules state as follows:
quotation
‘The jurors ought to be told in all cases that every man is presumed to be sane, and to possess
a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to
their satisfaction; and that to establish a defence on the ground of insanity it must be clearly
proved that, at the time of the committing of the act, the party accused was labouring under
such a defect of reason, from disease of the mind, as not to know the nature and quality of
the act he was doing, or, if he did know it, that he did not know he was doing what was
273
wrong.’
The Rules can be broken down into three distinct elements, all of which must be
9.1 insanity
established.
 defect of reason;
 disease of the mind;
 not knowing what D was doing or not knowing that it was ‘wrong’.
Because of the presumption of sanity, the burden of proof is on the defence (albeit on the
lower standard, the balance of probabilities).
Defect of reason
The phrase ‘defect of reason’ was explained in Clarke [1972] 1 All ER 219 by Ackner J,
who said that it referred to people who were ‘deprived of the power of reasoning’. It did
not apply to those who ‘retain the power of reasoning but who in moments of confusion
or absent-mindedness fail to use their powers to the full’.
JUDGMENT
‘The M’Naghten Rules relate to accused persons who by reason of a “disease of the mind” are
deprived of the power of reasoning. They do not apply and never have applied to those who
retain the power of reasoning but who in moments of confusion or absent-mindedness fail to
use their powers to the full.’
CASE EXAMPLE
Clarke [1972] 1 all eR 219
D went into a supermarket. She placed various items, including a pound of butter, a jar of
coffee and a jar of mincemeat into her own bag and left the supermarket without paying for
them. At her trial for theft she claimed to have lacked the intention to permanently deprive on
the basis of absent-mindedness caused by diabetes and depression. She claimed to have no
recollection of putting the items into her bag. The trial judge ruled that this amounted to a
plea of insanity, at which point D pleaded guilty. The Court of Appeal quashed her conviction.
D was not insane; she was simply not guilty because of a lack of mens rea.
Disease of the mind
‘Disease of the mind’ is a legal term, not a medical term. In Kemp [1957] 1 QB 399, D suf-
automatism
fered from arteriosclerosis (hardening of the arteries) which restricted the flow of blood
General defence
where D lacks to the brain, causing blackouts. In this condition he committed the actus reus of grievous
control of the bodily harm (GBH) (he hit his wife with a hammer). The question arose whether arterio-
muscles or is
unconscious
sclerosis supported the defence of automatism or insanity. Devlin J decided that it was
a case of insanity. He stated:
JUDGMENT
‘The law is not concerned with the brain but with the mind, in the sense that “mind” is ordi-
narily used, the mental faculties of reason, memory and understanding. If one read for “disease
of the mind” “disease of the brain”, it would follow that in many cases pleas of insanity would
274 not be established because it could not be proved that the brain had been affected in any way,
either by degeneration of the cells or in any other way. In my judgment the condition of the
brain is irrelevant and so is the question whether the condition is curable or incurable, transi-
tory or permanent.’
Thus, if D suffers from a condition (not necessarily a condition of the brain) which
affects his ‘mental faculties’, then this amounts to the defence of insanity. The problem
is, how to distinguish such cases from situations when D suffers some temporary con-
dition (e.g. concussion following a blow to the head). In the latter situation, D loses his
‘mental faculties’, but the problem is extremely unlikely to repeat itself and so order-
ing hospitalisation or treatment would be pointless. Hence, in such cases the true
defence is automatism (see below). In order to distinguish cases of insanity from cases
of automatism, the courts have adopted a test based on whether the cause of D’s
‘defect of reason’ was internal or external (such as the blow to the head example). In
Quick (1973), Lawton LJ said:
JUDGMENT
‘Our task has been to decide what the law now means by the words “disease of the mind”.
In our judgment the fundamental concept is of a malfunctioning of the mind caused by
disease. A malfunctioning of the mind of transitory effect caused by the application to the
body of some external factor such as violence, drugs, including anaesthetics, alcohol and hyp-
notic influences cannot fairly be said to be due to disease.’
The implications of this decision have been profound and not without criticism. In Quick,
D was a diabetic who had taken prescribed insulin to control his blood sugar levels.
However, he had forgotten to eat afterwards, with the result that he subsequently suf-
fered a condition known medically as hypoglycaemia (low blood sugar). While in this
condition he physically assaulted V and was charged accordingly. At his trial, he testi-
fied that he could not remember what he had done. However, the judge ruled that the
evidence only supported a plea of insanity. At this point, D changed his plea to guilty
and appealed. The Court of Appeal quashed his conviction. The cause of D’s lack of
awareness was not his diabetes, but his insulin overdose. This was an external factor,
and so the proper defence was automatism.
This case should be contrasted with that of Hennessy (1989).
CASE EXAMPLE
Hennessy [1989] 1 WlR 287
D, a diabetic, had forgotten to take his insulin. He suffered what is known medically as hyper-
glycaemia (high blood sugar). In this condition he was seen by police officers driving a car that
had been reported stolen. D was charged with two counts of taking a motor vehicle without
consent and driving a motor vehicle while disqualified. D testified that he could not remember
taking the car and driving it away. The trial judge declared that the evidence supported a
defence of insanity. D changed his plea to guilty and appealed. However, distinguishing Quick,
the Court of Appeal confirmed that hyperglycaemia was caused by an internal factor, namely
diabetes, and was therefore a disease of the mind. The correct verdict was insanity.
Two criticisms may be made here.

 A relatively common medical condition (diabetes) is regarded by the criminal law as 275
supporting a defence of insanity, with all the negative implications that that label
conveys.
9.1 insanity
 This is only the case in certain situations, namely when D suffers hyperglycaemia.
According to the Diabetes UK website, over 3.2 million people in the United Kingdom
have been diagnosed with diabetes (and another 630,000 people are estimated to have
the condition without realising it). Does the decision in Hennessy mean that nearly four
million people in the United Kingdom are legally insane? For more information refer to
the ‘Internet links’ section at the end of this chapter. The problem associated with dia-
betes is not the only one created by the decision in Quick. According to the House of
Lords, epileptics who suffer grand mal seizures and inadvertently assault someone
nearby are also to be regarded as insane. This was seen in two cases: Bratty (1963) and
Sullivan (1984).
CASE EXAMPLE
Sullivan [1984] ac 156
D had suffered from epilepsy since childhood. He occasionally suffered fits. One day he was
sitting in a neighbour’s flat with a friend, V. The next thing D remembered was standing by a
window with V lying on the floor with head injuries. D was charged with assault. The trial
judge ruled that the evidence that D had suffered a post-epileptic seizure amounted to a
disease of the mind. To avoid hospitalisation, D pleaded guilty and appealed. Both the Court
of Appeal and House of Lords upheld his conviction.
In Sullivan, Lord Diplock stated:
JUDGMENT
‘It matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional,
or whether the impairment itself is permanent or is transient and intermittent, provided that it
subsisted at the time of the commission of the act. The purpose of the . . . defence of insanity
. . . has been to protect society against recurrence of the dangerous conduct. The duration of
a temporary suspension of the mental faculties . . . particularly if, as in Sullivan’s case, it is
recurrent, cannot . . . be relevant to the application by the courts of the M’Naghten Rules.’
According to the Epilepsy Action website, 600,000 people in the United Kingdom have
epilepsy (this corresponds to one in every 107 people). In the event that any one of these
people commits the actus reus of a crime, are they to be regarded as legally insane too?
For more information, refer to the ‘Internet links’ section at the end of this chapter. Thus,
diabetics (sometimes) and epileptics are regarded as ‘insane’ by English criminal law.
What about someone who carries out the actus reus of a crime, such as assault, while
sleepwalking? This was a question for the Court of Appeal in Burgess [1991] 2 QB 92.
There was a persuasive precedent for deciding that this amounted to automatism (Tolson
(1889) 23 QBD 168), but the Court of Appeal held that, after Quick (1973) and Sullivan, it
had to be regarded as insanity. Lord Lane CJ stated that sleepwalking was ‘an abnor-
mality or disorder, albeit transitory, due to an internal factor’.
CASE EXAMPLE
276 Burgess [1991] 2 QB 92
D and his friend, V, were in D’s flat watching videos. They both fell asleep but, during the
night, D attacked V while she slept, hitting her with a wine bottle and a video recorder. She
suffered cuts to her scalp which required sutures. To a charge of unlawful wounding contrary
to s 20 OAPA 1861, D pleaded automatism, but the trial judge ruled he was pleading insanity
and the jury returned the special verdict. The Court of Appeal dismissed D’s appeal.
According to a study carried out in Finland involving over 11,000 people, some 4 per
cent of women and 3 per cent of men sleepwalk (C Hublin, J Kaprio, M Partinen, K Heik-
kila and M Koskenvuo, ‘Prevalence and genetics of sleepwalking’ (1997) 48 Neurology
177). With the UK population in excess of 64 million, this equates to more than two
million sleepwalkers in the United Kingdom alone. It is useful to note at this point that
in Canada (which also uses the M’Naghten Rules), the Supreme Court in Canada has
diverged from English law on this point. In Parks (1992) 95 DLR (4d) 27, D had carried
out a killing and an attempted killing whilst asleep. However, the Supreme Court found
that his defence was automatism. During the trial the defence had called expert wit-
nesses in sleep disorders, whose evidence was that sleepwalking was not regarded as a
neurological, psychiatric or any other illness, but a sleep disorder, quite common in chil-
dren but also found in 2–2.5 per cent of adults. Furthermore, aggression while sleep-
walking was quite rare and repetition of violence almost unheard of. Using this evidence,
the Canadian Chief Justice, Lamer CJC, said that ‘Accepting the medical evidence, [D’s]
mind and its functioning must have been impaired at the relevant time but sleepwalking
did not impair it. The cause was the natural condition, sleep.’
Another possible basis for an insanity plea is dissociation, most commonly referred to
now as post-traumatic stress disorder. If D suffers this condition (which is triggered by
experiencing and/or witnessing extremely traumatic events) and carries out the actus reus
of a crime whilst in this state, does it amount to a plea of insanity or automatism? In T
[1990] Crim LR 256, the Crown Court decided that it could support a plea of automatism.
CASE EXAMPLE
T [1990] crim lR 256
D had been raped three days prior to carrying out a robbery and causing actual bodily harm.
She was diagnosed as suffering post-traumatic stress disorder, such that at the time of the
alleged offences she had entered a dissociative state. The trial judge allowed automatism to
be left to the jury, noting that ‘such an incident could have an appalling effect on any young
woman, however well-balanced normally’.
In Canada, meanwhile, a plea of dissociation was regarded as one of insanity. The differ-
ence was that in that case, the traumatic events leading up to the alleged dissociative
state were much less distressing. In Rabey (1980) 114 DLR (3d) 193, D had developed an
attraction towards a girl. When he discovered that she regarded him as a ‘nothing’, he
hit her over the head with a rock and began to choke her. He was charged with causing
bodily harm with intent to wound, and pleaded automatism, based on the psychologi-
cally devastating blow of being rejected by the girl. The trial judge accepted that D had
been in a complete dissociative state. The prosecution doubted that D was suffering
from such a state (the reality being that he was in an extreme rage) but that if he were
then his condition was properly regarded as a disease of the mind. The trial judge
ordered an acquittal based on automatism, but the appeal court allowed the prosecution
appeal. The Supreme Court of Canada upheld that decision – the defence was insanity.
To summarise the law on ‘disease of the mind’, the following conditions have been
held to support a plea of insanity (in England):
 arteriosclerosis (Kemp (1957)); 277
 epilepsy (Sullivan (1984));

 hyperglycaemia (high blood sugar: Hennessy (1989)) but not hypoglycaemia (low
9.1 insanity
blood sugar: Quick (1973));
 sleepwalking (Burgess (1991)).
And in Canada, post-traumatic stress disorder caused by a relatively mundane event
such as rejection by a prospective girlfriend (Rabey (1980)). In Australia, meanwhile,
although the M’Naghten Rules have been adopted there, the internal/external factor test
in Quick has not. In Falconer (1990) 171 CLR 30, Toohey J described the internal/external
factor theory as ‘artificial’ and said that it failed to pay sufficient regard to ‘the subtleties
surrounding the notion of mental disease’. In Australia, therefore, the distinction
between insanity and automatism is found by identifying whether D’s mental state at
the time of the actus reus was either:
 ‘the reaction of an unsound mind to its own delusions, or to external stimuli, on the
one hand’, which is insanity; or
 ‘the reaction of a sound mind to external stimuli including stress-producing factors
on the other hand’, which is automatism.
ACTIVITy
applying the law
Applying the Australian sound/unsound mind test, as opposed to the English internal/external
factor test, would the defendants in Sullivan (1984), Hennessy (1989) and Burgess (1991) have
been found to be sane or insane?
Nature and quality of the act

It seems there will be a good defence provided that when D acted he was not aware of,
or did not appreciate, what he was actually doing, or the circumstances in which he was
acting, or the consequences of his act. D’s lack of knowledge must be fundamental. Two
famous old examples used to illustrate this point are
 D cuts a woman’s throat but thinks (because of his ‘defect of reason’) that he is cutting
a loaf of bread.
 D chops off a sleeping man’s head because it would be amusing to see him looking
for it when he wakes up.
Obviously, in both these situations D does not know what he is doing and is entitled to
the special verdict. If, on the contrary, D kills a man whom he believes, because of a
paranoid delusion, to be possessed by demons, then he is still criminally responsible and
not insane – his delusion has not prevented him from understanding that he is commit-
ting murder.
The act was wrong

What is meant here by ‘wrong’? Does it mean wrong as in ‘contrary to the criminal law’
or wrong as in ‘morally unacceptable’ – or perhaps both? In M’Naghten (1843) the Law
Lords said that if D knew at the time of committing the actus reus of a crime that he ‘was
acting contrary to law; by which expression we understand your lordships to mean the
law of the land’, then he would not have the defence. This clearly suggested D will have
the defence if he does not realise that he is committing a crime. The Court of Criminal
Appeal in Windle [1952] 2 QB 826 confirmed this view of the word ‘wrong’. D had poi-
278 soned his wife and, on giving himself up to the police, said, ‘I suppose they will hang me
for this?’ Despite medical evidence for the defence that he was suffering from a medical
condition known as folie à deux, this statement showed that D was aware of acting unlaw-
fully. D was convicted of murder. Lord Goddard CJ said:
JUDGMENT
‘Courts of law can only distinguish between that which is in accordance with law and that
which is contrary to law . . . The law cannot embark on the question and it would be an unfor-
tunate thing if it were left to juries to consider whether some particular act was morally right
or wrong. The test must be whether it is contrary to law . . . [T]here is no doubt that in the
M’Naghten Rules “wrong” means contrary to the law, and does not have some vague meaning
which may vary according to the opinion of one man or of a number of people on the question
of whether a particular act might or might not be justified.’
The position, therefore, is that if D knew his act was illegal, then he has no defence of insan-
ity. This is the case even if he is suffering from delusions which cause him to believe that
his act was morally right. This position has, however, been criticised. In 1975, the Royal
Committee on Mentally Abnormal Offenders (Butler Committee) stated that the Windle
definition of ‘wrong’ was ‘a very narrow ground of exemption since even persons who are
grossly disturbed generally know that murder and arson, for instance, are crimes’.
In Johnson [2007] EWCA Crim 1978, the Court of Appeal was invited to reconsider the
decision in Windle. However, although the court agreed that the decision in Windle was
‘strict’, they felt unable to depart from it, believing that, if the law was to be changed, it
should be done by Parliament.
CASE EXAMPLE
Johnson [2007] eWca crim 1978
D suffered from delusions and auditory hallucinations. One day, armed with a large kitchen knife,
he forced his way into V’s flat and stabbed him four times (fortunately, V recovered). Following
his arrest, D was assessed by two psychiatrists who diagnosed him as suffering from paranoid
schizophrenia. They agreed that D knew that his actions were against the law; however, one
psychiatrist asserted that D did not consider what he had done to be ‘wrong in the moral sense’.
The trial judge declined to leave the insanity defence to the jury, and D was convicted of wound-
ing with intent. He appealed, but the Court of Appeal upheld his conviction.
Latham LJ stated:
JUDGMENT
‘The strict position at the moment remains as stated in Windle . . . This area, however, is a
notorious area for debate and quite rightly so. There is room for reconsideration of rules and,
in particular, rules which have their genesis in the early years of the 19th century. But it does
not seem to us that that debate is a debate which can properly take place before us at this
level in this case.’
In Stapleton (1952) 86 CLR 358, the High Court of Australia refused to follow Windle.
That Court decided that morality, and not legality, was the concept behind the use of
‘wrong’. Thus in Australia the insanity defence is available if ‘through the disordered
condition of the mind [D] could not reason about the matter with a moderate degree of
sense and composure’. The same is true in Canada. In Chaulk (1991) 62 CCC (3d) 193, D 279
had been charged with murder. Medical evidence showed that he suffered paranoid
delusions such that he believed he had power to rule the world and that the killing had
been a necessary means to that end. D believed himself to be above the law (of Canada).
9.1 insanity
Finally, he deemed V’s death appropriate because he was a ‘loser’. The Supreme Court
stated that ‘It is possible that a person may be aware that it is ordinarily wrong to commit
a crime but, by reason of a disease of the mind, believes that it would be “right” accord-
ing to the ordinary standards of society to commit the crime in a particular context. In
this situation, [D] would be entitled to be acquitted by reason of insanity.’
9.1.4 Situations not covered by the Rules

Irresistible impulse
Until the early twentieth century, a plea of irresistible impulse was a good defence under
the M’Naghten Rules. In Fryer (1843) 10 Cl & F, the jury were directed that if D was
deprived of the capacity to control his actions, it was open for them to find him insane.
By 1925, however, the fact that D was unable to resist an impulse to act was held to be
irrelevant, if he was nonetheless aware that his act was wrong. In Kopsch (1925) 19 Cr
App R 50, D confessed to strangling his aunt with a necktie, apparently at her request.
Upholding his conviction, Lord Hewart CJ described the defence argument, that a
person acting under an uncontrollable impulse was not criminally responsible as a ‘fan-
tastic theory’, which if it were to become part of the law, ‘would be merely subversive’.
The reluctance of the courts to recognise a defence of irresistible impulse appears to be
based on two grounds.
 The difficulty of distinguishing between an impulse caused by insanity, and one
motivated by greed, jealousy or revenge.
 The view that the harder an impulse is to resist, the greater is the need for a
deterrent.
In 1953 the Royal Commission on Capital Punishment suggested, as an alternative to

replacing the Rules altogether, adding a third limb, i.e. that D should be considered
insane if at the time of his act he ‘was incapable of preventing himself from committing
it’. This was not taken up. However, irresistible impulse may support a defence of dimin-
ished responsibility (Byrne [1960] 2 QB 396). Thus, if D is charged with murder and
claims that he could not resist killing V he may avoid a murder conviction. But the same
defendant who fails to kill V and is charged with attempted murder will have neither
insanity nor diminished responsibility available.
D is not insane but may
Did D have a ‘defect of reason’? NO simply lack mens rea
(Clarke)
YES
Did D have a ‘disease of the D is not insane but

mind’, caused by an internal NO may be able to plead
factor? automatism (Quick)
YES
280 Did D know the ‘nature and D has the defence of

NO
quality’ of his act? insanity
YES
Did D know that his act was D has the defence of

NO
legally wrong? insanity
YES
D is not insane (Windle)
Figure 9.1 Insanity.
9.1.5 Criticism and reform proposals

Criticisms
Many criticisms have been made of the defence of insanity over the years. In their Dis-
cussion Paper, Criminal Liability: Insanity and Automatism, published in July 2013, the
Law Commission (LC) observed that ‘there are significant problems with the law when
examined from a theoretical perspective’, whilst conceding that there was ‘less evidence
that the defences cause significant difficulties in practice’. This section summarises the
main criticisms that have been made about the insanity defence in English law.
Terminology
 The terminology used in the context of the insanity defence is, at best, old-fashioned;
at worst, it is inappropriate and insulting. One of the reasons for reforming dimin-
ished responsibility in 2009 was to dispense with old-fashioned, offensive terminol-
ogy in the 1957 Homicide Act, such as ‘retarded development’, and similar
considerations continue to apply to insanity. In their 2013 Discussion Paper, the LC
observed that:
quotation
‘The very name of the defence might be off-putting or even offensive to many people. Some-
times a label is itself so offensive that it deserves to be changed for that reason alone.’
 It is psychiatrically meaningless to refer to ‘disease of the mind’, ‘defect of reason’, etc.

These are legal phrases, created by the House of Lords in the mid-nineteenth century,
and have no direct correlation to twenty-first century psychiatry. The LC in their 2013
Discussion Paper said that ‘the mismatch between the legal test and modern psychiatry
is striking’. This is not just a theoretical issue: the ‘mismatch’ makes it more difficult for
doctors and psychiatrists to provide their evidence during trials.
‘Defect of Reason’
 The definition of ‘defect of reason’ given in Clarke (1972) is very narrow – D must be 281
‘deprived of the power of reasoning’. What about D who is deprived of the power to
control his actions? Why does insanity not allow a defence for ‘irresistible impulse’?
9.1 insanity
‘Disease of the Mind’
 The focus of the M’Naghten Rules is on the word ‘mind’. According to Kemp (1957),
‘the condition of the brain is irrelevant’. Is this sensible?
 The emphasis on the internal/external cause of D’s condition leads to illogical out-
comes. In Hennessy (1989), D, a diabetic, was classed as ‘insane’ having failed to take
his insulin but, in Quick (1973), another diabetic was given the automatism defence
because he had taken too much of his insulin. The High Court of Australia described
the internal/external cause test as ‘artificial’ in Falconer (1990). In their 2012 Scoping
Paper, which paved the way for the 2013 Discussion Paper, the LC described the
outcome in the cases of Hennessy and Quick as ‘odd’.
 The internal/external cause test has the potential to catch too many people in the
insanity net, including people with diabetes (some of the time) or epilepsy, or those
people who are predisposed to sleepwalking. In their 2012 Scoping Paper, the LC
observed that:
quotation
‘The pool of individuals who would potentially fall within the scope of the defence is surpris-
ingly wide.’
 The application of the M’Naghten Rules in practice is very inconsistent, particularly

in sleep-walking cases. The LC in both its 2012 and 2013 papers has noted that
whereas some trial courts are following Burgess (1991) and declaring that sleep-
walkers are ‘insane’ (Lowe (2005) The Times, 19 March – D was given the special
verdict), not all are doing so and instead allowing acquittals (Bilton (2005) The
Guardian, 20 December; Pooley (2007) The Daily Mail, 12 January).
‘The nature and quality of the act’

 This has been interpreted very narrowly, focusing purely on the physical, as opposed
to moral, nature and quality of the act (Codere (1917)).
‘Wrong’
 In Johnson (2007), the Court of Appeal described the decision in Windle (1952), that
‘wrong’ meant ‘contrary to law’ as ‘strict’ (and the whole defence as ‘a notorious area
for debate’). However, the court felt unable to do anything about it and left it for Par-
liament to change the law.
 In Australia or Canada, a defendant who believed (because of a disease of the mind)
that his/her act was morally right (even if he or she knew that it was legally wrong),
could plead insanity, whereas an equivalent defendant in England or Wales could
not do so – even though all of these jurisdictions use the M’Naghten Rules as the basis
for their insanity defence.
The Burden of Proof

 Under the M’Naghten Rules, everyone is presumed sane. The burden of proving
282 insanity is therefore on the accused (albeit on the balance of probabilities). Does this
breach art 6(2) of the European Convention on Human Rights (ECHR), the presump-
tion of innocence?
The Special Verdict

 Following a successful plea, the trial judge has three options: (1) a hospital order (with
or without a restriction order attached), (2) a supervision order or (3) an absolute dis-
charge. This is an improvement compared with 25 years ago (when only option (1)
existed), but the LC in 2012 described the three options as still being ‘limited’.
Human Rights issues

 The narrowness of certain aspects of the insanity defence (described above) could
lead to some defendants with genuine psychiatric disorders being unable to invoke
the defence (e.g. because they understood the nature and quality of their act and that
it was legally wrong) and being convicted and sentenced to a term of imprisonment,
instead of receiving help in hospital or elsewhere. This could be regarded as a breach
of their rights under the ECHR, including art 2 (the right to life), because of the
increased risk of suicide, and/or art 3 (the right not to be subjected to inhuman and
degrading treatment), because of the increased risk of self-harm. The lack of suitable
healthcare facilities available in mainstream prisons means that some prisoners with
psychiatric disorders and other mental health problems are not being helped prior to
their release, which in turn poses a potential risk to society at large.
Reform proposals
The insanity defence has recently been reformed in Scotland. Section 51A of the Crimi-
nal Procedure (Scotland) Act 1995, as amended by the Criminal Justice and Licensing
(Scotland) Act 2010, states:
SECTION
‘A person is not criminally responsible for conduct constituting an offence, and is to be acquit-
ted of the offence, if the person was at the time of the conduct unable by reason of mental
disorder to appreciate the nature or wrongfulness of the conduct.’
At the very least, this dispenses with outdated terminology such as ‘disease of the mind’
and ‘defect of reason’.
In their 2013 Discussion Paper, the LC set out the following proposals for reform of
insanity in English law. The LC acknowledges that these proposals are ‘radical’ but
insists that such reform is necessary.
 The abolition of the existing insanity defence.
 The creation of a new defence of ‘not criminally responsible by reason of recognised
medical condition’ to replace it.
 Determining what constitutes a ‘recognised medical condition’ will be a question of
law, not of medicine, to be decided by the court, not by doctors. Having said that, the
condition would first have to be one that was recognised by medical professionals (in
order to deter ‘fake’ defences) but a condition’s acceptance by the medical com-
munity would not be conclusive. Ultimately, it will be for the courts to decide whether
a condition supports the defence or not. There will be no definitive list of such ‘con-
ditions’, but the appeal courts will be able to provide guidance over time. It will
include, but will not be restricted to, ‘mental’ conditions: ‘if a physical condition 283
leads to a total loss of capacity’ then the defence should be available. However, two
conditions will be explicitly excluded:
9.1 insanity
 Intoxication will not be classed as a ‘recognised medical condition’. The defence
of intoxication will continue to apply to those under the influence of alcohol and/
or drugs at the time of the alleged wrongdoing.
 Nor will the defence apply to a defendant with a ‘personality disorder character-
ised solely or principally by abnormally aggressive or seriously irresponsible
behaviour’.
 More generally, if D was at fault in bringing about the recognised medical condition,
they will not be able to invoke the defence.
 The defendant will have an evidential burden only. The burden of proof will be
reversed compared to the existing insanity defence, requiring the Crown to disprove
the defence beyond reasonable doubt.
 The defendant will need to adduce evidence (from at least two experts) that at the
time of the alleged offence they wholly lacked the capacity:
(i) rationally to form a judgment about the relevant conduct or circumstances;
(ii) to understand the wrongfulness of what he or she is charged with having done;
or
(iii) to control his or her physical acts in relation to the relevant conduct or circum-
stances as a result of a qualifying recognised medical condition.
 ‘Wrongfulness’ will not be limited to ‘illegality’.
 The new defence would be founded on complete loss of ‘capacity’. Impaired, or even
substantially impaired, capacity would not be enough for the defence to succeed, let
alone a difficulty in (for example) controlling physical acts. ‘Capacity’ will be ‘issue
and time-specific’, meaning that the question for the court will be whether or not the
accused lacked capacity ‘in relation to the charge’ that he or she was facing (and not
in some general, abstract sense).
 A lack of capacity alone would not support the defence – there would have to be a
‘recognised medical condition’ as well. Where the accused lacked capacity for some
other reason, this might allow for the automatism defence instead.
 The defence would be available in relation to any type of offence, not just those which
require proof of mens rea, and it would be available in the magistrates’ courts and the
Crown Court.
 The range of disposals would be the same as that currently available following a
verdict of not guilty by reason of insanity.
The 2012 Scoping Paper and the 2013 Discussion Paper are both available from the Law
Commission’s website, http://lawcommission.justice.gov.uk/areas/insanity.htm.
Commentary on the proposals

The proposals offer an improvement on the existing defence of insanity in several ways:
 The offensive and stigmatising label of ‘insanity’ will be consigned to history.
 The modern terminology will fit much better with twenty-first century psychiatry than
the old-fashioned, psychiatrically meaningless phrases in the M’Naghten Rules.
 The internal/external cause test with its potential for erratic and illogical outcomes
is removed.
284  The concept of the ‘irresistible impulse’ test has finally been recognised.
 The new test for ‘wrongfulness’ removes one of the most stringent restrictions on the
defence and insanity and brings English law into line with that in Australia and
Canada.
 The reversal of the burden of proof provides a much better fit with the presumption
of innocence.
kEy fACTS
Key facts on insanity as a defence

Defect of reason To be deprived of the power of Clarke (1972)
reasoning
Disease of the mind Not concerned with the brain but Kemp (1957)
with the mind
Must derive from an internal Quick (1973)
source
Examples Arteriosclerosis Kemp (1957)
Epilepsy Bratty (1963), Sullivan (1984)
Hyperglycaemia Hennessy (1989)
Sleepwalking Burgess (1991)
Not knowing what D was ‘Wrong’ means legally wrong Windle (1952), Johnson
doing or not knowing (2007)
that it was ‘wrong’
Burden of proof It is for the defence to prove on
the balance of probabilities
Effect of defence Defendant is not guilty ‘by Unless charge was murder, judge
reason of insanity’ (the special has various disposal options:
verdict) hospital order, supervision order,
absolute discharge
If charge was murder, judge must
order indefinite hospitalisation in
a special hospital
9.2 Automatism
9.2.1 What is automatism?
‘Automatism’ is a phrase that was introduced into the criminal law from the medical
world. There, it has a very limited meaning, describing the state of unconsciousness suf-
fered by certain epileptics. In law it seems to have two meanings. According to Lord
Denning in Bratty (1963):
JUDGMENT
‘Automatism . . . means an act which is done by the muscles without any control by the mind such
as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of
what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.’
285
Conscious but uncontrolled
Here D is fully aware of what is going on around him but is incapable of preventing his
arms, legs or even his whole body from moving. In this sense, automatism is incompat-
9.2 autoMatisM
ible with actus reus: D is aware of what his body is doing but there is no voluntary act.
Impaired consciousness
In Bratty, Lord Denning arguably gave ‘automatism’ too narrow a definition in referring
to D being ‘not conscious’. While automatism certainly includes unconsciousness, it is
suggested that is should also include states of ‘altered’, ‘clouded’ or ‘impaired’ con-
sciousness. If correct, this analysis suggests that automatism is a defence because it is
incompatible with mens rea: D is not aware (or not fully aware) of what he is doing.
In Coley, McGhee and Harris [2013] EWCA Crim 223, Hughes LJ offered this definition:
JUDGMENT
‘Automatism, if it occurs, results in a complete acquittal on the grounds that the act was not
that of D at all. The essence of it is that the movements or actions of D at the material time
were wholly involuntary. The better expression is complete destruction of voluntary control.’
This definition certainly fits with the first of Lord Denning’s two meanings given in Bratty
but appears to overlook the second. It is submitted, however, that the second meaning still
represents English law and that, if D fails to form mens rea because he is ‘not conscious of
what he is doing’, then automatism should be available as a complete defence.
9.2.2 The need for an evidential foundation

If D wishes to plead automatism, it is necessary for him to place evidence in support of
his plea before the court. The reasoning behind this rule was explained by Devlin J (as
he then was) in Hill v Baxter [1958] 1 QB 277:
JUDGMENT
‘It would be quite unreasonable to allow the defence to submit at the end of the prosecution’s
case that the Crown had not proved affirmatively and beyond a reasonable doubt that the
accused was at the time of the crime sober, or not sleepwalking or not in a trance or black-out.
I am satisfied that such matters ought not to be considered at all until the defence has pro-
vided at least prima facie evidence.’
More recently, in C [2007] EWCA Crim 1862, Moses LJ in the Court of Appeal said that
‘It is a crucial principle in cases such as this that D cannot rely on the defence of automa-
tism without providing some evidence of it.’ The evidence of D himself will rarely be
sufficient, unless it is supported by medical evidence, because otherwise there is a pos-
sibility of the jury being deceived by spurious or fraudulent claims. In Bratty (1963),
Lord Denning stated that it would be insufficient for D to simply say ‘I had a black-out’
because that was ‘one of the first refuges of a guilty conscience and a popular excuse’.
He continued:
JUDGMENT
‘When the cause assigned is concussion or sleep-walking, there should be some evidence from
which it can reasonably be inferred before it should be left to the jury. If it is said to be due to
286 concussion, there should be evidence of a severe blow shortly beforehand. If it is said to be
sleep-walking, there should be some credible support for it. His mere assertion that he was
asleep will not suffice.’
9.2.3 Extent of involuntariness required

Must D’s control over his bodily movements be totally destroyed before automatism is
available? How unconscious does D have to be before he can be said to be an automa-
ton? It seems that the extent of involuntariness required to be established depends on
the offence charged. There are two categories.
Crimes of strict liability

As we saw in Chapter 4, when D is charged with a strict liability offence, denial of mens
rea is no defence, so a plea that D was unconscious would seem doomed to failure. D
must therefore provide evidence that he was incapable of exercising control over his
bodily movements. If, despite some lack of control, he was still able to appreciate what
he was doing and operate his body to a degree, then the defence is not made out. The
majority of cases in this area involve driving offences. In Isitt (1978) 67 Cr App R 44,
Lawton LJ said:
JUDGMENT
‘The mind does not always operate in top gear. There may be some difficulty in functioning. If
the difficulty does not amount to either insanity or automatism, is the accused entitled to say,
“I am not guilty because my mind was not working in top gear”? In our judgment he is not . . .
it is clear that the appellant’s mind was working to some extent. The driving was purposeful
driving, which was to get away from the scene of the accident. It may well be that, because of
panic or stress or alcohol, the appellant’s mind was shut to the moral inhibitions which control
the lives of most of us. But the fact that his moral inhibitions were not working properly . . .
does not mean that the mind was not working at all.’
In Isitt, D was convicted of dangerous driving after he drove off following an accident,
evading a police car and roadblock in the process. Medical evidence suggested that he
was in a dissociative state. The Court of Appeal, however, held that this did not amount
to a defence. Other cases with similar facts and legal outcomes include:
 Hill v Baxter [1958] 1 QB 277. Although D claimed to have become unconscious as a
result of being overcome by a sudden illness, the High Court found that the facts
showed that D was ‘driving’, in the sense of controlling the car and directing its
movements, and D’s plea of automatism was rejected.
 Watmore v Jenkins [1962] 2 QB 572. D, a diabetic, suffered a hypoglycaemic episode
while driving. He was able to drive some five miles before crashing. He was
charged with, inter alia, dangerous driving, but was acquitted on the basis of
automatism. On appeal, this decision was reversed. There was not ‘such a com-
plete destruction of voluntary control as could constitute in law automatism’.
There had to be some evidence to raise a reasonable doubt that D’s bodily
movements were ‘wholly uncontrolled and uninitiated by any function of
conscious will’.
 Broome v Perkins [1987] Crim LR 271. D, charged with driving without due care
and attention, after he had been observed driving erratically for some miles,
pleaded a loss of consciousness. The Court of Appeal, however, found that he was
only intermittently an automaton: although he was not in full control, there was
287
evidence that his mind was controlling his limbs enough to allow him to avoid
crashing by veering away from other traffic or braking violently.
9.2 autoMatisM
These decisions may be explained on the ground that the automatism must be of such a
degree that D cannot be said to have performed the actus reus voluntarily. But they do
seem harsh. The defendant who retains some control over his actions faces conviction.
The LC, in its Commentary to the Draft Criminal Code (1989), stated, ‘Finding it necessary
to choose between the authorities, we propose a formula under which we expect (and
indeed hope) that a person in the condition of the defendant in Broome v Perkins would
be acquitted (subject to the question of prior fault).’ The Commission therefore proposed
that, for any crime, D should have an automatism defence when no longer in ‘effective
control’ of his acts (see below).
Crimes of mens rea

In this category the degree of automatism is, or should be, much reduced. D will have a
good defence provided he was prevented from forming mens rea. In a New Zealand case,
Burr [1969] NZLR 736, North P said:
JUDGMENT
‘I think it should be made plain that when Lord Denning [in Bratty] speaks of “an act which is
done by the muscles without any control by the mind”, he does not mean that the accused
person must be absolutely unconscious because you cannot move a muscle without a direc-
tion given by the mind. What his Lordship in my opinion was saying is that all the deliberative
functions of the mind must be absent so that the accused person acts automatically.’
student The leading case in England is T (1990). D was charged with robbery and assault occa-
mentor tip
sioning actual bodily harm. These are crimes which require at least subjective reckless-
‘Never forget the ness. However, the prosecution claimed, inter alia, that D’s opening of the blade of a
difference pen-knife had required a ‘controlled and positive action’, that following Broome v Perkins
between
automatism and (1987) and Isitt (1978) this was a case of partial loss of control only and that automatism
insanity.’ was not, therefore, available. However, those cases were distinguished by the trial judge,
Holly, University of who held that D was ‘acting as though in a dream’.
Southampton
However, comments made by the Court of Appeal in Narbrough [2004] EWCA Crim
1012 seriously undermine the value of T as a precedent.
CASE EXAMPLE
Narbrough [2004] eWca crim 1012
D had been convicted of wounding with intent to do GBH contrary to s 18 OAPA 1861
after stabbing V with a Stanley knife. On appeal, he argued that psychiatric evidence that
he had been seriously sexually abused as an 8- to 12-year-old child had left him suffering
post-traumatic stress disorder, with flashbacks, so that he sometimes confused the past
and the present. He claimed that, during the attack on V, he had suffered such a flashback
and had acted ‘like a zombie’. In other words, the evidence supported a plea of automa-
tism, but the trial judge had declared it to be inadmissible. The Court of Appeal, however,
rejected the appeal.
Zucker J said that the defence psychiatrist had not referred

288
JUDGMENT
‘to any authority or to any research which supports the conclusion that a post-traumatic stress
disorder can so affect a person’s normal mental processes that his mind is no longer in control
of his actions or that he behaves as an automaton. We have no doubt that the evidence . . .
was rightly ruled by the judge to be inadmissible.’
9.2.4 Self-induced automatism

Where the automatism was due to D’s consumption of alcohol and/or drugs, then the
intoxication
General defence
rules of intoxication apply (Lipman [1970] 1 QB 152, approved in DPP v Majewski [1977]
where D fails to AC 443). These rules will be explained fully in the next section of this chapter, but, essen-
form mens rea tially, they state that D cannot rely on evidence that he was intoxicated in order to deny
because of alcohol
and/or drugs (see
having appreciated the consequences of his actions.
section 9.3 for full This means that, while D may have a defence to a crime requiring intention, he could
discussion) be convicted of an offence requiring some lower level of mens rea, such as recklessness.
This principle should apply whenever automatism is self-induced. For example, a driver
who feels drowsy but continues to drive, then falls asleep at the wheel, may still be held
liable for a motoring offence should he cause an accident (Kay v Butterworth (1945) 173
LT 191). Likewise, a driver who suffers an epileptic fit or hypoglycaemic episode whilst
driving and causes an accident may be held liable, despite being in an automatic state at
the time of the accident, depending on whether he was aware in advance of the onset of
the automatic state. In other words, he is liable if the automatic state can be regarded as
self-induced.
This was the situation in two recent and very similar cases, C [2007] EWCA Crim
1862 and Clarke [2009] EWCA Crim 921. In both cases, D was a diabetic who suffered
a hypoglycaemic episode whilst driving, lost control of his car, left the road and hit
and killed a pedestrian. Both pleaded automatism to charges of causing death by dan-
gerous driving. In C the trial judge accepted the plea and ruled that the driver had no
case to answer but the Appeal Court disagreed and allowed the Crown’s appeal
against that ruling on the basis that there was evidence that D was aware of his dete-
riorating condition before the onset of the hypoglycaemic episode. In Clarke, D was
convicted after the jury rejected his automatism plea on the basis that it was self-induced
and the Court of Appeal upheld his conviction. In the C case, Moses LJ summarised
the situation as follows:
JUDGMENT
‘Automatism due to a hypoglycaemic attack will not be a defence if the attack might reason-
ably have been avoided. If the driver ought to have tested his blood glucose level before
embarking on his journey, or appreciated the onset of symptoms during the journey, then the
fact that he did suffer a hypoglycaemic attack, even if it caused a total loss of control over his
limbs at the moment the car left the road, would be no defence.’
In Coley, McGhee and Harris [2013] EWCA Crim 223, the second defendant (McGhee)
invoked the defence of automatism, in response to charges of actual bodily harm (ABH)
and wounding with intent, on the basis that he had drunk himself into an involuntary
state. This was rejected by the trial judge and the Court of Appeal upheld his convictions
on the grounds that, even if he was in an automatic state, he had induced it ‘through his
voluntary fault’. The fact that he was also taking prescription medication – temazepam
– to help him deal with tinnitus made no difference, because he was ‘well aware of the 289
dangers of taking them together’. This meant that his true defence was intoxication (dis-
cussed in section 9.3), not automatism. Hughes LJ stated:
9.2 autoMatisM
JUDGMENT
‘The defence of automatism is not available to a defendant who has induced an acute state of
involuntary behaviour by his own fault . . . The voluntary consumption of intoxicants leading to
an acute condition is the prime example of self-induced behaviour.’
CASE EXAMPLE
McGhee [2013] eWca crim 223
D suffered from a ‘particularly gross’ form of tinnitus (persistent and permanent internal
ringing in the ears). He took a prescription tranquiliser, temazepam, to help him sleep, but also
resorted to drinking alcohol, despite warnings that he should not drink after taking temazepam.
One night, he took his usual dose of temazepam and also consumed alcohol. At about 4 a.m.,
he went to an off-licence to buy more alcohol. There, he became aggressive. He invited one
of the shopkeepers, V, to a fight and then did start a fight with another customer, W, during
which he pressed his fingers into W’s eye, causing him pain and blurred vision for two days,
which required medical treatment. D then left the shop, only to return a few minutes later
armed with a kitchen knife and with a T-shirt wrapped around his head ‘like a bizarre head-
dress’. There, he stabbed V in the arm. At his trial, D pleaded guilty to ABH but denied that he
had intended to do GBH to V on the basis of automatism. The trial judge ruled that there was
no evidence to support that defence. D was convicted and appealed, unsuccessfully, to the
Court of Appeal.
9.2.5 Reflex actions

In Ryan v R (1967) 40 ALJR 488, an Australian case, a defence of reflex action was
advanced. D had shot and killed a petrol station attendant, V, during an armed robbery.
D claimed that as he was tying V up the latter moved and, startled, D had pulled the
trigger of the shotgun he was carrying. He was convicted of manslaughter and the High
Court of Australia upheld the conviction. Windeyer J stated that, even assuming D’s act
was ‘involuntary’ in a dictionary sense, it was incapable of absolving him from criminal
responsibility. The judge added that there were only two legally recognised categories
of involuntary actor: those which were involuntary because ‘by no exercise of the will
could the actor refrain from doing it’, such as convulsions or an epileptic seizure; and
those which were involuntary ‘because he knew not what he was doing’, such as the
sleepwalker or a person rendered unconscious for some other reason. However, reflex
actions did not bear any true analogy to either category.
JUDGMENT
‘Such phrases as “reflex action” and “automatic reaction” can, if used imprecisely and unsci-
entifically, be, like “blackout”, mere excuses. They seem to me to have no real application to
the case of a fully conscious man who has put himself in a situation in which he has his finger
on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in imme-
diate response to a sudden threat or apprehension of danger, as is said to have occurred in this
case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious
290
apprehension of danger, and in that sense a voluntary act.’
9.2.6 Reform
In their Discussion Paper, Criminal Liability: Insanity and Automatism, published in July
2013, the Law Commission (LC) suggests the following proposals for reform of the
defence of automatism.
 The existing common law defence of automatism to be abolished.
 It would be replaced by a new defence of automatism, which would be available ‘only
where there is a total loss of capacity to control one’s actions which is not caused by a
recognised medical condition and for which the accused was not culpably responsible’.
 Those defendants whose lack of capacity was caused by a recognised medical con-
dition (such as diabetes, epilepsy or a sleep disorder) would be required to plead the
new ‘recognised medical condition’ defence described above (see section 9.1.5)
 The outcome (as with the exiting defence) would be a complete acquittal.
 The defence would continue to have an evidential burden; the legal burden would be
on the Crown to disprove the defence beyond reasonable doubt if/when the eviden-
tial burden had been discharged.
Commentary on the proposals

These proposals are relatively modest compared to the LC’s ‘radical’ proposals for reform-
ing the defence of insanity. In many ways they simply confirm the existing automatism
defence. In particular, the requirement that the accused ‘was not culpably responsible’ for
his or her loss of capacity confirms the decisions in cases such as Lipman (1970), C (2007),
Clarke (2009) and McGhee (2013). However, there would be some changes.
 The requirement for a ‘total loss of capacity to control one’s actions’ would appear to
preclude the automatism defence in a case such as T (1990). In their Discussion Paper,
the LC considers that the defendant in T would in future be entitled to the new ‘recog-
nised medical condition’ defence instead, on the basis of her post-traumatic stress dis-
order, but this appears to overlook the fact that, on the evidence, she had not suffered
a ‘total loss of capacity’ and would therefore have neither defence available to her.
 The diabetic defendant in a case like Quick (1973) might no longer be able to claim an
acquittal on the basis of automatism. In its Discussion Paper, the LC considers that
the defendant in Quick would in future be entitled to the new ‘recognised medical
condition’ defence on the basis of his diabetes (subject to arguments about whether
the accused was at fault for self-inducing his own medical condition). Should the
accused in a case like Quick try to argue that the new automatism defence applied
instead, on the basis that his ‘loss of capacity’ was not caused by a ‘recognised medical
condition’ but, rather, by taking insulin, the Crown would presumably counter by
seeking to prove that D was ‘culpably responsible’ for his own defence. This would
entail both defences failing and the accused would be facing liability.
9.3 Intoxication
Intoxication as a defence in English law is a means of putting doubt into the minds of the
magistrates or jury as to whether D formed the necessary mens rea. It is an area governed
(for the time being at least) exclusively by case law. Although the majority of those cases
involve alcohol, the defence potentially applies to any case where D has consumed a
substance (or cocktail of substances) which is capable of affecting D’s ability to intend or
foresee the consequences of his or her actions. It follows that if, despite the intoxication, 291
D forms the necessary mens rea required for the crime in question (whether it be inten-
tion or recklessness or some other state of mind such as dishonesty), then the defence is
9.3 intoxication
not available. Alcohol and many other drugs, most notably hallucinogenic drugs such as
LSD and tranquilisers, are obviously capable of affecting a person’s perception of their
surroundings. But if D, having consumed several pints of lager, is still sufficiently aware
of what is going on when he gets involved in a fight, his intoxication would provide no
defence to any charges of actual bodily harm or malicious wounding that may result.
But does it also necessarily follow that if D, because of intoxication, failed to form
mens rea, then he is automatically entitled to be acquitted, regardless of what he may
have actually done whilst in the intoxicated condition? Logically, the answer is ‘yes’
and, indeed, courts in other common law jurisdictions such as Australia and New
Zealand are content to leave the matter there. In the leading Australian case on intoxica-
tion, O’Connor [1980] ALR 449, the Australian High Court decided that if the prosecu-
tion is unable to prove that D formed mens rea because of intoxication, then D must be
acquitted. This reflected the earlier decision of the New Zealand Court of Appeal in
Kamipeli [1975] 2 NZLR 610. South African courts have reached the same conclusion
(Chretien [1981] (1) SA 1097).
In England, however, the courts have decided that this logical conclusion would send
out dangerous signals. As a matter of public policy, there is clearly a need to discourage
antisocial behaviour caused by excessive drinking or drug consumption. In the leading
English case, DPP v Majewski [1977] AC 443, Lord Simon expressed the concern that,
without special rules on intoxication, the public would be ‘legally unprotected from
unprovoked violence where such violence was the consequence of drink or drugs having
obliterated the capacity of the perpetrator to know what he was doing or what were its
consequences’. The result in England has been an uneasy compromise between the
logical conclusion reached in Australia and New Zealand (on the one hand) and the
public policy demands of discouraging violent crime (on the other). The law in England
can be summarised as follows:
 Intoxication is no defence if, despite the intoxication, D formed mens rea.
 Where D was involuntarily intoxicated and failed to form mens rea, D is entitled to be
acquitted.
 Where D was voluntarily intoxicated and failed to form mens rea, D is entitled to be
acquitted if the offence charged is one of ‘specific intent’. If the offence charged is one
of ‘basic intent’ then the jury must consider whether D would have formed mens rea
had he been sober.
9.3.1 Intoxication is no defence if D still formed mens rea
According to the Court of Appeal in Sheehan [1975] 1 WLR 739, where D raises intoxica-
tion in an attempt to show lack of mens rea, the jury should be directed that:
JUDGMENT
‘The mere fact that the defendant’s mind was affected by drink so that he acted in a way in
which he would not have done had he been sober does not assist him at all, provided that the
necessary intention was there. A drunken intent is nevertheless an intent.’
The leading case on this point is now Kingston [1995] 2 AC 355. D had been convicted by
a jury of indecent assault. The prosecution had satisfied the jury that D, despite being
involuntarily intoxicated at the time, had enough appreciation of his surroundings to
292 have formed mens rea. However, the Court of Appeal allowed D’s appeal on the basis
that D was not at fault in becoming intoxicated in the first place. Lord Taylor CJ said
that, if a ‘drink or a drug, surreptitiously administered, causes a person to lose his self-
control and for that reason to form an intent which he would not otherwise have formed
. . . the law should exculpate him because the operative fault is not his’. The prosecution
appealed against this ruling to the House of Lords, which allowed the appeal and rein-
stated D’s conviction.
CASE EXAMPLE
Kingston [1995] 2 ac 355
D was a middle-aged businessman. He had admitted paedophiliac, homosexual tendencies,
which he was able to control whilst sober. This presented an opportunity for former business
associates of his to blackmail him. As part of the set-up, both D and a 15-year-old boy were
lured, separately, to a flat and drugged. While the boy fell asleep, D was intoxicated but not
unconscious. In this condition D was encouraged to abuse the boy, which he did, and was
photographed and tape-recorded doing so. In the prosecution’s view there was evidence that
D, despite the effects of the drugs, intended to touch the boy in circumstances of indecency,
and the jury agreed.
In O’Connell [1997] Crim LR 683, D appealed against his murder conviction on the basis
that Halcion, a sleeping drug that he was taking, may have prevented him from forming
the mens rea for murder. The appeal was dismissed, however, because of lack of any
evidence that the drug had prevented D from forming the intent.
Another example of ‘drunken intent’ is Heard [2007] EWCA Crim 125; [2008] QB 43.
D had been charged with sexual assault, contrary to s 3 of the Sexual Offences Act
2003 (see Chapter 12). This requires, among other things, that D touch V ‘intention-
ally’. D did not deny touching V but argued that it was unintentional; he asked that
evidence of intoxication be taken into account to support his argument. However, the
trial judge ruled that D’s behaviour demonstrated that the touching was intentional
(despite evidence of D being intoxicated) and therefore D had no defence. The Court
of Appeal agreed.
CASE EXAMPLE
Heard [2007] eWca crim 125; [2008] QB 43
The police had been called to D’s house where he was found in an ‘emotional state’. He was
obviously drunk and had cut himself, and so the police took him to hospital. There, he became
abusive and began singing and was taken outside to avoid disturbing others. Shortly after-
wards, he ‘began to dance suggestively’ in front of one of the policemen. He then ‘undid his
trousers, took his penis in his hand and rubbed it up and down’ the policeman’s thigh. At that
point he was arrested. The next day, after he had sobered up, he claimed to be unable to
remember what had happened but did accept that when he was ill or drunk he sometimes
might ‘go silly and start stripping’. D was charged with and convicted of intentional sexual
touching, and the Court of Appeal upheld his conviction. Hughes LJ said, ‘On the evidence the
appellant plainly did intend to touch the policeman with his penis.’
293
Most recently, in Press and Thompson [2013] EWCA Crim 1849, the two defendants were
both charged with causing GBH with intent and attempting to cause GBH with intent,
9.3 intoxication
both specific intent offences. The Crown case was that the defendants had attacked two
men who were waiting to be served at a burger van, causing serious injury to one of
them and attempting to do so to the other. Despite the evidence that the pair of them
were very drunk at the time of the attack, the jury convicted on all counts and the Court
of Appeal upheld their convictions on the basis of ‘drunken intent’. Pitchford LJ suc-
cinctly noted that the trial judge ‘correctly informed the jury that even if [D’s] intention
was formed in drink it was nevertheless an intention’.
9.3.2 Involuntary intoxication

If D was involuntarily intoxicated such that the prosecution cannot prove mens rea, then
D is entitled to an acquittal. Involuntary intoxication refers to any situation where D
consumes alcohol or some other drug unintentionally. The following is a non-exhaustive
examination of the circumstances where intoxication will be regarded as involuntary.
‘Lacing’
Intoxication is involuntary when D’s non-alcoholic drink has been drugged or ‘laced’
without his knowledge. The surreptitious drugging of D’s coffee in Kingston (1995),
above, is one example. It is, however, crucial that D thought he was consuming a non-
alcoholic drink. The mere fact that D’s alcoholic drink (or drug) has a stronger effect
than he expected is not enough to render the intoxication involuntary. In Allen [1988]
Crim LR 698, D had been given some home-made wine. Unknown to him it was particu-
larly strong wine. As a result he became extremely drunk and in that state carried out a
serious sexual assault. He was convicted of buggery and indecent assault and the Court
of Appeal upheld the convictions. There was no evidence that D’s drinking was any-
thing other than voluntary. This is obviously correct. D knew he was drinking alcohol
and therefore took the risk as to its strength. Moreover, it is common knowledge that
home-made alcohol is often much stronger than the conventional pub strength, and D
ought to have realised this. If intoxication through alcohol was deemed to be voluntary
only if D knew exactly what he was drinking, including in terms of strength, that would
severely undermine the public policy argument advanced in Majewski (1977) because it
would enable D to escape liability simply because he had failed to appreciate the strength
of his drinks.
In Allen (1988), D was drinking wine and knew he was drinking wine; it just happened
to be stronger than he realised. But what about D who drinks alcohol surreptitiously
laced with another (much stronger) drug? This may be regarded as involuntary intoxi-
cation. In Eatch [1980] Crim LR 650, D at a party had drunk from a can of beer to which
another, stronger drug had been added without his knowledge. The judge directed the
jury that it was up to them to decide whether D’s condition was ‘due solely to volun-
tary intoxication’. This seems correct: although D had taken one intoxicating substance
voluntarily, he was unaware, through no fault of his own, of the additional substance.
To similar effect are the cases of Ross v HM Advocate (1991) SLT 564 (Scotland) and
People v Cruz 83 Cal App 3d 308 (1978) (California), in both of which intoxication caused
by the surreptitious addition of LSD to beer was deemed to be involuntary. However,
a different conclusion was reached in People v Velez 175 Cal App 3d 785 (1985) (Cali-
fornia), where D had voluntarily smoked marijuana at a party, apparently unaware
that PCP, a much stronger drug, had been added to it. D was held to be voluntarily
intoxicated after the court pointed out that the effect of marijuana consumption was
itself unpredictable.
294 What about the defendant who consumes a substance that he knows is an intoxicant,
but does not know exactly what it is or how strong it is? There is no English case law on
this point, but the public policy approach laid down in Majewski (1977) would dictate
that such conduct be deemed voluntary intoxication. In Hanks v State 542 SW 2d 413
(1976) (Texas), where D knew that a drug had been placed in his drink but did not neces-
sarily know what it was, this was nevertheless deemed to be voluntary intoxication.
Drugs taken under medical prescription

In Majewski, Lord Elwyn-Jones LC specifically included those who take ‘drugs not on
medical prescription’ within the scope of voluntary intoxication; by implication, there-
fore, we can say that those who do take drugs under medical prescription will be deemed
to be involuntarily intoxicated.
CASE EXAMPLE
Bailey [1983] 1 WlR 760
D had been charged with malicious wounding. His defence was that he was a diabetic and had
taken insulin (which had been medically prescribed for him). However, because he had forgot-
ten to eat afterwards, the insulin had triggered a hypoglycaemic episode, and this had pre-
vented him from fully appreciating what he was doing.
The Court of Appeal held that a distinction should be drawn between intoxication
arising from alcohol and ‘certain sorts of drugs to excess’, on the one hand, and the
unexpected side effects of therapeutic substances, on the other. It was ‘common know-
ledge’ that those who took alcohol and certain drugs could become ‘aggressive or do
dangerous or unpredictable things’. Griffiths LJ stated:
JUDGMENT
‘The question in each case will be whether the prosecution have proved the necessary element
of recklessness. In cases of assault, if [D] knows that his actions or inaction are likely to make
him aggressive, unpredictable or uncontrolled with the result that he may cause some injury
to others and he persists in the action or takes no remedial action when he knows it is required,
it will be open to the jury to find that he was reckless.’
In most cases D who takes prescribed medicines will be quite unaware of potential side
effects. However, where D is aware of the effect of a prescribed drug and takes it anyway,
then he is in the same position as D who drinks alcohol. The exception is likely to be
rarely applicable to alcohol, though it might apply where brandy is administered to D
after an accident. In Johnson v Commonwealth 135 Va 524 (1923) a court in Virginia held
that D who drank whisky to relieve pain was doing so voluntarily because no medical
advice was involved; the implication being that had medical advice been given to drink
whisky, then his drinking could be classified as involuntary.
‘Soporific or sedative’ drugs

A third example of involuntary intoxication involves drugs that are said to have a sopo-
rific or sedative influence, as opposed to an inhibition-lowering or mind-expanding
effect. In Burns (1974) 58 Cr App R 364, D had consumed, inter alia, morphine tablets (not
medically prescribed) for a stomach complaint, before committing an offence. The Court
of Appeal quashed his conviction. The jury should have been directed to acquit if they
believed that Burns did not appreciate that morphine was likely to produce unaware-
ness. The leading case is now Hardie [1985] 1 WLR 64, where D had taken Valium tablets 295
(not medically prescribed) before committing acts of criminal damage.
CASE EXAMPLE
9.3 intoxication
Hardie [1985] 1 WlR 64
D was depressed at having been asked to move out of the South London flat he had shared
with his girlfriend, V, for some years. He reluctantly agreed to leave and packed. Before he
left, however, he took one of V’s prescription Valium tablets from her medicine cabinet.
During the course of the day he took more of the pills, moved some of his possessions out
and returned that evening. Shortly after, he started a fire in the wardrobe in the bedroom.
His defence was that he did not know what he was doing because of the Valium. The jury
convicted of arson after being directed to ignore the effects of the Valium. However, D’s
conviction was quashed.
Parker LJ said
JUDGMENT
‘There was no evidence that it was known to [D] or even generally known that the taking of
valium in the quantity taken would be liable to render a person aggressive or incapable of
appreciating risks or have other side effects such that its self-administration would itself have
an element of recklessness . . . [T]he drug is . . . wholly different in kind from drugs which are
liable to cause unpredictability or aggressiveness . . . if the effect of a drug is merely soporific
or sedative the taking of it, even in some excessive quantity, cannot in the ordinary way raise
a conclusive presumption against the admission of proof of intoxication . . . such as would be
the case with alcoholic intoxication or incapacity or automatism resulting from the self-
administration of dangerous drugs . . . [The jury] should have been directed that if they came
to the conclusion that, as a result of the valium, [D] was, at the time, unable to appreciate the
risks to property and persons from his actions they should consider whether the taking of the
valium was itself reckless.’
Identifying ‘soporific and sedative’ drugs

One problem in this area is how to draw a distinction between ‘dangerous’ drugs on one
hand, and ‘soporific and sedative’ drugs on the other, if indeed such a distinction is pos-
sible. Marijuana, depending on the circumstances, may be a sedative or a hallucinogen.
Heroin is presumably a ‘dangerous’ drug, but it has undeniably ‘soporific’ effects. Much
depends on several variables: the user himself; the amount taken; how much has been
taken before; how the drug is taken (injecting generally produces more dramatic effects
than smoking or eating); the surroundings in which the drug is taken; even what the user
expects or hopes will happen. The same person may take the same drug at different times
with markedly different consequences. Uncertainty in predicting the effect of taking a
single drug becomes much more complicated when two or more drugs are taken at the
same time, because of the likelihood of interaction. A common example is the enhancing
effect of alcohol on the sedative qualities of tranquilisers. The courts in England have yet
to address these questions, but you should recall the importance placed on public policy
by the House of Lords in Majewski (1977). It is suggested that where there is doubt about
whether a drug is ‘dangerous’ or ‘soporific’, such as heroin, the courts could deem it to be
both, and therefore ingestion of it would be regarded as voluntary.
Intoxication under duress

296 Although there is no English case law on this point, there is American authority for the
proposition that ‘intoxication under duress’ should be regarded as involuntary. In
Burrows v State 38 Ariz 99, 297 (1931) (Arizona), where D, an 18-year-old boy, had killed
his adult victim only after the latter had vehemently insisted the boy drink several
bottles of beer and some whisky, the court held that it was possible for this to be regarded
as involuntary.
9.3.3 Voluntary intoxication

In the leading English case, Majewski (1977), D was charged with, inter alia, assault occa-
sioning actual bodily harm, a crime requiring subjective recklessness, that is awareness
of risk. But this is a modest standard; even fleeting awareness will suffice for a convic-
tion. It follows that D’s intoxication must be extreme in order to remove altogether the
ability to appreciate the risks created by his actions (a point acknowledged by the Court
of Appeal in Stubbs (1989) 88 Cr App R 53). Moreover, the defence medical evidence in
Majewski (1977) was to the effect that his intoxication was more likely to have produced
amnesia afterwards, rather than inducing a state of intoxication during the assaults. In
shouting ‘You pigs, I’ll kill you all’, D was obviously aware that (a) he was assaulting
someone, and (b) the people whom he was assaulting were police officers.
CASE EXAMPLE
Majewski [1977] ac 443
D had consumed a combination of barbiturates, amphetamines and alcohol, beginning on a
Sunday morning and continuing until Monday night, when he was involved in a pub brawl and
assaulted a customer, the manager and police officers sent to deal with him. He was charged with
three offences of assault contrary to s 47 of the Offences Against the Person Act (OAPA) 1861
and three offences of assaulting a police officer in the execution of his duty. His defence was that
he was suffering the effects of the alcohol and drugs at the time. He was convicted, after the trial
judge directed the jury that they could ignore the effect of drink and drugs as being in any way a
defence to assault. The Court of Appeal and House of Lords upheld his convictions.
Of course the public must be protected from violent drunkards; no one denies that. But
it must surely be in very rare cases that D’s capacity has been ‘obliterated’ such that he
must be acquitted? So, were the matter simply to be left to the jury, the number of cases
where D might escape conviction would be very few. This reasoning underpins the
approach of the courts in the Australia, New Zealand and South Africa, as mentioned in
the introduction to this section. The result of this approach, moreover, has not been a
proliferation of acquittals (G Orchard, ‘Surviving without Majewski: a view from down
under’ [1993] Crim LR 426). The English judiciary, however, does not possess such con-
fidence in the jury’s ability to reject intoxication in all but a handful of cases. In England,
to reiterate this point, the law states that when intoxication is voluntary, and D has failed
to form mens rea:
 D will have a defence if the offence charged is one of ‘specific intent’.
 Where the offence charged is one of ‘basic intent’, the magistrates or jury must con-
sider whether D would have formed mens rea had he been sober.
To understand this approach it is necessary to appreciate its historical origins. Until the
mid-nineteenth century, voluntary intoxication was not regarded as any form of defence
at all. Instead intoxicated defendants were treated as more culpable. But in the early
twentieth century, the courts began to relax the strict approach. In Meade [1909] 1 KB 895,
Lord Coleridge J said, ‘if the mind at the time is so obscured by drink, if the reason is
297
dethroned and the man is incapable of forming the intent, it justifies the reduction of the
charge from murder to manslaughter’. This proposition of law (which is still true in the
twenty-first century) was confirmed in DPP v Beard [1920] AC 479. Lord Birkenhead
9.3 intoxication
emphasised that intoxication was merely a means of demonstrating that D lacked, on a
particular charge, the mental element necessary:
JUDGMENT
‘Where a specific intent is an essential element in the offence, evidence of a state of drunkenness
rendering the accused incapable of forming such an intent should be taken into consideration in
order to determine whether he had in fact formed the intent necessary to constitute the par-
ticular crime. If he was so drunk that he was incapable of forming the intent required he could
not be convicted of a crime which was committed only if the intent was proved.’
This principle has remained largely unchanged since, though it is now firmly accepted
that D need not be incapable of forming intent; it is sufficient if he does not in fact do so
(Pordage [1975] Crim LR 575; Cole [1993] Crim LR 300).
Basic and specific intent

It seems highly probable that in Beard Lord Birkenhead was using the word ‘specific’ to
mean ‘particular’. The rest of his speech shows that he was not proposing an exceptional
rule for ‘specific’ intent crimes but was simply pointing out that where a particular crime
required a particular intent to be proven, then the case was not made out until that was
achieved: ‘a person cannot be convicted of a crime unless the mens was rea’. At no point
did Lord Birkenhead refer to anything called ‘basic intent’ (that concept seems to be
attributed to Lord Simon in DPP v Morgan [1976] AC 182). Nevertheless, legal doctrine
has developed over the last century to the present situation, according to which all
crimes divide into two categories for the purposes of the voluntary intoxication defence.
In Bratty, Lord Denning said:
JUDGMENT
‘If the drunken man is so drunk that he does not know what he is doing, he has a defence to
any charge, such as murder or wounding with intent, in which a specific intent is essential, but
he is still liable to be convicted of manslaughter or unlawful wounding for which no specific
intent is necessary, see Beard’s case.’
Distinguishing basic and specific intent offences
The division of crimes into specific and basic intent is now well established in English
criminal law (and has been adopted in most American states and Canada too). It is obvi-
ously crucial to demonstrate which offences belong in which category. Over the years
there have been a number of attempts at an explanation:
 The ‘purposive element’ argument. A purposive element is some identifiable result
desired by D. This possibility was suggested by Lord Simon in Majewski (1977) and
has received support recently from the Court of Appeal in Heard [2007] EWCA Crim
125; [2008] QB 43 (see below).
 The ‘fallback’ argument. Specific intent crimes are those where D, were he to be
acquitted because of intoxication, would only convict himself of some lesser offence
of basic intent. Many specific intent offences do have this fallback, for example
murder has a basic intent fallback (manslaughter), as does s 18 OAPA 1861 (s 20
298 OAPA 1861); however, some specific intent crimes have no fallback, for example
theft.
 The ‘ulterior intent’ argument. This proposal received the support of Lord Elwyn-
Jones LC in Majewski and was the first to gain broad acceptance. Ulterior intent
crimes are those where the mental element goes beyond the actus reus. A good
example is theft, where the actus reus is complete as soon as D appropriates prop-
erty belonging to another. However, the mens rea goes beyond this in requiring
that D have the intention to permanently deprive V of his property. However,
murder is, as already noted, unquestionably a crime of specific intent, yet it is not
a crime of ulterior intent. The actus reus is causing the death of a human being; the
mens rea (malice aforethought) is intent to cause death (or even intent to cause
serious harm).
 The recklessness argument. This theory holds that basic intent crimes are those
offences that may be committed recklessly. This argument has now gained wide-
spread acceptance. In Caldwell [1982] AC 341, Lord Diplock stated that Majewski is
authority for the proposition that self-induced intoxication is no defence to a crime in
which recklessness is enough to constitute the necessary mens rea. Certainly, there are
numerous passages in Majewski which support this proposition. Most famously,
Lord Elwyn-Jones LC stated that:
JUDGMENT
‘If a man of his own volition takes a substance which causes him to cast off the restraints of
reason and conscience, no wrong is done to him by holding him answerable criminally for
any injury he may do while in that condition. His course of conduct in reducing himself by
drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty
mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and
recklessness is enough to constitute the necessary mens rea in assault cases. The drunken-
ness is itself an intrinsic, and integral part of the crime, the other part being the evidence
of the unlawful use of force against the victim. Together they add up to criminal
recklessness.’
The various definitions perhaps illustrate the need for statutory clarification. The lack
of any definitive test poses potential problems for trial judges faced with a new crime
(such as those introduced by Parliament in the Sexual Offences Act 2003). Nevertheless,
the courts have now assigned most crimes to one category or another, as follows.
Crimes of specific intent:

 murder (Beard (1920); Rowbotham [2011] EWCA Crim 433);
 wounding or causing GBH with intent (Bratty (1963); Pordage (1975));
 theft (Ruse v Read [1949] 1 KB 377);
 robbery (R v George [1960] SCR 871, Supreme Court of Canada);
 burglary (Rowbotham);
 handling stolen goods (Durante [1972] 3 All ER 962);
 arson/criminal damage with intent to do so and/or with intent to endanger life;
Metropolitan Police Commissioner v Caldwell (1982); Bennett [1995] Crim LR 877; Row- 299
botham); any attempt to commit one of these (Coley (2013), attempted murder; Press
and Thompson (2013), attempted GBH with intent to do GBH).
9.3 intoxication
Crimes of basic intent:
 manslaughter, in all its forms (Beard; Lipman (1970));
 rape (Woods (1981) 74 Cr App R 312; Fotheringham (1989) 88 Cr App R 206);
 sexual assault (Heard [2007] EWCA Crim 125);
 malicious wounding or infliction of GBH, s 20 OAPA 1861 (Aitken and others [1992]
1 WLR 1006);
 assault occasioning actual bodily harm (ABH), s 47 OAPA 1861 (Majewski);
 common assault;
 arson/criminal damage being reckless whether property would be damaged or
destroyed (Jaggard v Dickinson [1980] 3 All ER 716);
 arson/criminal damage, being reckless whether property would be damaged or
destroyed, and being reckless whether life would be endangered thereby (Bennett
(1995); Rowbotham).
The Court of Appeal in Heard (2007) had to decide whether the offence of sexual assault,
contrary to s 3 of the Sexual Offences Act 2003, was one of specific intent (as D argued)
or basic intent (as the Crown argued). The offence requires, for its mens rea, proof that D
intentionally touched V and did not reasonably believe that V was consenting. The
requirement that D ‘intentionally’ touch V was seized on by D as an indicator that the
offence could not be basic intent. In short, D’s argument was that (1) basic intent crimes
are those that can be committed recklessly, (2) sexual assault cannot be committed reck-
lessly, (3) therefore sexual assault is not a crime of basic intent. However, as was noted
above, the trial judge and the Court of Appeal agreed that, on the facts, there was evid-
ence that D had formed intent anyway, notwithstanding his intoxication, so even if D’s
argument had been correct the appeal would still have failed. In the event, the Court of
Appeal rejected D’s argument regarding the status of sexual assault and held that it was
one of basic intent. Hughes LJ stated that the ‘first thing to say is that it should not be
supposed that every offence can be categorised simply as either one of specific intent or
of basic intent’. He went on:
JUDGMENT
‘It is necessary to go back to Majewski in order to see the basis for the distinction there
upheld between crimes of basic and of specific intent. It is to be found most clearly in the
speech of Lord Simon. [His] analysis was that crimes of specific intent are those where the
offence requires proof of purpose or consequence, which are not confined to, but amongst
which are included, those where the purpose goes beyond the actus reus. We regard this
as the best explanation of the sometimes elusive distinction between specific and basic
intent . . . By that test, element (a) (the touching) in sexual assault is an element requiring
no more than basic intent. It follows that voluntary intoxication cannot be relied upon to
negate that intent.’
It follows that the presence of ‘recklessness’ in the mens rea of an offence may indicate
300
that it is a basic intent offence, but it is not essential. This decision has implications for
other offences in the Sexual Offences Act 2003, in particular rape (s 1) and assault by
penetration (s 2). The definition of rape prior to the 2003 Act included the word ‘reck-
less’ as part of its mens rea (s 1, Sexual Offences (Amendment) Act 1976), and so it was
possible to apply the ‘recklessness argument’ to rape. Indeed, case law predating the
2003 Act had clearly established that rape was a crime of basic intent (see Woods (1981)
and Fotheringham (1989)). The new definition of rape in s 1 of the 2003 Act does not
include the word ‘reckless’ but instead requires proof that D ‘intentionally’ pene-
trated V with a lack of reasonable belief that V was consenting (and so ‘recklessness’
is no longer part of its mens rea). The ‘recklessness argument’, therefore, cannot apply
to rape, but the decision in Heard clearly indicates that the redefinition of rape in the
2003 Act will not affect its basic intent status. This is because there is no requirement
of any ‘purpose’ going beyond the ‘penetration’ element. The same argument applies
to the offence of sexual penetration.
The Court of Appeal in Heard also explicitly acknowledged the importance of
‘public policy’ in determining whether an offence was one of specific or basic intent.
Hughes LJ noted that rape had been categorised as basic intent prior to the SOA 2003,
in Woods (1981), along with the now-abolished offence of indecent assault, in C [1992]
Crim LR 642. He concluded that ‘it is unlikely that it was the intention of Parliament
in enacting the Sexual Offences Act 2003 to change the law by permitting reliance
upon voluntary intoxication where previously it was not permitted’. The fact that the
law surrounding the distinction between basic and specific intent remains unclear
means that cases are still reaching the appeal courts involving arguments about
whether a particular offence is ‘specific’. For example, in Carroll v DPP [2009] EWHC
554 Admin, D tried to persuade the High Court that the offence of being drunk and
disorderly in a public place, contrary to s 91 of the Criminal Justice Act 1967, was an
offence of ‘specific intent’ and therefore intoxication would provide a good defence.
This was on the basis that he was so drunk that he had not intended to be ‘disorderly’.
Unsurprisingly, the court rejected his argument, holding that there was no require-
ment of mens rea at all relating to disorderly behaviour (in other words, liability was
strict).
Rowbotham [2011] EWCA Crim 433 involved the use of the intoxication defence in
the context of three offences: murder, burglary (contrary to s 9(1)(a) of the Theft Act
1968) and aggravated arson with intent to endanger life (contrary to ss 1(2) and (3) of
the Criminal Damage Act 1971).
CASE EXAMPLE
Rowbotham [2011] eWca crim 433
D had been out one night and was extremely drunk. He was seen by witnesses at around
1.30 a.m., already very drunk and drinking neat vodka. At around 2.30 a.m. he entered a
house and demanded money and a computer. The householder threw him out. Shortly after-
wards, D pushed three wheelie bins up against the porch of a nearby house and set them on
fire. The fire spread into the house and one of the occupants, V, was trapped inside. Her
husband was able to escape by jumping from a bedroom window, but V was unable to escape
and was killed. At 2.53 a.m., D called the fire brigade on his mobile. He did not leave the area
and was seen by witnesses stumbling around, obviously very drunk. He was still in the area
some two-and-a-half hours after the fire was started. He was subsequently convicted of the
murder of V, burglary and arson with intent to endanger life. This was despite evidence pre-
sented at the trial that D had an IQ that put him in the bottom 1 per cent of the population, 301
in addition to his extreme drunkenness. He appealed, and the Court of Appeal quashed his
convictions of on the basis of ‘uncontradicted’ expert evidence at D’s trial that D’s very low IQ
combined with extreme intoxication from drinking neat vodka had prevented him from
9.3 intoxication
forming the requisite intent.
This appears to be the first occasion on which an appeal court in England has quashed a
burglary conviction on the basis of evidence of intoxication; in other words, Rowbotham
is the first case in this country to provide authority for the proposition that burglary (at
least, the s 9(1)(a) version of that offence) is a crime of specific intent.
Intoxication and basic intent

If D is charged with, for example, murder, he may plead intoxication as a means of
denying that he formed the intent to kill or cause GBH. But what if D is charged with a
basic intent offence, such as manslaughter? Is there any point in pleading intoxication?
There are suggestions by some of the Law Lords in Majewski that were D to do this he
would, in effect, be pleading guilty. For example, refer back to the quotation from Lord
Elwyn-Jones LC in Majewski (above).
According to Majewski, therefore, voluntary intoxication is to be regarded, in law,
as a form of recklessness. This somewhat harsh view may not represent the law today.
Another view which has been adopted in some cases is that, when faced with a
defendant pleading intoxication to a basic intent offence, the magistrates or jury are
required to consider whether D would have formed the requisite mens rea had he
been sober. An early indication of the newer approach was seen in Aitken and others
(1992), which was examined in Chapter 8 in the section on consent. The judge advocate
(this was a court martial) had directed the jury that they had to be ‘satisfied . . . that
each defendant, when he did the act, either foresaw that it might cause some injury
. . . or would have foreseen that the act might cause some injury, had he not been
drinking’. The Court-Martial Appeal Court, although quashing the conviction on
other grounds, confirmed that the judge advocate’s direction was correct. Aitken
and others was followed in Richardson and Irwin [1998] EWCA Crim 3269; [1999] 1 Cr
App R 392.
CASE EXAMPLE
Richardson and Irwin [1998] eWca crim 3269; [1999] 1 cr app R 392
The appellants and V were students at Surrey University. They had each consumed about five
pints of lager before indulging in ‘horseplay’ – something they did regularly – during the course
of which V was lifted over the edge of a balcony and dropped at least ten feet, suffering injury.
D and E were charged with inflicting GBH contrary to s 20 OAPA 1861. The prosecution case was
that they had both foreseen that dropping V from the balcony might cause him harm but, never-
theless, took that risk. Their defence was that V had consented to the horseplay and/or that his
fall was an accident. On the question of mens rea, the jury were directed to consider each man’s
foresight of the consequences on the basis of what a reasonable, sober man would have fore-
seen. They were convicted, but the Court of Appeal quashed the conviction. The question was
not what the reasonable, sober man would have foreseen, but what these particular men would
have foreseen had they not been drinking. Clarke LJ memorably said that, ‘the defendants were
302 not hypothetical reasonable men, but University students’.
Obviously this poses a hypothetical question for the magistrates or jury. Nevertheless, if
there is evidence of factors which might cast doubt on whether D would have formed mens
rea had he been sober, such as fatigue or illness, then these must be taken into account. In
Majewski (1977) one of the grounds of appeal was that the denial of intoxication as a defence
in basic intent offences was irreconcilable with s 8 of the Criminal Justice Act 1967, which
requires a jury to consider ‘all the evidence’ before deciding whether D intended or foresaw
the result of his conduct. The view of Lord Elwyn-Jones LC was forthright:
JUDGMENT
‘In referring to “all the evidence” [s 8] meant all the relevant evidence. But if there is a substan-
tive rule of law that in crimes of basic intent, the factor of intoxication is irrelevant (and such I
hold to be the substantive law), evidence with regard to it is irrelevant.’
The evidential burden

In all cases – whether specific or basic intent – D is required to adduce evidence of intoxi-
cation before the matter becomes a live issue. D’s evidence must go to the degree of
intoxication and not just to the fact of intoxication. The strength of evidence needed to
discharge the evidential burden will differ from one situation to the next, depending on
the nature of the crime and the circumstances. The mere assertion that D was drinking
all day prior to the commission of the alleged offence will not, generally, suffice in itself.
The question of whether D’s intoxication is sufficient is a question of law for the judge.
If the evidence is insufficient to raise a doubt that D possessed mens rea, the trial judge
must remove the matter from the jury’s consideration. This point was made clear in
Groark [1999] EWCA Crim 207; [1999] Crim LR 669.
CASE EXAMPLE
Groark [1999] eWca crim 207; [1999] crim lR 669
D had struck V whilst wearing a knuckleduster. He was charged with wounding under s 18
and s 20 OAPA 1861. At trial he gave evidence that he had drunk ten pints of beer but that
he knew what he had done and that he had acted in self-defence. The judge did not direct the
jury as to intoxication, and D was convicted of the s 18 offence. He appealed, arguing that
there was a duty on the judge to direct the jury on intoxication. However, the Court of Appeal
dismissed the appeal: there was no obligation on the judge to direct the jury.
9.3.4 ‘Dutch courage’
A special rule applies in the situation whereby D, having resolved to commit an offence
requiring specific intent whilst sober, or at least when not intoxicated, then deliberately
becomes intoxicated in order to provide himself with ‘Dutch courage’ before carrying
out the offence. The situation remains theoretical, but it was discussed in Attorney-
General of Northern Ireland v Gallagher [1963] AC 349.
CASE EXAMPLE
Gallagher [1963] ac 349
D, having decided to kill his wife, bought a knife and a bottle of whisky. He drank much of the
whisky, then killed her with the knife. His defence was that he was either insane or too drunk
to be able to form the intent at the time of the stabbing. He was convicted, but the NI Court
of Appeal quashed his conviction, holding that the judge’s directions to the jury required them
303
to consider insanity at the time D started drinking, not when he killed his wife. The Lords
agreed that this would have been a misdirection but found that the judge had directed the jury
to consider D’s state of mind at the time of the killing. The jury having found that D had mens
9.3 intoxication
rea at that time, there was no need to consider the question of intoxication. Lord Denning,
however, ventured the opinion that even if D had been found to be lacking mens rea at the
time of the killing, he would still have no defence even for murder.
Lord Denning said:
JUDGMENT
‘If a man, whilst sane and sober, forms an intention to kill and makes preparation for it
knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch
courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self-
induced drunkenness as a defence to murder, not even as reducing it to manslaughter. He
cannot say he got himself into such a stupid state that he was incapable of an intent to kill . . .
The wickedness of his mind before he got drunk is enough to condemn him, coupled with the
act which he intended to do and did do.’
9.3.5 Intoxication and insanity

Where intoxication produces a ‘disease of the mind’ as defined in the M’Naghten Rules,
then those latter rules apply. In Davis (1881) 14 Cox CC 563, where D claimed that a
history of alcohol abuse had caused delirium tremens and based his defence on insanity,
Stephen J directed the jury that:
JUDGMENT
‘Drunkenness is one thing and disease to which drunkenness leads are different things; and if
a man by drunkenness brings on state of disease which causes such a degree of madness, even
for a time, which would have relieved him from responsibility if it had been caused in any other
way, then he would not be criminally responsible.’
However, a state of intoxication which does not lead to a ‘disease of the mind’ remains
subject to the rules on intoxication, no matter how extreme the temporary effects of the
intoxicants on D may have been. This point of law was decided in a recent Canadian
case, Bouchard-Lebrun [2011] 3 SCR 575. Here, the Supreme Court of Canada had to
decide whether a temporary state of ‘toxic psychosis’ induced by taking a type of ecstasy
tablet could support a plea of insanity. D had been convicted of two counts of aggra-
vated assault (the equivalent of inflicting GBH contrary to s 20 OAPA in English law)
after his defence of voluntary intoxication had failed, the offences with which he was
charged being of ‘general’ (basic) intent. He appealed, arguing that he should have been
allowed the insanity defence instead. The Supreme Court unanimously rejected his
appeal. Lebel J, giving judgment for the whole Court, said that a ‘malfunctioning of the
mind that results exclusively from self-induced intoxication cannot be considered a
disease of the mind in the legal sense, since it is not a product of the individual’s inher-
ent psychological makeup . . . toxic psychosis seems to be nothing more than a symptom,
albeit an extreme one, of the accused person’s state of self-induced intoxication’.
Two years later, the Court of Appeal in England reached the same conclusion. In Coley,
McGhee and Harris [2013] EWCA Crim 223, the first defendant (Coley) had been convicted
of attempted murder after stabbing a neighbour several times with a knife during a ‘brief
psychotic episode’ triggered by long-term cannabis use. The trial judge ruled that his only
304 defence was intoxication, not insanity. On appeal, the Court of Appeal had to decide
whether the evidence supported the defence of insanity. Hughes LJ held not. He stated:
JUDGMENT
‘The law has to cope with the synthesising of the law of insanity with the law of voluntary
intoxication. The first calls for a special verdict of acquittal and very particular means of dis-
posal. The latter is generally no defence at all, but may be relevant to whether D formed a
specific intention . . . The precise line between the law of voluntary intoxication and the law of
insanity may be difficult to identify in some borderline cases. In order to engage the law of
insanity, it is not enough that there is an effect on the mind, or, in the language of the
M’Naghten rules, a “defect of reason”. There must also be what the law classifies as a “disease
of the mind”. Direct acute effects on the mind of intoxicants, voluntarily taken, are not so
classified. That is the distinction drawn by Stephen J in Davis and maintained ever since. Drugs
or alcohol are an external factor. When voluntarily taken their acute effects are not treated by
the law as a “disease of the mind” for the purposes of the M’Naghten rules. Such a case is
governed by the law of voluntary intoxication.’
CASE EXAMPLE
Coley [2013] eWca crim 223
D was a heavy cannabis user. One evening, after having smoked cannabis all day before going
to bed, he got up, dressed himself in dark clothing and a balaclava, left his home and entered
the home of his next-door neighbour, V. There, he stood in the doorway of the bedroom
where V and her partner, W, were asleep. V awoke and screamed; W got up and confronted
D on the upstairs hallway. There, D stabbed W seven times with a nine-inch ‘Rambo-style’
knife that he had brought with him from his own personal collection. W was very badly injured
and nearly died. At D’s trial for attempted murder, he did not deny responsibility for W’s inju-
ries, but claimed to have ‘blacked out’ and to have no memory of the attack, and no idea why
he did it. The psychiatric evidence was that D had committed the attack during a ‘brief psy-
chotic episode’ triggered by cannabis. The trial judge ruled that D’s case was one of voluntary
intoxication, and refused to leave insanity to the jury. D was convicted and appealed, submit-
ting that his was not a case of intoxication but rather had passed to a recognised condition of
mental illness, namely a psychotic episode, albeit transient, and therefore the judge should
have left insanity to the jury. The Court of Appeal disagreed and upheld his conviction.
9.3.6 Intoxication and automatism
An act done in a state of (non-insane) automatism will negative criminal liability except
where the automotive state is self-induced. This is most obviously the case where the
automotive state is due to intoxication, in which case the normal rules of intoxication
apply. Lipman (1970) is the clearest example of this.
CASE EXAMPLE
Lipman [1970] 1 QB 152
D and his girlfriend had both taken LSD. During the subsequent ‘trip’, D believed that he had
descended to the centre of the earth and the girl was a snake. He proceeded to kill the girl by
stuffing eight inches of bed sheet down her throat. Although clearly lacking intent to kill the
girl, and so not guilty of the specific intent crime of murder, D was convicted of the basic 305
intent offence of manslaughter.
9.3 intoxication
The latest example of this is Coley, McGhee and Harris [2013] EWCA Crim 223, discussed
at section 9.2.4. Although the second defendant (McGhee) pleaded automatism, the trial
judge rejected this and ruled that D’s only defence was intoxication, on the basis that D’s
condition was self-induced by a combination of alcohol and prescription medication. In
the event, D’s intoxication defence also failed as the evidence showed that he had formed
the intent despite being intoxicated.
In Canada, meanwhile, a new policy has emerged. Until recently, the law concerning
intoxication in England and Canada was essentially identical. In Bernard [1988] 2 SCR
833, the Supreme Court confirmed that intoxication was no defence in cases of ‘general’
intent (equivalent to ‘basic’ intent in English law). However, in Daviault (1995) 118 DLR
(4d) 469, the Supreme Court created a new rule, recognising a defence when a person
charged with a general intent offence was so intoxicated that it produced a state of
automatism. D bears the burden of proving, on the balance of probabilities, that his
intoxication had reached this extreme level. However, the Canadian Parliament subse-
quently enacted legislation to restrict the scope of the Daviault rule to offences that do
not involve ‘an element an assault or any other interference or threat of interference by
a person with the bodily integrity of another person’. Hence, if D is charged with a
general intent offence such as sexual assault, intoxication will be no defence. But if D is
charged with a general intent offence not involving assault, such as criminal damage, it
will be open to him to try to prove, on the balance of probabilities, that he was so drunk
as to have become an automaton.
9.3.7 Intoxicated mistakes

An intoxicated defendant is sometimes actually pleading mistake. As was seen in
Chapter 8, when a (sober) defendant pleads the defence of mistake, he is entitled to be
judged on the facts as he genuinely perceived them to be. However, when D is intoxi-
cated, this changes and D is subjected to the normal Majewski rules. He will be assumed
to be aware of any circumstances and consequences of which he would have been aware
had he been sober. A good example is Fotheringham (1989). The Court of Appeal held
that self-induced intoxication was no defence, whether the issue was intention, consent
or mistake as to the identity of the victim.
CASE EXAMPLE
Fotheringham (1989) 88 cr app R 206
D had been out with his wife one evening and had been drinking heavily. When they returned
home, D climbed into the marital bed where the babysitter, V, was asleep. Under the mistaken
impression that V was his wife, he had sex with her without her consent. At the time, the fact
that D was married meant he could not be convicted of rape if he genuinely believed D was
his wife. However, the judge directed the jury to disregard intoxication. He was convicted and
the Court of Appeal upheld the conviction.
Statutory exceptions
Fotheringham represents the common law position. There is one significant statutory excep-
tion, found in s 5(2) of the Criminal Damage Act 1971. This provides that a person charged
306 with criminal damage shall have a lawful excuse in two situations: belief in consent and
belief in the need to damage property in order to protect other property. Section 5(3) pro-
vides that ‘it is immaterial whether a belief is justified or not, provided it is honestly held’.
In Jaggard v Dickinson (1980), Donaldson LJ in the High Court refused to allow the Majewski
rule to override the express words of Parliament by introducing a qualification that ‘the
honesty of the belief is not attributable only to self-induced intoxication’.
CASE EXAMPLE
Jaggard v Dickinson [1980] 3 all eR 716
D’s friend, H, had invited her to treat his house at no 67 as if it were her own. One night, when
drunk, D ordered a taxi and asked to be taken to H’s house. Instead, she was dropped off
outside no 35, which looked identical. She assumed it was H’s house and entered the garden.
She was ordered to leave by the occupier, V. Rather than leaving, D broke in by breaking the
window in the back door, damaging a net curtain in the process. Charged with criminal
damage, D relied upon the statutory defence. She contended that, at the time she broke into
no 35, she had a genuine belief she was breaking into no 67 and that her relationship with D
was such that she had his consent to break into his house. Hence, s 5(2) afforded her a
defence to the charge. The magistrates ruled that she was unable to rely upon the defence
because of her self-induced intoxication, and she was convicted. On appeal, the High Court
accepted that, although criminal damage is a basic intent offence, s 5(2) and (3) meant that
D’s intoxication had to be considered, resulting in her acquittal. Donaldson LJ said that her
intoxication ‘helped to explain what would otherwise have been inexplicable, and hence lent
colour to her evidence about the state of her belief ’.
9.3.8 Criticism and reform proposals

There are many criticisms that have been made about the intoxication defence. The fol-
lowing is a non-exhaustive list of some of them:
 There is no clear test for drawing a distinction between crimes of specific intent and
those of basic intent (compare Caldwell (1981) with Heard (2007)).
 Some specific intent crimes have a basic intent fall-back (e.g. murder to manslaugh-
ter; s 18 OAPA 1861 to s 20 OAPA 1861), but many do not (e.g. theft, burglary).
 Attempts are specific intent (Coley (2013); Press and Thompson (2013)), but rape is basic
intent (Woods (1982); Fotheringham (1989)). Thus, D could plead intoxication as a
defence to attempted rape, but not rape itself, creating a legal paradox.
 There is uncertainty regarding the situation where D pleads intoxication to a basic
intent offence. Majewski (1976) suggests D is automatically liable (because intoxica-
tion is itself a reckless course of conduct) but Richardson and Irwin (1999) suggests that
there may be a defence if D would not have formed mens rea even when sober.
 Imposing liability on D based on his/her recklessness in getting intoxicated prior to
committing the actus reus of a basic intent offence (arson, battery, etc.) involves a
breach of the rule that the actus reus and mens rea of an offence must coincide at the
same point in time.
 Recklessness in criminal law normally involves foresight of a particular risk (Cun-
ningham (1957); Savage (1991); R v G and another (2003), etc.) but the Majewski form of
recklessness does not.
 The Richardson and Irwin test avoids that problem but does require the jury to decide
what D would have foreseen at the time of committing the actus reus, had he or she not
been intoxicated. Other than by guessing, how does the jury decide that issue?
307
 The Majewski rules are simply unnecessary – they are not used in many other
common law jurisdictions, including parts of Australia (the states of South Aus-
tralia and Victoria (see in particular O’Connor [1980] HCA 17)) or New Zealand
9.3 intoxication
(see Kamipeli [1975] 2 NZLR 610; R v Kirby [2013] NZCA 451). In those jurisdictions,
intoxication (whether voluntary or involuntary) can be used to deny proof of any
mens rea state (including recklessness).
 It should, however, be noted that many common law jurisdictions have (essentially) the
same rules as in England and Wales, including the Australian states of New South
Wales, Queensland, Tasmania and Western Australia (see e.g. Snow [1962] Tas SR 271)
and Canada (see e.g. Bernard [1988] 2 SCR 833; Bouchard-Lebrun [2011] 3 SCR 575).
In January 2009, the LC published a report entitled Intoxication and Criminal Liability
(Law Com No 314) including a draft bill. In the report, the LC makes a number of recom-
mendations for reform of the intoxication defence. The key recommendations can be
summarised as follows.
General points
 References to ‘specific intent’ and ‘basic intent’ should be abolished.
 The distinction between voluntary and involuntary intoxication should be retained.
 Where D relies on the intoxication defence (whether voluntary or involuntary), there
should be a presumption that D was not intoxicated. Hence, D would have to produce
evidence that he or she was intoxicated. This essentially confirms the present law, as
set out in Groark (1999).
 However, if D is taken to have been intoxicated, there should then be a second pre-
sumption that D was voluntarily intoxicated. Therefore, if D contends that he or she
was involuntarily intoxicated, D would have to prove this (albeit on the balance of
probabilities). This is a completely new set of legal principles.
Voluntary intoxication
 There should be a ‘general rule’ that would apply when D is charged with an offence
the mens rea of which is ‘not an integral fault element’ – for example, if the mens rea
‘merely requires proof of recklessness’ – and D was voluntarily intoxicated at the
time of allegedly committing it.
 The ‘general rule’ is that D should be treated as having been aware of anything which
D would then have been aware of but for the intoxication. This is an attempt to place
on a statutory basis the principle set out in Richardson and Irwin (1999).
 Certain mens rea states – which the LC refers to as ‘integral fault elements’ – should
be excluded from the ‘general rule’. These are intention, knowledge, belief (where
that is equivalent to knowledge), fraud and dishonesty.
 Thus, the ‘general rule’ would not apply to murder, wounding or causing GBH with
intent (s 18 OAPA), theft, robbery and burglary (all of which require intent). In such
cases, ‘the prosecution should have to prove that D acted with that relevant state of
mind’. This essentially confirms the present law, as set out in cases like Beard (1920)
and Lipman (1970).
 D should not be able to rely on a genuine mistake of fact arising from voluntary
intoxication in support of a defence, unless D would have held the same belief had
he not been intoxicated. This is consistent with the Court of Appeal’s stance on intox-
icated mistakes in the context of self-defence in O’Grady (1987), O’Connor (1991) and
Hatton (2005), discussed in Chapter 8. But it would entail overruling the High Court’s
decision in Jaggard v Dickinson, above, involving intoxicated mistakes about whether
308
the owner of property would consent to it being damaged.
Involuntary intoxication
 There should be ‘a non-exhaustive list of situations which would count as involun-

tary intoxication’. The LC gives four examples, so that D would be involuntarily
intoxicated if they could prove (on the balance of probabilities) that they took an
intoxicant:
1. without consent (such as the spiking of soft drinks with alcohol);
2. under duress;
3. which they ‘reasonably believed was not an intoxicant’;
4. for a ‘proper medical purpose’.
 Where D was involuntarily intoxicated, then D’s intoxication should be taken into
account in deciding whether D acted with the requisite mens rea. This essentially
confirms the present law, as set out in Kingston (1995).
 D should also be able to rely on a genuine mistake of fact arising from involuntary
intoxication in support of a defence.
 The distinction drawn between ‘dangerous’ and ‘soporific’ drugs should be abolished
– thus, if D became intoxicated having taken ‘soporific’ drugs such as Valium (unless
‘for a proper medical purpose’), then this would be classed as voluntary intoxication.
This would entail overruling the Court of Appeal decision in Hardie (1985).
kEy fACTS
Key facts on intoxication
Specific intent crimes Basic intent crimes

Voluntary If defendant has mens rea, he is guilty The defendant is probably guilty of the
intoxication (Sheehan (1975)). offence. Becoming intoxicated may be
If defendant has no mens rea, he is not deemed to be a reckless course of
guilty (Beard (1920)). conduct (Majewski (1977)). D will be
deemed to have appreciated any risk he
would have appreciated had he been
sober (Richardson and Irwin (1999)).
Involuntary If defendant has mens rea, he If defendant has mens rea, he is guilty
intoxication is guilty (Kingston (1995)). (Kingston (1995)).
If defendant has no mens rea, he is not The defendant has not been reckless in
guilty (Hardie (1985)). becoming intoxicated, so if he has no
mens rea, he is not guilty (Hardie
(1985)).
Drunken If the mistake negates mens rea, the This is a reckless course of conduct, so
mistake defendant is not guilty (Lipman (1970)). the defendant is guilty (Fotheringham
If the mistake is about the need to (1989)).
defend oneself, it is not a defence. The Unless the mistake concerns belief in
defendant will be guilty (O’Grady owner’s consent to criminal damage
(1987); Hatton (2005)). (Jaggard v Dickinson (1980)).
309
SUMMARy
9.3 intoxication
The law on insanity is laid down in the M’Naghten Rules (1843). D must prove that he
had a ‘defect of reason’, from a ‘disease of the mind’, so that he did not know the
‘nature and quality’ of his act or that it was ‘wrong’. A ‘disease of the mind’ is a legal
term and refers to any internal condition which is prone to recur. It includes con-
ditions such as diabetes, epilepsy and sleepwalking (Bratty, Sullivan, Hennessy,
Burgess). ‘Wrong’ means legally wrong (Windle). If the defence succeeds D receives the
‘special verdict’ which is a form of qualified acquittal – D may be hospitalised or made
subject to other orders.
The defence of automatism is available if D lacks control or is unconscious (Bratty).
The cause of the automatism must be external to D (Quick). The prosecution must dis-
prove the defence once D has raised evidence of it (Hill v Baxter). If the defence succeeds,
D receives an acquittal. If automatism is self-induced through drink or drugs, then the
intoxication defence applies instead (Lipman, McGhee). If automatism is self-induced by
other means, then D may be held liable, for offences not requiring proof of intent, based
on his prior fault (C, Clarke).
There are two types of intoxication: voluntary and involuntary. With voluntary intox-
ication, D may have a defence to ‘specific intent’ crimes only, such as murder, theft and
robbery, provided D lacks the necessary mens rea (Lipman), but D will not have a defence
to crimes of ‘basic intent’, such as assault, ABH, GBH, rape and manslaughter (Majew-
ski). Involuntary intoxication is potentially a defence to all crimes, but again only if D
lacks mens rea (Kingston). A drunken intent is still an intent (Sheehan).
The insanity defence may be criticised on several grounds: its age (the M’Naghten
Rules are over 160 years old); it is based on legal tests (‘defect of reason’ and ‘disease of
the mind’) rather than psychiatric ones; the application of the internal/external factor
test means that diabetics (sometimes), epileptics and sleepwalkers may be classed as
‘insane’; the narrowness of the Windle interpretation of ‘wrong’; the refusal to sanction
an irresistible impulse defence; the retention of the stigmatising label ‘insanity’ as
opposed to a more modern alternative such as ‘mental disorder’ or ‘recognised medical
condition’. This has prompted the LC to propose ‘radical’ reforms.
The intoxication defence may also be criticised on several grounds: for allowing
policy considerations to take priority over legal logic; the categorisation of offences as
‘specific’ and ‘basic’, and the lack of a single clear explanation of the distinction between
the two categories, creates confusion; and uncertainty as to when intoxication is regarded
as voluntary or involuntary. This has prompted the LC to propose sweeping reforms.
Automatism (Bratty)
Sullivan,
Burgess, Lipman, McGhee
Hennessey
Critically analyse case law on the rights of shareholders

310 Insanity (M’Naghten) Intoxication (Majewski)
Figure 9.2 Venn diagram on mental capacity defences.


The defence of voluntary intoxication represents an uneasy compromise between legal prin-
ciple and public policy. But experience in Australia and New Zealand shows that these public
policy considerations are overstated. The Majewski rules should be scrapped. Discuss.
Briefly explain the law relating to voluntary intoxication (the

Majewski rules)
• Voluntary intoxication is never a defence to ‘basic’ intent offences
• It may be a defence to ‘specific’ intent offences
• D will still be liable if mens rea was formed – drunken intent is
nevertheless intent (Sheehan (1975))
• D will also be liable if he drank for ‘Dutch courage’ (Gallagher (1963))
State problems with the Majewski rules:

• Distinction between ‘basic’ and ‘specific’ intent offences unclear –
various tests have been proposed – none is definitive (Caldwell
(1981); Heard (2007))
• The effect of pleading intoxication to a basic intent offence is
unclear. Majewski suggests D is guilty as intoxication = recklessness.
Richardson & Irwin (1999) asks whether D would have formed
mens rea if sober
• Some ‘specific’ intent offences have a ‘basic’ intent fallback, some
do not
• Majewski treats evidence of voluntary intoxication as irrelevant –
this appears to breach s 8 of the Criminal Justice Act 1967
• Recklessness argument used in Majewski breaches the rule that
actus reus and mens rea should coincide in time
Explain legal principles and policy:
• Legal principle suggests that if D fails to form mens rea then D is
not guilty of both ‘specific’ and ‘basic’ intent offences
• Policy demands that those who commit offences whilst
voluntarily intoxicated should be held responsible – hence the
Majewski rules
• Courts in Australia and New Zealand do not separate crimes into
‘specific’ and ‘basic’ intent offences, apparently without
proliferation of acquittals
• But similar approach to Majewski used in Canada
311
Consider reform proposals:
saMple essay Questions

• LC report Intoxication and Criminal Liability, Law Com No 314
(2009) proposed scrapping distinction between ‘specific’ and ‘basic’
intent offences
• D would have a defence if an offence required an ‘integral fault
element’ such as intention, belief, dishonesty, but otherwise not
• This would essentially incorporate the Richardson & Irwin rule into
statute
Conclude contractual effect of the articles is limited to provisions

The meaning and scope of the insanity defence is in urgent need of legislative overhaul.
Discuss.
Give a brief outline of the present law:

• M’Naghten Rules (1843)
• Presumption of sanity
• ‘Defect of reason’
• ‘Disease of the mind’
• D must not know ‘nature and quality’ of act or, if so, D must not
know that it is ‘wrong’
State problems with the law, e.g.
• Presumption of sanity imposes reversed burden of proof on D
• The M’Naghten Rules are over 150 years old
• They are based on legal definitions rather than medical/psychiatric
definitions
• ‘Disease of the mind’ too widely defined and produces illogical
results. The external/internal factor test means that diabetics
(sometimes), epileptics and sleepwalkers may be found insane
(Bratty (1963); Sullivan (1984); Hennessy (1989); Burgess (1991))
• ‘Wrong’ defined narrowly as legally wrong only (Windle (1952))
• The terminology is old-fashioned and offensive (e.g. the Trial of
312 Lunatics Act 1883 is still in force)
• Successful defence leads to label of ‘insanity’ and potentially
indefinite hospitalisation (mandatory in murder cases)
• There is no irresistible impulse defence
Outline reforms that have taken place, e.g.

• Introduction of diminished responsibility defence (in murder cases)
in s 2 of the Homicide Act 1957 (as amended)
• Trial judges were given a wider range of disposal options under
the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991,
including hospital and supervision orders and absolute discharge –
this should make the defence more attractive but the label of
‘insanity’ still remains
Discuss further reform options, e.g.

• Replacement of label ‘insanity’ with ‘mental disorder’
• Burden of proof shifted to the prosecution
• Abolition of the legal tests of ‘defect of reason’ and ‘disease of
the mind’, replaced with modern psychiatric definitions
• Possible redefinition of ‘wrong’ to include morally wrong, as in
Australia and Canada
Conclude
Further reading
Articles
Child, J, ‘Drink, drugs and law reform: a review of Law Commission Report No. 314’ [2009]
Crim LR 488.
Gough, S, ‘Surviving without Majewski?’ [2002] Crim LR 719.
Jones, T H, ‘Insanity, automatism and the burden of proof on the accused’ (1995) 111
LQR 475.
Loughnan, A, ‘Manifest madness: towards a new understanding of the insanity defence’
(2007) 70 MLR 379.
Mackay, R D, ‘Epilepsy and the defence of insanity: time for change?’ [2007] Crim LR 782.
Mackay, R D, ‘Righting the wrong? Some observations on the second limb of the M’Naghten
Rules’ [2009] Crim LR 80.
Mackay, R D, Mitchell, B and Howe, L, ‘Yet more facts about the insanity defence’ [2006]
Crim LR 399. 313
Williams, R, ‘Voluntary intoxication: a lost cause?’ (2013) 129 LQR 264.
Wilson, W, Ebrahim, I, Fenwick, P and Marks, R, ‘Violence, sleepwalking and the criminal
fuRtheR Reading
law: (2) the legal aspects’ [2005] Crim LR 614.
Internet links
Diabetes UK: www.diabetes.org.uk.
Epilepsy Action: www.epilepsy.org.uk.
Law Commission Report, Intoxication and Criminal Liability, Law Com No 314, available
at www.lawcom.gov.uk.
Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism, available
at www.lawcom.gov.uk.
Part II
Specific offences
10
Homicide
AIMS AND OBJECTIVES

 Understand the law of murder
 Understand the law of diminished responsibility
 Understand the law of loss of self-control
 Understand the law of involuntary manslaughter (constructive, gross negligence
and reckless manslaughter)
 Understand the law on other homicide offences
 Analyse critically the law on homicide, including reform proposals
 Apply the law to factual situations to determine whether there is liability for
murder or manslaughter
10.1 Actus reus of homicide

Murder is not defined in any legislation. According to the common law definition, it
murder
is the unlawful killing of another human being, within any county of the realm, under
The unlawful
killing of a human the King or Queen’s Peace, with malice aforethought. The actus reus elements of
being with malice murder are as follows:
aforethought
 causing death of a human being;
 under the King or Queen’s Peace;
 within any county of the realm.
The actus reus is fundamentally the same for manslaughter. Causation was dealt with
in Chapter 2.
10.1.1 Human being: birth

A foetus that is killed in the womb cannot be a victim of homicide, although there are
other (statutory) offences (see below). When does a foetus become a person in being?
It appears that the child must be wholly expelled from the mother (Poulton (1832) 5 C
& P 329) and have a separate existence from her (Enoch (1833) 5 C & P 539).
That requirement creates its own problems: for example, it is now accepted that a
foetus in the womb has an independent circulation within two months of conception.
Where a foetus has been born alive but dies afterwards from injuries inflicted whilst in
the womb, this may be manslaughter but not murder (Attorney-General’s Reference (No 3
of 1994) [1997] 3 WLR 421, considered in Chapter 3).
10.1.2 Human being: death

A person who is already dead cannot be the victim of homicide. But the legal definition
of death has proved elusive. There is conventional death, when the heartbeat and breath-
ing stop. But there is also brain death, when through artificial means the heart continues
to beat and air circulates in the lungs. Brain death is recognised by the British Medical
Association and is the point when life-support machinery will be switched off. In Mal-
charek, Steel [1981] 2 All ER 422 (the facts of which were discussed in Chapter 2), the
Court of Appeal adverted to this test, although they did not have to decide the point. It
318 is likely that if the question arose squarely, then the courts would adopt the brain death
test (or strictly tests, as there are six of them). Thus, if D stabs V who has been certified
brain dead but whose functions are being maintained on a ventilating machine, it is
Homicide
unlikely that the Court of Appeal would uphold a murder conviction.

In Inglis [2010] EWCA Crim 2637; [2011] 1 WLR 1110, which is discussed in detail in
section 10.2.4, the Court of Appeal rejected an argument that the law of murder did not
apply to the ‘mercy’ killing of a severely disabled man. Lord Judge CJ stated:
JUDGMENT
‘The law does not recognise the concept implicit in the defence statement that [V] was “already
dead in all but a small physical degree”. The fact is that he was alive, a person in being.
However brief the time left for him, that life could not lawfully be extinguished. Similarly,
however disabled [V] might have been, a disabled life, even a life lived at the extremes of dis-
ability, is not one jot less precious than the life of an able-bodied person.’
10.1.3 Under the King or Queen’s Peace

This serves to exclude from the scope of homicide enemy soldiers killed in the course of
war. Outside the battlefield, soldiers and other military personnel are subject to the same
rules of criminal law as everyone else, and soldiers do occasionally face prosecution for
murder. For example, see Smith (Thomas) [1959] 2 QB 35 (discussed in Chapter 2) and Clegg
[1995] 1 AC 482 (discussed in Chapter 8). More recently, in Blackman [2014] EWCA Crim
1029, a British soldier was convicted of murder after shooting dead a seriously injured and
unarmed member of the Taliban insurgency in Afghanistan in September 2011.
10.1.4 Within any county of the realm

The limitations in this phrase have now all but disappeared. Murder (and manslaugh-
ter) committed by a British citizen outside the UK may be tried in England (ss 9 and 10,
Offences Against the Person Act (OAPA) 1861; s 3, British Nationality Act 1948).
Section 4 of the Suppression of Terrorism Act 1978 allows for the prosecution, in the
UK, of a number of criminal offences, including murder, committed in any of the ‘con-
vention countries’ listed in the Act, either by a British or foreign national. In short, this
statute allows for British courts to hear cases involving the prosecution of foreign nation-
als for committing crimes in foreign countries. The statute is rarely needed: for example,
if a French national kills another French national in France then any resulting criminal
trial would almost certainly take place in France and there would be no need for the
British courts to get involved. However, s 4 was recently invoked in Venclovas [2013]
EWCA Crim 2182, in order to obtain the conviction of D, a Lithuanian national, for the
murder of V, his Lithuanian ex-wife. V had last been seen alive in England and her body
was discovered several weeks later in a remote Polish wood. The Crown alleged that D
kidnapped and murdered V but could not prove exactly where the killing took place; it
may have been in England, or Poland, or in any one of a number of other European
countries in between, but the trial judge told the jury that it was ‘immaterial’ whether or
not the victim was killed in England. The jury convicted and the Court of Appeal, apply-
ing s 4 of the 1978 Act, upheld the conviction.
Murder committed on a British aircraft may be tried in the UK (s 92, Civil Aviation
Act 1982). Murder committed on a foreign aircraft coming to the UK may also be tried in
England (s 1, Civil Aviation (Amendment) Act 1996).
10.1.5 The year and a day rule

Until 1996 there was a further element: that V had to die within a year and a day. This 319
rule was originally justified because of the difficulty in establishing causation where
there was a long interval between the original wound, injury etc., and V’s death. The net
10.1 Actus reus of Homicide

result was that if D stabbed, shot, strangled or otherwise fatally injured V, but V was
kept alive for at least 367 days on a life-support machine before death, D could not be
guilty of homicide (see Dyson [1908] 2 KB 454). However, over time, medical science
developed to such an extent that the original justification was no longer valid and it was
abolished by Parliament in 1996. The main impetus for change was public perception of
‘murderers’ escaping conviction for murder because the victim had been kept alive for
more than 366 days. In the case of gross negligence manslaughter, there was not even an
alternative offence for which D might be held liable if V survived the 367 days.
SECTION
‘Law Reform (Year and a Day Rule) Act 1996
1 The rule known as the “year and a day rule” (that is, the rule that, for the purposes of
offences involving death and of suicide, an act or omission is conclusively presumed not to
have caused a person’s death if more than a year and a day have elapsed before he died)
is abolished for all purposes.
2 (1) Proceedings to which this section applies may only be instituted by or with the consent
of the Attorney-General.
(2) This section applies to proceedings against a person for a fatal offence if (a) the injury
alleged to cause death was sustained more than three years before the death occurred,
or (b) the person has previously been convicted of an offence committed in circum-
stances alleged to be connected with the death.
(3) In subsection (2) “fatal offence” means (a) murder, manslaughter, infanticide or any
other offence of which one of the elements is causing a person’s death, or (b) the
offence of aiding, abetting, counselling or procuring a person’s death.’
The consent of the Attorney-General is required in two circumstances. First, where several
years had passed since the original incident, it was thought to be undesirable to have the
history of the case trawled over again in a homicide trial. It would mean some defendants
having to live for years with the threat of a murder charge hanging over them. Second,
where D has already been convicted of a non-fatal offence, or attempt, on the same set of
facts. This encourages the prosecution to bring assault or wounding charges earlier, while
V is still alive, rather than wait for years to see whether V dies or not.
10.2 Murder
malice The actus reus elements of murder have been dealt with above. The only remaining element
aforethought is that of mens rea, ‘with malice aforethought’. This is a legal term – potentially very mis-
The mental or
fault element in
leading – which requires neither ill will nor premeditation. A person who kills out of com-
murder passion to alleviate suffering (a so-called ‘mercy killing’) acts with malice aforethought – see
Inglis (2010), discussed in detail below. Proof of malice aforethought means that a jury are
satisfied that, at the time of killing V, D either (Moloney [1985] AC 905):
 intended to kill (express malice); or
 intended to cause grievous bodily harm (implied malice).
Thus, it is possible for D to be convicted of murder when he intends some serious injury
but does not contemplate that V’s life be endangered. This has generated some contro-
versy and calls for reform (see below).
320
10.2.1 Intention
Homicide
All of the leading cases on the meaning and scope of intention have involved murder.
You should refer back to the discussion of these cases – especially Woollin [1998] 3 WLR
382 – in Chapter 2, for a reminder of the principles.
10.2.2 Grievous bodily harm

The meaning of the phrase ‘grievous bodily harm’ is the same as when the phrase is used
in the context of ss 18 and 20 OAPA 1861 (see Chapter 11). In DPP v Smith [1961] AC 290,
a murder case, Viscount Kilmuir, with whom the rest of the Lords agreed, held that there
was no reason to give the words any special meaning. Thus, he said, bodily harm ‘needs
no explanation’ while ‘grievous’ means no more and no less than ‘really serious’. Subse-
quently, in the context of s 20 OAPA 1861, the Court of Appeal held that the omission of
the word ‘really’ when a judge was directing a jury were not significant (Saunders [1985]
Crim LR 230). This was confirmed in the context of murder in Janjua and Choudury [1998]
EWCA Crim 1419; [1998] Crim LR 675. The Court of Appeal dismissed the defendants’
argument on appeal that the word ‘really’ had to be used in every single murder case.
10.2.3 Procedure in murder trials

In Coutts [2006] UKHL 39; [2006] 1 WLR 2154, the House of Lords allowed an appeal
against a murder conviction on the basis that the jury were not allowed to consider man-
slaughter as an alternative verdict. D had pleaded not guilty, his defence being that V’s
death was a tragic accident, but the jury rejected that version of events and therefore
convicted him of murder. Lord Rodger explained as follows:
JUDGMENT
‘The jury were told that they had to choose between convicting the appellant of murder and
acquitting him on the ground that the victim had died as a result of an accident. On that basis
they chose to convict of murder. But the jury should also have been told that, depending on
their view of the facts, they could convict him of manslaughter . . . The reality is that, in the
course of their deliberations, a jury might well look at the overall picture, even if they eventu-
ally had to separate out the issues of murder, manslaughter and accident. So, introducing the
possibility of convicting for manslaughter could have changed the way the jury went about
considering their verdict.’
Reform
The Draft Criminal Code (1989), cl 54(1), defines murder as follows: ‘A person is guilty
of murder if he causes the death of another (a) intending to cause death; or (b) intending
to cause serious personal harm and being aware that he may cause death.’ This would
narrow the mens rea of murder from its present common law definition. See also the
discussion in section 10.9.
ACTIVITy
Self-test questions
1. Should the definition of murder be amended so as to impose a requirement that, if D did
not intend to cause death but did intend to cause serious injury, he also had an awareness
that death may be caused?
2. Consider the following scenario. D is a ‘loan shark’. One of his clients, V, is in considerable
321
debt to D but cannot afford to repay it. D decides to physically punish V in such a way that
D’s other clients will be left in no doubt as to the consequences if they fail to repay their
debts. D specifically wants V to survive the punishment, to provide a long-term reminder of
10.2 murder
the implications of failing to repay D’s loans. One night D ambushes V and shoots him in
the leg with a handgun. The idea is to leave V with a permanent limp. However, the bullet
hits an artery and, within minutes, V bleeds to death. Is D guilty of murder:
(a) Under the present common law definition?
(b) Under the Draft Criminal Code?
10.2.4 Mercy killings and euthanasia

The courts have recently been confronted with difficult questions regarding the scope
of murder, specifically whether ‘mercy killing’ and/or euthanasia should be treated
differently from other deliberate killings. Mercy killing can be defined as the situation
where D kills V in order to alleviate V’s suffering. Euthanasia is the situation where V
consents to his or her own death, typically because V is suffering from an incurable
condition.
The law of ‘mercy killing’ was examined in Inglis [2010] EWCA Crim 2637; [2011] 1
WLR 1110. The Court of Appeal ruled that, as far as the criminal law was concerned,
there was no special defence available for those who kill out of compassion: ‘mercy
killing’ is murder.
CASE EXAMPLE
Inglis [2010] eWcA crim 2637; [2011] 1 WLr 1110
D was charged with the murder of her own son, V, 22, by injecting him with a fatal overdose of
heroin. At the time, V was in a ‘desperate state of disability’. Some 18 months earlier, V had suf-
fered serious head injuries after falling from an ambulance and had been in a deep coma on a
life-support machine ever since. Two operations had been carried out after the accident, which
involved removing part of the front of his skull to relieve pressure on the brain, which left V with
a ‘severe disfigurement’. D found all of this extremely depressing and distressing. She regarded
the operations as ‘evil’ and wished that V had been allowed to die a natural death; she was con-
vinced that he was in pain and that it was her duty as his mother to release him from his suffer-
ing. She became further obsessed with the notion that she had to kill V, quickly and peacefully,
to prevent what she regarded as a ‘prolonged and lingering’ death. At D’s murder trial, she relied
on provocation but was convicted after the trial judge ruled that there was no evidence of a loss
of self-control to support that defence. She appealed, arguing that her case was not murder but
a ‘mercy killing’; alternatively, V was so severely disabled as to no longer be a ‘human being’. The
Court of Appeal rejected those arguments and upheld her murder conviction, holding that mercy
killing was murder, and that V was still a ‘human being’.
Lord Judge CJ stated (emphasis added):
JUDGMENT
‘The law of murder does not distinguish between murder committed for malevolent reasons
and murder motivated by familial love. Subject to well established partial defences, mercy
killing is murder. Whether or not he might have died within a few months anyway, [V’s] life
was protected by the law, and no one, not even his mother, could lawfully step in and bring
it to a premature conclusion.’
322 The Court of Appeal added that, if ‘mercy killings’ were to be treated differently from
other deliberate killings, then that was a matter for Parliament to decide, not the courts.
Subsequently, in Nicklinson and others v Ministry of Justice [2013] EWCA Civ 961; [2014] 2
Homicide
All ER 32 (discussed in Chapter 8), the Court of Appeal reached a very similar decision
with respect to euthanasia. In reaching that decision, the Court of Appeal followed both
Inglis and Bland [1993] AC 789 (discussed in Chapter 2). In Bland, the House of Lords had
accepted that, whilst the withdrawal of feeding from a patient in a ‘persistent vegetative
state’ was lawful, the deliberate ‘ending of life by active means’ was murder. This was
because ‘the interest of the state in preserving life overrides the otherwise all-powerful
interests of patient autonomy’ (per Lord Mustill). In Nicklinson and others, Lord Dyson
MR and Elias LJ (with whom Lord Judge CJ agreed) said:
JUDGMENT
‘Euthanasia involves not merely assisting another to commit suicide, but actually bringing
about the death of that other . . . At common law euthanasia is the offence of murder.’
In a subsequent appeal to the Supreme Court, the arguments about whether or not the
courts had the power to create a defence to murder in euthanasia cases were not pursued.
Instead, the focus shifted to whether or not the offence of assisted suicide under s 2 of
the Suicide Act 1961 infringed the human rights of people such as Tony Nicklinson who
were prevented from taking their own lives because of a disability and who would
therefore need third party assistance in order to commit suicide. The Supreme Court
held not (Nicklinson and others v Ministry of Justice [2014] UKSC 38).
Therefore, until such time (if ever) that Parliament deems it appropriate to amend the
law by enacting legislation, the law remains as follows:
 Mercy killing is murder: Inglis (2010).
 Euthanasia (the deliberate ending of life by active means) is murder: Bland (1993);
Nicklinson and others (2013).
ACTIVITy
Self-test questions
 Should ‘mercy killing’ and/or euthanasia be treated differently from other killings, perhaps
as an alternative offence or as a defence to murder?
 If a defence, should it be a full defence (leading to an acquittal) or a partial defence
(leading to a conviction of manslaughter)?
10.3 Voluntary manslaughter
If D is charged with murder there are three ‘special’ and ‘partial’ defences which may be
pleaded. They are called ‘special’ as they are only available to those charged with
murder, and ‘partial’ because, if successful, D must be convicted of voluntary man-
slaughter instead. This allows the trial judge more discretion when it comes to sentenc-
ing; it also means that D avoids the label of ‘murderer’. With these defences, D is not
denying killing V, or denying malice aforethought, but is asking to be excused from full
liability. There are three such defences:
 diminished responsibility;
 loss of control;
 suicide pact.
diminished 10.3.1 Diminished responsibility 323

responsibility The defence of diminished responsibility (DR) evolved at common law in the courts of
Special and partial Scotland and was introduced into English law by s 2 of the Homicide Act 1957. That section
defence to murder
10.3 VoLuntAry mAnSLAugHter

was amended by s 52 of the Coroners and Justice Act 2009, and it now provides that:
SECTION
‘2(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of
murder if D was suffering from an abnormality of mental functioning which –
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the
killing.
(1A) Those things are –
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an
explanation for D’s conduct if it causes, or is a significant contributory factor in causing,
D to carry out that conduct.’
student
The background to the reform of DR lies with the Law Commission (LC), who had been
mentor tip advocating modernisation of the definition for several years. For example, in its report,
Murder, Manslaughter and Infanticide, published in November 2006, the LC observed that
‘Understand the
Homicide Act of the ‘definition of diminished responsibility is now badly out of date’. Key amendments
1957.’ made by the 2009 Act are as follows:
Anthony, London
South Bank  ‘Abnormality of mental functioning’ replaces the original phrase ‘abnormality of
University mind’.
 ‘Recognised medical condition’ replaces the original list of causes: ‘condition of arrested
or retarded development of mind’, ‘any inherent cause’ or ‘induced by disease or
injury’.
 ‘Substantially impaired’ ability to ‘understand the nature of D’s conduct’, ‘form a
rational judgment’ or ‘exercise self-control’ replaces the original phrase ‘substantially
impaired mental responsibility’.
 The requirement that D’s abnormality of mental functioning ‘provides an explana-
tion’ for D’s involvement in killing V is a new element of the offence.
Notwithstanding these amendments, much of the case law that built up around the ori-
ginal s 2 will continue to be relevant.
DR is a ‘special’ defence in that it is purely a defence to murder. This allows the trial
judge more discretion in terms of sentencing than he would have were D to be convicted
of murder, because of the mandatory life sentence. In Campbell [1997] Crim LR 495, the
Court of Appeal rejected the argument that DR should be allowed as a defence to
attempted murder. This decision must be correct, because the trial judge already has
discretion when it comes to sentencing those convicted of attempted murder, and so the
defence is simply unnecessary in attempted murder trials. Had it been accepted (and
successfully pleaded), moreover, then it would have introduced a new crime into English
law: attempted manslaughter.
324 In Antoine [2000] UKHL 20; [2001] 1 AC 340, the House of Lords held that evidence of
DR is not relevant when a jury are deciding whether or not D is fit to stand trial on a
charge of murder.
Homicide
CASE EXAMPLE
Antoine [2000] uKHL 20; [2001] 1 Ac 340
D had been charged with the ‘brutal’ murder of a 15-year-old boy, apparently as a human
sacrifice to the devil. He was found unfit to plead under the Criminal Procedure (Insanity) Act
1964, on the basis of paranoid schizophrenia, and another jury were brought in to determine
whether he had done ‘the act . . . charged against him’. He sought to rely upon DR but the
judge ruled that it was unavailable. The jury duly found that he had done the act charged, and
the judge ordered indefinite hospitalisation. The Court of Appeal and House of Lords dis-
missed D’s appeals.
Procedure
D bears the burden of proving DR (Homicide Act 1957, s 2(2)) on the balance of proba-
bilities (Dunbar [1958] 1 QB 1). In Foye [2013] EWCA Crim 475, the Court of Appeal
rejected an appeal in which D sought to argue that the reversed burden of proof in s 2(2)
of the 1957 Act was incompatible with the presumption of innocence protected by article
6(2) of the European Convention of Human Rights. Hughes LJ said:
JUDGMENT
‘The very clear justification for s 2(2) lies in the following factors.
(i) Diminished responsibility is an exceptional defence available in an appropriate case with a
view to avoiding the mandatory sentence which would otherwise apply, so that a discre-
tionary sentence can be imposed, tailored to the circumstances of the individual case.
(ii) Diminished responsibility depends on the highly personal condition of the defendant
himself, indeed on the internal functioning of his mental processes.
(iii) A wholly impractical position would arise if the Crown had to bear the onus of disproving
diminished responsibility whenever it was raised on the evidence; that would lead not to
a fair, but to a potentially unfair trial.’
A successful defence results in a verdict of not guilty to murder but guilty of manslaugh-
ter (Homicide Act 1957, s 2(3)). This allows the judge full discretion on sentencing. Some
defendants may receive an absolute discharge, others probationary or suspended sen-
tences, while in appropriate circumstances some will receive hospital or guardianship
orders under s 37(1) of the Mental Health Act 1983. Others may still face imprisonment,
with some receiving life sentences for manslaughter (about 15 per cent of cases). If D
raises the defence, and the prosecution has evidence that he is insane then, under s 6
Criminal Procedure (Insanity) Act 1964, evidence may be adduced to prove this. Here,
the burden remains on the prosecution to prove insanity. The converse situation is also
allowed by s 6, that is, if D raises insanity, then the prosecution may argue it is really a
case of DR. Where this happens, the burden is on the prosecution to prove DR beyond
reasonable doubt (Grant [1960] Crim LR 424).
Pleading guilty to manslaughter on grounds of DR

Originally, the courts took the view that DR had to be proved to the jury in every case
and could not be accepted by a trial judge. However, it is now accepted that D may
plead guilty to a charge of manslaughter on the ground of DR. Such a plea would be 325
proper ‘where the medical evidence available, in the possession of the prosecution as
well as the defence, showed perfectly plainly that the plea’ was one that could properly

be accepted (Cox [1968] 1 WLR 308). In Vinagre (1979) 69 Cr App R 104 the Court of
Appeal said that pleas of guilty to manslaughter on the ground of DR should only be
accepted where there was ‘clear evidence’ of mental imbalance. The plea was refused in
the following cases.
 Din [1962] 1 WLR 680. D attacked and killed a man whom he believed was having an
affair with his wife, stabbing him several times and almost severing V’s head. After
death, D cut off V’s penis. D pleaded DR, based on paranoia induced by an unreason-
able belief in his wife’s infidelity. Two medical experts supported the plea; the pro-
secution was prepared to accept it. However, the judge insisted on leaving the
defence to the jury, which returned a verdict of guilty of murder. D’s appeal was
dismissed. Lord Parker CJ said that the case was ‘a very good illustration of what for
long has been apparent’, namely, that the prosecution were ‘only too ready to fall in
with and to support’ a defence of DR.
 Walton (1978) 66 Cr App R 25. D shot and killed a random stranger, a 16-year-old girl.
Charged with murder, he pleaded DR. Two defence medical experts described D as
‘retarded in certain respects’, suffering from ‘an extremely immature personality’
and ‘having an inadequate personality enhanced by emotional immaturity and low
tolerance level’. The jury, however, rejected the defence. The Privy Council rejected
D’s appeal. Lord Keith said that the jury were entitled to regard the medical evidence
as ‘not entirely convincing’.
Where D pleads DR but it is rejected by the jury, the Court of Appeal may, if it believes
the murder conviction to be unsupported by the evidence, quash it and substitute one of
manslaughter. This happened in the following cases.
 Matheson [1958] 2 All ER 87. D killed a 15-year-old boy. The medical experts agreed
that D was suffering a mental abnormality but the jury rejected the defence. D’s
murder conviction was quashed on appeal. Lord Goddard CJ said that where there
was ‘unchallenged’ evidence of medical abnormality and ‘no facts or circumstances
appear that can displace or throw doubt on that evidence’ then the Court was ‘bound’
to say that the conviction was unsafe.
 Bailey [1961] Crim LR 828. D battered V, a 16-year-old girl, to death with an iron
bar. Three medical experts agreed that D suffered from epilepsy, that he had
suffered a fit at the time of the killing, and that it had substantially impaired his
mental responsibility at that time. The jury rejected the defence. D appealed and
his murder conviction was quashed.
According to research (S Dell, ‘Diminished responsibility reconsidered’ (1982) Crim LR

809) in practice 80 per cent of pleas of guilty to manslaughter on grounds of DR are
accepted. Where the case does go to trial (usually because the prosecution disputes the
defence), there is about a 60 per cent chance of conviction for murder. Thus the overall
failure rate of the defence is quite small, around 10 per cent.
Importance of medical evidence

Medical evidence is crucial to the success of the defence. In Byrne [1960] 2 QB 396 it was
said that, while there is no statutory requirement that a plea be supported by medical
evidence, the ‘aetiology of the abnormality . . . does, however, seem to be a matter to be
326 determined on expert evidence’. Thus, where D was suffering a condition that was not,
at the time of the trial, regarded by psychiatrists as a mental condition the defence will
be unavailable but, if the condition subsequently becomes so regarded, a conviction may
Homicide
be quashed. This was the outcome in Hobson [1998] 1 Cr App R 31.

The Court of Appeal in Dix (1982) 74 Crim LR 302 declared that medical evidence was
a ‘practical necessity if the defence is to begin to run at all’. The jury were not, however,
bound to accept that evidence if there was other material, which, in their opinion, con-
flicted with and outweighed the medical evidence. Occasionally, the jury may be faced
with conflicting medical evidence. They are then required to weigh up and choose
between the different opinions.
The principle established in Dix (1982), that medical evidence was a ‘practical neces-
sity’ if DR was to run as a defence, was followed in the post-2009 Act case of Bunch
[2013] EWCA Crim 2498. D had invoked DR during his murder trial on the basis of his
alcohol dependence syndrome, but this was rejected because of a lack of medical evid-
ence. The Court of Appeal agreed and upheld his murder conviction.
Operation of the defence

Section 2(1) breaks down into four components:
 There must be an ‘abnormality of mental functioning’.
 It must arise from a ‘recognised medical condition’.
 D must have a ‘substantially impaired’ ability to understand the nature of their
conduct, or form a rational judgement, or exercise self-control.
 The abnormality must provide an ‘explanation’ for D’s acts and omissions in doing
or being a party to the killing.
There are no further requirements or exceptions. In Matheson (1958) it was accepted that
the fact that a killing was premeditated did not destroy a plea of DR and this remains the
position today (Brennan [2014] EWCA Crim 2387).
‘Abnormality of mental functioning’

This is a new phrase, introduced by the 2009 amendment, to replace ‘abnormality of
mind’. The reason for the change was explained by the Law Commission (LC) in its
report, Murder, Manslaughter and Infanticide (November 2006), at para 5.111. The LC
stated that the original definition in s 2(1) had not been ‘drafted with the needs and
practices of medical experts in mind, even though their evidence is crucial to the legal
viability’ of any DR defence. The phrase ‘abnormality of mind’ was ‘not a psychiatric
term’, and it received no further definition in the statute. As the LC pointed out, ‘its
meaning has had to be developed by the courts from case to case’. As it happens, the
courts had interpreted the phrase very widely, most famously in Byrne [1960] 2 QB 396,
where Lord Parker CJ described it as ‘a state of mind so different from that of ordinary
human beings that the reasonable man would term it abnormal’. It will be interesting to
see if the courts in the future interpret the new phrase as widely. Note that there is
nothing in the legislation to indicate that the ‘abnormality of mental functioning’ has to
have any degree of permanence. Nor is there any requirement that the mental abnor-
mality should have existed since birth (Gomez (1964) 48 Cr App R 310). It should suffice
that it existed at the time of the killing.
A ‘recognised medical condition’

This is another of the 2009 amendments. The original s 2(1) required the ‘abnormality
of mind’ to arise from a ‘condition of arrested or retarded development of mind’ or ‘any 327
inherent cause’ or be ‘induced by disease or injury’. That list has now been consoli-
dated into the single, simpler, but potentially wider, requirement of a ‘recognised

medical condition’. The Law Commission explained the thinking behind the redefini-
tion in its 2006 report by pointing out that ‘diagnostic practice’ in DR cases ‘has long
since developed beyond identification of the narrow range of permissible causes’ stipu-
lated in s 2(1). Moreover, the LC observed that ‘the stipulated permissible causes never
had an agreed psychiatric meaning’. A further improvement is the long-overdue
removal of the obsolete – and insulting – reference to retardation as a means of support-
ing a plea of DR.
The government agreed, claiming that the redefinition will bring ‘the existing termi-
nology up-to-date’ whilst allowing for ‘future developments in diagnostic practice’ and
encouraging defences to ‘be grounded in a valid medical diagnosis linked to the accepted
classificatory systems which together encompass the recognised physical, psychiatric
and psychological conditions’ (Ministry of Justice Consultation Paper, Murder, Man-
slaughter and Infanticide (July 2008), para 49).
No further definition of ‘recognised medical condition’ is provided in the Act so it
will be interesting to see how the courts apply this new criterion. However, it is not
unreasonable to expect that the courts will, in the future, be prepared to accept the fol-
lowing conditions, all of which fell within the scope of the original s 2(1):
 adjustment disorder (Dietschmann [2003] UKHL 10; [2003] 1 AC 1209; Brown [2011]
EWCA Crim 2796; [2012] Crim LR 223);
 alcohol dependence syndrome (discussed below);
 Asperger’s syndrome ( Jama [2004] EWCA Crim 960);
 battered woman syndrome (Hobson (1998));
 depression (Gittens [1984] 3 All ER 252; Seers (1984) 79 Cr App R 261; Ahluwalia (1992)
4 All ER 869; Swan [2006] EWCA Crim 3378);
 epilepsy (Bailey (1961); Campbell [1997] 1 Cr App R 199);
 Othello syndrome, a form of extreme jealousy (Vinagre (1979) 69 Cr App R 104);
 paranoia (Simcox [1964] Crim LR 402);
 premenstrual tension and postnatal depression (Reynolds [1988] Crim LR 679);
 psychopathy (Byrne (1960); Hendy [2006] EWCA Crim 819);
 schizophrenia (Moyle [2008] EWCA Crim 3059; Erskine [2009] EWCA Crim 1425,
[2009] 2 Cr App R 29; Khan [2009] EWCA Crim 1569).
It is possible that there will be more than one cause of D’s ‘abnormality of mental func-
tioning’. If both causes are medical conditions (as in Reynolds (1988)), then if anything
D’s defence is strengthened. However, if one of the causes is a medical condition but the
other is not, the latter must be discounted. This situation has been raised before the
courts a number of times where D pleaded DR and was also intoxicated. These cases will
be examined below.
The Law Commission had suggested that ‘developmental immaturity in a defendant
under the age of 18’ should be able to support a plea of DR, separately from a ‘recog-
nised medical condition’. However, the government rejected this. In its Consultation
Paper, Murder, Manslaughter and Infanticide (July 2008), the Ministry of Justice asserted
that the term ‘recognised medical condition’ would cover conditions ‘such as learning
disabilities and autistic spectrum disorders which can be particularly relevant in the
context of juveniles’. There was therefore no need to have a separate category alongside
‘recognised medical condition’.
328
‘Substantially impaired ability to understand the nature of conduct,
or form a rational judgment, or exercise self-control’
Homicide
This is another amendment, replacing the original expression used in s 2(1), ‘substantially
impaired mental responsibility’. The amendment was brought about after the government
accepted the Law Commission’s criticism in its 2006 report that the phrase ‘mental respons-
ibility’ was too vague. The LC had argued (at para 5.110) that the ‘implication’ was that D’s
mental abnormality ‘must significantly reduce the offender’s culpability’ but without
saying, precisely, how or in what way it did so. The redefinition makes explicit what was,
at best, implicit in the original version of the Act. Now D must prove that his abnormality
of mental functioning impaired his ‘ability to understand the nature of [his or her] conduct’
and/or ‘form a rational judgment’ and/or ‘exercise self-control’.
In Byrne (1960), the Court of Criminal Appeal said that the question of whether D’s
impairment could be described as ‘substantial’ was a question of degree and, hence,
although medical evidence was not irrelevant, one for the jury. This was confirmed in
Eifinger [2001] EWCA Crim 1855, the Court of Appeal describing this question as ‘the
jury’s function’. More recently, in Khan [2009] EWCA Crim 1569, the Court of Appeal
acknowledged that ‘scientific understanding of how the mind works and the extent to
which states of mind and physical responses to them have physical or chemical causes
have undoubtedly advanced considerably’ since the time when Byrne was decided.
However, despite those advances, the Court said that ‘even today, it is impossible to
provide any accurate scientific measurement of the extent to which a particular person’
might be able to ‘understand or control his physical impulses on a particular occasion’.
In short, there was no ‘scientific test’ for measuring this aspect of the DR defence. It
remained a question for the jury. It seems reasonable to assume that this will continue to
be the case under the amended statute.
As to what is meant by ‘substantial’, in Lloyd [1967] 1 QB 175, the trial judge, Ash-
worth J, directed the jury as follows:
JUDGMENT
‘Substantial does not mean total, that is to say, the mental responsibility need not be totally
impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not
mean trivial or minimal. It is something in between and Parliament has left it to you and other
juries to say on the evidence, was the mental responsibility impaired and if so, was it substan-
tially impaired?’
The direction from Lloyd was confirmed as still representing the law under the reformed
defence in Brown (2011). However, in Golds [2014] EWCA Crim 748, the Court of Appeal
formulated a ‘more rigorous’ definition of the scope of ‘substantial’ impairment than
that adopted in Lloyd and approved in Brown. In Golds, the Court said that the word
‘substantial’ had two possible meanings: (1) more than trivial or minimal (the Lloyd/
Brown formulation); (2) significant or appreciable. The Court held that the latter defini-
tion, which it described as both ‘more rigorous’ and ‘more appropriate’, should be
adopted in preference to the former definition. Elias LJ explained that whilst a jury could
potentially find that an impairment had ‘some modest impact, and to that extent will be
more than merely minimal or trivial’ that was not necessarily enough for it to ‘properly
be described as substantial’. Hence, the law now requires the jury to be satisfied that D’s
impairment was ‘significant or appreciable’.
Notwithstanding the adoption of the ‘more rigorous’ definition in Golds, this aspect
of the DR defence clearly gives juries a wide discretion. Sympathy/empathy for the
defendant is crucial. On the one hand, it is not uncommon for manslaughter verdicts to 329
be returned in cases with little evidence of abnormality but where D has reacted to situ-
ations of extreme grief or stress. Thus mercy killers, or killings committed by the severely

depressed, may receive convictions for manslaughter instead of murder. Conversely,
murder convictions have been returned in cases when the psychiatrists all agreed that D
was suffering severe mental abnormality but whose actions evoked little or no jury sym-
pathy. The classic example is the Yorkshire Ripper, Peter Sutcliffe, who in 1981 was
charged with murdering 13 women. Despite medical evidence from four psychiatrists
that he was suffering from paranoid schizophrenia, the case went to trial. The jury
rejected his DR plea and he was convicted of murder.
The abnormality must provide ‘an explanation’ for D’s acts and
omissions in doing or being a party to the killing
This requirement, in s 2(1)(c), is an entirely new legal principle, introduced by the 2009
amendment. The Law Commission proposed that this amendment be made and the
government agreed. Section 2(1B) further provides that ‘an abnormality of mental func-
tioning provides an explanation for D’s conduct if it causes, or is a significant contrib-
utory factor in causing, D to carry out that conduct’. It essentially means that there must
now be some causal connection between D’s mental abnormality and the killing.
However, notice the use of the word ‘an’, as opposed to ‘the’, before the word ‘expla-
nation’ in s 2(1)(c). This means that, although the ‘abnormality’ must at least be ‘a signi-
ficant contributory factor’ for D killing, it need not necessarily be the only reason for
doing so. The government agreed with the LC that it would be ‘impractical’ to require
mental abnormality to be the ‘sole’ explanation for D’s killing of V, on the basis that ‘it is
rare that a person’s actions will be driven solely from within to such an extent that they
would not otherwise have committed the offence, regardless of the influence of external
circumstances, and a strict causation requirement of this kind would limit the availabil-
ity of the partial defence too much’ (Ministry of Justice Consultation Paper, Murder,
Manslaughter and Infanticide (July 2008), para 49).
Diminished responsibility and intoxication

It is now well established that a state of intoxication (falling short of the level of intoxica-
tion at which D fails to form mens rea) on its own cannot be used to support a plea of DR.
In Fenton (1975) 61 Cr App R 261, Lord Widgery CJ said that ‘We do not see how self-
induced intoxication can of itself produce an abnormality of mind.’ This has been con-
firmed as still representing the law under the reformed defence. In Dowds [2012] EWCA
Crim 281; [2012] 3 All ER 154, it was argued that, because ‘Acute Intoxication’ appears in
the World Health Organization’s International Statistical Classification of Diseases and
Related Health Problems (ICD), where it is defined as ‘a condition that follows the admin-
istration of a psychoactive substance resulting in disturbances in level of consciousness,
cognition, perception, affect or behaviour, or other physiological functions or responses’, it
was therefore a ‘recognised medical condition’ for the purposes of s 2. The Court of Appeal
rejected this argument, stating that, if Parliament had meant to alter the law as decided in
Fenton, it would have made its intention explicit. Hughes LJ pointed out that a variety of
conditions appeared in the ICD and/or the American Medical Association’s Diagnostic &
Statistical Manual that would not support a plea of DR, such as ‘unhappiness’, ‘irritability
and anger’, ‘suspiciousness and marked evasiveness’, ‘pyromania’, ‘paedophilia’, ‘sado-
masochism’, ‘kleptomania’, ‘exhibitionism’ and ‘sexual sadism’. Hughes LJ stated:
JUDGMENT
330 ‘It is quite clear that the re-formulation of the statutory conditions for [DR] was not intended to
reverse the well-established rule that voluntary acute intoxication is not capable of being relied
upon to found [DR]. That remains the law. The presence of a “recognised medical condition” is
Homicide
a necessary, but not always a sufficient, condition to raise the issue of [DR] . . . Voluntary acute
intoxication, whether from alcohol or other substance, is not capable of founding [DR].’
CASE EXAMPLE
Dowds [2012] eWcA crim 281; [2012] 3 All er 154
D and his girlfriend, V, were both ‘habitual, heavy binge drinkers’. One night, D stabbed V 60
times, mostly in the neck, severing the carotid artery causing her to bleed to death. At the time,
both had drunk a lot of vodka. At his murder trial, D did not deny being the killer but pleaded lack
of intent due to intoxication and/or loss of control. The jury rejected both of these and he was
convicted of murder. D appealed, arguing that DR, based on a state of ‘acute intoxication’, should
have been left to the jury. The Court of Appeal disagreed and upheld his murder conviction.
The decision in Dowds was confirmed in Bunch [2013] EWCA Crim 2498. Holroyde LJ
stated that ‘the law draws an important distinction between voluntary intoxication and
alcohol dependency. The former cannot found a defence of diminished responsibility’
(emphasis added).
However, what is the situation where D suffers from an underlying abnormality of
mental functioning (e.g. depression) and kills whilst intoxicated? This issue has arisen
on several occasions, and the courts have taken a consistent line: a plea of DR may not
be supported with evidence of voluntary intoxication. The trial judge should direct the
jury to ignore the effects of the intoxication and consider whether the medical condition
on its own would have been enough to amount to an abnormality of mental functioning.
This was the decision in Gittens [1984] 3 All ER 252.
CASE EXAMPLE
Gittens [1984] 3 All er 252
D was suffering depression and had, on the night in question, consumed a large amount of
drink and antidepressant pills. In this state he clubbed his wife to death with a hammer and
then raped and strangled his 15-year-old stepdaughter. He was convicted of murder but the
Court of Appeal allowed his appeal, on the basis that the underlying depression may on its
own have amounted to an ‘abnormality of mind’. The Court did stress, however, that the jury
should be directed to disregard the effect (if any) on D of any alcohol or drugs consumption.
This decision was confirmed by the Court of Appeal in Egan (1992) 4 All ER 470, where
it was said that ‘the vital question’ for the jury in such cases is to ask, ‘was the appellant’s
abnormality of mind such that he would have been under diminished responsibility,
drink or no drink?’ In Dietschmann (2003), it was further held that it was wrong to ask a
jury whether D would still have killed V, even if he had not been intoxicated. The ques-
tion was whether or not D would have had an ‘abnormality of mind’, even if he had not
been drinking.
CASE EXAMPLE
Dietschmann [2003] uKHL 10; [2003] 1 Ac 1209
D killed V by punching him and kicking him in the head in a savage attack. At the time of the
killing, D was heavily intoxicated, in addition to suffering from an ‘adjustment disorder’, a
‘depressed grief reaction’ to the recent death of his girlfriend. At his trial for murder D relied on 331
DR. The expert evidence for D was that, as well as the adjustment disorder, he had suffered a
‘transient psychotic episode’ at the time of the incident so that, even if he had been sober, he
would still probably have killed V. The Crown’s case was that the alcohol had been a significant

factor as a disinhibitor and that, if D had been sober, he would probably have exercised self-
control. The judge directed the jury that the question was whether D would still have killed V had
he not been drinking, and the jury convicted. D appealed and although the Court of Appeal
dismissed the appeal, he was successful in the House of Lords. The jury had been misdirected.
Lord Hutton suggested the following model direction for future juries:
JUDGMENT
‘Assuming that the defence have established that [D] was suffering from mental abnormality
as described in s 2, the important question is: did that abnormality substantially impair his
mental responsibility for his acts in doing the killing? . . . Drink cannot be taken into account as
something which contributed to his mental abnormality and to any impairment of mental
responsibility arising from that abnormality. But you may take the view that both [D]’s mental
abnormality and drink played a part in impairing his mental responsibility for the killing and
that he might not have killed if he had not taken drink. If you take that view, then the question
for you to decide is this: has [D] satisfied you that, despite the drink, his mental abnormality
substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you
of that? If he has satisfied you of that, you will find him not guilty of murder but you may find
him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished
responsibility is not available to him.’
Dietschmann has been followed by the Court of Appeal in a number of DR cases:

 Hendy [2006] EWCA Crim 819; [2006] 2 Cr App R 33 – D admitted killing V while
intoxicated on alcohol, but there was evidence of an underlying brain damage and a
psychopathic disorder.
 Robson [2006] EWCA Crim 2749 – D was heavily intoxicated, but also suffering from
an ‘acute stress disorder’, when he killed V.
 Swan [2006] EWCA Crim 3378 – intoxication on top of underlying depression.
In each case, the jury had been directed that a defence of DR required proof that D
would still have killed had they been sober. In each case the Court of Appeal, following
Dietschmann, quashed the resulting murder convictions and substituted convictions of
manslaughter. However, the rule of law laid down in Dietschmann and applied in Hendy,
Robson and Swan now has to be read in the light of the amended s 2(1), specifically the
requirement that D’s abnormality of mental functioning provide ‘an explanation’ for the
killing. Thus, in future cases involving a combination of underlying abnormality plus
intoxication, as in Gittens, Egan, Dietschmann and so on, the jury should be directed to:
(a) ignore the effect of D’s drinking and/or drug-taking;
(b) decide whether D’s underlying abnormality arose from a ‘recognised medical
condition’;
(c) decide whether this underlying abnormality substantially impaired D’s ability to
understand their conduct, form a rational judgement and/or exercise self-control;
(d) decide whether the underlying abnormality caused, or was a ‘significant contrib-
utory factor’, in D’s killing of V.
332
In short, whilst the courts had held that it was wrong for the trial judge in such cases to
ask juries to decide whether D would have killed had he been sober, Parliament has
Homicide
decided that juries should, in future, be asked to decide whether D might have done so.
This is because, if D definitely would not have killed V (or anyone else) had he remained
sober, then there cannot be any causal connection between the underlying condition and
the killing, as required by s 2(1)(c), and D would be liable for murder.
Diminished responsibility and alcoholism

Different rules apply where it is suggested that D’s ‘abnormality of mental functioning’
was itself caused by long-term alcohol and/or drug abuse, and that D has developed a
medical condition, sometimes known as alcohol dependence syndrome (ADS). In Fenton
(1975), Lord Widgery CJ in the Court of Appeal envisaged the possibility that a craving
for drink or drugs could produce an ‘abnormality of mind’. However, until recently the
leading case in this area was Tandy [1989] 1 WLR 350, in which Watkins LJ added a very
important caveat, holding that alcoholism on its own would not suffice for a plea of DR.
Instead, it would have to be proved (by the defence) that either D’s alcoholism ‘had
reached the level at which her brain had been injured by the repeated insult from intoxi-
cants so that there was gross impairment of . . . judgment and emotional responses’ or, if
not, that D’s ‘drinking had become involuntary, that is to say she was no longer able to
resist the impulse to drink’.
The decision in Tandy was criticised on the basis that it unduly limited the scope of
the defence. One commentator argued that ‘very few, if any, alcoholics will be perman-
ently in a condition where the immediate consumption of alcohol is required to prevent
or assuage the symptoms of withdrawal from alcohol’ (G R Sullivan, ‘Intoxicants and
diminished responsibility’ (1994) Crim LR 156). Another commentator criticised the rule
in Tandy that D’s drinking must be ‘involuntary’ before alcoholism can be used to
support a DR defence. Goodliffe pointed out that, under Tandy, ‘the symptoms of the
disease are seen in isolation from the disease itself, leaving the idea of “disease” devoid
of meaning’ (J Goodliffe ‘Tandy and the concept of alcoholism as a disease’ (1990) 53
MLR 809). Despite this criticism, in Inseal [1992] Crim LR 35, the Court of Appeal fol-
lowed Tandy. In that case D, an alcoholic, had killed his girlfriend whilst in a drunken
stupor. He claimed that he was either too drunk to have the intent to kill (the intoxica-
tion defence; see Chapter 9) or, if he did have the intent, his alcoholism was an ‘abnor-
mality of mind’. The jury convicted and the Court of Appeal dismissed the appeal. The
jury must have been satisfied that D could have resisted the temptation to drink and that
‘accordingly’ any ‘abnormality of mind’ was not induced by ADS.
However, in two recent decisions, the Court of Appeal has shown more sympathy for
defendants who kill whilst suffering from ADS. In the first case, Wood [2008] EWCA
Crim 1305; [2009] 1 WLR 496, the court held that the ‘rigid’ principles established in
Tandy (1989) had to be ‘re-assessed’ in the light of the House of Lords’ decision in
Dietschmann (2003). The court laid down the following principles.
 Alcohol dependence syndrome (ADS) is a condition which may amount to an ‘abnor-
mality of mind’. Whether it does or not is a matter for the jury to decide.
 It is not essential that brain damage has occurred – although if it has, that can only
help D to prove the defence.
 If D’s syndrome does amount to an ‘abnormality of mind’, then the jury must then
consider whether D’s mental responsibility was substantially impaired.
 In deciding that question the jury should focus ‘exclusively’ on the effect of alcohol
consumed by D as a ‘direct result’ of D’s condition but the jury should ‘ignore the
effect of any alcohol consumed voluntarily’. 333
CASE EXAMPLE

Wood [2008] eWcA crim 1305
After a day’s heavy drinking, Clive Wood killed V in a frenzied attack with a meat cleaver. At
Wood’s murder trial, four psychiatrists agreed that Wood suffered from alcohol dependence
syndrome, but the trial judge told the jury that a verdict of manslaughter based on DR was
only open to them if D’s consumption of alcohol was truly involuntary, and that simply giving
into a craving for alcohol was not involuntary drinking. D was convicted of murder but the
Court of Appeal quashed his conviction and substituted a verdict of manslaughter.
Sir Igor Judge stated:
JUDGMENT
‘The sharp effect of the distinction drawn in Tandy between cases where brain damage has
occurred as a result of alcohol dependency syndrome and those where it has not is no longer
appropriate.’
Commenting on Wood in the Criminal Law Review, Professor Andrew Ashworth

states:
quotation
‘If there is no proof of brain damage it is still open to the jury to decide that the alcohol
dependency syndrome amounted to an “abnormality of mind” within s.2. If they do so, then
the next question is whether that abnormality “substantially impaired” D’s responsibility, dis-
counting any effects of alcohol consumed voluntarily. So the jury are left to determine how
much of D’s drinking derived from his alcohol dependency and how much was “voluntary”.
This is a fearsomely difficult question to ask.’
Partly as a result of this criticism, Wood was followed – and clarified – in Stewart [2009]
EWCA Crim 593. Here, the Court of Appeal quashed D’s murder conviction (but ordered
a retrial) because the jury had been directed in accordance with the ‘rigid’ directions laid
down in Tandy. At D’s retrial, the jury would be directed in accordance with the new,
more flexible, principles laid down in Wood. To provide further clarification, Lord Judge
CJ in Stewart established the following three-step test.
1. Was D suffering from an ‘abnormality of mind’? The mere fact that D has ADS will
not automatically amount to such an ‘abnormality of mind’, because the jury need to
assess ‘the nature and extent of the syndrome’.
2. Was D’s ‘abnormality of mind’ caused by the ADS? If the answer to question (1) was
yes, then this is likely to be straightforward.
3. Was D’s ‘mental responsibility’ ‘substantially impaired’? Here, the jury should be
directed to consider all the evidence, including any medical evidence. The issues
likely to arise would include (a) the extent and seriousness of D’s dependency, (b) the
extent to which his ability to control his drinking or to choose whether or not to drink
was reduced, (c) whether he was capable of abstinence from alcohol and, if so, (d) for
334 how long and (e) whether he was choosing for some particular reason, such as a
birthday celebration, to get drunk, or to drink more than usual. D’s pattern of drink-
ing in the days leading up to the killing and his ability to make ‘apparently sensible
and rational decisions’ about ordinary day-to-day matters at the relevant time might
Homicide
all bear on the jury’s decision.
kEy fACTS
Key facts on diminished responsibility
Law Section/Case
Definition • abnormality of mental functioning; ss 2(1) and (1A) Homicide
• arising from a recognised medical condition; Act 1957 (as amended by
s 52 Coroners and Justice
• which substantially impairs D’s ability to
Act 2009)
understand the nature of D’s conduct, form a
rational judgement or exercise self-control;
• and which provides an explanation for D’s
conduct.
Abnormality A new expression, introduced by the 2009 Act. None yet
of mental
functioning
Recognised A new expression, introduced by the 2009 Act, to
medical replace the list of causes in the original 1957 Act.
condition However, the pre-reform cases provide examples
of likely ‘conditions’:
• alcoholism Wood (2008)
• battered woman syndrome Hobson (1998)
• depression Seers (1984)
• epilepsy Bailey (1961)
• psychopathy Byrne (1960)
• schizophrenia. Moyle (2008), Erskine (2009)
Substantially A question for the jury to decide. Byrne (1960), Khan (2009)
impaired ‘Substantial’ means ‘significant or appreciable’. Golds (2014)
Effect of Intoxication must be ignored. Fenton (1975), Dowds
intoxication (2012), Bunch (2013)
Where D has an underlying mental disorder, the Gittens (1984),
question is whether this disorder on its own Dietschmann (2003), Hendy
amounts to an abnormality of mental functioning. (2006)
Effect of Alcohol dependence syndrome (ADS) may Wood (2008), Stewart
alcoholism amount to an abnormality of mental functioning. (2009)
It is not necessary to prove either brain damage or
that all of D’s drinking was involuntary.
Whether it substantially impairs D’s ability to
understand his or her conduct/form a rational
judgement/exercise self-control is to be decided
by a jury, ignoring the effect of any alcohol
consumed voluntarily.
Burden of It is for the defence to prove, on the balance of s 2(2) Homicide Act 1957, 335
proof probabilities. Dunbar (1958), Foye (2013)
Effect of The charge of murder is reduced to manslaughter. s 2(3) Homicide Act 1957

defence
10.3.2 Loss of self-control

Loss of self-control is a relatively new, special and partial defence to murder, intro-
duced by ss 54 and 55 of the Coroners and Justice Act 2009. It replaces the ancient
common law defence of ‘provocation’, which was abolished by s 56(1) of the 2009 Act.
loss of self-
control
Special and partial
Background to the reform
defence to murder The Law Commission (LC) had been advocating reform of the provocation defence for
several years. In its report, Murder, Manslaughter and Infanticide (November 2006), it stated
that the ‘defence of provocation is a confusing mixture of judge-made law and legislative
provision’. The government agreed. The Ministry of Justice Consultation Paper, Murder,
Manslaughter and Infanticide: Proposals for Reform of the Law (July 2008), states (para 34):
quotation
‘We want to provide a partial defence which has a much more limited application than the
current partial defence of provocation. We propose to do this . . . by abolishing the existing partial
defence of provocation and the term “provocation” itself which carries negative connotations.’
The common law provocation defence had already been modified by Parliament, in s 3
of the Homicide Act 1957, which has been repealed by s 56(2) of the 2009 Act. For the
purposes of comparison, s 3 is set out here:
SECTION
‘Where on a charge of murder there is evidence on which the jury can find that the person
charged was provoked (whether by things done or by things said or by both together) to lose
his self-control, the question whether the provocation was enough to make a reasonable man
do as he did shall be left to be determined by the jury; and in determining that question the
jury shall take into account everything both done and said according to the effect which, in
their opinion, it would have on a reasonable man.’
Did D kill with malice D cannot be liable for
aforethought? NO murder so diminished
responsibility does not
apply.
YES
Did D have an ‘abnormality of

mental functioning’?
YES
336
Was the abnormality caused by a NO

Homicide
‘recognised medical condition’?
NO
YES
Was D’s ability to understand the D cannot plead

nature of his conduct and/or diminished responsibility,
form a rational judgment and/or NO but may be able to plead
exercise self-control substantially another defence.
impaired?
YES
NO
Does D’s abnormality provide

an explanation for his acts and
omissions in doing or being a
party to the killing?
YES
The defence of diminished

responsibility is available. D will be
convicted of manslaughter.
Figure 10.1 Diminished responsibility.

The new defence
The 2009 Act provides as follows.
SECTION
‘54 (1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be con-
victed of murder if –
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss
of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and
in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control
was sudden.
(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s 337
circumstances other than those whose only relevance to D’s conduct is that they bear on
D’s general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a con-
sidered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to
the defence under subsection (1), the jury must assume that the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with
respect to the defence if evidence is adduced on which, in the opinion of the trial judge,
a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable
instead to be convicted of manslaughter.
(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of
murder does not affect the question whether the killing amounted to murder in the case
of any other party to it.
55 (1) This section applies for the purposes of s 54.
(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious
violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done
or said (or both) which-
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the
matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger –
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a
thing which D incited to be done or said for the purpose of providing an excuse to
use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D
incited the thing to be done or said for the purpose of providing an excuse to use
violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7) In this section references to ‘D’ and ‘V’ are to be construed in accordance with s 54.
56 (1) The common law defence of provocation is abolished and replaced by sections 54 and
55.’
Procedure
Like diminished responsibility (and the old provocation defence), the loss of self-control
defence is only a partial defence to murder. The references in s 54(1) to ‘kills’ and ‘killing’
means that the defence will not be available to a charge of attempted murder. If the defence
is successful, D will be found guilty of manslaughter instead of murder (s 54(7)).
If D wishes to rely on the loss of self-control defence, they must provide ‘sufficient
evidence’ of it. The onus is then on the prosecution to disprove it, beyond reasonable
doubt (s 54(5)). The 2009 Act states that the evidence must be ‘sufficient’, meaning that
the trial judge must be satisfied that a jury, properly directed, could ‘reasonably con-
clude that the defence might apply’ (s 54(6)). In the first case under the 2009 Act to reach
the Court of Appeal – Clinton [2012] EWCA Crim 2; [2012] 2 All ER 947 – Lord Judge CJ
explained the procedure as follows:
JUDGMENT
338
‘The statutory provision is clear. If there is evidence on which the jury could reasonably con-
clude that the loss of control defence might apply, it must be left to the jury: if there is no such
Homicide
evidence, then it must be withdrawn. Thereafter in accordance with the judge’s directions the
jury will consider and return its verdict.’
In Jewell [2014] EWCA Crim 414, D’s loss of control defence was withdrawn by the trial
judge on the basis that there was insufficient evidence to support it, and the Court of
Appeal upheld D’s resulting murder conviction. D had driven to V’s house, ostensibly
to pick him up for work, and shot him at point blank range, twice, with a shotgun. Raf-
ferty LJ said that the killing ‘bore every hallmark of a pre-planned, cold-blooded execu-
tion . . . the evidence that this was a planned execution is best described as overwhelming’.
In Workman [2014] EWCA Crim 575, the Court of Appeal rejected D’s appeal against his
conviction for murdering his ex-wife. D contended that the trial judge should have dir-
ected the jury on loss of control but the appeal court held that, although it was incum-
bent on a trial judge to direct the jury on loss of control if there was ‘sufficient evidence’
of it (whether it was positively relied upon by the defence or not), in this case there was
simply no evidence.
A loss of self-control
The central issue to the defence is a ‘loss of self-control’ (s 54(1)(a)), which was also key
to the provocation defence. Whether or not D has had a loss of self-control will be a ques-
tion for the jury. Unlike the provocation defence, the 2009 Act explicitly states that the
loss of control does not need to be ‘sudden’ (s 54(2)). This point was reiterated by the
Court of Appeal in Dawes [2013] EWCA Crim 322; [2014] 1 WLR 947. Lord Judge CJ said
that:
JUDGMENT
‘Provided there was a loss of control, it does not matter whether the loss was sudden or not.
A reaction to circumstances of extreme gravity may be delayed. Different individuals in differ-
ent situations do not react identically, nor respond immediately.’
The new defence should, therefore, be available in some factual situations where pro-
vocation would not have succeeded. If so, this appears to contradict the government’s
stated intention of replacing provocation with a new defence of ‘much more limited
application’. However, it is submitted that this change in the law is unlikely to make that
much difference in practice. In many of the old cases where provocation failed, there
was simply no, or insufficient, evidence of any loss of self-control, ‘sudden’ or other-
wise. The new defence will obviously not be available in such situations either. Three
provocation cases illustrate this point:
 Ibrams and Gregory (1981) 74 Cr App R 154. D and E had been ‘provoked’ by V and
carried out a pre-planned killing which involved luring V into a trap and then jointly
attacking him with various weapons.
 Thornton (No 1) [1992] 1 All ER 306. D had been ‘provoked’ by her husband, V, and
stabbed him to death. However, prior to the stabbing, she had gone into another
room to sharpen a knife before killing V.
 Ahluwalia (1992). D had been ‘provoked’ by her husband, V, and killed him by
pouring petrol on him as he slept and setting it on fire.
In all three cases, the defendants pleaded provocation but were convicted of murder 339
(despite the evidence of provocation) because there was no ‘loss of self-control’ (although
both Thornton and Ahluwalia later succeeded in having their convictions quashed

because of evidence of DR). Would any of these cases be decided differently under the
2009 Act? It would seem not.
The courts had already accepted, in the context of the provocation defence, that
‘sudden’ did not mean ‘immediate’ and that a time delay – a so-called ‘slow-burn’ reac-
tion – between the last provocative incident and D’s eventual loss of control was not
necessarily fatal to the defence, although it did weaken it (Ahluwalia (1992)). By omitting
the word ‘sudden’ from the new defence it does mean that whether or not there is a time
delay is irrelevant: the defence of loss of self-control will not be weakened as a result. As
a result, women who find themselves trapped in abusive relationships and eventually
(but not necessarily suddenly) lose self-control and kill their partners should find it
easier to plead the new defence than they did provocation. (It has been argued that a
‘sudden’ loss of self-control involving an explosive outburst of anger and violence is a
more typical male reaction, whereas women tend not to react ‘suddenly’.)
However, the retention of the ‘loss of self-control’ element means that an opportunity
to provide a viable defence for women in abusive relationships who kill (but without
losing self-control) has been missed. After all, both Thornton and Ahluwalia were in
such a relationship and killed their respective husbands only after enduring years of
physical and psychological abuse. Yet, the evidence of provocation (which was particu-
larly severe in Ahluwalia’s case) did not help either woman to plead that defence because
they did not suffer a loss of self-control – ‘sudden’ or otherwise. Under the 2009 Act, the
outcome in cases like Thornton and Ahluwalia would be exactly the same.
The Law Commission had proposed removing the loss of self-control criterion
entirely, in order to provide a defence to women in abusive relationships who killed
their partners from ‘a combination of anger, fear, frustration and a sense of desperation’
(Murder, Manslaughter and Infanticide (2006), para 5.18). The government, however, dis-
agreed, because of concerns that ‘there is a risk of the partial defence being used inap-
propriately, for example in cold-blooded, gang-related or “honour” killings’. Even in
abusive relationship cases, the government concluded that there was a ‘fundamental
problem about providing a partial defence in situations where a defendant has killed
while basically in full possession of his or her senses, even if he or she is frightened,
other than in a situation which is complete self-defence’ (Murder, Manslaughter and Infan-
ticide: Proposals for Reform of the Law (2008), paras 35–36). For a detailed analysis of both
sides of the ‘loss of control’ debate, see Anna Carline, ‘Reforming provocation: perspec-
tives from the Law Commission and the government’ (2009) 2 Web JCLI.
Section 54(4) adds that s 54(1) does not apply if ‘D acted in a considered desire for
revenge’. This appears to add nothing of substance – after all, unless D has lost self-
control (as required by s 54(1)(a)), the defence cannot run at all. The use of the word
‘considered’ implies the polar opposite of a killing committed having lost control, so
s 54(4) appears just to be there for emphasis.
The ‘qualifying triggers’

D’s loss of control must be based on one (or both) of two ‘qualifying triggers’ (s 54(1)(b)): a
‘fear of serious violence from V against D or another identified person’ (s 55(3)) or ‘a thing
or things done or said (or both) which constituted circumstances of an extremely grave
character and caused D to have a justifiable sense of being seriously wronged’ (s 55(4)).
Trigger 1: a ‘fear of serious violence’ (s 55(3))

When will this trigger apply? Two situations present themselves.
340  Those who would be unable to plead self-defence because there was an anticipated
attack, but no immediate threat, and hence no necessity to use force. This trigger
could be used in domestic violence cases, such as Ahluwalia and Thornton (discussed
above). Another possible example of a case involving this trigger is provided by the
Homicide
facts of Ibrams and Gregory (1982), also discussed above. In that case, although their
provocation defence failed, the Court of Appeal acknowledged that the defendants
were subjected to ‘gross bullying and terrorising’ from V.
 Those who would be unable to plead self-defence because, although they were (or
believed themselves to be) under attack, they had used excessive force. An example
given in the Law Commission’s report (2006) is a householder who reacts spontan-
eously but with unreasonable force when confronted by an intruder (para 4.18).
Under the common law, the use of excessive force in self-defence is no defence at all
to murder as a result of the House of Lords’ decision in Clegg [1995] 1 AC 482 – see
Chapter 8.
There are two important limitations on this trigger. First, D must fear violence from V,
as opposed to from some third party. Second, D must fear that the violence will be used
against D or ‘another identified person’ – a phrase not defined in the Act. The case of
Ward [2012] EWCA Crim 3139 illustrates the application of this trigger. D, his brother E
and V had spent the day drinking and taking cocaine. This continued at E’s house where
spontaneous violence erupted, which started when V head-butted E. D went to his
brother’s defence, picked up a pick-axe handle and struck V with it. V suffered ‘multiple
heavy and sustained blows, mainly to the head area, which caused catastrophic injuries:
multiple skull fractures, fractures of the left cheekbone, fractures to both eye sockets and
the base of the skull’ from which he later died. The Crown accepted D’s plea of not guilty
to murder on the basis of loss of control.
Trigger 2: a thing or things done or said (or both) (s 55(4))

This trigger covers roughly the same terrain as the old provocation defence, which also
required things to be said or done. However, the new defence is much narrower than
provocation because s 3 of the Homicide Act 1957 imposed no further requirements
whereas s 55(4) has two:
 circumstances of an extremely grave character;
 a justifiable sense of being seriously wronged.
That certainly seems to be the view of the Court of Appeal. In Clinton (2012), Lord Judge
CJ stated (emphasis in original):
JUDGMENT
‘Sections 55(3) and (4) define the circumstances in which a qualifying trigger may be present.
The statutory language is not bland. In s 55(3) it is not enough that [D] is fearful of violence.
He must fear serious violence. In subsection (4)(a) the circumstances must not merely be grave,
but extremely so. In subsection (4)(b) it is not enough that [D] has been caused by the circum-
stances to feel a sense of grievance. It must arise from a justifiable sense not merely that he
has been wronged, but that he has been seriously wronged. By contrast with the former law
of provocation, these provisions have raised the bar.’
The Lord Chief Justice reiterated this view in Dawes [2013] EWCA Crim 322; [2014] 1
WLR 947 when he said that the ‘circumstances in which the qualifying triggers will arise
is much more limited than the equivalent provisions in the former provocation defence
. . . some of the more absurd trivia which nevertheless required the judge to leave the
provocation defence to the jury will no longer fall within the ambit of the qualifying trig- 341
gers defined in the new defence’.
The combined effect of these conditions means that it would surely be impossible for

the new defence to work in a case such as Doughty (1986) 83 Cr App R 319. D had killed
his 17-day-old son after the child would not stop crying. Although he was convicted of
murder, the Court of Appeal allowed his appeal (substituting a manslaughter convic-
tion) on the basis that there was evidence of provocation by ‘things done’. To illustrate
how the 2009 Act has ‘raised the bar’, consider the case of Zebedee [2012] EWCA Crim
1428. Here, a jury rejected a loss of control defence based on trigger 2, and the Court of
Appeal upheld D’s murder conviction. The Court held that the jury ‘must have con-
cluded that whatever it was that triggered [D’s] violence did not constitute “circum-
stances of an extremely grave character” sufficient to satisfy the statutory test for a
qualifying trigger’. Had the provocation defence still been in force, then D may have
been entitled to a manslaughter conviction instead on the basis of ‘things done’.
CASE EXAMPLE
Zebedee [2012] eWcA crim 1428
D was charged with the murder of V, his 94-year-old father, who had Alzheimer’s and was
doubly incontinent. V lived with D’s sister, but D would often stay at her house to help out.
One night, D punched and strangled V to death. D did not deny the killing but pleaded loss of
control. He claimed that V had soiled himself during the night, after which D had cleaned him
up, only for V to soil himself again only 20 minutes later, which had triggered D’s loss of self-
control. The defence was rejected and D was convicted of murder. The Court of Appeal upheld
the conviction.
A good example of an old provocation case where trigger 2 almost certainly would be
satisfied is DPP v Camplin [1978] AC 705, where D was raped by V and then laughed at
afterwards. Being raped would surely amount to ‘circumstances of an extremely grave
character’ and D would no doubt feel ‘a justifiable sense of being seriously wronged’,
not just by the physical violation of the rape itself but also the psychological humiliation
of being laughed at afterwards. Another possible example of trigger 2 is Humphreys
[1995] 4 All ER 1008, discussed below.
The phrases ‘constituted circumstances of an extremely grave character’ and ‘a justi-
fiable sense of being seriously wronged’ are undefined in the 2009 Act, so there will
almost inevitably be appeals in the years to come to clarify their precise meaning and
scope. Some guidance was offered in Clinton (2012). Lord Judge CJ stated:
JUDGMENT
‘The defendant himself must have a sense of having been seriously wronged. However even if
he has, that is not the end of it. In short, [D] cannot invite the jury to acquit him of murder on
the ground of loss of control because he personally sensed that he had been seriously wronged
in circumstances which he personally regarded as extremely grave. The questions whether the
circumstances were extremely grave, and whether [D’s] sense of grievance was justifiable,
indeed all the requirements of s.55(4)(a) and (b), require objective evaluation.’
This principle was confirmed in Dawes (2013). Lord Judge CJ also explained the reason
for adopting an objective test:
JUDGMENT
342
‘If it were otherwise it would mean that a qualifying trigger would be present if D were to give
an account to the effect that, “the circumstances were extremely grave to me and caused me
to have what I believed was a justifiable sense that I had been seriously wronged”. If so, when
Homicide
it is clear that the availability of a defence based on the loss of control has been significantly
narrowed, one would have to question the purpose of s 55(3), (4) and (5).’
Under the common law, a doctrine known as ‘cumulative provocation’ had developed,
whereby the jury could take into account anything that had been said and/or done to D,
possibly over an extended period of time, in deciding whether D had lost their self-
control. The case of Humphreys (1995), discussed below, is the best-known example of
‘cumulative provocation’ where the Court of Appeal referred to D and V having a ‘tem-
pestuous relationship . . . a complex story with several distinct and cumulative strands of
potentially provocative conduct building up until the final encounter’. The 2009 Act
makes no explicit reference to this doctrine but it does not rule it out, either. In Dawes
(2013), one of the questions for the Court of Appeal was whether the concept of ‘cumula-
tive provocation’ applied in the context of the new defence. Lord Judge CJ answered in
the affirmative:
JUDGMENT
‘The loss of control may follow from the cumulative impact of earlier events . . . the response
to what used to be described as “cumulative provocation” requires consideration in the same
way as it does in relation to cases in which the loss of control is said to have arisen suddenly.
Given the changed description of this defence, perhaps “cumulative impact” is the better
phrase to describe this particular feature.’
The fact that ‘cumulative provocation’ (now ‘cumulative impact’) has survived the aboli-
tion of provocation itself should not come as a surprise; after all, s 55(4) of the 2009 Act
explicitly refers to ‘things’ done or said.
A combination of triggers (s 55(5))

A loss of self-control triggered by a combination of both ‘fear of serious violence’ and
‘things done or said’ will also suffice (s 55(5)). The provocation case of Humphreys (1995)
provides an example where both ‘qualifying triggers’ may have been present. D
believed that V (her violent boyfriend/pimp) and his friends were going to gang-rape
her and hence she probably had a ‘fear of serious violence’; she also claimed that V had
mocked her failed suicide attempt – this is a ‘thing said’ which could constitute ‘cir-
cumstances of an extremely grave character’ and give D a ‘justifiable sense of being
seriously wronged’.
In Dawes (2013), Lord Judge CJ observed that, where trigger 2 is relied upon, it was
very likely that the evidence would tend to support trigger 1 as well:
JUDGMENT
‘There are unlikely to be many cases where the only feature of the evidence relating to the
qualifying trigger in the context of fear of violence will arise in total isolation from things done
or said. In most cases the qualifying trigger based on a fear of violence will almost inevitably
to include consideration of things said and done, in short, a combination of the features iden-
tified in s 55(3) and (4).’
343
Self-inflicted triggers may not be relied upon (s 55(6)(a) and (b))
Even if D has a ‘fear of serious violence’ or a ‘sense of being seriously wronged by a

thing done or said’ and has a loss of self-control resulting in V’s death, he will not be able
to rely on the new defence if the trigger was self-inflicted, that is, if D ‘incited’ something
to be done or said ‘for the purpose of providing an excuse to use violence’. This partly
overrules an established common law doctrine that provocation could be self-induced,
although the presence of the words ‘incited’ and ‘purpose’ in s 55(6) clearly mean that D
will still be able to rely on either or both triggers if the violence that he fears or the things
said and/or done were inadvertently self-induced.
In Dawes (2013), Lord Judge CJ offered the following guidance on the circumstances
in which s 55(6)) might (and might not) apply:
JUDGMENT
‘One may wonder (and the judge would have to consider) how often D who is out to incite
violence could be said to “fear” serious violence; often he may be welcoming it. Similarly, one
may wonder how D may have a justifiable sense of being seriously wronged if he successfully
incites someone else to use violence towards him. Those are legitimate issues for considera-
tion, but as a matter of statutory construction, the mere fact that in some general way D was
behaving badly and looking for and provoking trouble does not of itself lead to the disapplica-
tion of the qualifying triggers unless his actions were intended to provide him with the excuse
or opportunity to use violence.’
CASE EXAMPLE
Dawes [2013] eWcA crim 322; [2014] 1 WLr 947
Carlo Dawes (D) had come home to his Brighton flat to find V asleep on the sofa with D’s
estranged wife, K. Both were fully clothed. The Crown case was that D flew into a jealous
rage, grabbed a kitchen knife and stabbed V in the neck, killing him. The defence case was
that V had woken up and then attacked D, who had acted in self-defence. As an alternative,
defence counsel suggested that the trial judge should direct the jury on loss of self-control.
However, the judge decided that D did not qualify for that defence because he had incited the
violence offered to him by V, so that no qualifying trigger was available because of s 55(6). The
jury convicted of murder and the Court of Appeal upheld the conviction.
‘Sexual infidelity’ ruled out (s 55(6)(c))
One situation is singled out in the 2009 Act. Section 55(6)(c) states that ‘the fact that a
thing done or said constituted sexual infidelity is to be disregarded’. This is designed to
overrule cases like Davies [1975] QB 691, where D shot and killed his wife after being
‘provoked’ by seeing her lover. This may appear surprising, particularly bearing in
mind that the provocation defence developed hundreds of years ago through cases of
sexual infidelity. However, the government was adamant. The Ministry of Justice’s Con-
sultation Paper (2008) states (para 32):
quotation
‘It is quite unacceptable for [D] who has killed an unfaithful partner to seek to blame [V] for
what occurred. We want to make it absolutely clear that sexual infidelity on the part of [V] can
344 never justify reducing a murder charge to manslaughter. This should be the case even if sexual
infidelity is present in combination with a range of other trivial and commonplace factors.’
Homicide
Section 55(6)(c) was therefore designed by the government to ensure that men who
intentionally kill their wives or other female relatives who have allegedly been unfaithful
in order to preserve or restore the family ‘honour’ will not be able to plead loss of control,
and nor will excessively jealous husbands or boyfriends who kill their wives or girl-
friends on discovering that they have been having an affair.
However, despite the apparently clear wording of s 55(6)(c), the Court of Appeal
in Clinton (2012) managed to interpret the 2009 Act in such a way as to allow evidence
of ‘sexual infidelity’ to support a loss of control defence after all. Lord Judge CJ
stated:
JUDGMENT
‘On the face of the statutory language, however grave the betrayal, however humiliating,
indeed however provocative in the ordinary sense of the word it may be, “sexual infidelity” is
to be disregarded as a qualifying trigger . . . The question, however, is whether it is a con-
sequence of the legislation that sexual infidelity is similarly excluded when it may arise for
consideration in the context of another or a number of other features of the case which are
said to constitute an appropriate permissible qualifying trigger . . . To seek to compartmentalise
sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more
difficult, but is unrealistic and carries with it the potential for injustice . . . We do not see how
any sensible evaluation of the gravity of the circumstances or their impact on [D] could be
made if the jury, having, in accordance with the legislation, heard the evidence, were then to
be directed to excise from their evaluation of the qualifying trigger the matters said to consti-
tute sexual infidelity, and to put them into distinct compartments to be disregarded. In our
judgment, where sexual infidelity is integral to and forms an essential part of the context in
which to make a just evaluation whether a qualifying trigger properly falls within the ambit of
ss 55(3) and (4), the prohibition in s 55(6)(c) does not operate to exclude it.’
In other words, if the only ‘trigger’ for D’s loss of control is sexual infidelity, then that
is to be disregarded and D will be convicted of murder (unless an alternative defence
is available). However, if sexual infidelity is ‘integral to and forms an essential part of
the context’ of D’s defence, alongside other evidence which is admissible in support
of a qualifying trigger, then it would be wrong to ‘compartmentalise’ the evidence.
CASE EXAMPLE
clinton [2012] eWcA crim 2; [2012] All er 947
D had bludgeoned and strangled his wife, V, to death. The day before her death, V told D that
she was having an affair. On the day of her death, D and V had begun to argue. According to
D, V had told him about her sexual activities in detail. V was also aware that D had been
looking at suicide websites on his computer and had taunted him about this; she had sug-
gested that D did not have the courage to commit suicide and that it would have been better
for everyone if he had. Finally, V told D that he could have their children. It was at this point
that D had grabbed a piece of wood and beat V about the head with it before strangling her
to death. At his trial for murder, D did not deny the killing but pleaded DR and/or loss of
control. However, he was convicted of murder after the trial judge ruled that the loss of
control defence should not be left to the jury because the loss of self-control had been trig-
gered by V’s sexual infidelity. D appealed on the grounds that the defence of loss of control 345
should have been left to the jury. The Court of Appeal agreed, holding that what V said about
her sexual infidelity could not ‘of itself ’ amount to a qualifying trigger. However, it did not
have to be disregarded: ‘The totality of matters relied on as a qualifying trigger, evaluated in

the context of the evidence relating to [V’s] sexual infidelity, and examined as a cohesive
whole, were of sufficient weight to leave to the jury.’
The ‘normal’ person test

The 2009 Act requires that, whichever trigger is relied upon, a ‘person of D’s sex and
age, with a normal degree of tolerance and self-restraint and in the circumstances of D,
might have reacted in the same or in a similar way to D’ (s 54(1)(c)).
A ‘person of D’s sex and age, with a normal degree of tolerance and
self-restraint’
This confirms the common law principles established in the context of provocation. In
DPP v Camplin [1978] AC 705, Lord Diplock said that D’s reaction should be tested
against a ‘person having the power of self-control to be expected of an ordinary person
of the sex and age’ of D.
The reference to a ‘normal degree of tolerance’ means that any irrational prejudices
such as racism and homophobia are excluded, while the reference to a ‘normal degree of
self-restraint’ means that characteristics such as bad temper and pugnacity are excluded
from the ‘normal person’ test. The government explained this aspect of the ‘normal
person’ test as follows (Consultation Paper (2008), para 22):
quotation
‘Factors, such as alcoholism or a mental condition, which affect the defendant’s general capa-
city for self-control, would not be relevant to this partial defence (though they might be to
diminished responsibility). Characteristics (eg intoxication, irritability, excessive jealousy) which
do not arise from a medical condition and do not satisfy the test for diminished responsibility
should be disregarded altogether.’
The proposition that intoxication should be ‘disregarded’ when the jury apply the
normal person test was confirmed by the Court of Appeal in Asmelash [2013] EWCA
Crim 157; [2014] QB 103. D, who was very drunk at the time of killing his flatmate,
unsuccessfully invoked the loss of control defence. In upholding his murder conviction,
Lord Judge CJ said:
JUDGMENT
‘The only relevance of the drunkenness was that it affected [D’s] self-restraint, and caused him
to act in a way in which he would not have acted if sober. Such drunkenness was an irrelevant
consideration. It may have had some relevance to his general capacity for tolerance or self-
restraint: but no more.’
CASE EXAMPLE
Asmelash [2013] eWcA crim 157; [2014] QB 103
D and V lived in the same house in Middlesbrough. They were friends and often used to drink
together. One night, however, they began arguing and eventually D stabbed V twice, once in
the back and once in the chest, the latter penetrating his heart and lung. Both men were
346
drunk at the time. At his trial for murder, D pleaded loss of control. He claimed that V had
been aggressive and physically abusive towards him on the day of the murder, and he (D) had
swung out at V with a knife because he was frightened. The trial judge directed the jury to
Homicide
consider whether they were sure that a person of D’s sex and age with a normal degree of
tolerance and self-restraint and in the same circumstances, but unaffected by alcohol, would
not have reacted in the same or similar way. D was convicted of murder and appealed, arguing
that the fact that he was drunk at the time of the stabbing was a relevant ‘circumstance’. The
Court of Appeal disagreed and upheld his murder conviction.
‘In the circumstances of D’

However, the ‘normal person’ must be placed in ‘the circumstances’ of D. This reflects
the common law development in the provocation defence that in certain cases D’s
characteristics may be taken into account in determining the reaction to provocation
of the ‘reasonable man’. Placing the ‘normal person’ in D’s circumstances is likely to
be applicable more to trigger 2, specifically the requirement that the things said and/
or done constituted circumstances ‘of an extremely grave character’. Case law may be
needed to determine what exactly is meant by ‘circumstances’, although s 54(3) states
that ‘all of D’s circumstances’ are potentially relevant, ‘other than those whose only
relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-
restraint’.
In Clinton (2012), Lord Judge CJ pointed out that the exclusion of ‘sexual infidelity’
in s 55(6)(c) was limited to the assessment of whether D had a qualifying trigger.
However, when it came to the normal person test, ‘the circumstances’ were ‘not con-
strained or limited’. It followed that, ‘notwithstanding s 55(6)(c), account may, and in
an appropriate case, should be taken of sexual infidelity’. He went on to consider the
implications of this:
JUDGMENT
‘We must reflect briefly on the directions to be given by the judge to the jury. On one view
they would require the jury to disregard any evidence relating to sexual infidelity when they
are considering the second component of the defence, yet, notwithstanding this prohibition,
would also require the same evidence to be addressed if the third component arises for con-
sideration. In short, there will be occasions when the jury would be both disregarding and
considering the same evidence. That is, to put it neutrally, counter intuitive.’
‘Might have reacted in the same or in a similar way to D’
This requirement confirms case law in the context of the provocation defence that it is
not enough for the jury to be satisfied that the ‘reasonable man’ might have lost self-
control – they had to be satisfied that the reasonable man might have gone on to kill V in
the same way that D did. Under the 2009 Act, the jury will have to consider whether the
‘normal person’ might have ‘reacted’ in the same or in a similar way to D.
Did D kill with malice D cannot be liable for

aforethought? NO murder so loss of self-
control defence does not
apply.
YES 347
D cannot plead the loss

Did D suffer a loss of self-control? of self-control defence,
NO
but may be able to plead
another defence.
YES
NO
Was the loss of self-control
triggered by a fear of serious
violence? NO
Was the loss of self-control
triggered by things said or
YES done, giving D a justifiable
sense of being seriously
wronged?
Might a person of D’s age and sex,
with a normal degree of tolerance
YES
and self-restraint, and in the
circumstances as D, have done as
D did?
NO D cannot plead the loss
of self-control defence,
but may be able to plead
YES
another defence.
The defence of loss of self-control

is available. D will be convicted of
manslaughter.
Figure 10.2 Loss of self-control.

kEy fACTS
Key facts on loss of self-control
Law Section/case
Definition • a loss of self-control s 54(1) Coroners and Justice
• a qualifying trigger Act 2009
• a normal person of D’s sex and age might
have reacted in the same or a similar way
Loss of • no requirement that it be sudden s 54(2) and (4)
selfcontrol • loss of self-control is not sudden if D acted in
‘considered desire’ for revenge
‘Qualifying A ‘fear of serious violence’ from V against D or s 55 (3)
348 trigger’ 1 ‘another identified person’.
‘Qualifying A thing or things done or said or both, s 55 (4)
trigger’ 2 ‘constituting circumstances of an extremely
Homicide
grave character’ and causing D to have a

‘justifiable sense of being seriously wronged’.
Both triggers Both triggers may apply simultaneously. s 55(5)
Self-induced Neither trigger applies if D ‘incited’ a thing to s 55(6)(a) and (b)
triggers be done or said for the ‘purpose of providing
an excuse to use violence’.
Sexual Must be disregarded … s 55(6)(c)
infidelity … except where it forms ‘part of the context’. Clinton (2012)
The ‘normal • D’s age and sex s 54(1)(c) and (3)
person’ test • a ‘normal degree of tolerance and self-restraint’
• in the ‘circumstances’ of D
• all of D’s circumstances are relevant, other
than those whose ‘only’ relevance is that they
bear on D’s ‘general capacity for tolerance or
self-restraint’
Evidence There must be ‘sufficient’ evidence – a question s 54(5) and (6)
of law for the judge – enabling a properly
directed jury to ‘reasonably conclude that the
defence might apply’.
Burden of The prosecution must disprove the defence s 54(5)
proof beyond reasonable doubt.
Effect of D is not guilty of murder but guilty of s 54(7)
defence manslaughter instead.
10.3.3 Suicide pacts

Section 4(1) of the Homicide Act 1957 provides that the survivor of a suicide pact (where
suicide pact
the other party to the pact is killed by D) is not guilty of murder but guilty of voluntary
Special and partial
defence to murder
manslaughter. Section 4(3) defines a ‘suicide pact’ as ‘a common agreement between
two or more persons having for its object the death of all of them’. The burden of proof
is on D on the balance of probabilities.
10.4 Involuntary manslaughter
Involuntary manslaughter describes any form of unlawful killing where there is no
proof of malice aforethought. There are three forms of involuntary manslaughter:
 constructive manslaughter
 gross negligence manslaughter
 reckless manslaughter.
10.4.1 Constructive manslaughter

D will be guilty of constructive manslaughter if he kills by an unlawful and dangerous
constructive
manslaughter
act. The following elements must be proven to exist:
Where V is killed  D must commit an unlawful act (in the sense of a crime).
by an unlawful
and dangerous act  The act must be ‘dangerous’. 349
 D must have intended to commit the unlawful act.
 That act must have caused death.
10.4 inVoLuntAry mAnSLAugHter

The requirement of an unlawful act
At one time it was thought that it was sufficient if D committed a civil wrong (a tort),
such as in Fenton [1830] 1 Lew CC 179, where D was convicted of manslaughter on the
basis that he had committed the unlawful act of trespass to property. This approach
quickly changed and the law now requires that D commit a criminal offence. In Franklin
(1883) 15 Cox CC 163, the court stated that ‘The mere fact of a civil wrong committed by
one person against another ought not to be used as an incident which is a necessary step
in a criminal case.’ If there is no criminal offence, then there is no possibility of a man-
slaughter conviction (regardless of how ‘dangerous’ D’s acts may have been). The
leading case is Lamb [1967] 2 QB 981.
CASE EXAMPLE
Lamb [1967] 2 QB 981
D shot his best friend, V, with a Smith & Wesson revolver. The shooting was accidental; neither
D nor V foresaw any risk of the gun firing when D pulled the trigger. Although the gun was
loaded, in that there were two bullets in the five-chamber cylinder, there were no bullets in
the chamber opposite the barrel. Critically, neither man appreciated that the cylinder revolved
before the hammer struck the back of the mechanism. Consequently, V did not apprehend
any possibility of injury being caused to himself, and therefore the actus reus of assault had
not been performed. The Court of Appeal quashed D’s conviction. Sachs LJ said that D’s act
was not ‘unlawful in the criminal sense of the word’.
Similarly, in Jennings [1990] Crim LR 588, where D had been convicted of manslaughter
on the basis that his act of carrying an uncovered knife in the street was unlawful, the
Court of Appeal quashed his conviction. Because there was no proof that he had any
intent to cause injury (which would have amounted to a crime under s 1 of the Preven-
tion of Crime Act 1953), simply walking along with the knife was ‘not a criminal offence
which could constitute the unlawful act for this purpose’. The criminal act could, for
example, be any of the following:
 assault (Larkin [1943] 1 All ER 217; Lamb [1967] 2 QB 981; Mallet [1972] Crim LR 260);
 battery (Church [1965] 2 All ER 72; Mitchell [1983] QB 741);
 criminal damage (DPP v Newbury and Jones [1977] AC 500);
 arson (Goodfellow [1986] Crim LR 468; Willoughby [2004] EWCA Crim 3365; [2005] 1
WLR 1880);
 theft (Willett [2010] EWCA Crim 1620; [2011] Crim LR 65);
 robbery (Dawson (1985) 81 Cr App R 150);
 burglary (Watson [1989] 2 All ER 865; Bristow and others [2013] EWCA Crim 1540,
[2014] Crim LR 457);
 administering a noxious substance, contrary to s 23 OAPA 1861 (Cato [1976] 1 All ER
260);
 affray, contrary to s 3 of the Public Order Act 1986 (Carey and others [2006] EWCA
Crim 17; M & M [2012] EWCA Crim 2293, [2013] 1 WLR 1083);
 cruelty to a person under 16, contrary to s 1 Children and Young Persons Act 1933
350 (Gay [2006] EWCA Crim 820);
 endangering road users, contrary to s 22A(1)(b) of the Road Traffic Act 1988 (Meeking
[2012] EWCA Crim 641).
Homicide
You may note that, although the ‘unlawful act’ must be a criminal offence, it need not be
a crime against the person – offences against property, such as theft, burglary and crimi-
nal damage, will suffice. Also, it is not necessary that the ‘unlawful act’ be a particularly
serious crime: assault and battery are both summary offences which on their own carry
maximum sentences of only six months’ imprisonment. However, it is important to
remember that there are other elements to the crime of constructive manslaughter, in
particular the element of ‘dangerousness’ (discussed below).
Omissions as unlawful ‘acts’

Given that constructive manslaughter requires an unlawful and dangerous ‘act’, it
follows that if D simply omits to act, he cannot be guilty of this form of manslaughter. In
Lowe [1973] QB 702, Phillimore J said:
JUDGMENT
‘If I strike a child in a manner likely to cause harm it is right that if the child dies I may be
charged with manslaughter. If, however, I omit to do something, with the result that it suffers
injury to its health which results in its death, we think that a charge of manslaughter should
not be an inevitable consequence even if the omission is deliberate.’
CASE EXAMPLE
Lowe [1973] QB 702
D was convicted of both neglecting his child so as to cause it unnecessary suffering or injury
to its health contrary to s 1(1) of the Children and Young Persons Act 1933 and constructive
manslaughter. The trial judge had directed the jury that if they found D guilty of the s 1
offence they had to find him also guilty of manslaughter. The Court of Appeal quashed his
manslaughter conviction.
The mental element of the unlawful act

While an unlawful act is essential in constructive manslaughter cases, D must also
possess the mental element which combines with the unlawful act to constitute a criminal
offence. Hence, another ground for allowing D’s appeal in Lamb (1967), above, was the
fact that D (as well as V) did not appreciate that the chamber of the revolver would
rotate prior to firing. Therefore, D did not appreciate any risk of the gun firing and,
hence, did not possess the mental element of assault (intention or subjective recklessness
as to causing immediate violence to be apprehended by V). It appears that this require-
ment only applies if there is a mental element required for the underlying criminal
offence. In Andrews [2002] EWCA Crim 3021; [2003] Crim LR 477, the Court of Appeal
upheld a manslaughter conviction based on s 58(2)(b) of the Medicines Act 1968, which
states that ‘no person shall administer any [specified] medicinal product unless he is an
appropriate practitioner or a person acting in accordance with the directions of an
appropriate practitioner’. This is a strict liability offence; that is, there is no requirement
that D be proven to have formed any particular mental element with respect to the ele-
ments of the actus reus. D had given V, and others, insulin injections to give them a
‘rush’. V, who was undernourished and had been drinking, died. D’s appeal was based
on the fact that V had consented, but this was dismissed. (You will recall from reading 351
cases such as Brown and others [1994] AC 212 in Chapter 8 that, for public policy reasons,
consent is restricted in all situations where V runs the risk of suffering at least actual

bodily harm, as in this case.)
Dangerousness
In Church (1965) (the facts of which appeared in Chapter 3 in the context of the require-
ment of coincidence of actus reus and mens rea), the Court of Criminal Appeal laid down
a requirement that D’s act had to be dangerous (this is in addition to the acts being
unlawful). Edmund Davies J, giving judgment for the court, imposed an objective
standard for assessing dangerousness:
JUDGMENT
‘An unlawful act causing the death of another cannot, simply because it is an unlawful act,
render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act
must be such as all sober and reasonable people would inevitably recognise must subject the
other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’
The courts approach this test by asking whether a hypothetical ‘sober and reasonable’
bystander, who happened to be watching the unlawful act, would regard the act as dan-
gerous. The fact that this is an objective test was emphasised by the Court of Appeal in
Ball [1989] Crim LR 730.
CASE EXAMPLE
Ball [1989] crim Lr 730
D, who had been involved in a dispute with his neighbour, V, grabbed a handful of cartridges
which he loaded into his shotgun and fired at her. V was killed and D was charged with
murder. He was acquitted as the jury accepted that he honestly thought the cartridges were
blanks. However, his conviction of manslaughter was upheld. The bystander would have
regarded D’s act of firing a loaded shotgun at V as dangerous. Moreover, the ‘sober and reas-
onable’ bystander would not have made D’s mistake of thinking the cartridges were blanks.
The jury are entitled to ascribe to the bystander D’s pre-existing knowledge about V (if
any), including any knowledge which D acquires during the commission of the unlaw-
ful act. This is illustrated by the case of Watson (1989).
CASE EXAMPLE
Watson [1989] 2 All er 865
D burgled the house of an 87-year-old man, V. A brick was thrown through a window to gain
access and this alerted V, who came down to investigate. There was a confrontation between D
and V during which V was verbally abused. D left without stealing anything but V died of a heart
attack 90 minutes later. D pleaded guilty to burglary but was also convicted of manslaughter. The
Court of Appeal allowed D’s appeal against the latter conviction (on causation grounds) but was
satisfied that the jury were entitled to find that the burglary was dangerous.
Lord Lane CJ stated:
JUDGMENT
352
‘The judge clearly took the view that the jury were entitled to ascribe to the bystander the
knowledge which [D] gained during the whole of his stay in the house and so directed them.
Homicide
Was this a misdirection? In our judgment it was not. The unlawful act in the present circum-
stances comprised the whole of the burglarious intrusion . . . That being so, D (and therefore
the bystander) during the course of the unlawful act must have become aware of [V]’s frailty
and approximate age, and the judge’s directions were accordingly correct.’
Similar reasoning was adopted in Bristow and others [2013] EWCA Crim 1540; [2014]
Crim LR 457. Treacy LJ said that ‘whilst burglary of itself is not a dangerous crime, a
particular burglary may be dangerous because of the circumstances surrounding its
commission’.
CASE EXAMPLE
Bristow and others [2013] eWcA crim 1540; [2014] crim Lr 457
In October 2010, six men burgled V’s off-road vehicle repair business located on a secluded
site in east Sussex. To access the workshops (where numerous vehicles, tyres and valuable
tools were located), the burglars had to drive down a single-track road past V’s home in a
converted barn. During the burglary, the defendants were disturbed by V, who was then killed
by being hit and/or run over by one or possibly two vehicles used by the burglars as they
attempted to escape. In due course, four of the six burglars were charged with manslaughter.
The trial judge held that there was sufficient evidence for the jury to find that the burglary (i)
could be regarded as an ongoing offence at the time of V’s appearance on the scene, and (ii)
was dangerous, on the basis that a reasonable bystander would recognise the risk of some
harm being caused to a person intervening at night, in the dark, in a relatively confined space,
where powerful vehicles were involved, and there was only one route of escape from the
workshops (i.e. down the single-track road past V’s home). The jury convicted and the Court
of Appeal upheld their convictions.
The decision in Watson (1989) should be contrasted with that in Dawson (1985). D and
another man carried out an armed robbery of a petrol station while masked and armed
with pickaxe handles and replica guns. The attendant, V, was 60 years old. He also had
a heart condition and died of a heart attack. The Court of Appeal held this was not man-
slaughter – neither D nor the ‘sober and reasonable’ bystander would have been aware
of this condition.
ACTIVITy
Self-test question
Do you agree that the convictions in Dawson (1985) should have been quashed? How does
the approach of the Court of Appeal in this case compare with the decision of the same Court
in Blaue [1975] 3 All ER 446 (considered in Chapter 2), that D must take their victim as they
find them?
A similar outcome to that in Watson was achieved in Carey and others [2006] EWCA
Crim 17.
CASE EXAMPLE
carey and others [2006] eWcA crim 17 353
V, a 15-year-old girl, had run away from the three defendants after being punched and threat-
ened with further violence, but had collapsed after running about 100 metres and died of an

undiagnosed heart complaint aggravated by the running. The defendants were convicted of
affray and constructive manslaughter but their manslaughter convictions were quashed on
appeal. The Court of Appeal held that the count of constructive manslaughter should have
been withdrawn from the jury as the only physical harm to V (a single punch) did not cause
her death. Although there were other threats of violence in the course of the affray they were
not dangerous, inasmuch as a reasonable person would not have foreseen their causing any
physical harm to V.
‘Harm’
According to the Church (1965) test, V must be subjected to ‘the risk of some harm’. In
Reid (1975) 62 Cr App R 109, Lawton LJ thought that ‘the very least kind of harm is
causing fright by threats’, but the court thought that as D was armed, the act was likely
to cause death or serious injury and therefore was dangerous. In Dawson (1985), Watkins
LJ said that ‘a proper direction would have been that the requisite harm is caused if the
unlawful act so shocks the victim as to cause him physical injury’. Thus, merely frighten-
ing or shocking V is insufficient; the trauma must pose a risk of some physical injury.
In M and M [2012] EWCA Crim 2293, [2013] 1 WLR 1083, the Court of Appeal emphas-
ised that the Church test simply required the jury to decide whether D’s unlawful act
exposed V to the risk of ‘some’ harm. There was no requirement that the ‘sober and
reasonable’ bystander had to have foreseen the ‘sort’ or ‘type’ of harm to which V was,
in fact, exposed.
CASE EXAMPLE
M and M [2012] eWcA crim 2293; [2013] 1 WLr 1083
Two brothers faced manslaughter charges following the death of V, a nightclub bouncer. The
Crown case was that the brothers had been involved in an affray in the club which eventually
caused V to suffer a ruptured aneurysm in his heart, as a result of a surge in blood pressure,
from which he died. In a pre-trial hearing, the trial judge ruled that the Crown would not be
able to prove that a ‘sober and reasonable’ bystander would have foreseen that V would suffer
this ‘sort’ of harm. The Crown appealed and the Appeal Court allowed the appeal. The trial
judge had elevated the requisite risk from an appreciation that ‘some’ harm would occur into
foresight of the type of harm which actually ensued.
Mens rea of manslaughter
In DPP v Newbury and Jones (1977), the House of Lords explained the mens rea require-
ment for constructive manslaughter. It was held that, although it must be proved that D
intended to commit the unlawful act, there was no requirement that D foresaw that his
act may cause death or even harm.
D’s unlawful act must cause V’s death

The final element in a constructive manslaughter case is proof that D’s ‘unlawful act’
caused V’s death. Here, the normal rules of causation apply (see Chapter 2). In Mitchell
(1983), which was considered in Chapter 2, Staughton LJ said that, ‘Although there was
no direct contact between [D] and [V], she was injured as a direct and immediate result
of his act . . . The only question was one of causation: whether her death was caused by
[D]’s acts. It was open to the jury to conclude that it was so caused.’ The Court of Appeal
in that case upheld D’s conviction because it was reasonably foreseeable that pushing an
354 elderly man in a crowded post office could cause him to fall and knock over someone
else, and hence there was no break in the chain of causation. Similarly, in Goodfellow
(1986), where D set fire to his council house (hoping to be rehoused) and ended up
Homicide
killing his wife, two-year-old son and another woman, all of whom were in the house at
the time, the Court of Appeal upheld his conviction. The deaths were reasonably
foreseeable.
However, there have been problems in some constructive manslaughter cases, spe-
cifically, those involving deaths allegedly ‘caused’ by drug dealers or suppliers provid-
ing drug addicts with heroin, leading to a fatal drug overdose. In the earliest case, Cato
(1976), D injected V with a mixture of heroin and water. V overdosed and died and D
was convicted of manslaughter. The Court of Appeal upheld the conviction on the basis
that D’s ‘unlawful act’ of administering a noxious substance (heroin) contrary to s 23
OAPA 1861, actually caused V’s death.
In hindsight, the fact that D actually performed the injection was crucial to the guilty
verdict in Cato. Subsequent cases have decided that the same result does not follow if D
gives the drug to V, who then takes it himself (and overdoses and dies). In Dalby [1982]
1 All ER 916, the Court of Appeal held that in this situation D has not caused V’s death.
D gave some of his prescribed Diconal tablets (a form of heroin substitute) to V, who
took them but overdosed and died. The Court of Appeal quashed D’s manslaughter
conviction on the basis that V’s self-administration of the tablets broke the chain of
causation.
This line of thinking was confirmed in the similar case of Dias [2001] EWCA Crim
2986; [2002] 2 Cr App R 5, where the Court of Appeal stated that V’s self-injection of
heroin ‘probably’ broke the chain of causation (D’s appeal in Dias was allowed on a dif-
ferent point). The leading case is now Kennedy [2007] UKHL 38; [2008] 1 AC 269, a deci-
sion of the House of Lords, the facts of which were given in Chapter 2. The House of
Lords, approving both Dalby and Dias, quashed D’s conviction of constructive man-
slaughter on the basis that V’s self-injection of the heroin which D had given to him
broke the chain of causation.
Thus, the situation involving drug dealers is that
 where D actually injects V with a drug, and V dies, then D may face liability for con-
structive manslaughter (Cato); but
 where D hands over the drugs and V self-administers (and dies), then D is not liable
for constructive manslaughter (Dalby, Dias, Kennedy).
kEy fACTS
Key facts on unlawful act manslaughter

Unlawful act Must be a crime. Lamb (1967)
A civil wrong is not enough. Franklin (1883)
It must be an act; an omission is Lowe (1973)
not sufficient.
Examples of • Assault, Larkin (1943), Lamb (1967)
unlawful acts • battery, Church (1965), Mitchell (1983)
• criminal damage, Newbury and Jones (1977)
• arson, Goodfellow (1986)
355
• robbery, Dawson (1985)
• burglary, Watson (1989), Bristow & Others (2013)

• administering noxious Cato (1976), Dalby (1982), Dias (2002),
substance (heroin). Kennedy (2007)
Dangerous act The test for this is objective – Church (1965)
would a sober and reasonable
person realise the risk of some
harm?
The risk need only be of some Larkin (1943)
harm – not serious harm.
An act aimed at property can still Goodfellow (1986)
be such that a sober and
reasonable person would realise
the risk of some harm.
There must be a risk of physical Dawson (1985)
harm; mere fear is not enough.
Causes death Normal rules of causation apply; Goodfellow (1986)
the act must be the factual and
legal cause of death.
An intervening act such as the Dalby (1982), Dias (2001), Kennedy
victim self-injecting a drug breaks (2007)
the chain of causation.
Mens rea D must have mens rea for the Newbury and Jones (1977)
unlawful act but it is not
necessary to prove that D
foresaw any harm from his act.
gross 10.4.2 Gross negligence manslaughter

negligence The leading case is the House of Lords’ decision in Adomako [1995] 1 AC 171. The ele-
manslaughter ments of this form of involuntary manslaughter are:
Causing death by
breaching a duty  the existence of a duty of care;
of care in  breach of that duty causing death;
circumstances of
gross negligence  gross negligence which the jury consider justifies criminal conviction.
Where manslaughter by gross negligence is raised, it is incumbent upon the judge to
direct the jury in accordance with the passage of Lord Mackay’s speech in Adomako at
187 (Watts [1998] Crim LR 833).
Duty of care
The concept of a duty of care is well known in civil law, but less so in criminal law. The
criminal law recognises certain duty situations, as seen in Chapter 2; for example, a
doctor owes his patient a duty of care by virtue of his contractual obligations. Adomako
itself involved a breach of duty owed by a hospital anaesthetist towards a patient. Sim-
ilarly, in Adomako, the House of Lords approved Stone and Dobinson [1977] QB 354 (the
facts of which appear in Chapter 2) who were found to have undertaken a duty of care.
So the ambit of the offence could be limited to those who, for whatever reason, have
either undertaken or had a duty imposed upon them. However, Lord Mackay in Adomako
said that ‘ordinary principles of law of negligence apply to ascertain whether or not D
356 has been in breach of a duty of care towards the victim’. That being so, it logically follows
that those same principles should apply in determining those persons to whom a duty
is owed. These principles are to be found in Donoghue v Stevenson [1932] AC 562, where
Lord Atkin in the House of Lords said:
Homicide
JUDGMENT
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be
– persons who are so closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the acts or omis-
sions which are called into question.’
This clearly goes much further than the traditional duty situations in criminal law,
giving this form of manslaughter a very wide scope indeed. The following cases illus-
trate the development of the duty concept.
CASE EXAMPLE
Litchfield [1998] crim Lr 507; [1997] eWcA crim 3290
D was the master of the Maria Asumpta, a sailing ship, which ran aground off the north
Cornish coast and broke up, killing three of her 14 crew. D was charged with manslaughter,
on the basis that, in sailing on – when he knew that the engines might fail through fuel con-
tamination – he had been in breach of duty serious enough to amount to gross negligence.
The jury convicted. On appeal, the Court of Appeal, applying Adomako (1995), held that the
question had been appropriately left for the jury to decide.
CASE EXAMPLE
Wacker [2003] eWcA crim 1944; [2003] 4 All er 295
D was convicted of 58 counts of manslaughter. He was the driver of a lorry found at Dover
docks to contain 60 illegal Chinese immigrants – all bar two of them dead. At about 7 p.m.,
while the lorry was waiting at Zeebrugge to board the North Sea ferry, D had closed the only
ventilation into the lorry; it could not be opened from the inside. (Presumably this closure was
not done with the intent to cause GBH or death, otherwise D would have faced 58 counts of
murder.) The journey had taken some five hours, by which time, as Kay LJ described it, ‘the
dreadful loss of life was discovered’. The Court dismissed D’s appeal, which had been based
on the premise that, as he and the 60 Chinese immigrants had been jointly engaged on an
illegal operation, he did not owe them a duty of care. The Court, following Adomako (1995),
confirmed that the issue whether a duty of care was owed for the purposes of gross negli-
gence manslaughter was determined by ‘the same legal criteria as governed whether there
was a duty of care in the law of negligence’. However, this did not include the tortious prin-
ciple of ex turpi causa (according to which the participants in a criminal enterprise did not owe
a duty of care to each other).
In Willoughby [2005] 1 WLR 1880; [2004] EWCA Crim 3365, the Court of Appeal followed
and confirmed Wacker. D, the owner of The Old Locomotive, a disused pub in Canter-
bury, had hired V to help him burn down the pub (there were financial reasons for doing
so). One night the pair of them spread petrol around the pub and started a fire. However,
there was an explosion and the building collapsed, killing V. D was charged with gross
negligence manslaughter. The prosecution convinced the jury that D had breached his
357
duty of care to V in a grossly negligent way and D was convicted. On appeal, the Court
of Appeal accepted that it was possible for the same set of circumstances to give rise to
liability for both constructive and gross negligence manslaughter, and that D was almost

certainly guilty of constructive manslaughter (based on the unlawful and dangerous act
of arson). In terms of gross negligence manslaughter, however, the prosecution had to
prove that D breached a duty of care to V. On this point, Rose LJ stated:
JUDGMENT
‘We accept that there could not be a duty in law to look after [V]’s health and welfare arising
merely from the fact that [D] was the owner of the premises. But the fact that [D] was the owner,
that his public house was to be destroyed for his financial benefit, that he enlisted [V] to take part
in this enterprise, and that [V]’s role was to spread petrol inside were, in conjunction, factors
which were capable, in law, of giving rise to a duty to the deceased on the part of [D].’
In Evans [2009] EWCA Crim 650 (discussed in Chapter 2), the Court of Appeal applied
the principle developed in the case of Miller [1983] 2 AC 161 (also discussed in Chapter
2) that a duty of care may be imposed on those who create a dangerous situation. In
Evans, a duty was imposed on D because she had obtained heroin for her 16-year-old
sister which the latter then took but shortly afterwards lapsed into unconsciousness and
died. D was found to be in breach of her duty to her sister (by failing to contact the emer-
gency services after her sister was obviously in need of medical attention) and was con-
victed of gross negligence manslaughter. The Court of Appeal dismissed her appeal.
Evans therefore provides a potential solution to the problem created by the House of
Lords’ ruling in Kennedy (2007), above, that a drug dealer’s unlawful act in supplying V
with drugs which V self-administers (with fatal consequences) does not cause the death
and thus D cannot be convicted of constructive manslaughter. Instead, using Evans,
drug dealers can now be prosecuted for gross negligence manslaughter if they fail to
take adequate steps to assist a customer who has overdosed on drugs supplied by the
dealer.
Breach of duty
The next issue is at what point D breaches that duty. In civil law, D is judged against the
standard of the reasonably competent person performing the activity involved. Hence:
 If D is driving a car, he must reach the standard of the reasonably competent driver
(Andrews v DPP [1937] AC 576, discussed below).
 If D is sailing a boat, he must reach the standard of the reasonably competent sailor
(Litchfield (1998)).
 If D is a doctor, he is judged against the standard of the reasonably competent doctor
(Bateman (1925) 19 Cr App R 8).
 If D is an anaesthetist, he is judged against the standard of the reasonably competent
anaesthetist (Adomako (1995)).
ACTIVITy
essay writing
Against what benchmark should the defendants in, respectively, Stone and Dobinson and
Wacker be judged?
358
In the civil law, no concession is made for inexperience. Thus, a learner driver is judged
against the standard of the reasonably competent driver (Nettleship v Weston [1971] 3 All
ER 581); and a junior doctor is judged against the standard of the reasonably competent
Homicide
doctor (Wilsher v Essex Area Health Authority [1986] 3 All ER 801). Should the same policy
apply in the criminal law?
‘Gross negligence’
Simply proving that D has been in breach of a duty owed to another person will not
lead inevitably to criminal liability, even though D has been responsible for that per-
son’s death. Something more is required to justify imposing punishment. In Adomako
(1995), the House of Lords confirmed that the correct test for this extra element was
‘gross negligence’. This confirmed a line of case law dating back to the nineteenth
century (albeit a line which had been temporarily broken by the appearance of
objective recklessness in the early 1980s). In one of the early cases, Doherty (1887) 16
Cox CC 306, the judge said that ‘the kind of forgetfulness which is common to every-
body’ or ‘a slight want of skill’ might give rise to civil damages, but for criminal liab-
ility there had to ‘be culpable negligence of a grave kind’. In Bateman (1925), which
involved negligent treatment by a doctor which caused the patient to die, Lord Hewart
CJ explained the gross negligence test as follows:
JUDGMENT
‘In explaining to juries the test which they should apply to determine whether the negligence,
in the particular case, amounted to or did not amount to a crime, judges have used many epi-
thets such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But whatever
epithet be used or not, in order to establish criminal liability the facts must be such that, in the
opinion of the jury, the negligence of the accused went beyond a mere matter of compensa-
tion between subjects and showed such disregard for the life and safety of others as to amount
to a crime against the state and conduct deserving punishment.’
This test received approval from the House of Lords in Andrews v DPP (1937), which
involved manslaughter through negligent driving. Lord Atkin said that ‘Simple lack
of care as will constitute civil liability is not enough. For purposes of the criminal law
there are degrees of negligence, and a very high degree of negligence is required to be
proved.’ Lord Atkin excluded from the scope of gross negligence manslaughter ‘mere
inadvertence’. For inadvertence to amount to criminal behaviour, D must have had
‘criminal disregard’ for others’ safety, or ‘the grossest ignorance or the most criminal
inattention’. In Stone and Dobinson (1977), Lane LJ offered the following guidance:
JUDGMENT
‘What the prosecution have to prove is a breach of . . . duty in such circumstances that the jury
feel convinced that [D]’s conduct can properly be described as reckless, that is to say a reckless
disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not
enough. [D] must be proved to have been indifferent to an obvious risk of injury to health, or
actually to have foreseen the risk but to have determined nevertheless to run it.’
In Adomako, however, Lord Mackay stated that the test for the jury to consider was ‘whether
the extent to which [D]’s conduct departed from the proper standard of care incumbent on
359
him, involving as it must have done a risk of death . . . was such that it should be judged
criminal’. But is a ‘risk of death’ essential? Lane LJ set the standard much lower, with indif-
ference to ‘an obvious risk to health’ being enough for liability. This issue has now been

clarified by the Court of Appeal in Misra and Srivastava (2004), discussed below. The test for
‘gross negligence’ may also be criticised for circularity: it tells the jury to convict if they
think D was guilty of a crime. However, in Adomako, Lord Mackay said:
JUDGMENT
‘It is true that to a certain extent this involves an element of circularity, but in this branch of
law I do not believe that it is fatal to its being correct as a test of how far conduct must depart
from accepted standards to be characterised as criminal. This is necessarily a question of
degree and an attempt to specify that degree more closely is I think likely to achieve only a
spurious precision. The essence of the matter, which is supremely a jury question, is whether,
having regard to the risk of death involved, the conduct of the defendant was so bad in all the
circumstances as to amount in their judgment to a criminal act or omission.’
CASE EXAMPLE
Adomako [1995] 1 Ac 171
D was employed as an anaesthetist. One day he was supposed to be supervising the breathing
equipment during surgery to repair V’s detached retina. During the operation, an essential
breathing tube became disconnected. However, D failed to notice anything wrong, until after
V went into cardiac arrest nine minutes later, by which time it was too late (V lapsed into a
coma and eventually died six months later of hypoxia). The prosecution called two witnesses
who described D’s failure to notice the problem as ‘abysmal’ and said that a competent anaes-
thetist would have recognised the problem ‘within 15 seconds’. The jury convicted and D’s
conviction was upheld by the Court of Appeal and House of Lords.
In Misra and Srivastava [2004] EWCA Crim 2375; [2005] 1 Cr App R 21, the Court of
Appeal held that the ingredients of gross negligence manslaughter involved no uncer-
tainty which offended against art 7 of the European Convention on Human Rights. It
had been argued that the implementation of the ECHR into British law via the Human
Rights Act 1998 meant that the principles set out in Adomako were no longer good law.
Judge LJ disagreed with that argument. He said (emphasis added):
JUDGMENT
‘The question for the jury was not whether D’s negligence was gross and whether, addition-
ally, it was a crime, but whether his behaviour was grossly negligent and consequently crimi-
nal. This was not a question of law, but one of fact, for decision in the individual case . . .
[Gross negligence manslaughter] involves an element of uncertainty about the outcome of the
decision-making process, but not unacceptable uncertainty about the offence itself. In our
judgment the law is clear. The ingredients of the offence have been clearly defined, and the
principles decided in the House of Lords in Adomako. They involve no uncertainty.’
Another point which arose in Misra was whether a risk of death was essential in gross
negligence manslaughter cases. On this point, Judge LJ said:
360
JUDGMENT
‘In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now
Homicide
clearly established, that it relates to the risk of death, and is not satisfied by the risk of bodily
injury or injury to health. In short, the offence requires gross negligence in circumstances
where what is at risk is the life of an individual to whom the defendant owes a duty of care.
As such it serves to protect his or her right to life.’
CASE EXAMPLE
Misra and srivastava [2004] eWcA crim 2375; [2005] 1 cr App r 21
D and E were senior house officers at Southampton General Hospital responsible for the post-
operative care of a young man, V, who had undergone surgery to repair his patella tendon on
23 June 2000. He became infected with Staphylococcus aureus but the condition was
untreated and he died on 27 June 2000. It was alleged that V died as a result of D and E’s
gross negligence in failing to identify and treat the severe infection from which he died. The
Court of Appeal dismissed their appeals.
kEy fACTS
Key facts on gross negligence manslaughter

Duty of care D must owe V a duty of care. Adomako (1995)
The civil concept of negligence applies. Donoghue v Stevenson (1932)
The fact that V was party to an illegal act Wacker (2003), Willoughby (2004)
is not relevant.
Examples of • Duty under contract. Pittwood (1902), Adomako (1995)
duty • Voluntary assumption of care. Stone and Dobinson (1977)
situations
• Duty of landlord to tenant. Singh (1999)
• Driver of motor vehicle to road users Andrews (1937), Wacker (2003)
and own passengers.
• Captain of ship to crew. Litchfield (1998)
Breach of This can be by an act or an omission. Adomako (1995)
duty Involves falling below the standard of the
reasonable person.
Gross Going beyond a matter of mere Bateman (1925)
negligence compensation . . . showing such disregard
for the life and safety of others as to
amount to a crime.
A very high degree of negligence. Andrews (1937)
Conduct so bad in all the circumstances as Adomako (1995)
to amount to a criminal act or omission.
Gross negligence relates to nothing less
than a risk of death. Misra (2004)
361
ACTIVITy
Applying the law

In Holloway [1994] QB 302, D was a professional electrician who was prosecuted for man-
slaughter after wrongly connecting wiring in a new house, with the result that one of the
householders was fatally electrocuted. His conviction was quashed by the Court of Appeal
because of a misdirection (the trial judge had used the objective recklessness test instead of
gross negligence). Imagine you were the presiding judge in a case involving these facts. How
would you direct the jury on the meaning of the following?
(a) duty of care
(b) breach of duty
(c) gross negligence.
10.4.3 Reckless manslaughter

Until recently it was unclear whether this form of manslaughter still existed after
Adomako (1995). However, in Lidar [2000] (unreported), the Court of Appeal dismissed
an appeal which was based on an alleged misdirection, the trial judge having referred to
recklessness (and not gross negligence) as the criterion for liability. Evans LJ said that
‘the judge was correct in his view that this was a case of “reckless” manslaughter and to
direct the jury accordingly . . . the recklessness direction in fact given made the gross
negligence direction superfluous and unnecessary’. As to the meaning of ‘reckless’ man-
slaughter, Evans LJ said that the question was whether D ‘was aware of the necessary
degree of risk of serious injury to the victim and nevertheless chose to disregard it, or
was indifferent to it’.
CASE EXAMPLE
Lidar [2000] (unreported)
D was part of a group that had been asked to leave a public house in Leicester. The group got
into a Range Rover with D in the driving seat. D’s brother, who was in the front passenger
seat, then shouted something at V, a doorman at the pub, who approached the vehicle and
put his arms through the open passenger window. At that point, D started to drive off, with
V now half-in and half-out of the window. The Range Rover left the car park and ‘sped up the
road’. After about 225 metres, V was dragged under the rear wheel and suffered fatal injuries.
D’s manslaughter conviction was upheld on appeal.
10.4.4 Reform
In its paper A New Homicide Act for England & Wales? (Consultation Paper No 177),
published in December 2005, the Law Commission proposed that reckless man-
slaughter (defined as occurring where D acted with ‘reckless indifference’ to causing
death) should be upgraded to ‘second-degree murder’ (see further section 10.9 on
this point).
The Commission also proposed that the remaining two forms of involuntary man-
slaughter should be retained, albeit with some changes from the present law. The Com-
mission proposed that D should be guilty of manslaughter when:
 D committed a criminal act, intending to cause physical harm or with foresight that
there was a risk of causing physical harm. This would redefine constructive man-
slaughter. The main difference is that the proposal requires foresight by D of at least
a risk of causing harm (a subjective test). The present Church test of dangerousness is
362 based on whether ‘all sober and reasonable people’ would recognise the risk (an
objective test).
 Death occurred as a result of D’s conduct falling far below what could reasonably be
Homicide
expected in the circumstances, where there was a risk that D’s conduct would cause
death and this risk would have been obvious to a reasonable person in D’s position.
D must have had the capacity to appreciate the risk. This essentially describes what
is presently gross negligence manslaughter.
The Commission essentially repeated these proposals in its Final Report, Murder, Man-
slaughter and Infanticide (Law Com No 304), published in November 2006, although there
are differences in terms of the details. One is that ‘second-degree murder’ would include
killings where D
 was aware that their conduct posed a serious risk of death; and
 had intent to cause either some injury, a fear of injury, or a risk of injury.
The 2006 definition of constructive manslaughter is also slightly different – it is defined

as occurring where death was caused by a criminal act
 intended to cause injury, or

 where there was an awareness that the act involved a serious risk of causing injury.
10.5 Causing or allowing the death or serious

physical harm of a child or vulnerable adult
Section 5(1) of the Domestic Violence, Crime and Victims Act 2004 (as amended by the
Domestic Violence, Crime and Victims (Amendment) Act 2012) provides that it is an
offence to cause or allow the death or serious physical harm of a child or vulnerable
adult. It was enacted to deal with situations where a child or vulnerable adult lives with
at least two other people in the same household and dies as the result of an unlawful act
committed by one of them, but where it might be difficult to prove who exactly was
responsible, especially if the other people all blame each other. Section 5(1) provides as
follows:
SECTION
‘A person (“D”) is guilty of an offence if –
(a) a child or vulnerable adult (“V”) dies or suffers serious physical harm as a result of the
unlawful act of a person who –
(i) was a member of the same household as V, and
(ii) had frequent contact with him,
(b) D was such a person at the time of that act,
(c) at that time there was a significant risk of serious physical harm being caused to V by the
unlawful act of such a person, and
(d) either D was the person whose act caused V’s death or serious physical harm or
(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),
(ii) D failed to take such steps as he could reasonably have been expected to take to
protect V from the risk, and 363
(iii) the act occurred in circumstances of the kind that D foresaw or ought to have
foreseen.’
10.5 cAuSing or ALLoWing deAtH

A ‘child’ is defined in s 5(6) as a person under the age of 16, while a ‘vulnerable adult’
means a ‘person aged 16 or over whose ability to protect himself from violence, abuse or
neglect is significantly impaired through physical or mental disability or illness, through
old age or otherwise’.
The case of Ikram and Parveen [2008] EWCA Crim 586; [2008] 4 All ER 253 perfectly
illustrates the situation for which the new offence was created.
CASE EXAMPLE
Ikram and Parveen [2008] eWcA crim 586; (2008) 4 Aii er 253
D and E lived together along with D’s 16-month-old son from a previous relationship. One
morning, V was found dead in his cot. The post-mortem revealed that V had died of a ‘fat
embolism’ (when fat enters the blood stream) caused by a broken leg, plus several other inju-
ries, including three fractured ribs and bruises and abrasions to various parts of his body. Both
D and E, who were the only adults in the house in the hours leading up to V’s death, denied
any knowledge as to how the broken leg was caused. Although charges of murder were
brought against both D and E, these were eventually dropped given the difficulty in proving
which one had caused V’s broken leg. Instead, they were both convicted under s 5 of causing
or allowing the death of V, and the Court of Appeal upheld their convictions.
However, the s 5 offence can be committed in other ways. In Mujuru [2007] EWCA Crim
2810; [2007] 2 Cr App R 26, D had gone to work leaving her live-in partner, Jerry Stephens,
alone with her four-month-old daughter, V, despite knowledge of his history of viol-
ence. On a previous occasion, Stephens had broken V’s arm. On the fateful day, Stephens
killed V either by striking her head with an instrument or by slamming her head into a
hard surface. Stephens was convicted of murder and D was convicted under s 5. The
Court of Appeal dismissed her appeal, holding that the jury had been entitled to con-
clude that, by going to work and leaving V in Stephens’ care, knowing that he had
broken her arm on a previous occasion, D had ‘failed to take such steps as she could
reasonably have been expected to take to protect’ V from the ‘significant risk of serious
physical harm’ posed by Stephens.
Khan and others [2009] EWCA Crim 2; [2009] 1 Cr App R 28 involved the death of a
‘vulnerable adult’. V, aged 19, was murdered by her husband. His two sisters and
brother-in-law, who all lived in the same house, were convicted under s 5 of allowing
V’s death. Medical evidence revealed that V had suffered numerous injuries to her head
and neck, and 15 rib fractures, ‘sustained over an extended period of time in the course
of three distinct attacks’. The Court of Appeal dismissed the appeals, holding that V was
potentially ‘vulnerable’ after the first attack on her, this being a question of fact for the
jury.
The Court of Appeal went on to provide some important guidance on when an adult
might be classed as ‘vulnerable’. The Court refused to ‘rule out the possibility that an
adult who is utterly dependent on others, even if physically young and apparently fit,
may fall within the protective ambit of the Act’. The Court also held that ‘the state of
vulnerability envisaged by the Act does not need to be long-standing. It may be short, or
temporary. A fit adult may become vulnerable as a result of accident, or injury, or illness.
The anticipation of a full recovery may not diminish the individual’s temporary
vulnerability.’
364
10.6 Causing death by dangerous driving
Homicide
Section 1 of the Road Traffic Act (RTA) 1988 (as substituted by s 1 of the RTA 1991) pro-
vides that ‘A person who causes the death of another person by driving a mechanically
propelled vehicle dangerously on a road or other public place is guilty of an offence.’
This replaced the previous offence of causing death by reckless driving. The meaning of
‘dangerous driving’ is set out in s 2A.
SECTION
‘2A(1) For the purposes of section 1 . . . above a person is to be regarded as driving danger-
ously if (and subject to subsection (2) below, only if ):
(a) the way he drives falls far below what would be expected of a competent and
careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way
would be dangerous.
(2) A person is also to be regarded as driving dangerously . . . if it would be obvious to a
competent and careful driver that driving the vehicle in its current state would be
dangerous.
(3) In subsections (1) and (2) above dangerous refers to danger either of injury to any
person or of serious damage to property; and in determining for the purposes of those
subsections what would be expected of or obvious to a competent and careful driver
in a particular case, regard shall be had not only to the circumstances of which he
could be expected to be aware but also to any circumstances shown to have been
within the knowledge of the accused.
(4) In determining for the purposes of subsection (2) above the state of a vehicle regard
may be had to anything attached to or carried on or in it and to the manner in which
it is attached or carried.’
The manner of the driving must be dangerous, or the condition of the vehicle (whether
from lack of maintenance or positive alteration) must make it dangerous. It is not enough
that the inherent design of the vehicle makes it dangerous to be on a public road, if
authorisation has been granted under road traffic regulations. This was vividly demon-
strated in Marchant and Muntz [2003] EWCA Crim 2099; [2004] 1 WLR 442, involving the
use of an agricultural vehicle on public roads.
CASE EXAMPLE
Marchant and Muntz [2003] eWcA crim 2099; [2004] 1 WLr 442
E, a Warwickshire farmer, owned a Matbro TR250 loading machine, an agricultural vehicle
with a grab attached at the front for lifting and moving large round hay bales. The grab con-
sisted of nine spikes each one metre in length. E gave instructions to an employee, D, to take
the vehicle on to a public road to deliver some hay bales. D was stopped, waiting to make a
turn on to a farm track when V, a motorcyclist, approached at high speed (estimated at
80 m.p.h.) from the opposite direction, collided with the vehicle and was impaled on one of
the spikes. He suffered injuries described as ‘catastrophic’ and died. D and E were convicted,
respectively, of causing death by dangerous driving and procuring the offence. The Court of
Appeal quashed the convictions. The machine was authorised for use on public roads by virtue
of the Motor Vehicles (Authorisation of Special Types) General Order (SI 1979 No 1198) 1979
and the Court of Appeal held there was nothing dangerous in the way D had driven it. Grigson 365
J said that ‘where the state of a vehicle is inherent and the vehicle is authorised for use on the
road and is being used in a rural area in which agricultural machinery is frequently driven along
country roads, we consider that some reference to these facts should be made to the jury’.
10.7 infAnticide
Section 2B of the 1988 Act creates a new offence of causing death by careless, or incon-
siderate, driving. Section 2B was inserted by the Road Safety Act 2006. It provides
SECTION
‘2B A person who causes the death of another person by driving a mechanically propelled
vehicle on a road or other public place without due care and attention, or without reasonable
consideration for other persons using the road or place, is guilty of an offence.’
Section 3A of the 1988 Act (as inserted by the 1991 Act) creates offences of causing death
‘by driving a mechanically propelled vehicle on a road or other public place without due
care and attention, or without reasonable consideration for other persons’, provided one
of three aggravating factors are present:
 D was unfit to drive through drink or drugs.
 D was over the prescribed alcohol limit.
 D fails to provide a specimen within 18 hours without reasonable excuse.
10.7 Infanticide
Section 1(1) of the Infanticide Act 1938 (as amended by s 57 of the Coroners and Justice
Act 2009) provides as follows:
SECTION
‘1(1) Where a woman by any wilful act or omission causes the death of her child being a child
under the age of 12 months, but at the time of the act or omission the balance of her mind
was disturbed by reason of her not having fully recovered from the effect of giving birth to the
child or by reason of the effect of lactation consequent upon the birth of the child, then, if the
circumstances were such that but for this Act the offence would have amounted to murder or
manslaughter, she shall be guilty of [an offence], to wit of infanticide, and may for such
offence be dealt with and punished as if she had been guilty of the offence of manslaughter
of the child.’
Infanticide is both a partial defence to murder and an offence in its own right. The
infanticide
purpose of the defence/offence is to avoid the mandatory life sentence for murder and
Defence/offence
where a woman allow the judge discretion in sentencing. On a charge of murder, there is an evidential
kills her own child burden on D to produce some evidence that ‘the balance of her mind was disturbed’; it
under 12 months is then for the prosecution to disprove this. Where the prosecution charges infanticide,
then it bears the burden of proving that the balance of the mother’s mind was
disturbed.
Section 1(1) was amended by the Coroners and Justice Act 2009 in response to the
Court of Appeal’s ruling in Gore [2007] EWCA Crim 2789, to the effect that the only mens
rea requirement for infanticide was that D acted (or omitted to do so) ‘wilfully’.
The Court of Appeal specifically rejected the suggestion that malice aforethought had
to be proven in infanticide cases. The Court stated that Parliament, in enacting the 1938
Act, intended the offence of infanticide to be broader than murder, and to allow for
infanticide convictions without having to force a mother who had killed her own child
366 to have to deal with allegations that she had intended to kill or seriously injure the child.
The purpose of the offence, therefore, was to show compassion to women who had
killed their own baby.
Homicide
However, the government realised that the judgment in Gore meant that convictions
of infanticide could be obtained in cases that would not otherwise amount to man-
slaughter, never mind murder, purely on the basis that D had acted (or omitted to act)
‘wilfully’. Hence, the wording of s 1(1) has been amended to make clear that infanticide
can only be proven ‘if the circumstances were such that but for this Act the offence
would have amounted to murder or manslaughter’.
Another problem was identified in an earlier Court of Appeal case, Kai-Whitewind
[2005] EWCA Crim 1092; [2005] Cr App R 31.
CASE EXAMPLE
Kai-Whitewind [2005] eWcA crim 1092; [2005] cr App r 31
D had been convicted of murdering her three-month-old son after refusing to give evidence at
her own trial, instead maintaining that his death was the result of unexplained, but natural,
causes. All the expert evidence presented at trial, however, indicated that the baby had been
deliberately starved of oxygen. Although there was evidence that D had suffered a form of
postnatal depression, this had not been presented during the trial, and the Court of Appeal
upheld D’s murder conviction. Lord Judge LJ pointed out that in some cases where infanticide
might be available (the clear implication being that the present case was one of them) the
defence was not pleaded because the mother’s mind was still ‘disturbed’ and this meant that
she was unable to admit the killing. Lord Judge suggested that there were several possible
reasons for this: D might still be too unwell, or ‘too emotionally disturbed by what she has in
fact done, or too deeply troubled by the consequences of an admission of guilt on her ability
to care for any surviving children’.
In its 2008 Consultation Paper, the government refers to this exact situation, but describes
it as ‘a theoretical problem’, and does not suggest any proposals to deal with it.
10.8 Offences against a foetus

10.8.1 Child destruction
The offence of child destruction, under s 1(1) of the Infant Life (Preservation) Act 1929,
makes it a criminal offence for a person to cause a child to die ‘before it has an existence
independent of its mother’. Section 1(2) adds that ‘evidence that a woman had . . . been
pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that
time pregnant [with] a child capable of being born alive’. Section 1(1) imposes a mental
element: D must have had ‘intent to destroy the life of a child capable of being born
alive’. A defence is provided in s 1(1), if the act which causes the death of the child was
‘done in good faith for the purpose only of preserving the life of the mother’. This can be
regarded as a specific example of the necessity defence (see Chapter 8).
10.8.2 Procuring a miscarriage

The crime of procuring a miscarriage is contained in s 58 OAPA 1861. This provides that
a pregnant woman who ‘with intent to procure her own miscarriage’ administers to
herself ‘any poison or other noxious thing’ or uses ‘any instrument or other means what-
soever’ to carry out that intent commits the offence. Section 58 adds that any person with
the same intent who administers poison or uses an instrument to a woman – whether
she is in fact pregnant or not – is also guilty of an offence. The offence is now subject to 367
a defence available in s 1 of the Abortion Act 1967 (as amended by s 37 of the Human
Fertilisation and Embryology Act 1990). The 1967 Act allows for abortions to be carried
10.8 offenceS AgAinSt A foetuS

out by a registered medical practitioner, subject to various safeguards.
ACTIVITy
Applying the law
1. D has been married for 15 years. Over the last two years he has become increasingly
convinced that his wife, V, has been having an affair and this has made him anxious and
depressed. For this his doctor has prescribed mildly sedative drugs. D has also taken to
drinking, often on his own in pubs after work and at home when V is out, ostensibly
working late or with friends. This has led him to put on weight. D and V have argued
about the amount of time she spends out of the house. One night they have a particu-
larly heated row, during which V says that if D wasn’t such a ‘miserable bastard’ she
wouldn’t feel the need to go out so much. She then leaves the room and goes upstairs.
D goes into the kitchen to pour himself a whisky. As he drinks he broods on V’s beha-
viour and her comment about him. Eventually he goes upstairs to the bedroom, where V
is already in bed reading, and begins to undress. As he does so V looks up and points at
D’s paunch: ‘Not exactly Brad Pitt, are we?’ she says. At this, D feels his temper rising.
He picks up a pair of scissors from the dressing table and waves them in V’s face. ‘What
the hell are you doing that for?’ she cries and tries to grab the scissors. There is a brief
struggle during which the scissors end up embedded in V’s neck. At D’s trial for murder,
he pleads the following defences:
(a) Lack of intent to kill or cause grievous bodily harm. He admits waving the scissors in V’s
face but says this was purely out of a desire to frighten his wife and stop her taunting
him.
(b) Loss of self-control.
(c) Diminished responsibility.
Consider D’s liability.

2. Consider whether the Law Commission’s proposals to reform involuntary manslaughter
should be adopted.
3. D, a 16-year-old schoolboy, has a predilection for playing with matches. One evening he
deliberately sets fire to a pile of newspapers that has been left at the back of a newsagent’s
shop. The fire quickly spreads and, within minutes, the shop itself is in flames. D runs off.
A passer-by calls the fire brigade, who arrive soon afterwards and begin to tackle the fire,
which has now spread to neighbouring shops. One of the firemen goes inside one of the
shops to check for signs of anyone being inside. Tragically, while he is inside the roof col-
lapses and the fireman is killed.
Consider D’s liability for:

(a) constructive manslaughter
(b) gross negligence manslaughter
(c) reckless manslaughter.
10.9 Reform of the law of homicide

In December 2005, the Law Commission published a Paper entitled A New Homicide Act for
England and Wales? (Consultation Paper No 177). This proposed a sweeping reform of
murder, and voluntary and involuntary manslaughter – most interestingly, they proposed
368 a new idea of a three-tier structure for homicide offences. Unsurprisingly, the Paper
attracted considerable academic attention, which was broadly supportive of the new three-
tier structure although there were disagreements about the details. Victor Tadros, in ‘The
Homicide
homicide ladder’ (2006) 69 MLR 601, was not untypical of the commentators. He said:
quotation
‘Overall, the Commission’s proposals are impressive, imaginative and detailed. The range of
issues considered is broad, and the technicalities in the area are addressed with vigour.
However, there are also some weaknesses both in the offence definitions and the role of
defences . . . The law at present is, in a sense, the worst of both worlds. Some morally signi-
ficant elements such as common mens rea concepts are picked out, but poorly defined. A
narrow range of partial defences does some work to avoid the worst consequences of that,
but not nearly enough to result in a system that is even broadly fair . . . The Commission’s
proposals would remedy some of these defects significantly . . . However, some defects still
remain . . . the range of partial defences would still, in my view, be too narrow . . . more impor-
tantly, extant partial defences would only operate in relation to first degree murder . . . A con-
sequence is that the category difference between second degree murder and manslaughter
would reflect moral differences between cases only in the crudest manner.’
After 11 months of consultation, and no doubt cognisant of the academic analysis, the
Commission published its Final Report, entitled Murder, Manslaughter and Infanticide
(Law Com No 304) in November 2006. In it, they retain the idea of a three-tier structure
and endorse most of their 2005 proposals. However, there are some differences.
10.9.1 The structure of homicide offences

The Law Commission proposes a new three-point structure (penalties on conviction in
brackets):
 first-degree murder (mandatory life);
 second-degree murder (discretionary life);
 manslaughter (fixed term maximum).
10.9.2 First-degree murder

This would cover all unlawful killings where D was proved to have
 intent to kill; or
 intent to do serious injury and where D was also aware that his or her conduct posed
a serious risk of death;
unless D could plead a partial defence, of which there would be three (diminished
responsibility, provocation – now abolished and replaced by the ‘loss of self-control’
defence – and suicide pact). If one of the partial defences was pleaded successfully, it
would reduce D’s liability to second-degree murder (not voluntary manslaughter – this
category of homicide would cease to exist). In 2005, the Law Commission had proposed
a narrower definition of first-degree murder where D had intent to kill only. However,
that idea was later dropped on the basis that the offence would be too narrow and dif-
ficult to prove.
10.9.3 Second-degree murder

This would include all unlawful killings where:
369
 D had the intent required for first-degree murder but pleaded one of the partial
defences.
10.9 reform of tHe LAW of Homicide

 D had intent to do serious injury but was not aware of a serious risk of death.
 D was aware that their conduct posed a serious risk of death and had intent to
cause
 some injury, or
 a fear of injury, or
 a risk of injury.
This third category essentially describes what is presently reckless manslaughter, and
hence that offence would be upgraded from involuntary manslaughter to murder under
the Law Commission’s latest proposals.
The Commission did consider the creation of another category of murder, which
could be described as ‘aggravated murder’. This could include, for example, serial killers
(those who kill on more than one occasion) and/or those who kill using torture. Alter-
natively, it could include those whose killings cause fear amongst a group within society,
for example killings with a racist motive. However, the Commission eventually decided
that, instead of recommending the creation of a new offence, such killings would remain
as murder (whether first or second degree) and their aggravating features would be
‘best reflected though an uncompromising approach to the length of the minimum cus-
todial sentence imposed’.
The government’s response to these proposals was less than enthusiastic. Paragraph
9 of the Ministry of Justice’s Consultation Paper Murder, Manslaughter and Infanticide:
Proposals for Reform of the Law, published in July 2008, noted that the Law Commission’s
recommendations for reform of voluntary manslaughter (mostly now implemented in
the Coroners and Justice Act 2009) were ‘predicated on their proposed new offence
structure’ and then stated that ‘The wider recommendations in the Law Commission’s
report may be considered at a later stage of the review.’
10.9.4 Manslaughter
The Law Commission’s proposals to reform involuntary manslaughter have already
been examined in detail earlier in this chapter. It should also be noted that, as a con-
sequence of the Commission’s proposal to abolish voluntary manslaughter, there would
be no need to refer to ‘involuntary’ manslaughter either. The third tier of homicide
would simply be called ‘manslaughter’.
10.9.5 Intention
The 2005 Paper proposed two models. First, there could be a definition of intention, as
follows: ‘D acts intentionally with respect to a consequence if he acts (i) to bring it about
or (ii) knowing that it will be virtually certain to occur.’ This would finally equate fore-
sight of a virtually certain consequence with intention, as opposed to it being merely
evidence of intention. Second, codification of Woollin: this would mean that foresight of
a virtually certain consequence would remain as evidence of intention, allowing juries
to ‘find’ it. In 2006, the Commission recommended adopting the second model, that is,
codification of Woollin.
10.9.6 Duress
In 2005, the Law Commission recommended that duress should become a new partial
defence to first-degree murder – available where D was threatened with ‘death or life-
threatening harm’. By 2006, however, the Commission’s position had changed and it now
370
recommends that duress should be a full defence to murder and attempted murder. In
other words, the House of Lords’ decisions in Howe [1986] QB 626 and Gotts [1992] 2 AC 412
(discussed in Chapter 8) would be overruled. The government’s response to the Law Com-
Homicide
mission’s proposals (published in July 2008) did not address either of these proposals.
10.9.7 A single offence of criminal homicide?

Back in 2005, the Law Commission rejected this idea on the basis that it was too wide, as
it would include everyone from a hired contract killer to a battered wife to a negligent
doctor. The Commission pointed out that the labels of ‘murder’ and ‘manslaughter’
serve a function and reflect different levels of culpability.
ACTIVITy
Self-test questions
Discuss whether the Law Commission’s 2006 proposals resolve all of the existing defects and
problems within the law of homicide. In particular, consider the following:
 Should murder be split into first and second degrees? If so, how should the different
offences be defined?
 Is it right that the partial defences should be available to charges of first-degree murder
only?
 Should duress be (a) a full defence to murder; (b) a partial defence to murder; (c) no
defence to murder at all?
 Should reckless manslaughter be upgraded to second-degree murder?
SUMMARy
 Murder is the unlawful killing of another human being under the King or Queen’s
Peace with malice aforethought (an intention to kill or do grievous bodily harm).
 There are three special and partial defences capable of reducing D’s liability from
murder to voluntary manslaughter: diminished responsibility (s 2, Homicide Act
1957, as amended), loss of self-control (ss 54 and 55, Coroners and Justice Act 2009)
and suicide pact (s 4, Homicide Act 1957).
 There are three forms of involuntary manslaughter (where D unlawfully kills but
without malice aforethought): constructive manslaughter (killing as the result of an
unlawful and dangerous act), gross negligence manslaughter (killing as the result of a
grossly negligent breach of a duty of care involving a risk of death) and reckless man-
slaughter (killing with foresight of an unjustifiable risk of death or serious harm).
 There are other homicide offences: causing or allowing the death of a child or vulner-
able adult, under s 5 of the Domestic Violence, Crime and Victims Act 2004; causing
death by dangerous driving under s 1 of the Road Traffic Act 1988 (as amended);
infanticide, under s 1 of the Infanticide Act 1938 (as amended).
 The law of voluntary manslaughter has recently been completely overhauled by Par-
liament in the Coroners and Justice Act 2009, so the focus of attention may now shift
to reform of involuntary manslaughter. The Law Commission has made reform pro-
posals here. The Law Commission has also proposed reclassifying homicide by
introducing ‘degrees’ of murder.
LEGAL PROBLEM SOLVING 371
Consider the following situation:

Ronnie is a drug dealer. One day, he is visited by one of his regular clients, Marco, a
AnSWering tHe QueStion

heroin addict. Marco complains that his withdrawal symptoms are much worse than
usual and demands twice his usual amount of heroin. Ronnie knows that giving a heroin
addict more than their usual amount can often be fatal and he tells Marco this. However,
Marco is insistent and gives Ronnie the extra money. Ronnie prepares the syringe.
Marco’s hands are shaking with withdrawal symptoms so he asks Ronnie to perform the
injection. Ronnie does so. Within five minutes, however, it is obvious that Marco is suf-
fering a very bad reaction to the drugs. Ronnie takes Marco outside to a bus shelter and
calls for an ambulance on his mobile phone. He tells the emergency operator that there
is a ‘druggie’ in the bus shelter.
The ambulance arrives ten minutes later and Marco is taken to hospital. He is very
pale and shaking. The doctor on the accident and emergency ward, Doctor Hastie, gives
Marco a quick examination. He concludes that Marco is actually suffering from a bad
flu. He prescribes some antibiotics and discharges him. Marco staggers off but collapses
and dies in the street 20 minutes later from heart failure brought on by a heroin
overdose.
Answering the question

Identifying the facts
The main facts are:
1. Marco is a ‘regular client’ of Ronnie’s.
2. Marco injects Ronnie with heroin.
3. Marco suffers an ‘obvious’ bad reaction.
4. Ronnie leaves Marco at a bus shelter.
5. Doctor Hastie gives Marco a ‘quick’ examination.
6. Marco dies from a heroin overdose.
From these, now identify the areas of law involved.

1. This suggests that Ronnie lacks direct intent to kill or seriously injure Marco.
2. This is the administration of a noxious substance, contrary to s 23 OAPA 1861. It is
also an unlawful and dangerous act for the purposes of constructive manslaughter.
3. This may impose a duty of care on Ronnie sufficient to establish gross negligence
manslaughter.
4. The issues here are (a) whether Ronnie has breached any duty of care that he may
have owed to Marco; (b) if so, whether the negligence is ‘gross’.
5. There are three issues here: (a) whether Doctor Hastie has breached his duty of care
to Marco; (b) if so, whether the negligence is ‘gross’; (c) whether Doctor Hastie’s neg-
ligence breaks the chain of causation between the heroin injection performed by
Ronnie and Marco’s death.
6. Death has been caused, so we need to consider homicide.
Having identified the areas of law, you must now explain them in more detail, especially
where there is some doubt on the point. So, now look at the relevant law in detail and
apply it.
372
1. Murder
Explain
Homicide
The definition of murder is causing the unlawful death of another human being under
the Queen’s Peace with malice aforethought. There is no doubt that Marco is a human
being and that the events occur under the Queen’s Peace, so there is no need to elaborate
on those issues.
Causation requires proof that D caused V’s death both in fact and law. Factual causa-
tion involves the ‘but for’ test (White [1910] 2 KB 124) whereas legal causation involves
establishing that the original injury remains the ‘operating’ and ‘substantial’ cause
(Smith [1959] 2 QB 35). According to Pagett (1983) 76 Cr App R 279, D’s acts need not be
the sole or even the main cause of death provided that they make a ‘significant’ contri-
bution to V’s death. When medical negligence occurs, only negligence which is both
‘independent’ and ‘potent’ such that D’s contribution can be regarded as insignificant
breaks the causal chain (Cheshire [1991] 1 WLR 844).
‘Malice aforethought’ means an intention to kill or cause grievous bodily harm (Cun-
ningham [1982] AC 566; Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245). Griev-
ous bodily harm means ‘really serious injury’ (DPP v Smith [1961] AC 290). Intention can
be direct (D’s aim, purpose or desire) or oblique (where intention can be ‘found’ by a
jury if there is evidence that D foresaw death or GBH as a virtual certainty (Woollin
[1999] 1 AC 82).
Apply
Ronnie is potentially liable for murder if causation and malice aforethought can be
proven.
Presumably, Marco would not have died in exactly the same way had Ronnie not
injected so much heroin into him, so factual causation can be proven. Does Dr Hastie break
the causal chain? Probably not. The heroin overdose remains the ‘operating’ and ‘substan-
tial’ cause (Smith); Dr Hastie’s negligence is probably not so ‘independent’ and ‘potent’
that Ronnie’s contribution can be regarded as insignificant (Cheshire). The fact that Ronnie
is not the sole cause of death (arguably, he is not even the main cause) does not exonerate
him, provided that the jury are sure that he made a ‘significant’ contribution (Pagett).
Presumably, Ronnie does not desire the death of Marco, one of his regular clients
(and an income source), but a jury would be entitled to ‘find’ that Ronnie intended to kill
(or do at least GBH) on the evidence that he foresaw Marco’s death (or serious injury) as
a virtual certainty. This is because Ronnie ‘knows that giving a heroin addict more than
their usual amount can often be fatal’.
2. Constructive manslaughter
Explain
Constructive manslaughter is defined as causing V’s death by an unlawful, dangerous
act. The act (but not the death) must be intentional (DPP v Newbury and Jones [1977] AC
500). There must be an act, as opposed to an omission (Lowe [1973] QB 702). The act must
be ‘unlawful’ – this means in the criminal, as opposed to civil, sense of the word (Frank-
lin (1883) 15 Cox CC 163). The act must also be ‘dangerous’, which means an ‘act which
is likely to injure another person’ (Larkin [1943] KB 174); one which all sober and reason-
able men would recognise as posing a risk of ‘some harm’ (Church [1966] 1 QB 59).
‘Harm’ means physical harm (Dawson and others (1985) 81 Cr App R 150). The unlawful,
dangerous act must cause death (Dalby [1982] 1 All ER 916).
Apply to Ronnie
Ronnie may be liable for constructive manslaughter based on the administration of a 373
noxious substance, as in Cato [1976] 1 All ER 260. This is an unlawful act, contrary to s 23
OAPA 1861. It is dangerous, applying the Larkin/Church test, as it subjects Marco to the
3. groSS negLigence mAnSLAugHter

risk of some physical harm. The injection is clearly an act and it was performed inten-
tionally. Causation has already been dealt with in the context of murder, above.
Apply to Doctor Hastie

Doctor Hastie’s cursory examination of Marco may well be negligent but he has not
committed an unlawful (in the criminal sense of the word) act and so cannot be con-
victed of constructive manslaughter.
3. Gross negligence manslaughter

Explain
Gross negligence manslaughter can be defined as causing V’s death through the ‘grossly
negligent’ breach of a duty of care. A duty of care is essentially a civil concept. In the
context of gross negligence manslaughter can be imposed via a sufficiently close rela-
tionship, through the assumption of responsibility (Stone and Dobinson [1977] QB 354;
Ruffell [2003] EWCA Crim 122), through an employment relationship, through a doctor/
patient relationship (Bateman (1927) 19 Cr App R 8; Adomako [1995] 1 AC 171; Misra and
Srivastava [2004] EWCA Crim 2375), through the creation of a dangerous situation
(Miller; Evans [2009] 1 WLR 1999) and in many other ways.
A breach of duty occurs when D falls below a reasonable standard of care and com-
petence (Bateman). Gross negligence implies ‘a very high degree of negligence’ (Andrews
v DPP [1937] AC 576) that D’s conduct was ‘so bad in all the circumstances’ as to amount
to a criminal act or omission (Adomako). The breach of duty must cause death.
Apply to Ronnie
Ronnie probably does not owe Marco a duty of care based purely on their drug dealer/
drug addict relationship (Khan and Khan [1998] Crim LR 830). However, Ronnie may
owe Marco a duty of care based on the assumption of responsibility for him (as in Ruffell)
or based on the creation of a dangerous situation (as in Evans). Ronnie’s efforts in taking
Marco to the bus stop and leaving him there, albeit after phoning for an ambulance, may
or may not breach Ronnie’s duty of care. Ultimately a jury would need to decide this. A
jury would also need to decide whether or not any breach of duty that had occurred was
so sufficiently ‘bad’ as to amount to gross negligence. Causation has already been dealt
with in the context of murder, above.
Apply to Doctor Hastie
Doctor Hastie owes Marco a duty of care based on the doctor/patient relationship.
Doctor Hastie’s ‘quick’ examination may or may not breach Ronnie’s duty of care. Ulti-
mately a jury would need to decide this. A jury would also need to decide whether or
not any breach of duty that had occurred was so sufficiently ‘bad’ as to amount to gross
negligence. Causation has already been dealt with in the context of murder, above.
Conclusion Critically analyse case law on the rights of shareholders

Ronnie may be liable for the manslaughter of Marco,to enforce
based on the articles of association
constructive manslaugh- to demonstrate
why you agree or disagree with the
ter or gross negligence. Doctor Hastie’s negligence is unlikely to break the causal chain. proposition that the
contractual effect of the articles
Ronnie may even be liable for the murder of Marco, but proving malice aforethought is limited to provisions
would be difficult. of the articles concerned with the membership and
constitutionof
Doctor Hastie may also be liable for the manslaughter of Marco,
the company.
based on gross
374
negligence.
Homicide

In enacting the Coroners and Justice Act 2009, Parliament has done an admirable job in
updating the defence of diminished responsibility. Discuss.
Give brief outline of the old law (s 2, Homicide Act 1957):

• Defence which may reduce murder liability to manslaughter
• Burden of proof on D, on the balance of probabilities
• An ‘abnormality of the mind’
• Caused by a ‘condition of arrested or retarded development of
mind’ or ‘any inherent causes’ or ‘induced by disease or injury’
• D’s mental responsibility must have been ‘substantially impaired’
This meant more than trivial but not necessarily total impairment
(Lloyd (1967))
Identify examples of conditions giving rise to the defence, e.g.

• Pychopathic states (Byrne (1960))
• Schizophrenia (Terry (1961))
• Depression (Seers (1984); Gittens (1984); Ahluwalia (1992))
• Battered woman syndrome (Hobson (1998))
• Alcohol dependence syndrome (Wood (2008); Stewart (2009))
• Does not include intoxication (Fenton (1975); confirmed in Dowds
(2012)). Where D had some underlying condition and was
intoxicated as well, the question is whether the underlying
condition on its own amounted to an abnormality of mind
(Gittens, Dietschmann (2003); Hendy (2006))
Discuss why the law needed to be updated:
• Definitions (such as ‘retarded development’) were out of date
• Definitions (such as ‘abnormality of mind’ and ‘mental
responsibility’) were too vague
Discuss changes made by the Coroners and Justice Act 2009, e.g.
• ‘Abnormality of mind’ changed to ‘abnormality of mental
functioning’
• List of causes in s 2 – replaced by ‘recognised medical condition’
• D’s abnormality must ‘substantially impair’ D’s ability to (i) 375
understand the nature of his conduct, (ii) form a rational
judgment or (iii) exercise self-control (replaces ‘mental
responsibility’)
SAmpLe eSSAy QueStionS

• The abnormality must provide an ‘explanation’ for the killing (a
new criterion)
Consider whether the reform achieves its objective:

• New definitions are clearer and more specific than the old, vague
definitions
• Some uncertainty remained, e.g. the relationship between
alcoholism and intoxication – more case law inevitable
• Burden of proof is still on D rather thanCritically analyse
prosecution case law
– should thison the rights of shareholders
have been reversed? to enforce the articles of association to demonstrate
Conclude

Constructive manslaughter should be abolished. It is fundamentally unfair to convict anyone
of a homicide offence based on a different and far less serious offence, such as battery or
criminal damage. Discuss.
Give a brief outline of the law:

• Constructive manslaughter occurs when D intentionally commits
an unlawful, dangerous act which causes death (Mitchell (1983))
• There is no need for D to have foreseen the consequence of the
act (DPP v Newbury & Jones (1977))
Explain the ‘unlawful act’ element with examples, e.g.
• There must be an act not a mere omission (Lowe (1973))
• The unlawful act must be a criminal offence (Franklin (1883))
• The criminal offence could be, e.g. assault/battery/ABH (Mitchell, Pagett
(1984)); theft (Willett (2010)); robbery (Dawson (1985)); burglary (Watson
(1989)); criminal damage (Newbury & Jones); arson (Goodfellow (1986);
Willoughby (2004)); administering a noxious substance (Cato (1976));
affray (Carey (2006)); endangering road users (Meeking (2012))
Explain the ‘dangerousness’ element:

• The act must be ‘dangerous’ (Larkin (1943))
376
• This is tested objectively (Church (1965)) – foresight by reasonable
people of the risk of ‘some harm’
• This means some physical harm (Dawson, Carey)
Homicide
Explain the causation element:

• The unlawful act must cause death
• Ordinary rules of causation apply (Pagett)
• Where D administers an unlawful drug to V who overdoses and dies, D
faces liability (Cato). But where D provides V with a drug and V self-
injects, the chain of causation is broken (Kennedy (2007))
Discuss areas of doubt/uncertainty, e.g.

• Question why an omission does not suffice
• Discuss whether Church sets too low a threshold for manslaughter
liability. Should the test not require the risk of serious harm, at least?
• Discuss whether the Church test should be subjective, instead of objective
• Consider whether Dawson/Carey contradict the ‘thin skull’ rule
• Consider whether there is a clear distinction between the situations in
Cato and Kennedy
Discuss implications of abolition, e.g.

• Constructive manslaughter cases would be charged as either gross
negligence or reckless manslaughter instead
• The former requires a duty of care to be established while the latter is
based on subjective awareness of a risk of death/serious injury
• Note that there is overlap already (Willoughby)
Conclude
Further reading
Articles
Baker, D and Zhao, L, ‘Contributory qualifying and non-qualifying triggers in the loss of
control defence: a wrong turn on sexual infidelity’ (2012) 76 J Crim L 254.
Coe, P, ‘Justifying reverse burdens of proof: a tale of diminished responsibility and a
tangled knot of authorities’ (2013) 77 J Crim L 360.
Gibson, M, ‘Intoxicants and diminished responsibility: the impact of the Coroners and
Justice Act 2009’ [2011] Crim LR 909.
Herring, J, ‘Familial homicide, failure to protect and domestic violence: who’s the
victim?’ [2007] Crim LR 923.
Hirst, M, ‘Murder under the Queen’s Peace’ [2008] Crim LR 541.
Keating, H and Bridgeman, J, ‘Compassionate killings: the case for a partial defence’
(2012) 75 MLR 697.
Kennefick, L, ‘Introducing a new diminished responsibility defence in England and 377
Wales’ (2011) 74 MLR 750.
Williams, G, ‘Gross negligence manslaughter and duty of care in “drugs” cases: R v
furtHer reAding
Evans’ [2009] Crim LR 631.
Withey, C, ‘Loss of control, loss of opportunity?’ [2011] Crim LR 263.
11
Non-fatal offences against
the person
AIMS AND OBJECTIVES

student After reading this chapter you should be able to:
mentor tip
 Understand the actus reus and mens rea of common assault
‘Reflecting on the
actus reus and  Understand the actus reus and mens rea of occasioning actual bodily harm (s 47)
mens rea aspect of
all new areas of  Understand the actus reus and mens rea of malicious wounding/inflicting griev-
criminal law you ous bodily harm (s 20)
study will ensure
you grasp the  Understand the actus reus and mens rea of wounding or causing grievous bodily
basics of criminal harm with intent (s 18)
law thoroughly.’
Gayatri, University  Understand factors which may aggravate an assault
of Leicester
 Analyse critically the law on non-fatal offences against the person
 Apply the law to factual situations to determine whether there is liability for non-
fatal offences against the person
The main offences are set out in the Offences Against the Person Act 1861 (OAPA).
This Act merely tidied up the then existing law by putting all of the offences into one
Act. It did not try to create a coherent set of offences, and as a result, there have been
many problems in the law. There have been many proposals for reform. In 1980, the
Criminal Law Revision Committee made recommendations in its 14th Report,
Offences Against the Person, Cmnd 7844 (1980). The Law Commission adopted these
ideas, first in its Draft Criminal Code (1989) and then in 1993 in its report Legislating
the Criminal Code: Offences against the Person and General Principles. In February 1998
the Home Office issued a Consultation Document, Violence: Reforming the Offences
Against the Person Act 1861. This pointed out that the 1861 Act ‘was itself not a coher-
ent statement of the law but a consolidation of much older law. It is therefore not
surprising that the law has been widely criticised as archaic and unclear and that it is
now in urgent need of reform.’ The consultation document included a draft Bill (see
section 11.5). Despite all of this, Parliament, as yet, has not reformed the law.
The main offences are based on whether the victim was injured; if there were inju-
ries, their level of seriousness; and the intention of the defendant. The main offences,
in ascending order of seriousness, are:
 assault – contrary to s 39 of the Criminal Justice Act 1988;
 battery – contrary to s 39 of the Criminal Justice Act 1988;
 assault occasioning actual bodily harm – contrary to s 47 OAPA;
 malicious wounding or inflicting grievous bodily harm – contrary to s 20 OAPA;
 wounding or causing grievous bodily harm with intent – contrary to s 18 OAPA.
11.1 Common assault

There are two ways of committing this:
 assault
 battery.
Assault and battery are common law offences. There is no statutory definition for either
380
assault or battery. However, statute law recognises their existence, as both of these
offences are charged under s 39 Criminal Justice Act 1988 which states:
NoN-fatal offeNces agaiNst the persoN
SECTION
‘39 Common assault and battery shall be summary offences and a person guilty of either of
them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for
a term not exceeding six months, or to both.’
The definitions of both assault and battery, therefore, come from case law. In Collins v
Wilcock [1984] 3 All ER 374, Goff LJ gave the standard definitions:
JUDGMENT
‘The law draws a distinction . . . between an assault and a battery. An assault is an act which
causes another person to apprehend the infliction of immediate, unlawful, force on his person;
a battery is the actual infliction of unlawful force on another person.’
As can be seen, the act involved is different for assault and battery. For assault there is
no touching, only the fear of immediate, unlawful, force. For battery there must be actual
force. There are often situations in which both occur. For example, where the defendant
approaches the victim shouting that he is going to ‘get him’, then punches the victim in
the face. The approaching and shouting are an assault, while the punch is the battery. As
the act is different for each, it is easier to consider assault and battery separately.
11.1.1 Actus reus of assault

An assault is also known as a technical assault or a psychic assault. There must be
 an act
 which causes the victim to apprehend the infliction of immediate, unlawful force.
Act
An assault requires some act or words. In Fagan v Metropolitan Police Commissioner [1968]
3 All ER 442, where the defendant failed to remove his car from a police officer’s foot, the
court thought that an omission was not sufficient to constitute an assault. However, they
decided that there was a continuing act in this case (see section 11.1.2). In Lodgon v DPP
[1976] Crim LR 121, D opened a drawer in his office to show another person that there
was a gun in it, which D said was loaded. In fact the gun was a fake. The actions of D
were held to amount to an assault.
Words are sufficient for an assault. These can be verbal or written. In Constanza [1997]
Crim LR 576, the Court of Appeal held that letters could be an assault. D had written 800
letters and made a number of phone calls to the victim. The victim interpreted the last
two letters as clear threats. The Court of Appeal said that there was an assault, as there
was a ‘fear of violence at some time, not excluding the immediate future’. In Ireland
(1997) 4 All ER 225, it was held that even silent telephone calls can be an assault. It
depends on the facts of the case.
Apprehend immediate unlawful force

The important point is that the act or words must cause the victim to apprehend that
immediate force is going to be used against them. There is no assault if the situation is
such that it is obvious that the defendant cannot actually use force. For example, where 381
the defendant shouts threats from a passing train, there is no possibility that he can carry
out the threats in the immediate future. It was decided in Lamb [1967] 2 All ER 1282 that
pointing an unloaded gun at someone who knows that it is unloaded cannot be an
11.1 commoN assault

assault. This is because the other person does not fear immediate force. However, if the
other person thought the gun was loaded, then this could be an assault.
Fear of immediate force is necessary; immediate does not mean instantaneous, but
‘imminent’, so an assault can be through a closed window, as in Smith v Chief Superin-
tendent of Woking Police Station [1983] Crim LR 323.
CASE EXAMPLE
Smith v Chief Superintendent of Woking Police Station [1983] crim lr 323
D got into a garden and looked through the victim’s bedroom window on the ground floor at
about 11 p.m. The victim was terrified and thought that he was about to enter the room.
Although D was outside the house and no attack could be made at that immediate moment,
the court held that the victim was frightened by his conduct. The basis of the fear was that she
did not know what D was going to do next but that it was likely to be of a violent nature. Fear
of what he might do next was sufficiently immediate for the purposes of the offence.
The same line of reasoning was taken in Ireland (1997) regarding the fear that a telephone
call might generate. Lord Steyn in the House of Lords said:
JUDGMENT
‘It involves questions of fact within the province of the jury. After all, there is no reason why a
telephone caller who says to a woman in a menacing way “I will be at your door in a minute
or two” may not be guilty of an assault if it causes his victim to apprehend immediate personal
violence. Take now the case of the silent caller. He intends by his silence to cause fear and he
is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate
her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She
may fear the possibility of immediate personal violence. As a matter of law the caller may be
guilty of an assault: whether he is or not will depend on the circumstance and in particular on
the impact of the caller’s potentially menacing call or calls on the victim.’
Words indicating there will be no violence may prevent an act from being an assault. This
is a principle which comes from the old case of Tuberville v Savage (1669) 1 Mod Rep 3,
where D placed one hand on his sword and said, ‘If it were not assize time, I would not
take such language from you.’ This was held not to be an assault, but there are other cases
where words have not negatived the assault. For example in Light (1857) D & B 332, the
defendant raised a sword above his wife’s head and said, ‘Were it not for the bloody police-
man outside, I would split your head open.’ It was held that this was an assault. These
cases are difficult to reconcile, but it could be argued that in Tuberville (1669) D did not even
draw his sword, while in Light D had raised the sword above his wife’s head, giving her
clear cause to apprehend that immediate unlawful force would be used.
Fear of any unwanted touching is sufficient: the force or unlawful personal violence
which is feared need not be serious.
There are many examples of assault, for example
 raising a fist as though about to hit the victim;
 throwing a stone at the victim which just misses;
382  pointing a loaded gun at someone within range;
 making a threat by saying ‘I am going to hit you’.
Unlawfulness of the force

The force which is threatened must be unlawful. If it is lawful, there is no offence of

common assault. When force is lawful or unlawful is discussed in detail under battery
at section 11.1.2.
11.1.2 Actus reus of battery

The actus reus of battery is the actual infliction of unlawful force on another person.
Force is a slightly misleading word as it can include the slightest touching, as shown by
the case of Collins v Wilcock (1984).
CASE EXAMPLE
Collins v Wilcock [1984] 3 all er 374
Two police officers saw two women apparently soliciting for the purposes of prostitution. The
appellant was asked to get into the police car for questioning but she refused and walked away.
As she was not known to the police, one of the officers walked after her to try to find out her
identity. She refused to speak to the officer and again walked away. The officer then took hold of
her by the arm to prevent her leaving. She became abusive and scratched the officer’s arm. She
was convicted of assaulting a police officer in the execution of his duty. She appealed against that
conviction on the basis that the officer was not acting in the execution of his duty but was acting
unlawfully by holding the defendant’s arm as the officer was not arresting her. The court held that
the officer had committed a battery and the defendant was entitled to free herself.
Goff LJ said in his judgment:
JUDGMENT
‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It
has long been established that any touching of another person, however slight, may amount
to battery . . . As Blackstone wrote in his Commentaries, “the law cannot draw the line between
different degrees of violence, and therefore totally prohibits the first and lowest stage of it;
every man’s person being sacred, and no other having a right to meddle with it, in any the
slightest manner.” The effect is that everybody is protected not only against physical injury but
against any form of physical molestation.’
Goff LJ also pointed out that touching a person to get his attention was acceptable, pro-
vided that no greater degree of physical contact was used than was necessary but that
while touching might be acceptable, physical restraint was not. He also said that ‘per-
sistent touching to gain attention in the face of obvious disregard may transcend the
norms of acceptable behaviour’.
Even touching the victim’s clothing can be sufficient to form a battery. In Thomas
(1985) 81 Cr App Rep 331, D touched the bottom of a woman’s skirt and rubbed it. The
Court of Appeal said, obiter, ‘There could be no dispute that if you touch a person’s
clothes while he is wearing them that is equivalent to touching him.’
Hostility
There are conflicting case decisions on whether there needs to be any element of hostility
in a battery. In Faulkner v Talbot [1981] 3 All ER 468, Lord Lane CJ said that a battery
‘need not necessarily be hostile’. However in Wilson v Pringle [1986] 2 All ER 440, a civil
case, in which one schoolboy sued another for injuries caused when they were fooling 383
around in the corridor at school, it was suggested that the touching must be ‘hostile’.
Croome-Johnson LJ in the Court of Appeal said:
11.1 commoN assault

JUDGMENT
‘In our view the authorities lead to the conclusion that in a battery there must be an intentional
touching or contact in one form or another of the plaintiff by the defendant. That touching
must be proved to be a hostile touching. That still leaves unanswered the question, when is a
touching to be called hostile? Hostility cannot be equated with ill-will or malevolence. It cannot
be governed by the obvious intention shown in acts like punching, stabbing or shooting. It
cannot be solely governed by an expressed intention, although that may be strong evidence.
But the element of hostility, in the sense in which it is now to be considered, must be a ques-
tion of fact for the tribunal of fact.’
In a later civil case, F v West Berkshire Health Authority [1989] 2 All ER 545, Lord Goff
doubted whether there was a requirement that the touching need be hostile. Yet in Brown
[1993] 2 All ER 75, a case on sadomasochism (see section 11.2.3), Lord Jauncey in the
House of Lords approved the judgment of Croome-Johnson LJ in Wilson v Pringle (1986).
However, he added that if the defendant’s actions are unlawful, they are necessarily
hostile. This appears to remove any real meaning from ‘hostility’ in relation to battery as
the key element of a battery is the application of unlawful force.
Continuing act
A battery may be committed through a continuing act, as in Fagan v Metropolitan Police
Commander (1969).
CASE EXAMPLE
Fagan v Metropolitan Police Commander [1969] 1 QB 439; [1968] 3 all er 442
D parked his car with one of the tyres on a police officer’s foot. When he parked he was
unaware that he had done this, but when the police officer asked him to remove it, he refused
to do so for several minutes. The court described this as ‘an act constituting a battery which at
its inception was not criminal because there was no element of intention, but which became
criminal from the moment the intention was formed to produce the apprehension which was
flowing from the continuing act’.
Indirect act
A battery can also be through an indirect act such as use of a booby trap. In this situation
the defendant causes force to be applied, even though he does not personally touch the
victim. This occurred in Martin (1881) 8 QBD 54, where the defendant placed an iron bar
across the doorway of a theatre. He then switched off the lights. In the panic which fol-
lowed, several of the audience were injured when they were trapped and unable to open
the door. Martin was convicted of an offence under s 20 of the OAPA 1861. A more
modern example is seen in DPP v K [1990] 1 All ER 331.
CASE EXAMPLE
DPP v K [1990] 1 aii er 331
D, a 15-year-old schoolboy, without permission took sulphuric acid from his science lesson to
384 try its reaction on some toilet paper. While he was in the toilet he heard footsteps in the cor-
ridor, panicked and put the acid into a hot air hand drier to hide it. He returned to his class
intending to remove the acid later. Before he could do so another pupil used the drier and was
sprayed by the acid. The defendant was charged with assault occasioning actual bodily harm
(s 47). The magistrates acquitted him because he said he had not intended to hurt anyone (see
section 11.2.2 for the mens rea of s 47).
The prosecution appealed by way of case stated to the Queen’s Bench Divisional Court.
On the point of whether a common assault (remember this includes both an assault and
a battery) could be committed by an indirect act, Parker LJ said:
JUDGMENT
‘The position was correctly and simply stated by Stephen J in R v Clarence (1888) 22 QBD 23
where he said: “If man laid a trap for another into which he fell after an interval, the man who
laid the trap would during the interval be guilty of an attempt to assault, and of an actual
assault as soon as the man fell in.”
In the same way a defendant who pours a dangerous substance into a machine just as truly
assaults the next user of the machine as if he had himself switched the machine on.’
Another example of indirect force occurred in Haystead v Chief Constable of Derbyshire

[2000] Crim LR 758, where the defendant caused a small child to fall to the floor by
punching the woman holding the child. The defendant was found guilty because he
was reckless as to whether his acts would injure the child. It is worth noting that, in
this case, the conviction could also be justified by the principle of transferred
malice.
Omissions
Criminal liability can arise by way of an omission, but only if the defendant is under
a duty to act. Such a duty can arise out of a contract or a relationship, from the
assumption of care for another or from the creation of a dangerous situation (see
Chapter 2, section 2.3). As the actus reus of battery is the application of unlawful
force, it is difficult to think how examples could arise under these duty situations,
but there has been one reported case, DPP v Santana-Bermudez [2003] EWHC 2908
where it appears possible that the Divisional Court accepted an omission as
sufficient.
CASE EXAMPLE
DPP v Santana-Bermudez [2003] eWhc 2908
In this case a policewoman, before searching the defendant’s pockets, asked him whether he
had any needles or other sharp objects on him. The defendant said ‘no’, but when the police
officer put her hand in his pocket she was injured by a needle which caused bleeding. The
Divisional Court held that the defendant’s failure to tell her of the needle could amount to the
actus reus for the purposes of an assault causing actual bodily harm.
Kay J said:
JUDGMENT
‘where someone (by an act or word or a combination of the two) creates a danger and thereby
385
exposes another to a reasonable foreseeable risk of injury which materialises, there is an evi-
dential basis for the actus reus of an assault occasioning actual bodily harm. It remains neces-
sary for the prosecution to prove an intention to assault or appropriate recklessness.’
11.1 commoN assault

This appears to rely on the principle set in Miller [1983] 1 All ER 978 where D acciden-
tally set fire to his mattress but failed to do anything to prevent damage to the building
in which he was sleeping.
Another scenario which could make a defendant liable by way of omission under Miller
is if there had been other people asleep in the room and D had not awakened them to warn
them of the danger, and one of them had been hit by plaster which fell from the ceiling as
a result of the fire, then there appears no reason why D could not have been charged with
battery of that person. It is noticeable that in the draft Bill in 1998 (see section 11.5), it was
proposed that only intentionally causing serious injury could be committed by omission;
the equivalent of battery would not be able to be committed by omission.
Consent
Where the other person consents to the touching, then there is no battery as there is no
unlawful force. This was illustrated by Slingsby [1995] Crim LR 570, which was a charge
of involuntary manslaughter by an unlawful act.
CASE EXAMPLE
Slingsby [1995] crim lr 570
The defendant and the victim had taken part in sexual activity which was described as ‘vigorous’
but which had taken place with the victim’s consent. During this a signet ring which the defend-
ant was wearing caused an injury to the victim, and this led to blood poisoning from which she
died. The victim’s consent meant that there was no battery or other form of assault, and so the
defendant was held to be not guilty of manslaughter as there was no unlawful act.
There must, however, be true consent. In Tabassum [2000] Crim LR 686, D had persuaded
women to allow him to measure their breasts for the purpose of preparing a database for
sale to doctors. The women were fully aware of the nature of the acts he proposed to do,
but they said they consented only because they thought that D had either medical quali-
fications or medical training. The Court of Appeal approved the trial judge’s direction
when he said: ‘I should prefer myself to say that consent in such cases does not exist at
all, because the act consented to is not the act done. Consent to a surgical operation or
examination is not consent to sexual connection or indecent behaviour.’
Implied consent
There are also situations in which the courts imply consent to minor touchings. These
are the everyday situations in which there is a crowd of people and it is impossible not
to have some contact. In Wilson v Pringle (1986) it was held that the ordinary ‘jostlings’
of everyday life were not battery. This was also said in Collins v Wilcock (1984):
JUDGMENT
‘Although we are all entitled to protection from physical molestation, we live in a crowded
world in which people must be considered as taking on themselves some risk of injury (where
it occurs) from the acts of others which are not in themselves unlawful.
Generally speaking, consent is a defence to a battery; and most of the physical contacts of
ordinary life are not actionable because they are impliedly consented to by all who move in
386 society and so expose themselves to the risk of bodily contact. So nobody can complain of the
jostling which is inevitable from his presence in, for example, a supermarket, an underground
station or a busy street; nor can a person who attends a party complain if his hand is seized in
friendship, or even if his back is (within reason) slapped.’
This also applies to contact sports. When a person takes part in sports such as rugby or
judo, he is agreeing to the contact which is part of that sport. However, if the contact
goes beyond what is reasonable, then it is possible for an offence to be committed. For
example, a rugby player consents to a tackle within the rules of the game, but he does
not consent to an opposition player stamping on his head. See Chapter 8, section 8.6, for
a fuller discussion on consent as a defence.
Unlawful force
For a battery to be committed, the force must be unlawful. As seen above, the force may
be lawful if the victim gives a genuine consent to it. Force may also be lawful where it is
used in self-defence or prevention of crime (see Chapter 8, section 8.5). If the force used
is reasonable in the situation, then the person using the force is not guilty of a battery.
The police can use reasonable force to arrest a person, but if they are not arresting the
person, then it is unlawful to use force, however slight. This was shown by Wood (Fraser)
v DPP [2008] EWHC 1056 (Admin).
CASE EXAMPLE
Wood (Fraser) v DPP [2008] eWhc 1056 (admin)
The police had received a report that a man named Fraser had thrown an ashtray at another
person in a public house. The ashtray had missed the person but had been smashed. Three
police officers went to the scene. They saw a man (the appellant, W) who fit the description
of ‘Fraser’ coming out of the public house. One of the police officers took hold of W by the
arm and asked if he was Fraser. W denied this and struggled, trying to pull away. At that point
another officer took hold of W’s other arm. W was charged with assaulting two of the police
officers while they were acting in the execution of their duty.
The police officer who had first caught hold of W’s arm said that he had done this in
order to detain W, but was not at that point arresting him. It was held that as the officer
had not arrested W, then there was a technical assault (battery) by the police officers. This
meant that W was entitled to struggle and was not guilty of any offence of assault against
the police.
Battery without an assault
It is possible for there to be a battery even though there is no assault. This can occur
where the victim is unaware that unlawful force is about to be used on him, such as
where the attacker comes up unseen behind the victim’s back. The first thing the victim
knows is when he is struck; there has been a battery but no assault.
11.1.3 Mens rea of assault and battery

The mens rea for an assault is either an intention to cause another to fear immediate
unlawful personal violence, or recklessness as to whether such fear is caused. The mens
rea for battery is either an intention to apply unlawful physical force to another, or reck-
lessness as to whether unlawful force is applied. So intention or recklessness is sufficient
for both assault and battery.
In Venna [1975] 3 All ER 788, the Court of Appeal rejected arguments that only inten-
tion would suffice for the mental element of all assault-based offences: 387
JUDGMENT
11.1 commoN assault

‘We see no reason in logic or in law why a person who recklessly applies physical force to the
person of another should be outside the criminal law of assault. In many cases the dividing line
between intention and recklessness is barely distinguishable.’
The test for recklessness is subjective. For an assault, the defendant must realise there is
a risk that his acts/words could cause another to fear unlawful personal violence. For a
battery the defendant must realise there is a risk that his act (or omission) could cause
unlawful force to be applied to another.
Assault and battery are classed as offences of basic intent. This means that if the
defendant is intoxicated when he does the relevant actus reus he is reckless. This was
considered by the House of Lords in DPP v Majewski [1976] 2 All ER 142, where D had
consumed large quantities of alcohol and drugs and then attacked people in a public
house and also the police officers who tried to arrest him. Lord Elwyn-Jones said:
JUDGMENT
‘If a man of his own volition takes a substance which causes him to cast off the restraints of
reason and conscience, no wrong is done to him by holding him answerable criminally for any
injury he may do while in that condition. His course of conduct in reducing himself by drink
and drugs to that condition in my view supplies the evidence of mens rea, of guilty mind cer-
tainly sufficient for crime of basic intent. It is a reckless course of conduct and recklessness is
enough to constitute the necessary mens rea in assault cases.’
This ruling can be criticised, as the point at which the drink or drugs is taken is a quite
separate time to the point when the actus reus for the offence is committed. It is difficult
to see how there is coincidence of the two. It is reasonable to say that the defendant is
reckless when he takes drink or other intoxicating substances, but this does not neces-
sarily mean that when he commits an assault or battery three or four hours later, he is
reckless for the purposes of the offence. The decision can be viewed as a public policy
decision.
Common assault
Assault Battery
actus reus + mens rea actus reus + mens rea

388
An act which Intention to or Actual infliction Intention
causes V to reckless as to of unlawful force to apply or
apprehend whether another recklessness

infliction of is caused to as to whether
immediate fear immediate unlawful physical
unlawful force unlawful violence force is applied
to another
Figure 11.1 Assault and battery.
ACTIVITy
applying the law
Explain whether there is an assault and/or battery in the following situations.
1. Rick and Sue are having an argument. During the argument, Rick says ‘If you don’t shut up
I’ll thump you.’ Sue is so annoyed at this that she gets out a penknife and waves it in front
of Rick’s face.
2. At a party Tanya sneaks up behind William and slaps him on the back.
3. Vince throws a stone at Una, but misses. He picks up another stone, and this time hits the
loose end of Una’s scarf.
4. Grant turns round quickly without realising that Harry is standing just behind him and
bumps into Harry. Harry shouts at him, ‘If you were not wearing glasses, I would hit you in
the face.’
11.2 Section 47
We now look at assaults where an injury is caused. The lowest level of injury is referred to
as ‘actual bodily harm’, and it is an offence under s 47 of the OAPA 1861, which states:
SECTION
‘47 Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable
. . . to imprisonment for five years.’
The offence is triable either way.
As can be seen from this very brief section, there is no definition of ‘assault’ or ‘actual
bodily harm’. Nor is there any reference to the level of mens rea required. For all these
points it is necessary to look at case law.
11.2.1 Actus reus of s 47

This requires
 a technical assault or a battery, which must
 occasion (i.e. cause)
 actual bodily harm.
Actual bodily harm

In Donovan [1934] 2KB 498 the court said that the ordinary meaning of ‘actual bodily harm’
actual bodily
harm
was: ‘any hurt or injury calculated to interfere with the health or comfort of the [victim]. 389
Any physical or Such hurt or injury need not be permanent, but must, no doubt, be more than merely
mental harm transient and trifling.’
11.2 sectioN 47
In R(T) v DPP [2003] Crim LR 622, the assault caused the victim to lose consciousness
briefly. The court held that although the harm might be transient it was not trifling. Loss
of consciousness, even momentarily, was held to be actual bodily harm.
So s 47 can be charged where there is any injury. Bruising, grazes and scratches all
come within this.
In DPP v Smith (Michael) [2006] 2 All ER 16; [2006] 2 Cr App R 1, it was decided that
even cutting the victim’s hair can amount to actual bodily harm.
CASE EXAMPLE
DPP v Smith (Michael) [2006] 2 all er 16; [2006] 2 cr app r 1
D had had an argument with his girlfriend. He cut off her ponytail and some hair from the top
of her head without her consent. He was charged with an offence under s 47 of the OAPA
1861. The magistrates found that there was no case to answer as cutting hair could not
amount to actual bodily harm. The Divisional Court allowed the prosecution’s appeal by way
of case stated, holding that cutting off a substantial amount of hair could amount to actual
bodily harm. They remitted the case to the justices for the case to continue.
In the judgment, Sir Igor Judge (P) held that physical pain was not a necessary ingredi-
ent of actual bodily harm. He said:
JUDGMENT
‘In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the
surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each
individual and to the identity of each individual . . . Even if, medically and scientifically speak-
ing, the hair above the surface of the scalp is no more than dead tissue, it remains part of the
body and is attached to it. While it is so attached, in my judgment it falls within the meaning
of “bodily” in the phrase “actual bodily harm”.’
One area which was less certain was whether psychiatric injury could be classed as
‘actual bodily harm’. This was resolved in Chan Fook [1994] 2 All ER 552, where the Court
of Appeal ruled that psychiatric injury is capable of amounting to actual bodily harm.
JUDGMENT
‘The first question on the present appeal is whether the inclusion of the word “bodily” in the
phrase “actual bodily harm” limits harm to harm to the skin, flesh and bones of the victim . . .
The body of the victim includes all parts of his body, including his organs, his nervous system
and his brain. Bodily injury therefore may include injury to any of those parts of his body
responsible for his mental and other faculties.’
However, the court stated that actual bodily harm does not include ‘mere emotions such
as fear, distress or panic’, nor does it include ‘states of mind that are not themselves
evidence of some identifiable clinical condition’.
This decision was approved by the House of Lords in Burstow (1997) 4 All ER 225,
where Lord Steyn said that ‘bodily harm’ in s 18, s 20 and s 47 must be interpreted so as
to include recognisable psychiatric illness.
390 The matter was considered again by the Court of Appeal in Dhaliwal [2006] EWCA
Crim 1139; [2006] All ER (D) 236. D was charged with manslaughter of his wife when she
committed suicide. The prosecution relied on unlawful act manslaughter (see section
9.1.4). They, therefore, had to prove that D had committed an unlawful act. They tried to
prove that D had inflicted psychological harm on his wife over a number of years.
However, the prosecution failed because they were unable to prove that V had suffered
any recognisable psychiatric illness. This meant that there was no offence under s 47,
s 20 or s 18 of the OAPA 1861 and so no unlawful act for the purpose of proving
manslaughter.
11.2.2 Mens rea of s 47

Section 47 makes no reference to mens rea but, as the essential element is a common assault,
the courts have held that the mens rea for a common assault is sufficient for the mens rea of
a s 47 offence. So the defendant must intend or be subjectively reckless as to whether the
victim fears or is subjected to unlawful force. This is the same mens rea as for an assault or
a battery, and there is no need for the defendant to intend or be reckless as to whether
actual bodily harm is caused. In Roberts [1971] Crim LR 27 the defendant, who was driving
a car, made advances to the girl in the passenger seat and tried to take her coat off. She
feared that he was going to commit a more serious assault and jumped from the car while
it was travelling at about 30 miles per hour. As a result of this she was slightly injured. He
was found guilty of assault occasioning actual bodily harm, even though he had not
intended any injury nor realised there was a risk of injury. He had intended to apply
unlawful force when he touched her as he tried to take her coat off. This satisfied the mens
rea for a common assault and so he was guilty of an offence under s 47.
This was confirmed by the House of Lords in the combined appeals of Savage and
Parmenter (1991) 4 All ER 698.
CASE EXAMPLE
Savage (1991) 4 all er 698
A woman in a pub threw beer over another woman. In doing this the glass slipped from the
defendant’s hand and the glass cut the victim’s hand. The defendant said that she had only
intended to throw beer over the woman. She had not intended her to be injured, nor had she
realised that there was a risk of injury. She was convicted of a s 20 offence but the Court of
Appeal quashed that and substituted a conviction under s 47 (assault occasioning actual bodily
harm). She appealed against this to the House of Lords. The Law Lords dismissed her appeal.
The fact she intended to throw the beer over the other woman meant she had the intent
to apply unlawful force, and this was sufficient for the mens rea of the s 47 offence. Lord
Ackner said:
JUDGMENT
‘The verdict of assault occasioning actual bodily harm may be returned upon proof of an
assault together with proof of the fact that actual bodily harm was occasioned by the assault.
The prosecution are not obliged to prove that the defendant intended to cause some actual
bodily harm or was reckless as to whether such harm would be caused.’
11.2.3 Consent and s 47

There have been arguments as to whether consent could be a defence to a s 47 offence.
Originally it was thought that it could be a defence where the injuries were not serious. 391
However, in some cases, such as Donovan [1934] 2 KB 498, it was held that an unlawful
act ‘cannot be rendered lawful because the person to whose detriment it is done con-
11.2 sectioN 47
sents to it. No person can license another to commit a crime.’ This is an area where the
courts are prepared to limit the defence on the basis of public policy grounds. It is now
accepted that consent is not a defence to a s 47 offence, unless it is one of the exceptions
which have been recognised by the courts. Lord Jauncey in Brown (1993) pointed out
that consent could be a defence to a common assault but not to another more serious
assault where there was some injury, even if not serious:
JUDGMENT
‘[T]he line properly falls to be drawn between assault at common law and the offence of
assault occasioning actual bodily harm created by section 47 of the Offences Against the
Person Act 1861, with the result that consent of the victim is no answer to anyone charged
with the latter offence or with a contravention of section 20 unless the circumstances
fall within one of the well-known exceptions such as organised sporting contests and
games, parental chastisement or reasonable surgery. There is nothing in sections 20 and 47
to suggest that consent is either an essential ingredient of the offences or a defence
thereto.’
This confirmed the decision by the Court of Appeal in Attorney-General’s Reference (No
6 of 1980) [1981] 2 All ER 1057, where two young men agreed to fight in the street to
settle their differences following a quarrel. The Court of Appeal held that consent
could not be a defence to such an action as it was not in the public interest. Lord Lane
CJ said:
JUDGMENT
‘It is not in the public interest that people should try to cause, or should cause, each other
bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it
is immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is
intended and/or caused. This means that most fights will be unlawful regardless of consent.’
Lord Lane recognised that there were exceptions where consent might still be a defence,
as he went on to say:
JUDGMENT
‘Nothing which we have said is intended to cast doubt upon the accepted legality of properly
conducted games and sports, lawful chastisement or correction, reasonable surgical interfer-
ence, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the
exercise of a legal right, in the case of lawful chastisement or correction, or as needed in the
public interest, in other cases.’
In deciding what was in the public interest, the courts have come to decisions which
are difficult to reconcile. In Brown (1993) the House of Lords held that consent was not
a defence to sadomasochistic acts done by homosexuals, even though all the partici-
pants were adult and the injuries inflicted were transitory and trifling. But in Wilson
[1996] Crim LR 573, the Court of Appeal held that where a defendant branded his
392
initials on his wife’s buttocks with a hot knife at her request, this was not an unlawful
act, even though she had to seek medical attention for the burns which were caused.
It held it was not in the public interest that such consensual behaviour should be
criminalised.
It is also odd that acts which have caused ‘transitory and trifling’ injuries are regarded
as criminal, whereas very serious injuries can be deliberately inflicted in boxing because
it is a recognised sport. This could be seen as showing the bias of the elderly white
males, who make up the great majority of judges in our appeal courts. They approve of
what they term ‘manly sports’.
Consent in organised sport

In Barnes [2005] 2 All ER 113, D made a late tackle on V during an amateur football
match. V suffered a serious leg injury. D was convicted of an offence contrary to s 20 of
the OAPA 1861. On appeal, the Court of Appeal quashed his conviction. They held that
criminal prosecutions should be reserved for those situations where the conduct was
sufficiently grave to be properly categorised as criminal.
The Court of Appeal set out the following points:
 Consent is not normally available as a defence where there is bodily harm, but sport-
ing activities are one of the exceptions to this rule.
 The exceptions are based on public policy.
 In contact sports, conduct which goes beyond what a player can reasonably be
regarded as having accepted by taking part is not covered by the defence of
consent.
 However, in a sport in which bodily contact is a commonplace part of the game, the
players consent to such contact, even though an unfortunate accident or serious
injury may result.
In deciding whether conduct in the course of a sport is criminal, the following factors
should be considered:
 Intentional infliction of injury will always be criminal.
 For reckless infliction of injury – did the injury occur during actual play, or in a
moment of temper or overexcitement when play has ceased?
 ‘Off the ball’ injuries are more likely to be criminal.
 The fact that the play is within the rules and practice of the game and does not go
beyond it will be a firm indication that what has happened is not criminal.
Mistaken belief in consent
Where the defendant genuinely, but mistakenly, believes that the victim is consenting,
then there is a defence to an assault. In this area the decisions of the courts are even more
difficult to reconcile with the general principle that ‘it is not in the public interest that
people should try to cause, or should cause, each other bodily harm for no good reason’.
In Jones (1986) 83 Cr App R 375, two schoolboys aged 14 and 15 were tossed into the air
by older boys. One victim suffered a broken arm and the other a ruptured spleen. The
defendants claimed they believed that the two victims consented to the activity. The
Court of Appeal quashed their convictions for offences under s 20 of the OAPA 1861
because the judge had not allowed the issue of mistaken belief in consent to go to the
jury. The Court held that a genuine mistaken belief in consent to ‘rough and undisci-
plined horseplay’ could be a defence, even if that belief was unreasonable. A similar
decision was reached in Aitken and others [1992] 1 WLR 1006, where RAF officers poured
white spirit over a colleague who was wearing a fire-resistant flying suit, but who was
asleep and drunk at the time this was done. He suffered 35 per cent burns. Their convic- 393
tions under s 20 were quashed, as the mistaken belief in the victim’s consent should
have been left to the jury.
11.3 sectioN 20
In Richardson and Irwin [1999] Crim LR 494, it was even held that a drunken mistake
that the victim was consenting to horseplay could be a defence to a charge under s 20.
However, this decision is doubtful, as it is inconsistent with decisions that a drunken
mistaken belief that a victim is consenting to sexual intercourse is not a defence to rape.
For further discussion, see consent as a defence in Chapter 8, section 8.6.
11.3 Section 20
The next offence in seriousness is commonly known as ‘malicious wounding’. It is an
offence under s 20 of the OAPA 1861:
SECTION
‘20 Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm
upon any other person, either with or without a weapon or instrument, shall be guilty of an
offence and shall be liable . . . to imprisonment for not more than five years.’
The offence is triable either way and the maximum sentence is five years. This is the
same as for a s 47 offence, although s 20 is seen as a more serious offence and requires a
higher degree of injury and mens rea as to an injury. For the offence to be proved, it must
be shown that the defendant
 wounded or
 inflicted grievous bodily harm,
and that he did this

 intending some injury to be caused or
 being reckless as to whether some injury would be inflicted.

The actus reus can be committed by
 wounding or
 inflicting grievous bodily harm.
Wounding
For this the defendant must have caused a wound to the victim. Originally it was thought
wound
that the wound had to be caused by an assault or a battery. However, in Beasley (1981)
A cut of all the
layers of skin
73 Cr App R 44, the Court of Appeal held that the narrow view of assault given by the
trial judge was not a necessary ingredient of the offence of unlawful wounding under s
20. The trial judge had defined assault as an act which causes the victim to apprehend
the infliction of immediate unlawful force. The Court of Appeal held that unlawful
wounding can be committed without the victim being frightened or aware of what is
going on.
‘Wound’ means a cut or a break in the continuity of the whole skin. A cut of internal
skin, such as in the cheek, is sufficient, but internal bleeding where there is no cut of the
skin is not sufficient. In ICC v Eisenhower [1983] 3 All ER 230, the victim was hit in the eye
by a shotgun pellet. This did not penetrate the eye but did cause severe bleeding under
the surface. As there was no cut, it was held that this was not a wound. The cut must be
394 of the whole skin, so that a scratch is not considered a wound. Even a broken bone is not
considered a wound, unless the skin is broken as well. In the old case of Wood [1830] 1
Mood CC 278, the victim’s collarbone was broken but, as the skin was intact, it was held
there was no wound.
Inflicting grievous bodily harm

Section 20 uses the word ‘inflict’. Originally this was taken as meaning that there had to
be a technical assault or battery. Even so it allowed the section to be interpreted quite
widely, as shown in Lewis [1974] Crim LR 647 where D shouted threats at his wife
through a closed door in a second-floor flat and tried to break his way through the door.
The wife was so frightened that she jumped from the window and broke both her legs.
Lewis was convicted of a s 20 offence. The threats could be considered as a technical
assault. However, it was thought there had to be an assault for s 20 to be committed. The
issue was again considered in Metropolitan Police Commissioner v Wilson [1984] AC 242
where the House of Lords, following the Australian case of Salisbury [1976] VR 452,
decided that ‘inflict’ does not imply an assault.
However, this left a problem because a contrast was drawn between this section
and s 18, where the word ‘cause’ is used. It was thought that the word ‘cause’ was
wider than ‘inflict’. It was held that for ‘cause’, it was only necessary to prove that the
defendant’s act was a substantial cause of the wound or grievous bodily harm,
whereas ‘inflict’ suggests a direct application of force. However, in Mandair [1994] 2
All ER 715, Lord Mackay said there was ‘no radical divergence between the meaning
of the two words’. In Burstow (1997) it was decided that ‘inflict’ does not require a
technical assault or a battery. These decisions mean that there now appears to be
little, if any, difference in the actus reus of the offences under s 20 and s 18. In Burstow
(1997) Lord Hope said that for all practical purposes there was no difference between
the words, and approved Lord Mackay’s judgment in Mandair (1994). However, he
went on to say:
JUDGMENT
‘But I would add that there is this difference, the word “inflict” implies that the consequence
of the act is something which the victim is likely to find unpleasant or harmful. The relationship
between cause and effect, when the word “cause” is used, is neutral. It may embrace pleasure
as well as pain. The relationship when the word “inflict” is used is more precise, because it
invariably implies detriment to the victim of some kind.’
Grievous bodily harm
It was held in DPP v Smith [1961] AC 290 that grievous bodily harm means ‘really
grievous
serious harm’; but this does not have to be life threatening. In Saunders [1985] Crim LR
bodily harm
Serious physical or
230 it was held that a direction to the jury which referred only to ‘serious harm’ was not
mental harm a misdirection.
In Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 6, the Court of Appeal held that
the age, health or other factors relating to the victim could be taken into consideration
when considering what constituted grievous bodily harm.
CASE EXAMPLE
Bollom [2003] eWca crim 2846; [2004] 2 cr app r 6
V, a 17-month-old baby, suffered bruising and abrasions to her body, arms and legs. D, the
partner of the baby’s mother, was found guilty of an offence contrary to s 18 of the OAPA 1861. 395
He appealed against this conviction on several grounds, one of which that the severity of injuries
had to be assessed without considering the age, health or other factors relating to V. The Court
of Appeal held that the effect of the harm on the particular individual had to be taken into con-
11.3 sectioN 20
sideration in determining whether the injuries amounted to grievous bodily harm. However, the
conviction was quashed on other grounds, and a conviction under s 47 OAPA 1861 substituted.
In Burstow (1997), where the victim of a stalker suffered a severe depressive illness, it
was decided that serious psychiatric injury can be grievous bodily harm. In October
2003, in Dica, there was the first ever conviction for causing ‘biological’ harm where the
defendant had infected two women with HIV when he had unprotected sex with them
without telling them he was HIV positive. On appeal in Dica [2004] EWCA Crim 1103,
the Court of Appeal sent the case back for retrial on the issue of consent but accepted
that biological harm came within the meaning of grievous bodily harm. Since this deci-
sion there have been about 20 convictions for ‘causing’ a sexually transmittable disease.
One of these in 2008 was the first conviction for infecting a victim with hepatitis B.
In Golding [2014] EWCA Crim 889 the defendant was convicted after pleading guilty
to inflicting grievous bodily harm contrary to s 20 when he had infected his girlfriend
with genital herpes (HSV-2). He knew that he suffered from herpes and that it was a
sexually transmitted disease. He had not told his girlfriend that he had the disease. The
defendant challenged the conviction on the basis that the Crown Prosecution Service
guidelines in force at the time had not been properly followed. Also he had felt pressu-
rised to plead guilty when the judge at the Goodyear hearing had said that he con-
sidered s 20 rather than a plea to s 47 was the appropriate one.
The Court of Appeal held that the evidence of the painful nature of the symptoms of
herpes, their recurrence and the fact that they could recur indefinitely without any
effective cure available were sufficient to amount to really serious bodily harm.

The defendant must intend to cause another person some harm or be subjectively reck-
less as to whether he suffers some harm. The word used in the section is ‘maliciously’.
In Cunningham [1957] 2 All ER 412, it was held that ‘maliciously’ did not require any ill
will towards the person injured. It simply meant either:
1. an intention to do the particular kind of harm that was in fact done; or
2. recklessness as to whether such harm should occur or not (i.e. the accused has foreseen
that the particular kind of harm might be done, and yet gone on to take the risk of it).
CASE EXAMPLE
Cunningham [1957] 2 all er 412
D tore a gas meter from the wall of an empty house in order to steal the money in it. This
caused gas to seep into the house next door, where a woman was affected by it. Cunningham
was not guilty of an offence against s 23 of the OAPA 1861 of maliciously administering a
noxious thing, as he did not appreciate the risk of gas escaping into the next-door house. He
had not intended to cause the harm, nor had he been subjectively reckless about it.
The joined cases of Savage and Parmenter (1992) confirmed that Cunningham (1957) reckless-
ness applies to all offences in which the statutory definition uses the word ‘maliciously’.
This left another point which the courts had to resolve. What was meant by the par-
ticular kind of harm? Did the defendant need to realise the risk of a wound or grievous
bodily harm? It has been decided that, although the actus reus of s 20 requires a wound
396
or grievous bodily harm, there is no need for the defendant to foresee this level of serious
injury. In Parmenter (1992) the defendant injured his three-month-old baby when he
threw the child in the air and caught him. Parmenter said that he had often done this
with slightly older children and did not realise that there was risk of any injury. He was
convicted of an offence under s 20. The House of Lords quashed this conviction but sub-
stituted a conviction for assault occasioning actual bodily harm under s 47. Lord Ackner
cited the judgment in Mowatt [1967] 3 All ER 47, where Lord Diplock said:
JUDGMENT
‘In the offence under s 20 . . . for . . . which [no] specific intent is required – the word “mali-
ciously” does import . . . an awareness that his act may have the consequence of causing some
physical harm to some other person . . . It is quite unnecessary that the accused should have
foreseen that his unlawful act might cause physical harm of the gravity described in the section,
ie a wound or serious injury.’
This decision means that, although there are four offences which appear to be on a
ladder in terms of seriousness, there is overlap in terms of the mens rea.
kEy fACTS
Key facts: Different levels of mens rea and injury
Offence Mens rea Injury

s 18 Specific intent to cause GBH or resist arrest etc. Wound or grievous
bodily harm
s 20 Intention or recklessness as to some harm
s 47 Intention or recklessness as to putting V in fear of Actual bodily harm
unlawful force or applying unlawful force
Common assault No injury
11.4 Section 18
This offence under s 18 of the OAPA 1861 is often referred to as ‘wounding with intent’.
In fact it covers a much wider range than this implies. It is considered a much more
serious offence than s 20, as can be seen from the difference in the maximum punishments.
Section 20 has a maximum of five years’ imprisonment, whereas the maximum for s 18
is life imprisonment. Also s 20 is triable either way but s 18 must be tried on indictment
at the Crown Court. The definition in the Act states:
SECTION
‘18 Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any
grievous bodily harm to any person, with intent to do some grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or detainer of any person,
shall be guilty of . . . an offence.’
From this it can be seen that the elements to be proved are that the defendant
 wounded or
 caused grievous bodily harm and that he did this
397
 intending to do some grievous bodily harm or
 intending to resist or prevent the lawful apprehension or detention of either himself
or another person and being reckless as to whether this caused injury.
11.4 sectioN 18
This can be committed in two ways:
 wounding
 causing grievous bodily harm.
The meanings of ‘wound’ and ‘grievous bodily harm’ are the same as for s 20.
The word ‘cause’ is very wide, so that it is only necessary to prove that the defend-
ant’s act was a substantial cause of the wound or grievous bodily harm.

This is a specific intent offence. The defendant must be proved to have intended to
 do some grievous bodily harm; or
 resist or prevent the lawful apprehension or detainer of any person.
Intent to do some grievous bodily harm

Although the word ‘maliciously’ appears in s 18, it was held in Mowatt (1967) that this
adds nothing to the mens rea of this section where grievous bodily harm is intended. For
this the important point is that s 18 is a specific intent crime. Intention must be proved;
recklessness is not enough for the mens rea of s 18. Intention has the same meaning as
shown in the leading cases on murder. So, as decided in Moloney [1985] 1 All ER 1025,
foresight of consequences is not intention; it is only evidence from which intention can
be inferred or found. And following the cases of Nedrick [1986] 3 All ER 1 and Woollin
[1998] 4 All ER 103, intention cannot be found unless the harm caused was a virtual
certainty as a result of the defendant’s actions and the defendant realised that this was
so. (See Chapter 3, section 3.2, for a fuller discussion on the meaning of intention.)
Intent to resist lawful arrest etc.

Where the charge is wounding or causing grievous bodily harm with intent to resist or
prevent the lawful apprehension or detainer of any person, then the prosecution have to
prove two things for the mens rea of the offence. The first is that the defendant had spe-
cific intention to resist or prevent lawful arrest or detention. If the arrest or detainer was
unlawful then the defendant has not committed any offence. The second point is that the
defendant acted ‘maliciously’ in respect to the wounding or grievous bodily harm. This
point was considered in Morrison (1989) 89 Cr App R 17, where a police officer seized
hold of D and told him that she was arresting him. He dived through a window drag-
ging her with him as far as the window so that her face was badly cut by the glass. The
trial judge directed the jury that D would be guilty of a s 18 offence if he intended to
resist arrest and was Caldwell (1982) reckless (i.e. D either saw the risk or it would have
been obvious to an ordinary prudent person) as to whether he caused the officer harm.
The Court of Appeal held that this was wrong and that maliciously has the same meaning
as in Cunningham (1957). This means that the prosecution must prove that the defendant
realised there was a risk of injury and took that risk. There is still one point unresolved:
that is, what degree of harm does the defendant need to foresee? Does he need to foresee
that serious harm or a wound will be caused or does he only need to foresee that some
harm will be caused? Under s 20 the test is that the defendant should foresee that some
physical harm will be caused. For consistency it seems reasonable that the same test
398 should apply to s 18. However, there has been no decision on this point.
ACTIVITy
applying the law

Explain in each of the situations below what type of offence may have been committed.
1. In a football match Victor kicks Danny. This causes bruising to Danny’s leg. Danny is
annoyed at this and punches Victor in the face causing a cut to his lip.
2. Anish is walking along a canal bank. Kim, who is in a hurry, pushes past him, knocking
him into the canal. Anish hits his head on the side and suffers a fractured skull.
3. Karl waves a knife at Emma, saying, ‘I am going to cut that silly smile off.’ Emma is very fright-
ened and faints. She falls against Nita, who is knocked to the ground and suffers bruising.
NOTE: see Appendix 2 for an example of how to apply the law of non-fatal offences to a
problem/scenario type question.
Was the victim injured? Common assault and/or

NO
battery
YES
How serious was that Assault occasioning actual

Slight
injury? bodily harm (s 47 OAPA)
Wound or really serious injury
Did the defendant intend to Malicious wounding (s 20

NO
cause serious harm? OAPA)
YES
Wounding with intent (s 18

OAPA)
Figure 11.2 Flow chart on non-fatal offences against the person.

11.5 Reform
This area of the law is in need of reform, and as stated in the opening paragraph of this
chapter, recommendations were made as long ago as 1980 by the Criminal Law Revi-
sion Committee in its 14th Report, Offences against the Person, Cmnd 7844 (1980). This
was then adopted in the Law Commission Draft Criminal Code and, as no action had
been taken, put forward again by the Law Commission in a modified form in its
report, Legislating the Criminal Code: Offences Against the Person and General Principles
(Law Com No 218) (1993). In 1998 the Home Office issued a Consultation Document,
Violence: Reforming the Offences Against the Person Act 1861, and attached a draft Bill to
this document.
The draft Bill published by the Home Office in 1998 proposed the following
offences:
399
CLAUSE
‘Intentional serious injury
11.5 reform
1(1) A person is guilty of an offence if he intentionally causes serious injury to another.
(2) A person is guilty of an offence if he omits to do an act which he has a duty to do at
common law, the omission results in serious injury to another, and he intends the omis-
sion to have that effect.
(3) An offence under this section is committed notwithstanding that the injury occurs
outside England and Wales if the act causing that injury is done in England and Wales or
the omission resulting in the injury is made there.
(4) A person guilty of an offence under this section is liable on conviction on indictment to
imprisonment for life.
Reckless serious injury
2(1) A person is guilty of an offence if he recklessly causes serious injury to another.
outside England and Wales if the act causing that injury is done in England and Wales.
(3) A person guilty of an offence under this section is liable –
(a) on conviction on indictment, to imprisonment for a term not exceeding 7 years;
(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum or both.
Intentional or reckless injury
3(1) A person is guilty of an offence if he intentionally or recklessly causes injury to another.
outside England and Wales if the act causing that injury is done in England and Wales.
(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum or both.
Assault
4(1) A person is guilty of an offence if –
(a) he intentionally or recklessly applies force to or causes an impact on the body of
another, or
(b) he intentionally or recklessly causes the other to believe that any such force or
impact is imminent.
(2) No offence is committed if the force or impact, not being intended or likely to cause injury,
is in the circumstances such as is generally acceptable in the ordinary conduct of daily life
and the defendant does not know or believe that it is in fact unacceptable to the other
person.
(3) A person guilty of an offence under this section is liable on summary conviction, to impris-
onment for a term not exceeding 6 months or a fine not exceeding the statutory maximum
or both.
Assault on a constable
5(1) A person is guilty of an offence if he assaults
(a) a constable acting in the execution of his duty, or
(b) a person assisting a constable acting in the execution of his duty.
(2) For the purposes of this section a person assaults if he commits the offence under
section 4.
Causing serious injury to resist arrest etc.
400
6(1) A person is guilty of an offence if he causes serious injury to another intending to resist,
prevent or terminate the lawful arrest or detention of himself or a third person.
(2) The question of whether the defendant believes the arrest or detention is lawful must be
determined according to circumstances as he believes them to be.

(3) A person guilty of an offence under this section is liable on conviction on indictment to
imprisonment for life.
Assault to resist arrest etc.
7(1) A person is guilty of an offence if he assaults another intending to resist, prevent or ter-
minate the lawful arrest or detention of himself or a third person.
(2) The question of whether the defendant believes the arrest or detention is lawful must be
determined according to circumstances as he believes them to be.
(3) For the purposes of this section a person assaults if he commits the offence under
section 4.
(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine
not exceeding the statutory maximum or both . . .
Meaning of fault terms
14(1) A person acts intentionally with respect to a result if –
(a) it is his purpose to cause it, or
(b) although it is not his purpose to cause it, he knows that it would occur in the ordinary
course of events if he were to succeed in his purpose of causing some other result.
(2) A person acts recklessly with respect to a result if he is aware of a risk that it will occur and
it is unreasonable to take that risk having regard to the circumstances as he knows or
believes them to be.
Meaning of injury
15(1) In this Act “injury” means –
(a) physical injury
(b) mental injury.
(2) Physical injury does not include anything caused by disease but (subject to that) it includes
pain, unconsciousness and any other impairment of a person’s physical condition.
(3) Mental injury does not include anything caused by disease but (subject to that) it includes
any impairment of a person’s mental health.
(4) In its application to section 1 this section applies without the exception relating to things
caused by disease.’
This Bill would have tidied up the law and resolved many of the points which have
been unclear in case decisions. In particular the mens rea of each section is specified. It
is also clear that only cl 1 offences could be caused by omission. The more serious
offences nominate serious injury rather than wound or grievous bodily harm. A
serious wound would be treated as a serious injury while a minor wound would be
merely an injury. The difficulty over mental health injury is also tackled with ‘any
impairment of a person’s mental health’ being sufficient to prove offences requiring
injury, though for cl 1 and 2 this would have to be serious. It also makes it clear that it
would be possible to convict a defendant of a cl 1 offence by infecting a person with
HIV. However, an injury through disease was not included for the purposes of any
other clause. Although it was sent out for consultation in 1998, the Bill was never
placed before Parliament.
Recent developments
The Law Commission (LC) in its eleventh programme stated that it would look again 401
at the law on non-fatal offences against the person. The Ministry of Justice asked the
LC first to produce a scoping paper. Originally the LC stated that it would start the
11.6 racially or religiously aggravated assaults

work in the winter of 2012 and publish the paper in autumn 2013. However, it put this
date back and had not started work on the project by the summer of 2014. In its online
statement regarding the project the LC states that: ‘The Offences Against the Person
Act 1861 is widely recognized as being outdated. It uses archaic language and follows
a Victorian approach . . . The structure of the Act is also unsatisfactory; there is no clear
hierarchy of offences and the differences between section 18, 20 and 47 are not clearly
spelt out.’
11.6 Racially or religiously aggravated assaults

Under s 29 Crime and Disorder Act 1998, a common assault or an offence under s 47 or
s 20 of the OAPA 1861 becomes a racially or religiously aggravated assault if either:
 At the time of committing the offence, or immediately before or after doing so, the
offender demonstrates towards the victim of the offence hostility based on the vic-
tim’s membership (or presumed membership) of a racial or religious group.
 The offence is motivated (wholly or partly) by hostility towards members of a racial
or religious group based on their membership of that group.
Where an offence is racially aggravated in this way, the maximum penalty is increased
from six months to two years for common assault and from five years to seven years for
both s 47 and s 20.
Membership in relation to a racial or religious group includes association with
members of that group. ‘Racial group’ is widely defined in the Act, as it includes a group
of persons defined by reference to race, colour, nationality (including citizenship) or
ethnic or national origins. In DPP v Pal [2000] Crim LR 756, it was held that an Asian
defendant was not demonstrating racial hostility because of membership of a racial
group when he assaulted a caretaker at a community centre who was of Asian appear-
ance and whom he called a ‘white man’s arse licker’ and a ‘brown Englishman’. The
Queen’s Bench Divisional Court held that the insults were related to the victim’s atti-
tude to English people, rather than because he was Asian.
‘Religious group’ means a group of persons defined by reference to religious belief or
lack of religious belief.
11.7 Administering poison
The OAPA 1861 creates two offences under ss 23 and 24:
SECTION
‘23 Whosoever shall unlawfully and maliciously administer to or cause to be administered to
or taken by any other person any poison or other destructive or noxious thing, so as to
endanger the life of such person, or so as thereby to inflict upon such person any griev-
ous bodily harm, shall be guilty of an offence . . .
24 Whosoever shall unlawfully and maliciously administer to or cause to be administered to
or taken by any other person any poison or other destructive or noxious thing, with intent
to injure, aggrieve, or annoy such person shall be guilty of an offence.’
402
The maximum penalty for s 23 is ten years’ imprisonment and the maximum for s 24 is
five years’ imprisonment.
For both offences it has to be proved that the defendant
 unlawfully and maliciously

 administered to or caused to be administered to or taken by any other person
 any poison or other destructive or noxious thing.
The differences are that for s 23 it must be shown that it endangered life or inflicted
grievous bodily harm, while for s 24 there is no need to show that it had any effect on the
victim, but it must be done with intent to injure, aggrieve or annoy the victim.
11.7.1 Administer
In Gillard [1998] Crim LR 53, the Court of Appeal held that ‘administer’ includes ‘conduct
which not being the direct application of force to the victim nevertheless brings the
noxious thing into contact with his body’. In that case the defendant was convicted of
conspiring to commit an offence under s 23 when he agreed to spray CS gas into the
faces of others.
The sections also make it an offence where the defendant causes the substance to be
administered to or taken by the victim. This allows for a conviction where there is no
direct administration of the poison or other destructive or noxious thing. An example of
causing the administration of a noxious thing is seen in Cunningham (1957), where the
ripping out of a gas meter caused gas to seep into the next-door house and be inhaled by
the victim. In Kennedy [1999] Crim LR 65, the Court of Appeal thought that there was an
offence under s 23 where the defendant had filled a syringe with heroin and then handed
it to the victim who had injected himself. However, in Dias [2001] EWCA Crim 2986,
where the facts were similar to Kennedy (1999), the Court of Appeal left open the ques-
tion as to whether there might be a conviction in the future for manslaughter on the
basis that there was an unlawful act of administering a noxious substance under s 23 of
the OAPA 1861.
11.7.2 Noxious thing

The 1861 Act specifically mentions ‘poison or other destructive thing’, but it also includes
any ‘noxious thing’. This allows the offences to be wider ranging than merely adminis-
tering poison. In Cato [1976] 1 All ER 260, the defendant injected another man with
heroin. The other had consented to it and was a regular user of heroin. The victim died
and Cato was convicted of unlawful act manslaughter and of an offence under s 23. The
Court of Appeal considered whether heroin should come within the meaning of ‘noxious
thing’. Lord Widgery CJ said:
JUDGMENT
‘The authorities show that an article is not to be described as noxious for present purposes
merely because it has a potentiality for harm if taken in an overdose. There are many articles
of value in common use which may be harmful in overdose, and . . . one cannot describe an
article as noxious merely because it has that aptitude. On the other hand, if an article is liable
to injure in common use, not when an overdose in the sense of accidental excess is used but
is liable to cause an injury in common use, should it then not be regarded as a noxious thing
for present purposes?
403
When one has regard to the potentiality of heroin in the circumstances which we read
about and hear about in our courts today we have no hesitation in saying that heroin is a
noxious thing.’
11.7 admiNisteriNg poisoN

For s 24 a harmless substance, such as a sedative or a laxative, may become ‘noxious’
if administered in large quantities. In Marcus [1981] 2 All ER 833 a woman put eight
sedative and sleeping pills into a neighbour’s bottle of milk. The defence relied on the
decision in Cato (1976) and argued that these could not be a ‘noxious thing’ because
they were harmless in themselves. The Court of Appeal held that for s 24, the quantity
could be taken into account in light of the necessary intent to injure, aggrieve or
annoy.
11.7.3 Maliciously
The word ‘maliciously’ in both sections has the meaning given to it in Cunningham
(1957). This means that the defendant must intend or be subjectively reckless about the
administration of the substance. For s 23 there is no need to prove that the defendant
intended or was reckless in respect of endangering life or inflicting grievous bodily
harm. Section 24 has an additional requirement for mens rea of intent to injure, aggrieve
or annoy. In Hill (1985) 81 Cr App R 206 the defendant was a homosexual who gave
slimming tablets to two boys intending that it would keep them awake and disinhibit
them so they would be more likely to accept his sexual advances. It was held that this
was sufficient for an intent to injure.
ACTIVITy
self-test questions
1. Explain when
(a) words can be sufficient for a technical assault;
(b) words will negate an assault.
2. Explain what is necessary for the actus reus of a battery.
3. What are the problems in deciding whether consent will be a defence to a battery of a s 47
offence?
4. Explain the difficulties in s 20 using the word ‘inflict’, while s 18 uses the word ‘cause’.
5. Explain the different levels of mens rea required for s 47, s 20 and s 18.
SUMMARy
 Common assault can be either an assault or a battery.
 An assault is an act which intentionally or recklessly causes another to fear imme-
diate and unlawful violence. There must be some act or words; an omission is not
enough. A silent phone call has been held to be sufficient.
 Battery is the application, intentionally or recklessly, of unlawful force to another
person. This can be by an act or omission when D is under a duty to act.
Assault occasioning actual bodily harm, s 47 OAPA

 An assault or battery which causes actual bodily harm. It must ‘occasion’ (cause)
actual bodily harm.
 Actual bodily harm is ‘any hurt or injury calculated to interfere with the health or
comfort’ of the victim. It includes psychiatric injury.
404
Section 20 OAPA offence
 Unlawfully and maliciously wounding or inflicting grievous bodily harm upon
another person.
 Grievous bodily harm means ‘really serious harm’, but this does not have to be life
threatening.
 Wound means a cut or a break in the continuity of the whole skin. Internal bleeding
where there is no cut of the skin is not sufficient.
 D must intend to cause another person some harm or be subjectively reckless as to
whether he suffers some harm. There is no need for the defendant to foresee serious
injury.
Section 18 OAPA offence

 Wounding or causing grievous bodily harm with intent to do so.
 The meanings of ‘wound’ and ‘grievous bodily harm’ are the same as for s 20.
 It is a specific intent offence. D must be proved to have intended to:
 do some grievous bodily harm; or
 resist or prevent the lawful apprehension or detainer of any person.
 Where D intends to resist or prevent lawful apprehension or detainer, there is no
need for him to intend to cause grievous bodily harm. Recklessness as to injury is
sufficient.
Reform
 A draft Bill was published in 1998 but never enacted.
 The Law Commission is going to look at the area of law again.
Racially and religiously aggravated assaults

 Section 29 of the Crime and Disorder Act 1998 creates aggravated offences where:
 D demonstrates hostility based on race and/or religion;
 the offence is motivated by racial/religious hostility.
Administering poison
 Section 23 OAPA 1861 where administering poison or a ‘noxious substance’ endan-
gers life.
 Section 24 OAPA 1861 where there is no need to show any effect on V.

The law on non-fatal offences against the person is in need of a complete reform. Discuss.
Briefly state the law on the main non-fatal offences:

Common assault: assault/battery
• s 47 Offences Against the Person Act 1861 (OAPA 1861)
• s 20 OAPA 1861
• s 18 OAPA 1861
Explain problems in the law, e.g.

405
• 1861 Act uses complicated, obscure and old-fashioned
language
• No coherent structure to the offences
sample essay QuestioN

• No statutory definition of common assault
• Need to extend ‘harm’ to mental harm
• Problems with the word ‘inflict’ in s 20
• Failure to distinguish between serious and minor wounds
• Where D is resisting arrest etc., recklessness as to injury
is sufficient for the mens rea: s 18 Expand these with
case examples
Point out the number of proposals for reform:

• Criminal Law Revision Committee 14th Report 1980
• Law Commission’s Report No 218 1993
• Home Office Consultation Document Violence:
Reforming the Offences against the Person Act 1861
(1998)
Discuss the proposals for reform:

• Especially the draft Bill in the Home Office consultation
document
• Consider whether these proposals would have
adequately reformed the problems in the current law
Conclude
Further reading
Books
Clarkson, C M V, Keating, H M and Cunningham, S R, Criminal Law: Text and Materials
(7th edn, Sweet & Maxwell, 2010), Chapter 7, Part I.
Articles
Bell, B and Harrison, K, ‘R v Savage, DPP v Parmenter and the law of assault’ (1993) 56
MLR 83.
Burney, E, ‘Using the law on racially aggravated offences’ (2003) Crim LR 28.
Cherkassy, L, ‘Being informed: the complexities of knowledge, deception and consent
when transmitting HIV’ (2010) J Crim L 242.
Horder, J, ‘Reconsidering psychic assault’ (1994) Crim LR 176.
Jefferson, M, ‘Offences against the person: into the 21st century’ (2012) J Crim L 472.
406 Smith, J C, ‘Offences against the person; the Home Office Consultation Paper’ (1998)
Crim LR 317.
Weait, M, ‘Criminal liablity for sexually transmitted diseases’ (2009) 173 CL&J 45.
12
Sexual offences
AIMS AND OBJECTIVES

 Understand the law of rape
 Understand the law of assault by penetration, sexual assault, incest and other
sexual offences
 Analyse critically the law on sexual offences
 Apply the law to factual situations to determine whether there is liability for rape
or for another sexual offence
The law of sexual offences in England and Wales has undergone radical reform in the
last fifteen years. The reform process can be traced back to the then Home Secretary’s
announcement in January 1999 that a major review of the law governing sex offend-
ers was to take place. An independent review body was set up and its findings, con-
tained in a document entitled Setting the Boundaries: Reforming the Law on Sex Offenders,
were published in July 2000. The opening paragraphs of the document explain why
the review was necessary:
quotation
‘Why did the law need reviewing? It is a patchwork quilt of provisions ancient and modern
that works because people make it do so, not because there is a coherence and structure.
Some is quite new – the definition of rape for example was last changed in 1994. But much is
old, dating from nineteenth century laws that codified the common law of the time, and
reflected the social attitudes and roles of men and women of the time. With the advent of a
new century and the incorporation of the European Convention of Human Rights into our law,
the time was right to take a fresh look at the law to see that it meets the need of the country
today.’
At the time of the review, ‘rape’ was defined as penetration of the vagina or anus of
another person without consent (s 1(1) of the Sexual Offences Act 1956 (as amended
by the Criminal Justice and Public Order Act 1994)). Other forms of non-consensual
sexual contact were dealt with under an offence called ‘indecent assault’ (contrary to
ss 14 and 15 of the Sexual Offences Act 1956). The actus reus of the latter crime covered a
very wide range of activities:
 oral sex (McAllister [1997] Crim LR 233);
 penetration of the vagina with D’s hand (Boyea [1992] Crim LR 574);
 spanking (Court [1989] AC 28);
 stroking a woman’s breasts (Tabassum [2000] 2 Cr App R 328);
 stroking a woman’s lower leg (Price [2003] EWCA Crim 2405; The Times, 20 August
2003).
rape In addition to the width of the offence, there was also sometimes difficulty in estab-
Non-consensual lishing that an assault had been ‘indecent’. According to Lord Ackner in Court (1989),
vaginal, anal or
408 oral sex it was a matter for the jury to decide whether ‘right-minded persons would consider
the conduct indecent or not’. Setting the Boundaries: Reforming the Law on Sex
Offenders sets out the review body’s position on the law of sexual offences as follows
sexual assault (para 0.9):
Sexual offenceS
Non-consensual
sexual touching
‘In looking at the law on rape and sexual assault we recommend that these offences
should be redefined in the following way:
 that rape be redefined to include penetration of the mouth, anus or female
genitalia by a penis;
 a new offence of sexual assault by penetration to deal with all other forms of
penetration of the anus and genitalia;
 rape and sexual assault by penetration should be seen as equally serious, and
both should carry a maximum sentence of life imprisonment;
 a new offence of sexual assault to replace other non-penetrative sexual touch-
ing now contained in the offence of sexual assault.’
After a consultation period culminating in March 2001, in November 2002 the govern-
ment published a White Paper called Protecting the Public: Strengthening Protection against
Sex Offenders and Reforming the Law on Sexual Offences setting out its proposals for reform.
The government clearly endorsed the findings of the independent review body, as this
extract shows (Overview, paragraphs 8–9):
‘The law on sex offences, as it stands, is archaic, incoherent and discriminatory.

Much of it is contained in the Sexual Offences Act 1956, and most of that was
simply a consolidation of 19th century law. It does not reflect the changes in society
and social attitudes that have taken place since the Act became law, and it is widely
considered to be inadequate and out of date. While some piecemeal reform has
taken place over the years, we have now undertaken a comprehensive review of
the law so that it can meet the needs of today’s society.’
The proposed reforms were put to Parliament and in due course the Sexual Offences Act
2003 was passed, the main provisions of which entered into force on 1 May 2004.
12.1 Rape
Section 1(1) of the Sexual Offences Act 2003 defines ‘rape’ in the following terms.
SECTION
‘1(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his
penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.’
Section 1(2) provides that ‘whether a belief is reasonable is to be determined having

regard to all the circumstances, including any steps A has taken to ascertain whether B
consents’.
Actus reus elements

 Penetration of the vagina, anus or mouth of another person, V, with the penis.
 Lack of consent by V. 409
Mens rea elements
12.1 Rape
 Intent to penetrate V’s vagina, anus or mouth.
 Lack of reasonable belief in V’s consent.
Summary of changes
 Penetration of the mouth becomes rape.
 Genuine belief that V was consenting is no longer a good defence. The belief must be
reasonable.
12.1.1 Penetration of the vagina, anus or mouth of

another person, with the penis
Prior to the Criminal Justice and Public Order Act 1994, rape could only be committed
by penetration of V’s vagina (it followed that only women could be the victims of rape).
The definition of ‘rape’ was expanded in 1994 to include penetration of the anus, which
meant that prosecution for male rape was possible for the first time (prior to 1994, the
non-consensual anal penetration of either a man or woman would have been charged as
buggery). Following the 2003 Act, the non-consensual penetration of either the vagina,
anus or mouth amounts to the actus reus of rape. The one constant feature over this time
has been the requirement that the penetration be by D’s penis. The non-consensual pen-
etration of V’s vagina or anus by some other body part, or anything else, may now be
charged under s 2 of the 2003 Act, as ‘assault by penetration’ (see section 12.2). Section
79(3) of the 2003 Act states that ‘references to a part of the body include references to a
part surgically constructed (in particular, through gender reassignment surgery)’. This
would allow:
 a post-operative female-to-male transsexual to commit rape using an artificially
created penis;
 a post-operative male-to-female transsexual to be the victim of rape if her artificially
created vagina were to be penetrated by D’s penis.
One of the first cases under s 1 to reach the Court of Appeal under the 2003 Act involved
the extended definition of rape, that is, penetration of V’s mouth with D’s penis. In the
case, Ismail [2005] EWCA Crim 397, Lord Woolf CJ noted that ‘the fact that this was oral
rape does not mean that it is any less serious than vaginal or anal rape’.
CASE EXAMPLE
Ismail [2005] eWca crim 397
D, aged 18, approached V, aged 16 and a virgin, who was standing near a phone box in Shef-
field. V decided to walk to her friend’s house and D accompanied her. When they reached a
deserted path through grass verges D suddenly grabbed V from behind and pulled her on to
the verge. He touched her vagina (which led to a separate conviction of sexual assault under
s 3, see below) and then forced V to suck on his penis. He threatened to stab her if she did not
comply and slapped and punched her about the face until he ejaculated into her mouth. After-
wards he stroked her hair and apologised. After D was arrested and charged he claimed
consent but V had recorded the whole incident on her mobile phone. D changed his plea to
guilty and his appeal (against sentence) was dismissed.
410
Penetration
Section 79(2) of the Sexual Offences Act 2003 states that ‘penetration is a continuing act
from entry to withdrawal’. This gives statutory effect to the Privy Council ruling in Kai-
tamaki [1984] 2 All ER 435, where the Court held that D commits rape if, having pene-
Sexual offenceS
trated with consent, or believing he has consent, D declines to withdraw on consent

being revoked, or on realising that V does not consent. This was confirmed by the Court
of Appeal in Cooper and Schaub [1994] Crim LR 531. V had allegedly been raped by the
two defendants, whom she had met in a pub and later had sex with. After retiring to
consider a verdict, the jury asked the judge: ‘If we find that initially there was consent to
intercourse and this was subsequently withdrawn and intercourse continued, does this
by law constitute rape?’ The judge answered in the affirmative and the jury convicted.
Although the convictions were quashed on appeal, the Court of Appeal confirmed the
correctness of the judge’s direction on the point of law.
The offence of rape is committed as soon as the non-consensual penile penetration of
V’s vagina, anus or mouth occurs. There are no further actus reus elements, a point which
was stressed by the High Court in Assange v Sweden [2011] EWHC 2849. Sir John Thomas
P stated that ‘ejaculation is irrelevant to this definition: so is pregnancy. If ejaculation
occurs it may be an aggravating feature relevant to sentence: it is irrelevant to proof of
the offence itself.’
12.1.2 The absence of consent

An essential element in rape is the absence of consent to penetration. As rape is an indict-
able offence, this is a matter for the jury to decide. Early authorities emphasised the use
of force that the penetration had to be against V’s will. However, it is now clear that the
lack of consent may exist with or without force being used. In Olugboja [1982] QB 320, D
contended that rape required the submission of the victim, induced by force or the threat
of force. He had been convicted of raping a 16-year-old girl who had not offered resist-
ance or cried for help, because she was too frightened. The Court of Appeal dismissed
the appeal. Dunn LJ said:
JUDGMENT
‘It is not necessary for the prosecution to prove that what might otherwise appear to have
been consent was in reality merely submission induced by force, fear or fraud, although one
or more of these factors will no doubt be present in the majority of cases of rape . . . [The jury]
should be directed that consent, or the absence of it, is to be given its ordinary meaning and
if need be, by way of example, that there is a difference between consent and submission.’
Further guidance on the distinction between ‘consent’ and ‘submission’ was provided in
Doyle [2010] EWCA Crim 119.
CASE EXAMPLE
Doyle [2010] eWca crim 119
D had been convicted of raping his 17-year-old girlfriend, V, after she said that they were no
longer in a relationship and that she did not want to have sex with him. V’s testimony at trial
was that D had forced her to have sex. Initially she had protested ‘but once he had succeeded
in penetrating her she ceased to resist because she thought it would only get worse if she did’.
D appealed against his conviction, arguing that the trial judge had failed to explain to the jury
the distinction between ‘submission’ and consent freely given by choice. The Court of Appeal
disagreed and upheld the conviction.
However, Pitchford LJ acknowledged that there may be cases where the line between 411
consent and submission would be more difficult to draw. He said:
12.1 Rape
JUDGMENT
‘There are circumstances in which the jury may well require assistance as to the distinction to
be drawn between reluctant but free exercise of choice on the one hand, especially in the
context of a long-term and loving relationship, and unwilling submission to demand in fear of
more adverse consequences from refusal on the other.’
Similar observations were made in B [2013] EWCA Crim 3; [2014] Crim LR 312. Hughes
LJ observed that ‘the line between reluctant consent and submission despite lack of
consent is often a fine one, especially in cases of an existing sexual relationship’. To
summarise:
 Consent and submission are not the same thing. Where V ‘merely’ or ‘unwillingly’
submits to penetration, he or she is not consenting.
 It is a question for the jury whether V gave consent or ‘merely’ submitted.
 In some (but not necessarily all) cases, especially those involving an existing relation-
ship, the jury may require assistance from the judge as to where the line between
consent and submission is to be drawn.
Pitchford LJ’s reference to the ‘free exercise of choice’ being the key defining character-
istic of consensual sex is based on the statutory definition of ‘consent’ found in the SOA
2003 (see below). The point is that V may appear to be consenting – perhaps through fear
that physical resistance, struggling, screaming or shouting for help may provoke D into
violence – and yet not actually be doing so. This was demonstrated vividly in McFall
[1994] Crim LR 226. D kidnapped his former girlfriend, V, at gunpoint and had driven
her from Leeds to a hotel in Hull, where they had sex. V faked orgasms throughout the
intercourse, so that it may have appeared that she was consenting. However, D’s rape
conviction was upheld. Taking into account the fact that D had kidnapped V with a gun
(although in fact an imitation, it looked real, and he had told her that it was loaded),
there was sufficient evidence that V’s apparent consent was not genuine in order for the
jury to convict.
In AC [2012] EWCA Crim 2034, the Court of Appeal confirmed that there is a
distinction to be drawn between ‘apparent’ consent to sexual activity and ‘real’ consent.
If D has sex with V whose consent is only ‘apparent’ then the actus reus of rape has been
committed.
CASE EXAMPLE
AC [2012] eWca crim 2034
D was charged with 18 sexual offences against his stepdaughter, V, who was 18 years younger.
The charges related to incidents over a period of 20 years, starting when V was aged around
five and ending when she was around 25. At trial, D’s case was that there had been no sexual
activity between them until V was 16 and that thereafter they were in a consensual sexual
relationship. The prosecution, however, argued that D, having abused and sexually controlled
V when she was a child, continued to abuse, dominate and control her after her sixteenth
birthday. The jury convicted and the Court of Appeal upheld the convictions.
412
Lord Judge CJ stated:
JUDGMENT
Sexual offenceS
‘Once the jury were satisfied that the sexual activity of the type alleged had occurred when [V]
was a child, and that it impacted on and reflected [D’s] dominance and control over [V], it was
open to them to conclude that the evidence of apparent consent when [V] was no longer a
child was indeed apparent, not real, and that [D] was well aware that in reality she was not
consenting.’
The statutory definition of consent

Prior to the enactment of the SOA 2003, the law of consent was entirely found in the case
law. However, Parliament has now provided the first statutory definition of consent.
Section 74 SOA states that a person ‘consents if he agrees by choice, and has the freedom
and capacity to make that choice’. The meaning and scope of s 74 was first examined by
the Court of Appeal in Jheeta [2007] EWCA Crim 1699; [2008] 1 WLR 2582.
CASE EXAMPLE
Jheeta [2007] eWca crim 1699; [2008] 1 WlR 2582
D and V had been in a sexual relationship but, when V indicated that she wished to end it, D
sent her a series of anonymous threatening text messages. These messages were in fact sent
by D but V was unaware of this fact. Instead, V was so distressed that she sought protection
against those making the threats from D. This allowed him to prolong their sexual relationship
for far longer than would otherwise have been the case (several years, in fact). Eventually the
whole ‘complicated and unpleasant scheme’, in the words of Sir Igor Judge, was discovered
and D was charged with and convicted of several rapes. The Court of Appeal upheld the con-
victions, pointing out that V’s apparent consent ‘was not a free choice, or consent for the
purposes of the Act’.
Section 74 was invoked in Assange v Sweden [2011] EWHC 2849, in which it was alleged
that V had only agreed to have penetrative sex with D on the understanding that he
would use a condom, but when intercourse took place, D was either not using a condom
at all, or had removed it or torn it without V realising. The High Court held that these
facts would constitute the actus reus of rape. Sir John Thomas P said:
JUDGMENT
‘The allegation is clear . . . It not an allegation that the condom came off accidentally or was
damaged accidentally . . . It would plainly be open to a jury to hold that, if [V] had made clear
that she would only consent to sexual intercourse if [D] used a condom, then there would be
no consent if, without her consent, he did not use a condom, or removed or tore the condom
without her consent. His conduct in having sexual intercourse without a condom in circum-
stances where [V] had made clear she would only have sexual intercourse if [D] used a condom
would therefore amount to an offence under the SOA 2003.’
CASE EXAMPLE
Assange v Sweden [2011] eWHc 2849 413
In August 2010, Julian Assange, the Australian journalist and founder of the Wikileaks
website, visited Sweden to give a lecture. Whilst there, he had sexual relations with two
12.1 Rape
women, both of whom later complained to the police. Assange was interviewed by the
police, but left Sweden prior to a Swedish court issuing an arrest warrant. In November
2010, the Swedish prosecuting authority issued a European Arrest Warrant alleging inter
alia ‘sexual molestation’ under Swedish law. The specific allegation was that he had unpro-
tected sex with a woman who had agreed to sex on the express condition that he used a
condom. By this time, Assange was living in the UK. A district judge ordered his extradition
to Sweden on the basis that the alleged facts would constitute rape under English law.
Assange appealed but, in November 2011, the High Court dismissed his appeal. (Before he
could be extradited to Sweden, Assange was granted political asylum by the government of
Ecuador, and he took up residence at their embassy in London where (at the time of writing)
he remains.)
Section 74 was invoked again in F v DPP [2013] EWHC 945; [2014] 2 WLR 190, in which
it was held that if V only agreed to have unprotected sex with D on the basis that he
would withdraw prior to ejaculating, but D secretly intended to ejaculate inside V
despite V’s wishes to the contrary, then the actus reus of rape had been committed. Lord
Judge CJ stated:
JUDGMENT
‘The evidence relating to “choice” and the “freedom” to make any particular choice must
be approached in a broad commonsense way. If before penetration began, [D] had made
up his mind that he would penetrate and ejaculate within [V’s] vagina, or even that he
would not withdraw at all, just because he deemed [V] subservient to his control, [V] was
deprived of “choice” relating to the crucial feature on which her original consent to sexual
intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and
knowing that she would not have consented, and did not consent to penetration or the
continuation of penetration if she had any inkling of his intention, [D] deliberately ejacu-
lated within her vagina. In law, this combination of circumstances falls within the statutory
definition of rape.’
CASE EXAMPLE
F v DPP [2013] eWHc 945; [2014] 2 WlR 190
The High Court was asked to judicially review the DPP’s decision not to prosecute V’s husband
(D) for rape. V had complained to the police, alleging that she had only agreed to have pen-
etrative sex with D on the understanding that D would either use a condom or withdraw prior
to ejaculation. (V did not want to become pregnant and could not use contraceptive pills for
medical reasons.) However, on one occasion when they were having unprotected sex, D said
that he would not withdraw prior to ejaculation ‘because you are my wife and I’ll do it if I
want’. V subsequently found out that she was pregnant. The High Court ruled in V’s favour
and instructed the CPS to review its decision not to prosecute D.
Lord Judge CJ’s recommendation that the courts should adopt a ‘broad commonsense’
414 approach to consent (or the lack thereof ) was accepted by the Court of Appeal in McNally
[2013] EWCA Crim 1051; [2014] 2 WLR 200. The case involved allegations that the female
defendant (D) had penetrated V’s vagina with her fingers and tongue without V’s
Sexual offenceS
consent. The Crown alleged a lack of consent on V’s behalf on the basis that, at the rel-
evant time, V had been induced into believing that D was, in fact, male. At her trial, D
pleaded guilty to six counts of assault by penetration (contrary to s 2 SOA; see section
12.2 below), but subsequently appealed, arguing that deception as to gender did not
vitiate consent. This was rejected. Leveson LJ in the Court of Appeal said:
JUDGMENT
‘In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be
sufficient to vitiate consent. [However] while, in a physical sense, the acts of assault by pene-
tration of the vagina are the same whether perpetrated by a male or a female, the sexual
nature of the acts is, on any common sense view, different where [V] is deliberately deceived
by [D] into believing that the latter is a male. [V] chose to have sexual encounters with a boy
and her preference (her freedom to choose whether or not to have a sexual encounter with a
girl) was removed by [D’s] deception. It follows from the foregoing analysis that we conclude
that, depending on the circumstances, deception as to gender can vitiate consent.’
CASE EXAMPLE
McNally [2013] eWca crim 1051; [2014] 2 WlR 200
Justine McNally (D) forged a relationship with V, a teenage girl, over the internet. When they first
‘met’ on the social networking website Habbo, D was aged 13 and lived in Scotland; V was a year
younger and lived in London. D used a male avatar with the name ‘Scott’ and V believed that she
was communicating with a boy called ‘Scott Hill’ from Glasgow. Over the following three-and-a-
half years they communicated, initially via MSN and later via telephone calls. Throughout this
time, D maintained her ‘Scott’ persona. Shortly after V’s sixteenth birthday, D travelled down to
London to meet her. D was dressed in black ‘gothic’ clothing and ‘presented’ herself as a teenage
boy. Over the next few months, D travelled to London to visit V on a number of occasions and
they engaged in sexual activity involving D penetrating V’s vagina with her fingers and tongue.
The room was always dark and D kept her clothes on, so that V remained oblivious as to the fact
that D was not actually ‘Scott’. It was V’s mother who became suspicious and eventually con-
fronted D. The Court of Appeal upheld D’s convictions for assault by penetration on the basis
that D’s deception as to gender had vitiated V’s consent.
McNally was discussed by J Rogers, ‘Further developments under the Sexual Offences
Act’ (2013) 7 Arch Rev 7. He agreed with the Court of Appeal that V’s ‘misunderstanding’
about D’s gender could vitiate V’s consent, arguing that since V ‘wished to experience a
heterosexual encounter, the nature of the acts done by [D] were thereby different . . . [V]
was used for the sexual gratification of another in a manner which in no way accorded
with her own sexual preferences, and it is right that she be regarded as the victim of a
non-consensual sexual offence’.
Do you agree with Rogers that ‘the acts’ done by D were ‘different’ from those which
V had agreed would be done? V agreed to have her vagina penetrated by Justine McNally
and that is exactly what happened. Should it matter that V thought (wrongly) that
Justine was ‘Scott’?
A Sharpe, ‘Criminalising sexual intimacy: transgender defendants and the legal
construction of non-consent’ [2014] Crim LR 207 questions the rationale for the deci-
sion in McNally, i.e. Leveson LJ’s assertion that V had been ‘deliberately deceived’
into thinking that D was male. Sharpe points out that ‘Justine now apparently identi- 415
fies as female, a gender position consistent with her birth designated sex. At the time
of the alleged offences, however, she appears to have identified and lived as a young
12.1 Rape
man and made reference to her desire for gender reassignment surgery.’ She had also
‘expressed some confusion about her gender’. Sharpe argues that ‘at the time of con-
viction and appeal there was sufficient information available to conclude that
McNally identified as male prior to and at the time of the alleged offences, and there-
fore that [V’s] apparent consent was valid consent and that McNally was not
deceptive’.
Informed consent?
You will recall that in the cases of Dica [2004] EWCA Crim 1103 and Konzani [2005]
EWCA Crim 706, examined in Chapter 8, the Court of Appeal imported a doctrine of
‘informed consent’ into the law of non-fatal offences. The result of these cases is that, if
D knows that he is HIV positive, has unprotected penetrative sex with V without
informing them of his condition, and transmits the virus, this can lead to a conviction
under s 20 of the Offences Against the Person Act 1861 (inflicting grievous bodily harm
(GBH)). The justification for this is that V’s consent to have sex with D does not extend
to consent to the risk of contracting a potentially fatal illness. The reason for repeating
these principles here is that the Court of Appeal was asked, in B [2006] EWCA Crim
2945; [2007] 1 WLR 1567, whether such facts could lead to a conviction of rape. The
Court answered ‘no’.
CASE EXAMPLE
B [2006] eWca crim 2945
In the early hours of the morning, D and V had sex in the street outside a nightclub where they
had just met. Subsequently, V made a complaint of rape. D was arrested and informed the
custody officer that he was HIV positive, a fact which he had not disclosed to V prior to their
having sex. He was charged with and convicted of rape. He appealed, submitting that the
judge was wrong in directing the jury that his HIV status was relevant to whether V had the
‘freedom and capacity’ to consent to sex in the absence of that knowledge. The Court of
Appeal quashed the conviction.
Latham LJ stated:
JUDGMENT
‘Where one party to sexual activity has a sexually transmissible disease which is not disclosed
to the other party, any consent that may have been given to that activity by the other party is
not thereby vitiated. The act remains a consensual act. However, the party suffering from the
sexually transmissible disease will not have any defence to any charge which may result from
harm created by that sexual activity, merely by virtue of that consent, because such consent
did not include consent to infection by the disease.’
Before moving on to consider ss 75 and 76 SOA, it may be useful to summarise some of

the leading cases on s 74 and to consider the extent to which they have applied the law
consistently:
416
 B (2006): D had sex with V without informing her that he was HIV positive. Held: V’s
consent valid.
 Assange (2011): D (allegedly) had sex with V either without using a condom or using
Sexual offenceS
a torn condom, contrary to their agreement to have sex with a condom. Held: V’s
consent vitiated.
 F v DPP (2013): D had sex with V and ejaculated inside her, contrary to their agree-
ment that he would withdraw beforehand. Held: V’s consent vitiated.
 McNally (2013): D induced V into believing that D was a boy called ‘Scott’ before pen-
etrating her vagina with D’s fingers and tongue. Held: V’s consent vitiated.
Do you agree with these decisions? J Rogers, ‘The effect of deception in the Sexual
Offences Act 2003’ (2013) 4 Arch Rev 7, argues that there is an inconsistency here:
quotation
‘If a man with HIV is charged for communicating it through sexual intercourse, having deceived
his partner about his status, he faces a maximum penalty under s 20 of the OAPA. But fol-
lowing Assange a man who is sexually healthy and does not wear the condom which he is
asked to wear can be charged for the more serious and stigmatic offence of rape.’
His solution to the problem is to say that ‘conduct involving risks or perceived risks
about health should be the subject of separate legislation’. Do you agree that a new
crime is required? There is an argument that, were a man to actually ‘deceive’ his partner
about his HIV status prior to them having unprotected penetrative sex, this could be
rape. In B (2006) there was no actual deception, so that case could be distinguished and
Assange, F and McNally followed instead.
Presumptions about consent

Sections 75 and 76 of the Sexual Offences Act 2003 apply to the offences in s 1 (rape), s 2
(assault by penetration), s 3 (sexual assault) and s 4 (causing a person to engage in sexual
activity without consent).
Evidential presumptions
Section 75 of the 2003 Act is headed ‘Evidential presumptions about consent’.
SECTION
‘75(1) If in proceedings for an offence to which this section applies it is proved –
(a) that [D] did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that [D] knew that those circumstances existed,
[V] is to be taken not to have consented to the relevant act unless sufficient evid-
ence is adduced to raise an issue as to whether he consented, and [D] is to be taken
not to have reasonably believed that [V] consented unless sufficient evidence is adduced
to raise an issue as to whether he reasonably believed it.
(2) The circumstances are that –
(a) any person was, at the time of the relevant act or immediately before it began,
using violence against [V] or causing [V] to fear that immediate violence would be
417
used against him;
(b) any person was, at the time of the relevant act or immediately before it began,
causing [V] to fear that violence was being used, or that immediate violence would
12.1 Rape
be used, against another person;
(c) [V] was, and [D] was not, unlawfully detained at the time of the relevant act;
(d) [V] was asleep or otherwise unconscious at the time of the relevant act;
(e) because of [V]’s physical disability, [V] would not have been able at the time of the
relevant act to communicate to [D] whether [V] consented;
(f ) any person had administered to or caused to be taken by [V], without [V]’s consent,
a substance which, having regard to when it was administered or taken, was
capable of causing or enabling [V] to be stupefied or overpowered at the time of
the relevant act.’
One of the evidential presumptions in s 75 is the situation where V is ‘unlawfully detained’

(s 75(2)(c)), although the Court of Appeal did not need to refer to that section in B [2006]
EWCA Crim 400. In the words of Swift J, D forced V to ‘put her wrists into some dog leads,
which he secured to the bedposts. He tied her ankles with a belt and forced open her legs.
He pulled down her pyjama bottoms and her thong to her ankles. He then took off his own
clothes and said, “You have a choice, either up the front or up the back”. He turned her
over and committed an act of anal rape.’ Section 75(2)(d) refers to the situation in cases
such as Larter and Castleton [1995] Crim LR 75. There, D had sexual intercourse with V, a
14-year-old girl, who was asleep at the time. He was charged with rape and argued that it
had to be proved that V had demonstrated lack of consent. The Court of Appeal upheld
D’s conviction, confirming that it is not necessary to prove a positive dissent by V. It is
enough that he/she did not assent. On these facts, there would now be an ‘evidential pre-
sumption’ that V was not consenting, requiring D to rebut the presumption.
Section 75(2)(d) was invoked in Ciccarelli [2011] EWCA Crim 2665; [2012] 1 Cr App R
15, a case involving sexual assault, contrary to s 3 SOA 2003 (for detailed explanation of
this offence see section 12.3).
CASE EXAMPLE
Ciccarelli [2011] eWca crim 2665; [2012] 1 cr app R 15
D was at a party with several people including his girlfriend and V, who was very drunk. At one
point, V fell asleep and D, the girlfriend and V took a taxi back to D’s flat, where V was to
spend the night in the spare room. During the night, D got up and went into the room where
V was asleep. There, he lay down next to her, kissed her on the face, and rubbed his penis
against her bottom. He then tried to get on top of her at which point she woke up and
shouted at him to get off, which he did. D was charged with sexual assault.
The trial judge told the jury that the evidential presumption in s 75(2)(d) had been created
by the fact that V was asleep at the time of the touching, D knew that V was asleep and D had
committed the relevant act of touching V in a sexual way. This meant that it was rebuttably
presumed both that V was not consenting and that D had no reasonable belief in V’s consent.
Furthermore, the trial judge ruled that there was no evidence to rebut the presumption. At
that point D changed his plea to guilty and appealed. He contended that he reasonably
believed that V was consenting to the touching, despite the fact that she was asleep. The
Court of Appeal dismissed his appeal, holding that once one of the evidential presumptions
was raised, it could only be rebutted by evidence. On the facts there was no evidence, other
than D’s own testimony.
418 In a recent Canadian case, it was held that, where D engages in sexual activity with V
who is asleep, then the activity is non-consensual – even where D and V are partners. In
JA [2011] 2 SCR 440, the appellant (JA) placed his hands around the throat of his long-
Sexual offenceS
term partner (KD) and choked her until she was unconscious. When she regained con-
sciousness about three minutes later, she was on her knees at the edge of the bed with
her hands tied behind her back, and JA was inserting a dildo into her anus. They then
had vaginal intercourse. When they finished, JA cut KD’s hands loose. Two months
later, KD made a complaint to the police, stating that while she had consented to the
choking, she had not consented to the sexual activity that had occurred whilst she was
unconscious. JA was convicted of sexual assault and appealed, successfully, to the Court
of Appeal in Ontario. The Crown then appealed, and the Supreme Court of Canada
restored the conviction, holding that consent in Canadian law required ongoing, con-
scious consent to ensure that women and men were not the victims of sexual exploita-
tion, and to ensure that individuals engaging in sexual activity were capable of asking
their partners to stop at any point.
If the facts of this case had occurred in England, then the Crown would presumably
have relied upon s 75(2)(d) in order to create presumptions that the alleged victim was
not consenting and that the appellant lacked reasonable belief in her consent, but the
appellant would have been able to counter that by introducing evidence (most obvi-
ously, the fact that he and his partner were in a long-term relationship) in order to try to
rebut the presumptions.
Section 75(2)(f ) refers to the situation in cases such as Camplin [1845] 1 Den 89,
where D was convicted of rape after rendering a woman insensible by plying her with
alcohol before having intercourse. On these facts, there would now be an ‘evidential
presumption’ that V was not consenting, requiring D to rebut the presumption. This
situation is all too familiar in the twenty-first century, with incidents involving the use
of ‘date rape’ drugs. Powerful sedatives designed to alleviate sleeping disorders are
available in tablet form and can be easily crushed and dissolved in liquid. Because
they are usually tasteless and odourless, they can be slipped into V’s drinks in a bar or
nightclub without her knowledge, in order to render her unconscious or semi-
conscious during sex.
The evidential presumption does not apply where V has become drunk or drugged
or otherwise intoxicated of his/her own free will, as opposed to through use of force or
some subterfuge on the part of D. Nevertheless, if D takes advantage of V whilst he/she
is in this condition, this could still be rape as demonstrated in the pre-2003 Act case of
Malone [1998] EWCA Crim 1462; [1998] 2 Cr App R 447.
CASE EXAMPLE
Malone [1998] eWca crim 1462; [1998] 2 cr app R 447
V, a 16-year-old girl, got so drunk when out with friends that she was incapable of walking
and had to be given a lift home. D, a neighbour, was asked to help carry her into her house
where her friends undressed her and put her to bed. Thereafter D stayed, ostensibly to make
sure she did not vomit and choke. However, V claimed that he then climbed on top of her and
had intercourse before she could kick him off. D was convicted of rape and appealed on the
ground that, in this sort of case involving neither force nor fraud, a lack of consent had to be
demonstrated either by speech or physical conduct. The Court of Appeal disagreed and dis-
missed the appeal.
The leading case on this area of law, where D is alleged to have raped V whilst the latter
was voluntarily intoxicated, is Bree [2007] EWCA Crim 804; [2008] QB 131. The Court of 419
Appeal quashed D’s rape conviction because the jury had not been adequately directed
on the issue of V’s consent. The facts indicated that V, although very drunk, had retained
the capacity to consent (and hence s 75(2)(d) did not apply) and V had become intoxi-
12.1 Rape
cated voluntarily (and hence neither did s 75(2)(f )). The case therefore hinged on whether
the Crown had proved that V was not consenting at the time of the alleged rape. The
Court found that this had not been proven, given the inadequacy of the trial judge’s
directions, and therefore the conviction was unsafe.
CASE EXAMPLE
Bree [2007] eWca crim 804; [2008] QB 131
D, aged 25, had gone to stay at his brother’s student flat at Bournemouth University. One of
the brother’s flatmates, V, agreed to go out with D, his brother and the latter’s girlfriend. Over
the course of the evening the four of them consumed large quantities of alcohol before return-
ing to the flat. Back in the flat, D initiated sex with V. At this point D’s version of events and
V’s version differ. D claimed that V – although still drunk – was conscious throughout, was
capable of consenting, and did so. V’s version was that she was drunk and kept passing out,
she either could not or did not consent and hence had been raped. At trial, D was convicted
of rape but the Court of Appeal quashed his conviction. The Court of Appeal took the oppor-
tunity to clarify the law of rape in cases where V’s capacity to consent may have been affected
by voluntary intoxication. Sir Igor Judge stated:
JUDGMENT
‘A “drunken consent is still consent”. In the context of consent to intercourse, the phrase lacks
delicacy, but, properly understood, it provides a useful shorthand accurately encapsulating the
legal position . . . If, through drink (or for any other reason) [V] has temporarily lost her capacity
to choose whether to have intercourse on the relevant occasion, she is not consenting, and
subject to questions about [D’s] state of mind, if intercourse takes place, this would be rape.
However, where [V] has voluntarily consumed even substantial quantities of alcohol, but
nevertheless remains capable of choosing whether or not to have intercourse, and in drink
agrees to do so, this would not be rape.’
It is open for debate whether the Court of Appeal in Bree has provided sufficient clarity
in the law. There is an argument that s 75(2) of the SOA 2003 should be amended and
that ‘extreme intoxication’ (or words to that effect) should be added as a further circum-
stance. This would mean that, if it could be proved that V was in a state of extreme
intoxication (albeit voluntary) at the time of the alleged rape, and that D had knowledge
of V’s intoxication, it would create an evidential presumption that V was not consenting.
After all, the involuntarily intoxicated V is protected by s 75(2)(f ), so why not the volun-
tarily intoxicated V?
Conclusive presumptions
Section 76 of the Act is headed ‘Conclusive presumptions about consent’.
SECTION
‘76(1) If in proceedings for an offence to which this section applies it is proved that [D] did the
relevant act and that any of the circumstances specified in subsection (2) existed, it is
420 to be conclusively presumed –
(a) that [V] did not consent to the relevant act, and
(b) that [D] did not believe that [V] consented to the relevant act.
Sexual offenceS
(2) The circumstances are that –

(a) [D] intentionally deceived [V] as to the nature or purpose of the relevant act;
(b) [D] intentionally induced [V] to consent to the relevant act by impersonating a
person known personally to [V].’
Rape through fraud and deception

Where D deceives V as to the very nature of the act which he is performing, there is now
a ‘conclusive’ presumption that V did not consent and that D did not believe that V was
consenting (s 76(2)(a)). The new presumption would, presumably, apply to the situ-
ations which arose in the following cases:
 Flattery [1877] 2 QBD 410. V had sex with D – although she was under the impression
that he was performing a surgical operation which would cure her fits.
 Williams [1923] 1 KB 340. V (a 16-year-old choirgirl) had sex with D (the choirmaster)
– although she was under the impression that he was performing exercises to help
her breathing (she did not, apparently, even realise she was actually having sex).
However, the presumption will not apply in cases such as arose in Linekar [1995] 3 All
ER 69, where D’s deception does not go to the ‘nature or purpose’ of the act. For example,
misrepresentations by D as to his wealth or professional status would not render sex
obtained thereby rape. In Linekar (1995), Morland J stated: ‘An essential ingredient in the
law of rape is the proof that the woman did not consent to [the act of penetration] with
the particular man who penetrated her.’
CASE EXAMPLE
Linekar [1995] 3 all eR 69
V, a prostitute, agreed to have sex with D in return for £25 after he approached her outside
the Odeon cinema in Streatham. They duly had sex on the balcony of a block of flats. After-
wards D made off without paying. V complained that she had been raped. D was convicted of
rape on the basis that he had never had any intention of paying and hence V’s consent was
vitiated by his fraud. The Court of Appeal quashed the conviction. It was the absence of
consent, not the presence of fraud, which made otherwise lawful sexual intercourse rape.
The Court of Appeal in Linekar (1995) approved an Australian case, Papadimitropoulos
(1958) 98 CLR 249, in which V was deceived into thinking that she was married to D. In fact
the marriage was a sham. The High Court of Australia held that this consent was a defence
to rape. A very similar case to that of Linekar (1995) is the British Columbia Court of Appeal
judgment in Petrozzi (1987) 35 CCC (3d) 528. D had agreed to pay V $100 for sexual services
but did not intend to make that payment. The Court held that this type of deception could
not be said to relate to the nature and quality of the act and was insufficient to vitiate V’s
consent. The first case to be decided by the Court of Appeal involving s 76 was Jheeta
(2007), the facts of which were given above. Although the Court of Appeal upheld D’s rape
convictions, this was on the basis of s 74, not s 76. The Court decided that, although V had
been deceived by D into thinking that her life was in danger, and in turn to seek protection
from D which allowed him to artificially prolong their sexual relationship, this deception
did not trigger s 76. The Court acknowledged that D had ‘created a bizarre and fictitious
fantasy which, because it was real enough . . . pressurised [V] to have intercourse with [D]
more frequently than she otherwise would have done’. However, s 76 did not apply
because V was not deceived as to the ‘nature or purpose’ of their sexual relationship; rather, 421
she had been deceived ‘as to the situation in which she found herself’. Sir Igor Judge in the
Court of Appeal summarised the scope of s 76 as follows:
12.1 Rape
JUDGMENT
‘The ambit of s 76 is limited to the “act” to which it is said to apply. In rape cases the “act” is
vaginal, anal or oral intercourse . . . it will be seen that s 76(2)(a) is relevant only to the compara-
tively rare cases where [D] deliberately deceives [V] about the nature or purpose of one or other
form of intercourse. No conclusive presumptions arise merely because [V] was deceived in some
way or other by disingenuous blandishments of or common or garden lies by [D]. These may well
be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse.’
ACTIVITy
Self-test question
Can you think of some ‘disingenuous blandishments’ or ‘common or garden lies’ which a
defendant might use to persuade V to have sex, which would not trigger s 76?
Section 76(2)(a) was used to secure a conviction in Devonald [2008] EWCA Crim 527.
CASE EXAMPLE
Devonald [2008] eWca crim 527.
D’s 16-year-old daughter had been in a relationship with V, a 16-year-old boy. After that rela-
tionship broke down, much to the distress of the girl, D assumed the identity of a 20-year-old
woman, ‘Cassey’, and began corresponding with V online. Their conversations ‘quickly turned
to sex’ and eventually, D persuaded V to masturbate in front of a webcam while D watched.
D was later charged with causing another person to engage in sexual activity without consent
(contrary to s 4 SOA; and see section 12.4). D said that his motivation was to teach V a lesson
for mistreating D’s daughter by embarrassing him. D was convicted and appealed, contending
that, although he had intentionally caused V to engage in sexual activity (masturbation), V had
consented. The Court of Appeal dismissed the appeal, applying s 76(2)(a): D had deceived V
as to the ‘purpose’ of his act. V’s purpose in masturbating was to please a 20-year-old woman
called ‘Cassey’; he would never have done so had he known that the 37-year-old father of his
former girlfriend was watching him instead.
The meaning and scope of s 76 – in particular the word ‘purpose’ in s 76(2)(a) – was con-
sidered again by the Court of Appeal in Bingham [2013] EWCA Crim 823; [2013] 2 Cr
App R 29. Hallett LJ said that s 76 had to be ‘strictly construed’ and would only apply in
‘rare’ cases:
JUDGMENT
‘There is no definition of the word “purpose” in the Act. It is a perfectly ordinary English word
and one might have hoped it would not be necessary to provide a definition. It has been left
to the courts and academics to struggle with its meaning in the context of a sexual act. We say
“struggle” advisedly because it may not be straightforward to ascertain the “purpose” of a
sexual act. Those engaging in a sexual act may have a number of reasons or objectives and
each party may have a different objective or reason. The Act does not specify whose “purpose”
422 is under consideration. There is, therefore, a great danger in attempting any definition of the
word “purpose” and in defining it too widely. A wide definition could bring within the remit
of s 76 situations never contemplated by Parliament. We shall, therefore, simply apply the
normal rules of statutory construction and echo what was said in Jheeta. Where, as here, a
Sexual offenceS
statutory provision effectively removes from an accused his only line of defence to a serious
criminal charge it must be strictly construed . . . Thus, it will be a rare case in which s 76 should
be applied.’
CASE EXAMPLE
Bingham [2013] eWca crim 823; [2013] 2 cr app R 29
Darrell Bingham (DB) had been in a relationship with his girlfriend, C, for several years. One
day, he contacted her via Facebook purporting to be someone called ‘Grant’. He persuaded
her to send him topless photos of herself. The next month, he threatened to email these
photos to C’s employer unless she performed sexual acts over a web link. C complied with
these threats and duly penetrated her vagina with her fingers and a hairbrush while DB
watched via the web link. Later, DB repeated the deception but this time in the guise of
‘Chad’, ostensibly a friend of Grant’s. Again, C complied with the threats and again performed
sexual acts via a web link while DB watched. Eventually, C contacted the police, who arrested
DB and charged him with causing another person to engage in sexual activity without consent
(contrary to s 4 SOA; and see section 12.4). He admitted that he had assumed the false identi-
ties but said he reasonably believed that C was consenting. The trial judge directed the jury
that, if they found that C had been deceived as to the purpose of the act, then the conclusive
presumption under s 76 applied, removing DB’s defence that he had a reasonable belief that
C was consenting. DB was convicted and appealed. He submitted that C had never been asked
at trial what she believed DB’s purpose was but that, if she had been asked, she would have
said sexual gratification, in which case C had not been misled. Further, he argued that, if the
trial judge was satisfied that s 76 was triggered, he should have directed the jury on the
meaning of the word ‘purpose’ in s 76(2)(a). The Court of Appeal allowed the appeal (although
a retrial was ordered). Hallett LJ described DB’s conduct as ‘not unlike’ that in Jheeta. She said
that DB ‘undoubtedly deceived his girlfriend in a cruel and despicable way’ but doubted
whether there was ‘deception as to purpose so as to trigger the operation of s 76’. She
explained that while DB’s purpose was ‘far from clear’, the ‘most likely’ explanation was ‘some
kind of perverted sexual gratification’; meanwhile, C’s understanding of what she was being
asked to do (and did in fact do) was to perform sexual acts in front of a camera for the sexual
gratification of whoever was watching.
In Bingham, the Court of Appeal cast doubt on Devonald. Hallett LJ said that ‘If there is
any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly
follow Jheeta.’ Nevertheless, Devonald has not been overruled and it remains an authority
for the proposition that a sexual activity such as masturbation could have more than one
purpose (sexual gratification on one hand, embarrassment and humiliation on the other)
and if D deceives V about which purpose is applicable, s 76(2)(a) applies.
Commenting on Bingham, K Laird, ‘Rapist or rogue? Deception, consent and the
Sexual Offences Act 2003’ [2014] Crim LR 492, suggests that ‘the applicability of s 76 has
been reduced to vanishing point’ and that this development ‘is to be welcomed’. He
contends that, in future, cases such as Jheeta and Bingham are more likely to be argued on
the basis of s 74, rather than s 76. This, he suggests, will help both the prosecution and
the defence. It will help the prosecution because, whereas s 76 only applies in cases of
intentional deception, s 74 ‘does not contain the same restriction’. And reliance on s 74
instead of s 76 ‘at least permits [D] to mount a defence and so avoids the issue of whether
any subsequent conviction violates the presumption of innocence’ in art 6 of the Euro- 423
pean Convention of Human Rights.
Rape through impersonation
12.1 Rape
Where D impersonates V’s husband, fiancé or boyfriend (or some other person known
to V), then again the conclusive presumption applies (s 76(2)(b)). This would apply to
the type of situation that arose in Elbekkay [1995] Crim LR 163.
CASE EXAMPLE
Elbekkay [1995] crim lR 163
D had deceived V into thinking that he was her boyfriend. He was convicted of rape after the
trial judge directed the jury that there was no difference between impersonating a husband
and impersonating a boyfriend or fiancé: both cases amount to rape. The Court of Appeal
upheld the conviction.
12.1.3 Intent to penetrate

The meaning of ‘intention’ is the same throughout the criminal law. Refer to Chapter 3
for discussion.
12.1.4 Lack of reasonable belief

It must be proved that, at the time of the penetration, D did not reasonably believe
that V was consenting. It will no longer be a defence to plead that D honestly (but
unreasonably) believed that V was consenting, even where D was sober. The House of
Lords’ judgment in DPP v Morgan and others [1976] AC 182 has therefore been over-
ruled in so far as it concerns offences in the Sexual Offences Act 2003. If D’s belief that
V was consenting was mistaken, and this mistake was due to alcohol or other intoxi-
cants, then it would seem to follow that such belief would be regarded almost auto-
matically as unreasonable (unless there are other factors to explain D’s mistake). The
defendant in Woods (1981) 74 Cr App R 312 committed the actus reus of rape but
pleaded in his defence that he mistakenly thought the victim was consenting (the
mistake being caused by intoxication). He was convicted after the jury were directed
that evidence of intoxication was irrelevant. Following the 2003 Act, the jury would be
directed to consider whether D’s belief was reasonable. It is submitted that they would
convict.
In Fotheringham (1989) 88 Cr App R 206, D had been out with his wife and had been
drinking heavily (seven to eight pints of lager). When they returned home, he climbed
into the marital bed where the babysitter, V, was asleep. Under the mistaken impres-
sion that V was his wife, he had sex with her without her consent. D pleaded not
guilty to rape on the basis that he genuinely believed V was his wife. However, the
judge directed the jury to ignore the effects of drink in considering whether there
were reasonable grounds for his belief that he was having lawful intercourse: ‘The
reasonable grounds are grounds which would be reasonable to a sober man.’ He was
convicted and the Court of Appeal upheld the conviction. Watkins LJ said that: ‘in
rape self-induced intoxication is no defence, whether the issue be intention, consent
or, as here, mistake as to the identity of the victim’. This decision would certainly be
the same today.
In Taran [2006] EWCA Crim 1498, the Court of Appeal considered the provision in s 1
that D is not guilty if he reasonably believed that V was consenting. In the case D had
424 been convicted of raping a girl in his car; her version of events was that throughout the
incident she had been struggling to escape. Hughes LJ stated (emphasis added):
Sexual offenceS
JUDGMENT
‘A direction upon absence of reasonable belief clearly falls to be given when, but only when,
there is material on which a jury might come to the conclusion that (a) the complainant did
not in fact consent, but (b) the defendant thought that she was consenting. Such a direction
does not fall to be given unless there is such material . . . we are, in the circumstances, unaltered
in our conclusion that a misunderstanding as to whether or not the complainant consented
was simply not a realistic possibility on the evidence before this jury.’
Although it is now settled that D’s honest (but unreasonable) belief in V’s consent will
not provide D with any defence to a charge of rape (or other sexual offence under the
SOA 2003), there is little in the way of further explanation as to what exactly is meant by
‘reasonable belief ’. In MM [2011] EWCA Crim 1291, Pitchford LJ stated that there is ‘an
interesting argument to be addressed as to whether there is a material difference between
(1) an honest belief held by [D] which may have been reasonable in the circumstances
and (2) a belief which a reasonable man, placed in [D’s] circumstances, may have held’.
However, the Court did not find it necessary to explore that argument further and the
position remains slightly unclear.
Further guidance has been provided by the Court of Appeal in B [2013] EWCA Crim
3; [2014] Crim LR 312, at least in cases where D’s mental health is in question. The appel-
lant (D) was seeking to challenge his conviction for raping his partner (V) on the basis
that he lacked mens rea. There was evidence that D was suffering from a mental disorder
and had delusional beliefs that he possessed ‘sexual healing powers’ which may have
affected his belief as to whether or not V was consenting. Hughes LJ said:
JUDGMENT
‘We take the clear view that delusional beliefs cannot in law render reasonable a belief that his
partner was consenting when in fact she was not . . . The Act does not ask whether it was
reasonable (in the sense of being understandable or not his fault) for [D] to suffer from the
mental condition which he did . . . The Act asks a different question: whether the belief in
consent was a reasonable one. A delusional belief in consent, if entertained, would be by defi-
nition irrational and thus unreasonable, not reasonable. If such delusional beliefs were capable
of being described as reasonable, then the more irrational the belief of [D] the better would
be its prospects of being held reasonable . . . Unless and until the state of mind amounts to
insanity in law, then under the rule enacted in the Sexual Offences Act beliefs in consent
arising from conditions such as delusional psychotic illness or personality disorders must be
judged by objective standards of reasonableness and not by taking into account a mental dis-
order which induced a belief which could not reasonably arise without it.’
CASE EXAMPLE
B [2013] eWca crim 3; [2014] crim lR 312
D was charged with, inter alia, two counts of raping his partner, V. There was expert medical
evidence that D had been suffering from a mental disorder, probably paranoid schizophrenia,
or possibly schizo-affective disorder, at the time of the alleged offences. The medical expert
425
said that the acts of intercourse might have been motivated by D’s delusional beliefs that he
had ‘sexual healing powers’, but that any such delusions did not extend to a belief that V had
consented. The trial judge directed the jury that they should ignore D’s mental illness when
12.1 Rape
asking whether any belief that D might have had in V’s consent had been reasonable. D was
convicted and appealed. He argued that the judge ought to have directed the jury that his
mental illness was a factor that they should consider when deciding whether any belief in
consent was reasonable. The Court of Appeal dismissed his appeal.
Hughes LJ added that there may be cases ‘in which the personality or abilities of the
defendant may be relevant to whether his positive belief in consent was reasonable’. He
said that there may be cases ‘in which the reasonableness of such belief depends on the
reading by the defendant of subtle social signals, and in which his impaired ability to do
so is relevant to the reasonableness of his belief ’. The Court refused to ‘attempt exhaus-
tively to foresee the circumstances’ in which such a belief might be held to be reasonable;
this was a decision which depended ‘on their particular facts’. However, he stressed that
‘once a belief could be judged reasonable only by a process which labelled a plainly
irrational belief as reasonable, it is clear that it cannot be open to the jury so to determine
without stepping outside the Act’.
12.1.5 The marital exception to rape

At common law, it was formerly the case that rape did not apply to married couples. The
rule that a man could not rape his wife survived until the later years of the twentieth
century (Jones [1973] Crim LR 710). This rule was finally removed by the Lords in R
[1992] 1 AC 599.
12.1.6 Women as defendants

Before the 2003 Act, it was explicit that only a man could commit rape. Although the
2003 Act changes the wording of the offence from ‘man’ to ‘person’, it then makes clear
that only a man can commit rape because there has to be penetration by a penis. Thus,
that aspect of the law is unchanged. However, despite the fact that only a man may
commit rape as a principal, a woman may be convicted of rape as a secondary party
(refer back to Chapter 5, section 5.3, if necessary, for a reminder of these terms). This was
demonstrated in DPP v K and C [1997] Crim LR 121, when two girls were convicted of
procuring the rape of a girl by an unknown youth (the girls had ordered V to remove her
clothing and have sex). This is surely right: without the girls’ actions the rape might
never have taken place; and in terms of liability as a secondary party, the girls’ gender
was irrelevant to their liability.
12.2 Assault by penetration

This is a new offence created by the Sexual Offences Act 2003. Section 2(1) of the Act
states:
SECTION
‘2(1) A person (A) commits an offence if (a) he intentionally penetrates the vagina or anus of
another person (B) with a part of his body or anything else; (b) the penetration is sexual; (c) B
does not consent to the penetration; and (d) A does not reasonably believe that B consents.’
426
Did D penetrate V’s anus, D cannot be guilty of rape

Sexual offenceS
NO (or assault by penetration).

vagina or mouth?
Consider liability for
attempted rape and/or
YES
sexual assault.
Did D intend to
penetrate? NO D cannot be guilty of rape
(or assault by penetration).
Consider liability for sexual
YES assault.
Was the penetration with D cannot be guilty of rape,

D’s penis? NO
but consider liability for
assault by penetration.
YES Penetration must be
‘sexual’.
Did V consent to the

penetration?
YES
NO
D cannot be guilty of rape.
Did D reasonably believe YES

that V was consenting?
NO
D is guilty of rape.
Figure 12.1 Rape.

Section 2(2) repeats the wording of s 1(2). (See section 12.1.)
Actus reus elements

 Penetration of the vagina or anus of another person, V.
 With a body part or anything else.
 Penetration must be ‘sexual’.
 V does not consent.
Mens rea elements

 Intent to penetrate V’s vagina or anus.
‘Sexual’
This word is defined in s 78 of the Sexual Offences Act 2003 as follows. 427
SECTION
12.3 Sexual aSSault

‘78 Penetration, touching or any other activity is sexual if a reasonable person would consider
that (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its
nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or
the purpose of any person in relation to it (or both) it is sexual.’
An early case involving s 2 is Coomber [2005] EWCA Crim 1113. D had penetrated the anus
of V, a sleeping boy (D had drugged V with sleeping tablets) with his finger. D was con-
victed after footage which D had taken himself using his own digital camera was seized.
In Cunliffe [2006] EWCA Crim 1706, D was convicted of a s 2 assault after attacking a
14-year-old girl on a deserted field and inserting one or more of his fingers into her anus.
In both of these cases it is clear that D’s penetration was sexual ‘because of its nature’.
The relationship between s 1 and s 2 of the 2003 Act was considered in Lyddaman
[2006] EWCA Crim 383. Openshaw J noted that on the evidence ‘plainly there had been
some sexual interference and indeed penetration. The question for the jury was whether
it was penile penetration to make the appellant guilty of rape . . . or digital penetration to
render him guilty of sexual assault by penetration’ (emphasis added). Upholding the
conviction, the Court of Appeal noted that the jury had convicted D under s 2, which
was described as ‘the lesser offence’.
12.3 Sexual assault

This is another new offence created by the Sexual Offences Act 2003, although it clearly
replaces that of indecent assault. This development was described by A P Simester and
G R Sullivan, in the second edition of their book Criminal Law Theory and Doctrine (Hart
Publishing, 2003) as ‘very welcome’. They criticised the old offence as ‘an anachronism’,
the emphasis on ‘indecency’ being ‘beside the point in a modern law focused on sexual
violence’. Section 3(1) of the Act states that:
SECTION
‘3(1) A person (A) commits an offence if (a) he intentionally touches another person (B), (b) the
touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably
believe that B consents.’
Did D penetrate V’s anus D cannot be guilty of
or vagina with a part of D’s NO assault by penetration.
body or anything else? Consider liability for
attempted assault by
penetration.
YES
Did D intend to D cannot be guilty of

NO
penetrate? assault by penetration.
Consider liability for sexual
assault.
YES
428 Was the penetration

‘sexual’?
Sexual offenceS
NO
YES
D cannot be guilty of assault

Did V consent to the
YES by penetration (or sexual
penetration?
assault).
NO
YES
Did D reasonably believe

that V was consenting?
NO
D is guilty of assault by
penetration.
Figure 12.2 Assault by penetration.
Section 3(2) repeats the wording of s 1(2). (See section 12.1.)
Actus reus elements

 Touching of another person, V.
 Touching is ‘sexual’ (see the definition in s 78 above).
 V does not consent to the touching.
‘Touching’/‘sexual touching’
This is a new concept for English criminal law. Previously, it was necessary to establish
an ‘assault’. Clearly any physical contact between D and V will suffice, but is not neces-
sary. Section 79(8) provides a definition of what is included in the concept of ‘touching’
– in other words, this is not an exhaustive but an illustrative definition. It states that
‘touching’ includes touching (a) with any part of the body, (b) with anything else, (c)
through anything. Finally, ‘touching amounting to penetration’ is included ‘in par-
ticular’. This means that there is deliberate overlap between the offences in ss 2(1) and
3(1). Under the definition of ‘sexual’ in s 78, certain ‘touchings’ are automatically ‘sexual’
(para (a)), whereas other touchings are ambiguous and whether they are ‘sexual’ or not
depends on the circumstances and/or D’s purpose (para (b)). Since the 2003 Act entered
into force in May 2004 the Court of Appeal has dealt with several cases under s 3, mostly
appeals against sentence. Nevertheless these cases illustrate the wide range of circum-
stances in which the offence may be committed (as you read through this list consider
which of these touchings are automatically sexual because of their ‘nature’ and which
are only sexual because of the circumstances and/or D’s purpose):
 touching V’s breasts (Bamonadio [2005] EWCA Crim 3355; Burns [2006] EWCA Crim
1451; Ralston [2005] EWCA Crim 3279);
429
 touching V’s private parts (Elvidge [2005] EWCA Crim 1194; Forrester [2006] EWCA
Crim 1748);
 kissing V’s private parts (Turner [2005] EWCA Crim 3436);
12.4 cauSing engagement in Sexual activity

 kissing V’s face (W [2005] EWCA Crim 3138);
 pressing D’s body against V’s buttocks (Nika [2005] EWCA Crim 3255);
 rubbing D’s penis against V’s body (Osmani [2006] EWCA Crim 816);
 sniffing V’s hair while stroking her arm (Deal [2006] EWCA Crim 684);
 ejaculating on to V’s clothes while dancing close together (Bounekhla [2006] EWCA
Crim 1217);
Section 3(1) requires that D ‘touches another person’, although s 79(8)(c) provides that it
can be ‘through anything’. This was considered in R v H [2005] EWCA Crim 732; [2005]
1 WLR 2005, where the Court of Appeal held that the touching of V’s clothing was suf-
ficient to amount to ‘touching’ for the purposes of an offence under s 3(1).
Mens rea elements

 Intent to touch another person.
You will note that it is not essential that D has any mens rea with respect to whether
or not the touching is ‘sexual’. It has been argued that it is potentially unfair that D
may be convicted under s 3 with no mens rea except the intent to touch and the lack of
reasonable belief in V’s consent (I Bantekas, ‘Can touching always be sexual when
there is no sexual intent?’ (2008) 73 JoCL 251). However, if a touching is ‘sexual’
because a reasonable person would consider it to be so ‘because of its nature’ under s
78(a), then it is irrelevant whether or not D even realised that the touching might be
‘sexual’. As Lord Woolf CJ in the Court of Appeal described it in R v H (2005), some
touchings are ‘inevitably sexual’. Moreover, when a case involves a more ambiguous
touching, it can still be found to be ‘sexual’ by reference to ‘its circumstances’, under
s 78(b), again with no requirement that D even realise that the touching might be
regarded as ‘sexual’.
12.4 Causing a person to engage in sexual activity
This is yet another new offence created by the SOA 2003. Section 4(1) of the Act states:
SECTION
‘A person (A) commits an offence if (a) he intentionally causes another person (B) to engage
in an activity, (b) the activity is sexual, (c) B does not consent to engaging in the activity, and,
(d) A does not reasonably believe that B consents.’
In Devonald [2008] EWCA Crim 527, D was convicted under s 4 after tricking V into mas-
turbating in front of a webcam, and in Ayeva [2009] EWCA Crim 2640, D was convicted
under s 4 after he grabbed V and physically forced her to masturbate him. More recently,
430
in Bingham [2013] EWCA Crim 823; [2013] 2 Cr App R 29, D was convicted under s 4 after
persuading V to perform sexual acts while D watched via a web link (although as noted
above, the convictions were quashed on the basis that V had not been deceived as to D’s
Sexual offenceS
purpose and hence her consent was not vitiated).
12.5 Other crimes under the Sexual Offences

Act 2003
Space precludes giving detailed coverage to all the offences contained in the 2003 Act.
The following table provides a summary of a selection of the other crimes.
kEy fACTS
Offence Definition
Administering a Intentionally administering a ‘substance’ to V, knowing that V does not

substance with consent, with the intention of ‘stupefying or overpowering’ V, so as to
intent (s 61) enable any person to engage in a sexual activity that involves V. In Spall
[2007] EWCA Crim 1623, D was convicted under s 61 after slipping sedatives
into V’s wine glass.
Committing an In Wisniewski [2004] EWCA Crim 3361 D was convicted of two counts of
offence with battery with intent to rape.
intent to commit
a sexual offence
(s 62)
Trespass with Trespassing ‘on any premises’ with intent to ‘commit a relevant sexual
intent to commit offence on the premises’. D must know or be reckless as to the trespass. This
a sexual offence replaces the offence in s 9(1)(a) of the Theft Act 1968, whereby D is guilty of
(s 63) burglary if he enters a building (or part of a building) with intent to rape
anyone therein. The s 63 offence is wider in two respects: (1) D need not
necessarily intend to commit rape (sexual assault, for example, would
suffice); (2) ‘premises’ is a more flexible concept than ‘building’.
Exposure (s 66) Intentionally exposing D’s genitals with intent that ‘someone will see them
and be caused alarm or distress’.
Voyeurism (s 67) Observing, for the purposes of obtaining sexual gratification, ‘another person
doing a private act’ if D knows that the other person, V, does not consent to
being observed. A ‘private act’ is one done in a place which ‘would
reasonably be expected to provide privacy’ and where (a) V’s ‘genitals,
buttocks or breasts are exposed or covered only with underwear’; or (b) V is
using a lavatory; or (c) V is ‘doing a sexual act that is not of a kind ordinarily
done in public’ (s 68(1)). In Bassett [2008] EWCA Crim 1174; [2009] 1 WLR
1032, D’s conviction under s 67 for secretly filming a man, in his trunks, in a
swimming pool showers was quashed. The word ‘breasts’ referred only to
female breasts and not the exposed male chest.
Intercourse with Intentionally ‘performing an act of penetration’ with D’s penis into the
an animal (s 69) vagina or anus, or ‘any similar part’, of ‘a living animal’. D must know or be
reckless as to whether that is what is being penetrated.
Sexual Intentionally ‘performing an act of penetration’ with a part of D’s body or

431
penetration of a anything else into ‘a part of the body of a dead person’. D must know or be
corpse (s 70) reckless as to whether that is what is being penetrated. The penetration
must be sexual (liability is strict in this respect).
12.5 otHeR cRimeS undeR tHe Soa 2003

SUMMARy
 All sexual offences are contained in the Sexual Offences Act 2003.
 Rape (s 1). The intentional penetration of V’s vagina, anus or mouth, with D’s penis
and without V’s consent. D must intend to penetrate and have no reasonable belief
in V’s consent. Consent and submission are not the same thing (Olugboja, Doyle).
Consent must be ‘real and not just ‘apparent’ (AC). V must have the ‘freedom and
capacity’ to choose whether to consent (s 74). In certain circumstances there is a
rebuttable presumption that V is not consenting (s 75) and in other circumstances a
conclusive presumption applies (s 76). Where s 75 applies, evidence other than D’s
own testimony is required to rebut the presumption (Ciccarelli). Where V is voluntar-
ily intoxicated there may still be consent (Bree).
 Assault by penetration (s 2). The intentional penetration of V’s vagina or anus with a
part of D’s body or anything else without V’s consent.
 Sexual assault (s 3). The ‘touching’ of V’s body or clothing without V’s consent. Pen-
etration or touching must be ‘sexual’, either because of their nature or because of the
circumstances or D’s purpose. D must intend to penetrate/touch and have no reas-
onable belief in V’s consent.
 Causing another person to engage in sexual activity (s 4). Intentionally causing V to
engage in a sexual activity (e.g. masturbation) without V’s consent
 Analysis. Redefinition of rape and creation of new offences in ss 2, 3 and 4 (replacing
‘indecent assault’) designed to modernise and clarify the law. Requirement that D
has no reasonable belief in V’s consent designed to improve conviction rates (previ-
ously an honest belief in consent was a good defence).
 Present debate. Should the law on consent in rape cases be clearer, especially in cases
like Bree where V is voluntarily intoxicated? Should the offences under ss 2 and 3
require D to have some mens rea as to the ‘sexual’ element?

The Sexual Offences Act 2003 was designed to bring ‘coherence and structure’ to the law.
Consider the extent to which it has succeeded in achieving this purpose.
Give a brief outline of the old law:

Sexual Offences Act 1956, as amended
State problems with the old law, e.g.

• Narrow definition of rape
• Very wide scope of indecent assault
• Ambiguity about meaning of ‘indecency’
432
• D’s honest (but unreasonable) belief that V was
consenting was a good defence (Morgan (1976))
• Marital exception had already been abolished in R (1992)
Sexual offenceS
Use comments from:

• Setting the Boundaries, Independent review (2000)
• Protecting the Public, White Paper (2002)
Set out the main offences in the SOA 2003:

S 1 rape
S 2 assault by penetration
S 3 sexual assault
S 4 causing V to engage in sexual activity
Outline good points of the SOA 2003, e.g.

• Wider definition of rape, e.g. oral rape now included
• Honest but unreasonable belief in consent no longer a
defence (Morgan overruled)
• Introduction of statutory defintion of ‘consent’ (s 74)
and presumptions about consent (ss 75 and 76) are
designed to clarify the law and facilitate more successful
prosecutions
• Replacement of ‘indecent’ with ‘sexual’ designed to
clarify the law. Abolition of ‘indecent assault’ and
replacement with new offences in s 2 (penetration) and
s 3 (touching) means that clear distinctions may be
drawn between different factual situations
State problems with the SOA 2003, e.g.
• The decision in Bree (2007) that ‘drunken consent is still
consent’ will make convictions more difficult
• The decision in G (2008) that the s 5 offence (rape of a
child) is strict liability is arguably harsh
Conclude
433
Further reading
Books
fuRtHeR Reading
Loveless, J, Criminal Law Text, Cases, and Materials (4th edn, Oxford University Press,
2014), Chapter 11.
Articles
Ashworth, A and Temkin, J, ‘The Sexual Offences Act 2003: rape, sexual assault and the
problems of consent’ [2004] Crim LR 328.
Finch, E and Munro, V E, ‘Intoxicated consent and the boundaries of drug-assisted rape’
[2003] Crim LR 773.
Firth, G, ‘Not an invitation to rape: the Sexual Offences Act 2003, consent and the case of
the “drunken” victim’ (2011) 62 NILQ 99.
Herring, J, ‘Mistaken sex’ [2005] Crim LR 511.
Rumney, P and Fenton, R, ‘Intoxicated consent in rape: Bree and juror decision-making’
(2008) 71 MLR 279.
Tadros, V, ‘Rape without consent’ (2006) 26 OJLS 515.
Wallerstein, S, ‘ “A drunken consent is still consent” – or is it? A critical analysis of the
law on a drunken consent to sex following Bree’ (2009) 73 JoCL 318.
Internet links
Independent Review, Setting the Boundaries – Reforming the Law on Sex Offenders (2000)
and Home Office, Protecting the Public: Strengthening Protection against Sex Offenders and
Reforming the Law on Sexual Offences White Paper (2002), both at: http://webarchive.
nationalarchives.gov.uk/.
Sexual Offences Act 2003: www.legislation.gov.uk.
13
Theft
AIMS AND OBJECTIVES

 Understand the basic origins and character of theft
 Understand the actus reus and mens rea of theft
 Be able to analyse critically the concept of appropriation in the definition of theft
 Understand the meaning of ‘property’ in the definition of theft and when that
property is regarded as belonging to another
 Understand the concept of dishonesty in the law of theft
 Understand the importance of an intention to permanently deprive in the offence
of theft
 Be able to analyse critically all the elements of the theft
 Be able to apply the law to factual situations to determine whether an offence of
theft has been committed
13.1 Background
The law relating to theft, robbery, burglary and other connected offences against
property (see Chapters 14 and 15) is contained in three Acts:
 Theft Act 1968
 Theft Act 1978 (s 3 only)
 Fraud Act 2006.
The Theft Act 1968 was an attempt to write a new and simple code for the law of theft
and related offences. It made sweeping and fundamental changes to the law that had
developed prior to 1968. The Act was based on the Eighth Report of the Criminal
Law Revision Committee, Theft and Related Offences, Cmnd 2977 (1966).
Previous Acts were repealed and the 1968 Act was meant to provide a complete
code of the law in this area.
The Act is intended to be
JUDGMENT
‘expressed in simple language, as used and understood by ordinary literate men and women.
It avoids as far as possible those terms of art which have acquired a special meaning under-
stood only by lawyers in which many of the penal enactments were couched.’
Lord Diplock in Treacy v DPP [1971] 1 All ER 110
Despite this, the wording of the Theft Act 1968 has led to a number of cases going to the
appeal courts. The decisions in some of these cases are not always easy to understand.
In particular there have been complex decisions on the meaning of the word ‘appropri-
ates’. Another problem is that, as the wording uses ordinary English, the precise meaning
is often left to the jury to decide. This can lead to inconsistency in decisions. As Professor
Sir John Smith pointed out:
436
quotation
theft
‘Even such ordinary words in the Theft Act as “dishonesty”, “force”, “building” etc. may
involve definitional problems on which a jury require guidance if like is to be treated as like.’
D Ormerod, Smith and Hogan Criminal Law (13th edn, Butterworths, 2011), p. 779
Amendments to the Theft Act 1968

It soon became apparent that the law was defective in the area of obtaining by deception
and, following the Thirteenth Report by the Criminal Law Revision Committee, Cmnd
6733 (1977), the Theft Act 1978 was passed. This repealed part of s 16 of the 1968 Act and
instead created four new offences. The 1978 Act also added another offence, of making
off without payment, to fill a gap in the law.
Despite this amendment, it was held in the case of Preddy [1996] 3 All ER 481 that the
law still did not cover certain deception frauds in obtaining mortgages and money trans-
fers. The Law Commission was asked to research this area of law, and following its
report Offences of Dishonesty: Money Transfers, Law Com No 243, the Theft (Amendment)
Act 1996 was passed to fill these gaps. This Act made amendments to both the Theft Act
1968 and the Theft Act 1978. However, the offences of deception were still not satis-
factory and all deception offences were repealed and replaced by offences under the
Fraud Act 2006.
Trial
Until 2014 all offences of theft were triable either way, and thus defendants could opt for
trial at the Crown Court. However, under the Anti-social Behaviour, Crime and Policing
Act 2014, low-value shoplifting cases under £200 are now summary only and so must be
tried in the magistrates' court.
13.1.1 Theft
Theft is defined in s 1 of the Theft Act 1968 which states that:
SECTION
‘1 A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it.’
tutor tip The Act then goes on in the next five sections to give some help with the meaning of the
‘Learn all parts of words or phrases in the definition. This is done in the order that the words or phrases
the definition of appear in the definition, making it easy to remember the section numbers. They are:
theft thoroughly.’
 s 2 – ‘dishonestly’;
 s 3 – ‘appropriates’;
 s 4 – ‘property’;
 s 5 – ‘belonging to another’;
 s 6 – ‘with the intention of permanently depriving the other of it’.
Remember that the offence is in s 1. A person charged with theft is always charged with
stealing ‘contrary to section 1 of the Theft Act 1968’. Sections 2 to 6 are definition sections
explaining s 1. They do not themselves create any offence.
13.1.2 The elements of theft 437

The actus reus of theft is made up of the three elements in the phrase ‘appropriates prop-
erty belonging to another’. So to prove the actus reus it has to be shown that there was
13.2 AppropriAtion
appropriation by the defendant of something which is property within the definition of
the Act and which, at the time of the appropriation, belonged to another. All these seem
straightforward words, but the effect of the definitions in the Act together with case
decisions means that there can be some surprises. For example, although the wording
‘belonging to another’ seems very clear, it is possible for a defendant to be found guilty
of stealing his own property. (See section 13.4.1.)
There are two elements which must be proved for the mens rea of theft. These are that
the appropriation of the property must be done ‘dishonestly’, and there must be the
intention of permanently depriving the other person of it.
We will now go on to consider each of the elements of theft in depth.
MENS REA ACTUS REUS
Dishonestly (s 2) Appropriation (s 3)
THEFT Property (s 4)
With intention of Belonging to

permanently another (s 5)
depriving (s 6)
Figure 13.1 The elements of theft.
13.2 Appropriation
The more obvious situations of theft involve a physical taking, for example a pickpocket
taking a wallet from someone’s pocket. But appropriation is much wider than this.
Section 3(1) states that:
SECTION
‘3(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and
this includes, where he has come by the property (innocently or not) without stealing it, any
later assumption of a right to it by keeping or dealing with it as owner.’
13.2.1 Assumption of the rights of an owner
The first part to be considered is the statement that ‘any assumption by a person of the
rights of an owner amounts to appropriation’. The rights of the owner include selling the
property or destroying it as well as such things as possessing it, consuming it, using it,
lending it or hiring it out.
In Pitham v Hehl [1977] Crim LR 285, CA, D had sold furniture belonging to another
person. This was held to be an appropriation. The offer to sell was an assumption of the
rights of an owner and the appropriation took place at that point. It did not matter
whether the furniture was removed from the house or not. Even if the owner was never
deprived of the property, the defendant had still appropriated it by assuming the rights
of the owner to offer the furniture for sale.
In Corcoran v Anderton (1980) Cr App 104, two youths tried to pull a woman’s handbag
from her grasp, causing it to fall to the floor. The seizing of the handbag was enough for
an appropriation (the youths were found guilty of robbery which has to have a theft as
438 one of its elements), even though they did not take the bag away.
The wording in s 3(1) is ‘any assumption by a person of the rights of an owner’. One
question which the courts have had to deal with is whether the assumption has to be of
theft
all of the rights or whether it can just be of any of the rights. This was considered in
Morris [1983] 3 All ER 288.
CASE EXAMPLE
Morris [1983] 3 All er 288
D had switched the price labels of two items on the shelf in a supermarket. He had then put
one of the items, which now had a lower price on it, into a basket provided by the store for
shoppers and taken the item to the check-out, but had not gone through the check-out when
he was arrested. He was convicted of theft. The House of Lords upheld his conviction on the
basis that D had appropriated the items when he switched the labels.
Lord Roskill in the House of Lords stated that:
JUDGMENT
‘It is enough for the prosecution if they have proved . . . the assumption of any of the rights of
the owner of the goods in question.’
So there does not have to be an assumption of all the rights. This is a sensible decision
since in many cases the defendant will not have assumed all of the rights. Quite often
only one right will have been assumed, usually the right of possession.
Later assumption of a right

Section 3(1) also includes within the meaning of appropriation situations where a
defendant has come by the property without stealing it, but has later assumed a right to
it by keeping it or dealing with it as owner. This covers situations where the defendant
has picked up someone else’s property, e.g. a coat or a briefcase, thinking that it was his
own. On getting home the defendant then realises that it is not his. If he then decides to
keep the property, this is a later assumption of a right and is an appropriation for the
purposes of the Theft Act 1968.
However, under s 3(1) if the person has stolen the item originally, then any later
keeping or dealing is not an appropriation. This was important in Atakpu and Abrahams
[1994] Crim LR 693. The defendants had hired cars in Germany and Belgium using false
driving licences and passports. They were arrested at Dover and charged with theft. The
Court of Appeal quashed their convictions because the moment of appropriation under
the law in Gomez (1993) (see section 13.2.3) was when they obtained the cars. So the theft
had occurred outside the jurisdiction of the English courts. As they had already stolen
the cars, keeping and driving them could not be an appropriation. This meant that the
theft was completed in the country where they hired the cars, and there was no theft in
this country.
13.2.2 Consent to the appropriation

Can a defendant appropriate an item when it has been given to them by the owner? This
is an area which has caused major problems. Nowhere in the Theft Act does it say that
the appropriation has to be without the consent of the owner. So, what is the position
where the owner has allowed the defendant to take something because the owner
439
thought that the defendant was paying for it with a genuine cheque? Or where the item
was hired (as in Atakpu and Abrahams), but unknown to the owner the defendant intended
to take it permanently? This point was addressed in Lawrence [1972] AC 626; [1971] Cr
13.2 AppropriAtion
App R 64.
CASE EXAMPLE
Lawrence [1972] AC 626; [1971] Cr App rep 64
An Italian student, who spoke very little English, arrived at Victoria Station and showed an
address to Lawrence who was a taxi driver. The journey should have cost 50p, but Lawrence
told him it was expensive. The student got out a £1 note and offered it to the driver. Law-
rence said it was not enough and so the student opened his wallet and allowed Lawrence to
help himself to another £6. Lawrence put forward the argument that he had not appropri-
ated the money, as the student had consented to him taking it. Both the Court of Appeal and
the House of Lords rejected this argument and held that there was appropriation in this
situation.
Viscount Dilhorne said:
JUDGMENT
‘I see no ground for concluding that the omission of the words “without the consent of the
owner” was inadvertent and not deliberate, and to read the subsection as if they were included
is, in my opinion, wholly unwarranted. Parliament by the omission of these words has relieved
the prosecution of the burden of establishing that the taking was without the owner’s consent.
That is no longer an ingredient of the offence.’
This view of Viscount Dilhorne is supported by the fact that under the old law in the
Larceny Act 1916, the prosecution had to prove that the property had been taken without
the consent of the owner.
However, in Morris (1983) the House of Lords did not take the same view. This was
the case where the defendant had switched labels on goods in a supermarket. Lord
Roskill said ‘the concept of appropriation involves not an act expressly or impliedly
authorised by the owner but an act by way of adverse interference with or usurpation of
[the rights of an owner]’.
In fact this part of the judgment in Morris (1983) was obiter, since the switching of the
labels was clearly an unauthorised act. But the judgment in Morris (1983) caused confu-
sion since it contradicted Lawrence without the Law Lords saying whether Lawrence
(1972) was overruled or merely distinguished.
In subsequent cases, matters became even more complicated. In Dobson v General
Accident Fire and Life Insurance Corp [1990] 1 QB 354, a civil case, Dobson made a claim on
his insurance policy for theft of some jewellery after he had agreed to sell the jewellery
to X, who gave as payment a building society cheque which unknown to Dobson was
stolen. The insurance company refused to pay on the basis that, although there had been
an offence of obtaining property by deception (s 15 Theft Act 1968), there was no theft
and the policy only covered theft. The Court of Appeal held that there had been a theft,
on the basis that the property was not intended to pass to X except in exchange for a
valid cheque, so the property still belonged to Dobson and X had appropriated it at the
moment he took delivery of it.
440 Parker LJ pointed out that in Lawrence (1972) the student had merely allowed or per-
mitted the taxi driver to take the extra money. This was consistent with the concept of
consent but differed from situations where the owner had authorised the taking as in
theft
Skipp [1975] Crim LR 114 and Fritschy [1985] Crim LR 745. In Skipp (1975), a lorry driver
posing as a haulage contractor was given three loads of oranges and onions to take from
London to Leicester. Before reaching the place for delivery he drove off with the loads.
The Court of Appeal held that the collecting of the loads was done with the consent of
the owner and that the appropriation had only happened at the moment he diverted
from his authorised route.
Parker LJ considered this case in his judgment in Dobson (1990) and pointed out that
at the time of loading the goods on to the lorry there was more than consent: there was
express authority. The same had happened in Fritschy (1985) where D, the agent of a
Dutch company dealing in coins was asked by the company to collect some krugerrands
(foreign coins) from England and take them to Switzerland. He collected them and went
to Switzerland but then went off with them. The Court of Appeal quashed his conviction
for theft because all that he did in England was consistent with the authority given to
him. There was no act of appropriation within the jurisdiction: this only occurred after
Fritschy had got to Switzerland.
13.2.3 The decision in Gomez

The point as to whether the appropriation had to be without the consent of the owner
was considered again by the House of Lords in Gomez [1993] 1 All ER 1.
CASE EXAMPLE
Gomez [1993] 1 All er 1
Gomez was the assistant manager of a shop. He persuaded the manager to sell electrical
goods worth over £17,000 to an accomplice and to accept payment by two cheques, telling
the manager they were as good as cash. The cheques were stolen and had no value. Gomez
was charged and convicted of theft of the goods.
The Court of Appeal quashed the conviction, relying on the judgment in Morris (1983)
that there had to be ‘adverse interference’ for there to be appropriation. They decided
that the manager’s consent to and authorisation of the transaction meant there was no
appropriation at the moment of taking the goods. The case was appealed to the House
of Lords with the Court of Appeal certifying, as a point of law of general public import-
ance, the following question:
‘When theft is alleged and that which is alleged to be stolen passes to the defend-
ant with the consent of the owner, but that has been obtained by a false representa-
tion, has (a) an appropriation within the meaning of section 1(1) of the Theft Act
1968 taken place, or (b) must such a passing of property necessarily involve an
element of adverse interference with or usurpation of some right of the owner?’
The House of Lords decided, by a majority of four to one, in answer to (a) ‘yes’ an appro-
priation had taken place and in answer to (b) ‘no’ there was no need for adverse interfer-
ence with or usurpation of some right of the owner. Lord Keith giving the majority
decision referred back to the case of Lawrence (1972), pointing out the effect of judgment
in that case:
441
JUDGMENT
13.2 AppropriAtion
‘While it is correct to say that appropriation for purposes of section 3(1) includes the latter sort
of act [adverse interference or usurpation], it does not necessarily follow that no other act can
amount to an appropriation and, in particular, that no act expressly or impliedly authorised by
the owner can in any circumstances do so. Indeed Lawrence v Commissioner of Metropolitan
Police is a clear decision to the contrary since it laid down unequivocally that an act may be an
appropriation notwithstanding that it is done with the consent of the owner.’
Lord Keith also stated that no sensible distinction could be made between consent and
authorisation. Lord Browne-Wilkinson who agreed with Lord Keith put the point on
consent even more clearly when he said:
JUDGMENT
‘I regard the word “appropriate” in isolation as being an objective description of the act done
irrespective of the mental state of the owner or the accused. It is impossible to reconcile the
decision in Lawrence (that the question of consent is irrelevant in considering whether this has
been an appropriation) with the views expressed in Morris which latter views, in my judgment,
were incorrect.’
This judgment in Gomez (1993) resolved the conflicts of the earlier cases as the judgment
in Lawrence was approved while the dictum of Lord Roskill in Morris (1983) was disap-
proved. The cases of Skipp (1975) and Fritschy (1985) were overruled.
The decision widened the scope of theft but it can be argued that it is now too wide.
It made s 15 of the Theft Act 1968 (obtaining property by deception – now repealed and
replaced by offences under the Fraud Act 2006) virtually unnecessary as situations of
obtaining by deception could be charged as theft. The facts in Gomez (1993) were clearly
obtained by deception as he persuaded the manager to hand over the goods by telling
him the cheques were as good as cash when he knew they were worthless.
This factor was one of the reasons for Lord Lowry dissenting from the decision of the
majority in Gomez (1993). He also thought that extending the meaning of appropriation
in this way was contrary to the intentions of the Criminal Law Revision Committee in
their Eighth Report. Lord Lowry thought that the Law Lords should have looked at that
report in deciding the meaning of appropriation. However, the majority accepted Lord
Keith’s view that it served no useful purpose to do so.
It can be argued that the effect of the decision in Gomez (1993) has been to redefine
theft. This point of view was put by a leading academic, Professor Sir John Smith, who
wrote:
quotation
‘Anyone doing anything whatever to property belonging to another, with or without his
consent, appropriates it; and, if he does so dishonestly and with intent by that, or any sub-
sequent act, to permanently deprive, he commits theft.’
D Ormerod, Smith and Hogan Criminal Law (13th edn, Oxford University Press, 2011), p. 787
442
ACTIVITy
Looking at judgments
The following are two extracts from the decision in the House of Lords in the case of Gomez
theft
[1993] 1 All ER 1. The first is from the judgment of Lord Keith of Kinkel. The second is from the
dissenting judgment by Lord Lowry.
Read the extracts and answer the questions on the next page.
Lord Keith of Kinkle

The actual decision in Morris was correct, but it was erroneous, in addition to Discussion of
being unnecessary for the decision, to indicate that an act expressly or earlier case
impliedly authorised by the owner could never amount to an appropriation. decisions
There is no material distinction between the facts in Dobson and those in the
present case. In each case the owner of the goods was induced by fraud to
part with them to the rogue. Lawrence makes it clear that consent to or
authorisation by the owner of the taking by the rogue is irrelevant. The
taking amounted to an appropriation within the meaning of section 1(1) of
the Theft Act.
The decision in Lawrence was a clear decision of this House upon the Upholding the
construction of the word ‘appropriate’ in section 1(1) of the Act, which had decision in
stood for twelve years when doubt was thrown upon it by obiter dicta in Lawrence
Morris. Lawrence must be regarded as authoritative and correct, and there is
no question of it now being right to depart from it.
Lord Lowry
Dissenting
To be guilty of theft the offender, as I shall call him, must act dishonestly and
judgment
must have the intention of permanently depriving the owner of property.
Section 1(3) shows that in order to interpret the word ‘appropriates’ (and Definition of
thereby to define theft), sections 1 to 6 must be read together. The ordinary theft
and natural meaning of ‘appropriate’ is to take for oneself, or to treat as
one’s own, property which belongs to someone else. The primary dictionary Dictionary
meaning is ‘take possession of, take to oneself, especially without authority’, meaning of
and that is in my opinion the meaning which the word bears in section 1(1). ‘appropriate’
The act of appropriating property is a one-sided act, done without the
consent or authority of the owner. And, if the owner consents to transfer Effect if owner
property to the offender or to a third party, the offender does not appropriate consents
the property, even if the owner’s consent has been obtained by fraud. This
statement represents the old doctrine in regard to obtaining property by false
pretences, to which I shall advert presently.
Coming now to section 3, the primary meaning of ‘assumption’ is ‘taking on Meaning of
oneself ’, again a unilateral act, and this meaning is consistent with ‘assumption’ in
subsections (1) and (2). To use the word in its secondary, neutral sense would s 3 Theft Act
neutralise the word ‘appropriation’, to which assumption is here equated, 1968
and would lead to a number of strange results. Incidentally, I can see no
magic in the words ‘an owner’ in subsection (1). Every case in real life must
involve the owner or the person described in section 5(1); ‘the rights’ may
mean ‘all the rights’, which would be the normal grammatical meaning, or
(less probably, in my opinion) ‘any rights’: see R. v. Morris (1984) A.C. at Disagrees on
p. 332H. For present purposes it does not appear to matter; the word meaning of
‘appropriate’ does not on either interpretation acquire the meaning appropriate
contended for by the Crown.
QUESTIONS 443
1. This decision was by the House of Lords. (Remember, this was the final court of
13.2 AppropriAtion
appeal at the time – the Supreme Court has since replaced the House of Lords.) What
effect do judgments of the House of Lords have on courts below them in the court
hierarchy?
2. In his judgment Lord Keith refers to the cases of Morris [1983] 3 All ER 288, Dobson v
General Accident and Fire Insurance Corp [1990] 1 QB 354 and Lawrence (1972) AC 626.
Explain briefly the facts and decisions in these three cases.
3. According to Lord Keith, what did the case of Lawrence make clear?
4. In the penultimate sentence of the extract from Lord Keith’s judgment, he refers to
obiter dicta. Explain what is meant by obiter dicta.
5. Lord Lowry gave a dissenting judgment. What is meant by a ‘dissenting
judgment’?
6. What meaning did Lord Lowry state that ‘appropriates’ has?
7. Why did Lord Lowry disagree with the other judges in the House of Lords?
kEy fACTS
Key facts on appropriation
Law on appropriation Section/case Comment

Definition is ‘any assumption of s 3(1) Theft Act Includes a later assumption where D
the rights of an owner’. 1968 has come by the property without
stealing it.
No need to touch property for an Pitham v Hehl An offer to sell property was
appropriation. (1977) appropriation of the rights of the
owner.
No need for the assumption of all Morris (1983) An assumption of any of the rights is
of the rights of an owner. sufficient (label swapping on goods in
supermarket).
There can be an assumption even Lawrence (1972) Irrelevant whether owner consents to
though there is apparent consent. appropriation or not.
Where consent is obtained by Gomez (1993) An assumption of any of the rights is
fraud there can still be sufficient.
appropriation. No need for adverse interference with
or usurpation of some right of the
owner.
There can still be appropriation Hinks (2000) Appropriation is a neutral word.
even though the owner truly No differentiation between cases of
consents to it. consent induced by fraud and consent
given in any other circumstances. All
are appropriation, even gifts.
Where property is transferred for s 3(2) Theft Act When sale is complete before the seller
value to a person acting in good 1968, knows the items are stolen, the later
faith, no later assumption of rights Wheeler (1990) completion of the sale when the facts
can be theft. are known does not make it theft.
444
theft
13.2.4 Consent without deception

So does the decision in Gomez (1993) extend to situations where a person has given prop-
erty to another without any deception being made? This was the problem raised in the
case of Hinks (2000) 4 All ER 833.
CASE EXAMPLE
Hinks (2000) 4 All er 833
Hinks was a 38-year-old woman who had befriended a man who had a low IQ and was very
naive. He was, however, mentally capable of understanding the concept of ownership and
of making a valid gift. Over a period of about eight months Hinks accompanied the man on
numerous occasions to his building society where he withdrew money. The total was about
£60,000 and this money was deposited in Hinks’ account. The man also gave Hinks a televi-
sion set. She was convicted of theft of the money and the TV set. The judge directed the
jury to consider whether the man was so mentally incapable that the defendant herself
realised that ordinary and decent people would regard it as dishonest to accept a gift from
him.
On appeal it was argued that, if the gift was valid, the acceptance of it could not be theft.
The Court of Appeal dismissed the appeal and the following question was certified for
the House of Lords to consider: ‘Whether the acquisition of an indefeasible title to prop-
erty is capable of amounting to an appropriation of property belonging to another for
the purposes of section 1(1) of the Theft Act 1968?’ In the House of Lords the appeal was
dismissed on a majority of three judges to two with four of them giving the answer ‘yes’
to the question. Lord Hobhouse dissented and answered the question in the negative.
Lord Hutton, although agreeing with the majority on the point of law, dissented on
whether the conduct showed dishonesty.
Lord Steyn gave the leading judgment. He pointed out that in the case of Gomez
(1993), the House of Lords had already made it clear that any act may be an appropria-
tion regardless of whether it was done with or without the consent of the owner. They
had also rejected a submission that there could be no appropriation where the entire
proprietary interest in property passed. Lord Steyn summarised the law in Gomez (1993)
as follows.
JUDGMENT
‘it is immaterial whether the act was done with the owner’s consent or authority. It is true of
course that the certified question in R v Gomez referred to the situation where consent had
been obtained by fraud. But the majority judgments do not differentiate between cases of
consent induced by fraud and consent given in any other circumstances. The ratio involves a
proposition of general application. R v Gomez therefore gives effect to s 3(1) of the 1968 Act
by treating “appropriation” as a neutral word comprehending “any assumption by a person
of the rights of an owner”.’
A major argument against the ruling in Hinks (2000) is that in civil law the gift was valid
and the £60,000 and the TV set belonged to the defendant. Lord Steyn accepted that this
was the situation, but he considered that this was irrelevant to the decision.
445
JUDGMENT
13.2 AppropriAtion
‘The purposes of the civil law and the criminal law are somewhat different. In theory the
two systems should be in perfect harmony. In a practical world there will sometimes be
some disharmony between the two systems. In any event it would be wrong to assume on
a priori grounds that the criminal law rather than the civil law is defective. Given the jury’s
conclusions, one is entitled to observe that the appellant’s conduct should constitute theft,
the only charge available. The tension which exists between the civil and the criminal law is
therefore not in my view a factor which justifies a departure from the law as stated in
Lawrence’s case and R v Gomez.’
Lord Hobhouse dissented for three main reasons:

 That the law on gifts involves conduct by the owner in transferring the gift, and once
this was done, the gift was the property of the donee. It was not even necessary that
the donee should know of the gift, for example, money could be transferred to the
donee’s bank account without the donee’s knowledge. In view of this it was imposs-
ible to say, as the Court of Appeal had, that a gift may be clear evidence of
appropriation.
 That, as a gift transfers the ownership in the goods to the donee at the moment the
owner completes the transfer, the property ceased to be ‘property belonging to
another’ unless it could be brought within the situations identified in s 5 of the Theft
Act 1968 (see section 13.4.2).
 If the acceptance of a gift is treated as an appropriation, this creates difficulties under
s 2(1)(a) of the Act which states that a person is not dishonest if he appropriated
property in the belief that he had in law a right to deprive the other person of it. The
donee does indeed have a right to deprive the donor of the property.
He also pointed out that there were further difficulties under the Theft Act 1968, as
under s 6 (which defines intention to permanently deprive – see section 13.6) the donee
would not be acting regardless of the donor’s rights as the donor has already surren-
dered his rights. Further it was difficult to say that under s 3 the donee was ‘assuming
the rights of an owner’ when she already had those rights under the law on gifts.
Despite these arguments put forward by Lord Hobhouse, the majority ruling means
that even where there is a valid gift the defendant is considered to have appropriated the
property. The critical question is whether what the defendant did was dishonest.
13.2.5 Appropriation of credit balances
Another area which has created difficulty for the courts is deciding when appropriation
takes place where the object of the theft is a credit balance in a bank or building society
account. In such cases the thief may be in a different place (or even country) from the
account. In Tomsett [1985] Crim LR 369, $7 million was being transferred by one bank to
another in New York in order to earn overnight interest. The defendant, an employee of the
first bank in London, sent a telex diverting the $7 million plus interest to another bank in
New York for the benefit of an account in Geneva. The Court of Appeal accepted, without
hearing any argument on the point, that the theft could only occur where the property was.
This meant that D was not guilty of theft under English law, as the theft was either in New
York or Geneva. The money had never been in an account in England. So even though D’s
act occurred in London, the matter was outside the jurisdiction of the English courts.
This does not seem a very satisfactory decision, and in fact it was not followed by the
Divisional Court in Governor of Pentonville Prison, ex parte Osman [1989] 3 All ER 701
446 when deciding whether Osman could be deported to stand trial for theft in Hong Kong.
Osman had sent a telex from Hong Kong to a bank in New York instructing payment
from one company’s account to another company’s account. If Tomsett (1985) had been
theft
followed, then the theft would have been deemed to have occurred in New York.
However, the Divisional Court held that the sending of the telex was itself the appro-
priation, and so the theft took place in Hong Kong.
JUDGMENT
‘In R v Morris . . . the House of Lords made it clear that it is not necessary for an appropriation
that the defendant assume all rights of an owner. It is enough that he should assume any of
the owner’s rights . . . If so, then one of the plainest rights possessed by the owner of the chose
in action in the present case must surely have been the right to draw on the account in ques-
tion . . . So far as the customer is concerned, he has a right as against the bank to have his
cheques met. It is that right which the defendant assumes by presenting a cheque, or by
sending a telex instruction without authority. The act of sending the telex instruction is there-
fore the act of theft itself.’
The most surprising point about this decision is that two of the judges (Lloyd LJ and
French J) had also decided the case of Tomsett (1985) but then refused to follow their own
decision.
In the judgment in Osman (1989) the court had mentioned presenting a cheque as one
of the rights of an owner, and this was the situation which occurred in Ngan [1998] 1 Cr
App R 331.
CASE EXAMPLE
Ngan [1998] 1 Cr App rep 331
D had opened a bank account in England and been given an account number which had previ-
ously belonged to a debt collection agency. Over £77,000 intended for the agency was then
paid into D’s bank account. Because of s 5(4) of the Theft Act 1968 (see section 13.4.4) this
money was regarded as belonging to the agency. D realised there was a mistake but signed
and sent blank cheques to her sister (who also knew of the circumstances) in Scotland. Two
cheques were presented in Scotland and one in England.
The Court of Appeal applied the principle in Osman (1989) that the presentation of a cheque
was the point at which the assumption of a right of the owner took place. They quashed D’s
conviction for theft in respect of the two cheques presented in Scotland, as they were outside
the jurisdiction of the English courts, but upheld her conviction for theft in respect of the
cheque presented in England. They took the view that signing blank cheques and sending
them to her sister were preparatory acts to the theft and not the actual theft.
However, it should be noted that in Osman (1989) the court had also stated that appro-
priation took place when the defendant dishonestly issued a cheque. So, it could be
argued that the decision in Ngan was wrong as sending the cheques to her sister was
‘issuing’ them.
The problems of when and where appropriation takes place in banking cases has
become even more difficult with the use of computer banking. In Governor of Brixton
Prison, ex parte Levin [1997] 3 All ER 289, the Divisional Court distinguished the use of a
computer from the sending of a telex or the presentation of a cheque. D had used a com-
puter in St Petersburg, Russia to gain unauthorised access to a bank in Parsipenny,
America and divert money into false accounts. The court ruled that appropriation took
place where the effect of the keyboard instructions took place. 447
JUDGMENT
13.2 AppropriAtion
‘We see no reason why the appropriation of the client’s right to give instructions should not be
regarded as having taken place in the computer [in America]. Lloyd LJ [in Osman] did not rule out
the possibility of the place where the telex was received also being counted as the place where
the appropriation occurred if the courts ever adopted the view that a crime could have a dual
location . . . [T]he operation of the keyboard by a computer operator produces a virtually instant-
aneous result on the magnetic disc of the computer even though it may be 10,000 miles away.
It seems to us artificial to regard the act as having been done in one rather than the other place.
But, in the position of having to choose . . . we would opt for Parsipenny. The fact that the appli-
cant was physically in St Petersburg is of far less significance than the fact that he was looking at
and operating on magnetic discs located in Parsipenny. The essence of what he was doing was
there. Until the instruction is recorded on the disc there is in fact no appropriation.’
kEy fACTS
Key facts on the law on appropriation of credit balances
Where does the appropriation take place?

Type of
Case Place where Place where instructions Place where transfer
transaction
thief does act are received is complete
Cheque Ngan No. Signing Yes. The point of n.a.
(1998) cheque and presenting cheque at
sending it to sister bank.
not appropriation.
Telex Tomsett No. Either here. Or here.
(1985)
Telex Osman Yes. No. Unless it could occur No.
(1989) at two places.
Computer Levin No. Unless it Yes. As the operation of –
(1997) could occur at the keyboard produced a
two places. ‘virtually instantaneous’
result.
These cases leave the law on where and when appropriation takes places in banking
cases a little uncertain, but the principles appear to be:
 telex instructions – appropriation at place and point of sending telex;
 presenting a cheque – appropriation at place and point of presentation;
 computer instructions – appropriation at place and point of receipt of instructions.
13.2.6 Protection of innocent purchasers

As appropriation has been ruled to be a ‘neutral word comprehending any assumption
by a person of the rights of an owner’, it is important to protect people who innocently
acquire a right in property for value from a charge of theft. This is done by s 3(2) of the
Theft Act 1968:
448 SECTION
‘3(2) Where property or a right or interest in property is or purports to be transferred for value
to a person acting in good faith, no later assumption by him of rights which he believed
theft
himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft
of the property.’
This section was included by the Criminal Law Revision Committee because without it
a purchaser who bought goods for the market value not knowing they were stolen, but
who later discovered they were stolen, would be guilty of theft if he then decided to
keep the goods. The CLRC thought that, while there might be a case for making such
conduct criminal, ‘on the whole it seems to us that, whatever view is taken of the buyer’s
moral duty, the law would be too strict if it made him guilty of theft’.
Under s 3(2), not only is the original acquisition not theft, but also any later dealing in
the property by the innocent purchaser cannot be theft. This was illustrated in Wheeler
(1990) 92 Cr App Rep 279.
CASE EXAMPLE
Wheeler (1990) 92 Cr App rep 279
D purchased some military antiques which, unknown to him, were stolen. Before he knew they
were stolen he agreed a sale of some of the items to another person. The arrangement was that
the items would be left with D while the new purchaser arranged for payment. By the time the
new purchaser returned to collect and pay for the items, D had been told by the police that they
were stolen. D could not be guilty of theft by keeping them for himself or by selling them.
ACTIVITy
Applying the law
Discuss whether there has been an appropriation in each of the following situations.
1. Jasper has an argument with his neighbour. When his neighbour is out, Jasper holds an
auction of the neighbour’s garden tools and patio furniture. The neighbour returns before
any of the furniture is taken away.
2. Poppy goes shopping at the local supermarket and takes her three-year-old daughter,
Selina, with her. While at the check-out, Selina takes some bars of chocolate and puts
them in the pocket of her pushchair. Poppy does not realise Selina has done this until she
finds the chocolate when they get home. Poppy decides that she will not take the choco-
late back to the supermarket.
3. The owner of a shop asks Carry, who is a lorry driver, to pick up a load of DVD equipment
and take it to a warehouse. Carry agrees to do this, but after collecting the equipment
decides that she will not take it to the warehouse but will instead sell it.
4. Brendan, aged 19, is infatuated with Hannah, a married woman aged 30. Brendan uses his
student loan to buy expensive presents for Hannah. She knows he is a student and has very
little money but she accepts the gifts from him.
5. Adam buys some motorcycle parts from a small garage. Three days later he is told by one
of his friends that the garage has just been raided by the police and much of their stock of
spare parts has been identified as stolen goods. Adam decides to keep the parts he has and
not to say anything about them.
6. Mike, who lives in England, goes on holiday to Poland. While there he uses a computer to 449
get unauthorised access to his company’s English bank accounts and arranges for money
to be transferred to an account he has in Switzerland. While in Poland he is asked by a col-
13.3 property
league to drive a car to Switzerland. Mike agrees to do this although he has already decided
to take the car to England and sell it.
13.3 Property
For there to be theft, the defendant must have appropriated ‘property’. Section 4 gives a
very comprehensive definition of property which means that almost anything can be
stolen. The definition is in s 4(1) of the Theft Act 1968:
SECTION
‘4(1) “Property” includes money and all other property real or personal, including things in
action and other intangible property.’
This section lists five types of items which are included in the definition of ‘property’.
These are:
 money
 real property
 personal property
 things in action
 other intangible property.
In this list, money is self-explanatory. It means coins and banknotes of any currency.
personal Personal property is also straightforward as it covers all moveable items. Books, CDs,
property jewellery, clothes and cars are obvious examples, but it also includes very large items
All moveable
property
such as aeroplanes or tanks and very small trivial items such as a sheet of paper. It has
even been held in Kelly and Lindsay [1998] 3 All ER 741 that body parts from dead bodies
can be personal property, for the purposes of theft.
CASE EXAMPLE
Kelly and Lindsay [1998] 3 All er 741
Kelly was a sculptor who asked Lindsay to take body parts from the Royal College of Surgeons
where he worked as a laboratory assistant. Kelly then made casts of the parts. They were
convicted of theft and appealed on the point of law that body parts were not property. The
Court of Appeal held that, though a dead body was not normally property within the defini-
tion of the Theft Act, the body parts were property as they had acquired ‘different attributes
by virtue of the application of skill, such as dissection or preservation techniques, for exhibition
or teaching purposes’.
13.3.1 Things which cannot be stolen

However, there are some exceptions which cannot be stolen. These are set out in s 4(3) and
450 s 4(4) of the Theft Act 1968. The first of these concerns plants and fungi growing wild.
SECTION
theft
‘4(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or
foliage from a plant growing wild on any land, does not (although not in possession of the
land) steal what he picks, unless he does it for reward or sale or other commercial purpose.
For the purposes of this subsection “mushroom” includes any fungus, and “plant” includes
any shrub or tree.’
This only applies to plants etc. growing wild, so it is possible to steal cultivated plants.
Taking apples from trees in a farmer’s orchard would be theft, but picking blackberries
growing wild in the hedgerow around the field would not be theft unless it was done for
sale or reward or other commercial purpose. Similarly, picking roses from someone’s
garden would be theft, but picking wild flowers in a field would not (unless for sale or
reward). However, it should be noted that it is an offence to pick, uproot or destroy
certain wild plants under the Wildlife and Countryside Act 1981.
Where picking fungi, flowers, fruit or foliage is done with the intention of selling
them or for reward or any commercial purpose, then they are considered property which
can be stolen. An example of this would be picking holly to sell at Christmas time.
The other exception of personal property which is not ‘property’ for the purpose of
theft concerns wild creatures.
SECTION
‘4(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot
steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such
creature, unless it has been reduced into possession by or on behalf of another person and
possession of it has not since been lost or abandoned, or another person is in course of redu-
cing it into possession.’
The effect of this subsection is that it is not theft if a wild creature such as a deer is taken from
the grounds of a large estate (though there is an offence of poaching) but it is theft if a deer
is taken from a zoo, as in this case it is ordinarily kept in captivity. In Cresswell v DPP [2006]
EWHC 3379 (Admin), a case on criminal damage, it was held that wild badgers were not
property (see section 16.1.5). The definition of wild creatures as ‘property’ in the Criminal
Damage Act 1971 is similar (though not identical) to the definition in the Theft Act 1968.
real property
13.3.2 Real property
Land and buildings Real property is the legal term for land and buildings. Under s 4(1), land can be stolen,
but s 4(2) states that this can only be done in three circumstances:
SECTION
‘4(2) A person cannot steal land, or things forming part of land and severed from it by him or
by his directions, except in the following cases, that is to say –
(a) when he is a trustee or personal representative, or is authorised by power of attor-
ney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging
to another, and he appropriates the land or anything forming part of it by dealing
with it in breach of the confidence reposed in him: or
(b) when he is not in possession of the land and appropriates anything forming part of
the land by severing it or causing it to be severed or after it has been severed; or 451
(c) when, being in possession of the land under a tenancy, he appropriates the whole
or any part of any fixture or structure let to be used with the land.’
13.3 property
So there is only one category of person who can be charged with stealing any land
itself. These are trustees etc., who act in breach of confidence. The second circum-
stance only applies where something has been severed from the land. This makes it
theft to dig up turfs from someone’s lawn or to dismantle a wall and take the bricks.
In 1972, a man was prosecuted for stealing Cleckheaton railway station by dismant-
ling it and removing it. He was in fact acquitted by the jury as he said he was acting
under a claim of right, but there was no doubt that the station could be property
under the Theft Act definition. Section 4(2)(b) also covers situations where the owner
of the land has legitimately severed something, such as stone from a quarry,
but another person then appropriates the stone. This person will be guilty under s
4(2)(b).
The final part of s 4(2)(c) applies only to tenants of land, who can be guilty of theft
if they appropriate fixtures or structures from the land. As tenants they are in posses-
sion of the land and so cannot be guilty under s 4(2)(b). However, if a tenant appro-
priates an item such as a door handle or a washbasin, then this can be theft. This
subsection only requires appropriation; it does not require the item to be severed
from the land. As appropriation means ‘any assumption of the rights of an owner’,
this could include a situation where the tenant sold a fireplace to a dealer on the basis
that the dealer would dismantle it later. The act of selling is an assumption of the
rights of an owner so the theft occurs even if the dealer never does dismantle the
fireplace.
13.3.3 Things in action

A thing in action is a right which can be enforced against another person by an action in
thing in action
law. The right itself is property under the definition in s 4. An example is a bank account.
A right which can
be enforced The bank does not keep coins or banknotes for each customer’s account in a separate
against another box! Instead the customer has a right to the payment of the amount in his account. Even
person
an overdraft facility is a thing in action as the customer who has the facility has a right
to withdraw money from the bank up to the limit of the overdraft.
So if D causes the bank to debit another person’s account, he has appropriated a thing
in action. If he does this dishonestly and with the intention permanently to deprive the
other of it, then D is guilty of theft.
CASE EXAMPLE
Kohn (1979) 69 Cr App r 395
Kohn was an accountant authorised by a company to draw cheques on the company’s account
to pay the company’s debts. The company had an overdraft facility and was sometimes over-
drawn. When Kohn drew cheques on the company’s account to meet his own personal liabil-
ities he was guilty of theft, as the bank account was a thing in action. This was so whether it
was a credit balance or the overdraft facility.
A cheque itself is a thing in action, but it is also a piece of paper which is property that
can be stolen, and it is a ‘valuable security’ which can also be stolen under the definition
of ‘property’.
452
13.3.4 Other intangible property
This refers to other rights which have no physical presence but can be stolen under the
Theft Act. In Attorney-General of Hong Kong v Chan Nai-Keung [1987] 1 WLR 1339, an
theft
export quota for textiles was intangible property which could be stolen. A patent is also
intangible property which can be stolen.
However, there are some types of intangible property which have been held not to be
property within the Theft Act definition. In Oxford v Moss [1979] Crim LR 119, know-
ledge of the questions on an examination paper was held not to be property. Electricity
is another sort of intangible property which cannot be stolen, but there is a separate
offence under s 13 of the Theft Act 1968 of dishonestly using electricity without due
authority, or dishonestly causing it to be wasted or diverted. Figure 13.2 summarises
what property can be or cannot be stolen under the Theft Act 1978.
Property
Can be stolen Can NOT be stolen
• Money • Fungi, flowers, fruit or foliage

• Real property, i.e. land but growing wild and not picked
only in limited situations for sale or reward
• Personal property • Wild creatures not tamed and
not ordinarily kept in captivity
• Things in action, i.e. a right
which can be enforced against • Land (apart from the
another exceptions in s 4(2))
• Intangible property, e.g. export • Knowledge
quotas or patents • Electricity (separate offence
s 13 (TA 1968))
Figure 13.2 Property in the law of theft.

ACTIVITy
Applying the law
Explain whether the items in each of the following situations would be property for the pur-
poses of theft.
1. Arnie runs a market stall selling flowers. Just before Christmas he picks a lot of holly from
a wood, intending to sell it on his stall. He then digs up a small fir tree for his own use. On
his way home he sees some late flowering roses in a garden and picks them to give to his
girlfriend.
2. Della finds the examination papers she is to sit next week in the next-door office. She writes
out the questions from the first paper on to a notepad of her own. The second paper is
very long, so she uses the office photocopier to take a copy, using paper already in the
machine.
3. Gareth and Harry go out poaching pheasants. Gareth successfully shoots one pheasant and 453
picks up the dead bird. Harry fails to hit any. As they are going home Harry sees an unat-
tended Land Rover. He looks inside it and sees that in the back are two dead pheasants. He
13.4 BeLonging to Another

takes them.
13.4 Belonging to another

For the purposes of theft, the property must belong to another. However, s 5(1) of the
Theft Act 1968 gives a very wide definition of what is meant by ‘belonging to another’.
SECTION
‘5(1) Property shall be regarded as belonging to any person having possession or control of it,
or having in it any proprietary right or interest (not being an equitable interest arising
only from an agreement to transfer or grant an interest).’
From this it can be seen that possession or control of the property or any proprietary
interest in it is sufficient. One reason for making it wide is so that the prosecution does
not have to prove who is the legal owner.
13.4.1 Possession or control

Obviously, the owner of property normally has possession and control of it, but there
are many other situations in which a person can have either possession or control of
property. Someone who hires a car has both possession and control during the period of
hire. If the car is stolen during this time, then the thief can be charged with stealing it
from the hirer. Equally, as the car hire firm still own the car (a proprietary right), the
thief could be charged with stealing it from them.
The possession or control of the item does not have to be lawful. Where B has stolen
jewellery from A and subsequently C steals it from B, B is in possession or control of that
jewellery and C can be charged with stealing it from B. This is useful where it is not
known who the original owner is, as C can still be guilty of theft. This wide definition of
‘belonging to’ has led to the situation in which an owner was convicted of stealing his
own car.
CASE EXAMPLE
Turner (No 2) [1971] 2 All er 441
Turner left his car at a garage for repairs. It was agreed that he would pay for the repairs when
he collected the car after the repairs had been completed. When the repairs were almost fin-
ished the garage left the car parked on the roadway outside their premises. Turner used a
spare key to take the car during the night without paying for the repairs. The Court of Appeal
held that the garage was in possession or control of the car and so Turner could be guilty of
stealing his own car.
The decision in this case has been criticised. The garage clearly had a lien (a legal right to
lien
retain the car until payment was made), and it could have been held that this gave the
A right to retain
an article in one’s garage control of the car. However, the judge had directed the jury to ignore any question
454 possession of a lien. On appeal to the Court of Appeal the judges simply based their decision to uphold
the conviction on the fact that the garage had possession and control. In fact, if the question
of lien is ignored, the garage were bailees of the car, and under the law of bailment, Turner
theft
had the right to end the bailment at any time and take the car back. The point also involved
whether Turner was acting dishonestly and this is discussed at section 13.6.1.
In a subsequent case, Meredith [1973] Crim LR 253, a Crown Court judge directed a jury
differently. In this case D’s car had been impounded by the police because it was causing
an obstruction. D removed it without the police knowing and without paying the charge
to get it out of the pound. It was held that D could not be convicted of theft even though
the car was apparently in the possession and control of the police. Although the police had
a right to enforce the charge for its removal, they had no right to keep the car.
The decision in Turner that the words ‘possession or control’ were not qualified in any
way was followed in Smith and others [2011] EWCA Crim 66.
CASE EXAMPLE
Smith and others [2011] eWCA Crim 66
Ds arranged to meet V, who was a drug dealer, to buy some heroin from him. When they met,
Ds used force on V so that he handed over the heroin without any payment. Ds were convicted
of robbing V of the drugs. On appeal Smith argued that there was no theft (an essential
element of robbery) as V was unlawfully in possession of the drugs. The Court of Appeal
quoted from the judgment in Turner in which Lord Parker CJ said:
JUDGMENT
‘This Court is quite satisfied that there is no ground whatever for qualifying the words “pos-
session or control” in any way. It is sufficient if it is found that the person from whom the
property is . . . appropriated was at the time in fact in possession or control. At the trial there
was a long argument as to whether that possession or control must be lawful . . . The only
question was: was [V] in fact in possession or control?’
If the argument in Smith and others that there could be no theft where possession was unlaw-
ful had succeeded, it would have led to chaos. It would allow all those who misuse drugs
to take them from each other with impunity. This could scarcely be in the public interest.
It is possible for someone to be in possession or control of property even though they do
not know it is there. In Woodman [1974] 2 All ER 955, a company, English China Clays, had
sold all the scrap metal on its site to another company which arranged for it to be removed.
Unknown to English China Clays, a small amount had been left on the site. There was no
doubt that they were in control of the site itself as they had put a barbed wire fence round
it and had notices warning trespassers to keep out. D took the remaining scrap metal. He
was convicted of theft and the Court of Appeal upheld the conviction.
13.4.2 Proprietary right or interest

Clearly, legal ownership comes within this, but a proprietary right or interest is much
wider than just ownership. There are also equitable rights to property, for example the
trustees of a trust fund have the legal ownership of the fund, but the beneficiaries have
the equitable interest.
Co-owners
If there are co-owners of property, then each can be guilty of stealing from the other, as
each has a proprietary interest in the property. This happened in Bonner [1970] 2 All ER 455
97, where D was a partner who was found guilty of stealing partnership property. In
partnership law each partner is joint owner of all the partnership property, but he can be

guilty of theft if he appropriates the property intending to permanently deprive the
other partners of their rights in the property.
Lost or abandoned property

Where property has been lost, the owner still has a proprietary right in it. It is only if the
property has been completely abandoned that it is ownerless and so does not belong to
another for the purposes of theft. However, the courts are reluctant to reach the conclu-
sion that property has been abandoned, or may decide that ownership has passed to the
owner of the land on which it was abandoned. For example, where a golfer hits a golf
ball into a lake and decides to leave it there, he has abandoned it, but it becomes the
property of the owner of the golf course.
The property will only be considered abandoned if the owner is completely indifferent
as to what happens to the property. If a householder puts out rubbish to be collected by the
local refuse operators, he has not abandoned it. He intends the ownership to go to the
refuse operators. If anyone else takes the rubbish, then this is theft. This was seen in the case
of R (on the application of Ricketts) v Basildon Magistrates’ Court [2010] EWHC 2358 (Admin).
CASE EXAMPLE
R (on the application of Ricketts) v Basildon Magistrates’ Court [2010] eWhC
2358 (Admin)
D was charged with two offences of theft, and Basildon magistrates committed the case for
trial at the Crown Court. D applied for judicial review of the decision to commit the case for
trial on the basis that there was no evidence the property belonged to anyone.
In the first offence D had taken bags containing items of property from outside a charity
shop. He argued that the original owner had abandoned the property and, therefore, it did
not belong to another. The High Court held that the magistrates had been entitled to infer
that the goods had been left with the intention of giving them to the charity. They were also
entitled to infer that the goods had been not been abandoned: the giver had attempted to
deliver them to the charity and delivery would only be complete when the charity took posses-
sion. Until then the goods remained the property of the giver.
In the second offence, D had taken bags of goods from a bin at the rear of another charity
shop. The High Court held that these bags were in the possession of the charity at the time
they were appropriated by D.
Special situations
Section 5 goes on to make it clear that in certain situations a defendant can be guilty of
theft even though the property may not ‘belong to another’. These are situations in
which the defendant is acting dishonestly and has caused a loss to another or has made
a gain. These are:
 trust property;
 property received under an obligation;
 property received by another’s mistake.
Trust property
Normally both trustees and beneficiaries have proprietary rights or interests in the trust
property. So if a trustee takes the trust property for his own, he can be charged with theft
as it also belongs to the beneficiaries. But to make sure that any dishonest appropriation
456 of trust property by a trustee could be theft, s 5(2) sets out:
SECTION
theft
‘5(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded
as any person having a right to enforce the trust and an intention to defeat the trust shall
be regarded accordingly as an intention to deprive of the property any person having that
right.’
In particular this avoids problems with theft by a trustee from a charitable trust as there
are no specific beneficiaries with a right to enforce the trust. However, charitable trusts
are enforceable by the Attorney-General, making him a ‘person having a right to enforce
the trust’ for the purposes of this subsection.
13.4.3 Property received under an obligation

There are many situations in which property (usually money) is handed over to D on the
basis that D will keep it for the owner or will deal with it in a particular way. Section 5(3)
tries to make sure that such property is still considered as ‘belonging to the other’ for the
purposes of the law of theft.
SECTION
‘5(3) Where a person receives property from or on account of another, and is under an
obligation to the other to retain and deal with that property or its proceeds in a
particular way, the property shall be regarded (as against him) as belonging to the
other.’
Under this subsection there must be an obligation to retain and deal with the property
in a particular way. So, where money is paid as a deposit to a business, the prosecution
must prove that there was an obligation to retain and deal with those deposits in a par-
ticular way. If the person paying the deposit only expects it to be paid into a bank account
of the business, then if that is what happens there cannot be theft, even if all the money
from the account is used for other business expenses and the client does not get the
goods or service for which he paid the deposit. This is what happened in Hall [1972] 2
All ER 1009.
CASE EXAMPLE
Hall [1972] 2 All er 1009
Hall was a travel agent who received deposits from clients for air trips to America. D paid these
deposits into the firm’s general account, but never organised any tickets and was unable to
return the money. He was convicted of theft, but on appeal, his conviction was quashed
because when D received the deposits he was not under an obligation to deal with them in a
particular way. The Court of Appeal did stress that each case depended on its facts.
In Klineberg and Marsden [1999] Crim LR 419, there was a clear obligation to deal with
deposits in a particular way. The two defendants operated a company which sold time-
share apartments in Lanzarote to customers in England. Each purchaser paid the pur-
chase price on the understanding that the money would be held by an independent trust
company until the apartment was ready for the purchaser to occupy. Over £500,000 was
457
paid to the defendants’ company, but only £233 was actually paid into the trust com-
pany’s account. The defendants were guilty of theft as it was clear that they were under
an obligation to the purchasers ‘to retain and deal with that property or its proceeds in

a particular way’ and that they had not done this.
There can be an obligation in less formal situations. This was the case in Davidge v
Bunnett [1984] Crim LR 297.
CASE EXAMPLE
Davidge v Bunnett [1984] Crim Lr 297
D was guilty of theft when she was given money by her flatmates to pay the gas bill but instead
used it to buy Christmas presents. There was a legal obligation in this situation, as there was an
intention to create legal relations under contract law. It is not clear whether there would be a
legal obligation (and so theft) if the situation happened between members of the same family or
whether this would be a domestic arrangement without the intention to create legal relations.
Another problem area can occur when D collects money from sponsors for charity but
then does not pay the money over. In Lewis v Lethbridge [1987] Crim LR 59, D was spon-
sored to run the London Marathon for charity. His sponsors paid the money to him but
he did not hand it over to the charity. The Queen’s Bench Divisional Court quashed the
conviction since the magistrates had not found that there was any rule of the charity
which required him to hand the actual cash over or to set up a separate fund for it. This
meant that as against the charity he was not under an obligation ‘to retain and deal with
that property’ in a particular way. He was merely a creditor of the charity. This decision
was criticised by Professor Sir John Smith and this criticism was adopted by the Court of
Appeal in Wain [1995] 2 Cr App R 660 when it disapproved of the decision in Lewis v
Lethbridge (1987).
CASE EXAMPLE
Wain [1995] 2 Cr App r 660
D had organised various events to raise money for The Telethon Trust, a charity created by
Yorkshire Television Company. He paid the money, totalling £2,833.25, into a special bank
account, but then, with permission of a representative of the TV company, transferred the
money to his personal bank account. He then spent the money from his own account and was
unable to pay any money to the charity.
The Court of Appeal considered the point of whether the defendant was obliged to hand
over the actual coins and notes or whether there was a more general principle that he
was under an obligation to hand over an amount equal to the money he had raised. It
quoted from Professor Sir John Smith in its judgment when it said:
JUDGMENT
‘Professor Smith . . . in his Law of Theft (6th ed.) at p. 39 [states] “. . . In Lewis v Lethbridge . . .
no consideration was given to the question whether any obligation was imposed by the spon-
sors. Sponsors surely do not give the collector (whether he has a box or not) the money to do
as he likes with. Is there not an overwhelming inference . . . that the sponsors intend to give
the money to the charity, imposing an obligation in the nature of a trust on the collector?”
It seems to us that the approach of the court in the Lethbridge case was a very narrow one
based, apparently, on the finding by the justices that there was no requirement of the charity
458
that the appellant hand over the same notes and coins . . . it seems to us that by virtue of
section 5(3), the appellant was plainly under an obligation to retain, if not the actual note and
coins, at least their proceeds, that is to say the money credited in the bank account which he
theft
opened for the trust with the actual property.’
This decision is preferable to that in Lewis v Lethbridge (1987). Any person giving money
to a person collecting for charity, whether it is by sponsoring him or by some other
donation, is only doing this because they want to support the charity. They intend that
amount to be paid to the charity.
13.4.4 Property got by a mistake

The final subsection of s 5 deals with situations where property has been handed over to
D by another’s mistake and so has become D’s property. If there were no special provi-
sion in the Act, then this could not be ‘property belonging to another’ for the purposes
of the law of theft.
SECTION
‘5(4) Where a person gets property by another’s mistake, and is under an obligation to make
restoration (in whole or in part) of the property or its proceeds or of the value thereof,
then to the extent of that obligation the property or proceeds shall be regarded (as
against him) as belonging to the person entitled to restoration, and an intention not to
make restoration shall be regarded accordingly as an intention to deprive that person of
the property or proceeds.’
In Attorney-General’s Reference (No 1 of 1983) [1985] 3 All ER 369, the facts were that D’s
salary was paid into her bank account by transfer. On one occasion her employers mis-
takenly overpaid her by £74.74. She was acquitted by the jury of theft, but the prosecu-
tion sought a ruling on a point of law, namely, assuming that she dishonestly decided
not to repay the £74.74, would she have been guilty of theft? The Court of Appeal held
that s 5(4) clearly provided for exactly this type of situation. She was under an ‘obliga-
tion to make restoration’, and if there was an intention not to make restoration, then the
elements of theft were present.
There must be a legal obligation to restore the property. In Gilks [1972] 3 All ER
280, D had placed a bet on a horse race. The bookmaker made a mistake about which
horse D had backed and overpaid D on the bets he had placed. D realised the error
and decided not to return the money. The ownership of the money had passed to D,
so the only way he could be guilty of theft was if s 5(4) applied. It was held that as
betting transactions are not enforceable at law, s 5(4) did not apply and D was not
guilty.
kEy fACTS
Key facts on ‘belonging to another’
Theft Act
Rule Comment/case(s)
1968
s 5(1) Property is regarded as belonging to any Not limited to owner – Turner (No 2)
person having possession or control or (1971) stole own car.
having any proprietary right. One co-owner can steal from another –
459
Bonner (1970).
s 5(2) Trust property ‘belongs’ to any person –
13.5 DishonestLy
having right to enforce the trust.
s 5(3) Property belongs to the other where it is Must have to deal with it in a specific
received under an obligation to retain way.
and deal with it in a particular way. Hall (1972) not guilty because no
specific way.
Klineberg and Marsden (1999) guilty
because should have been placed in
special account.
s 5(4) Where D gets property by another’s Attorney-General’s Reference (No 1 of
mistake, then it ‘belongs’ to the other. 1983) (1985).
But there must be a legal obligation to Gilks (1972).
make restoration.
13.5 Dishonestly
There are two points which need to be proved for the mens rea of theft. These are:
 dishonesty
 intention permanently to deprive.
Apart from these the Act also states in s 1(1) that it is immaterial whether the appropria-
tion is made with a view to gain, or is made for the thief ’s own benefit. In other words,
if all the elements of theft are present, the motive of D is not relevant. So a modern-day
Robin Hood stealing to give to the poor could be guilty of theft. D does not have to gain
anything from the theft, so destroying property belonging to another can be theft,
although it is also, of course, criminal damage. Theft can also be charged where D does
not destroy the other’s property but throws it away. For example, if D threw a water-
proof watch belonging to another into the sea, this could be theft.
13.5.1 Dishonesty
The 1968 Theft Act does not define ‘dishonesty’, though it does give three situations in
which D’s behaviour is not considered dishonest. These are in s 2 of the 1968 Act.
SECTION
‘2(1) A person’s appropriation of property belonging to another is not to be regarded as
dishonest –
(a) if he appropriates the property in the belief that he has in law the right to deprive
the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent
if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he
appropriates the property in the belief that the person to whom the property
belongs cannot be discovered by taking reasonable steps.’
All three situations depend on D’s belief. It does not matter whether it is a correct belief
460
or even whether it is a reasonable belief. If D has a genuine belief in one of these three,
then he is not guilty of theft.
Belief in a right at law

theft
Section 2(1)(a) was considered in the case of Turner (No 2) (1971) (see section 13.4.1).
Turner claimed that he believed he had the right to take back his car from the garage.
The Court of Appeal pointed out that the judge had dealt fully and correctly with the
law on this point, saying:
JUDGMENT
‘[The judge] went on to give [the jury] a classic direction in regard to claim of right, emphasis-
ing that it is immaterial that there exists no basis in law for such belief. He reminded the jury
that the appellant had said categorically in evidence: “I believe that I was entitled in law to do
what I did.” At the same time he directed the jury to look at the surrounding circumstances.
He said this: “The Prosecution say that the whole thing reeks of dishonesty, and if you believe
Mr Brown that the [appellant] drove the car away from Carlyle Road, using a duplicate key,
and having told Brown that he would come back tomorrow and pay, you may think the Pro-
secution right.”
The whole test of dishonesty is the mental element of belief.’
Belief of owner’s consent

Section 2(1)(b) covers situations where D does not have the chance to get permission
from the person to whom the property belongs, but D believes he would have been
given permission. For example, if you are babysitting at a friend’s house and while there
you cut your finger, you take a plaster from your friend’s first aid box believing that they
would consent if they knew about it.
Belief that owner cannot be found

This appears to be aimed at situations where D finds property such as money or other
personal items in the street. If D genuinely believes that he cannot find out who the
owner is by taking what he thinks are reasonable steps, then D’s appropriation of the
property is not dishonest and he cannot be guilty of theft. D’s belief does not have to be
reasonable. However, the more unreasonable it is, then the more likely a jury will not
accept that he actually held that belief.
In Small [1987] Crim LR 777, D took a car. He said he believed it was abandoned. It had
been parked in the same place without being moved for two weeks. Also it appeared
abandoned because the doors were unlocked, the keys were in the ignition, there was no
petrol in the tank, the battery was flat, one of the tyres was flat and the windscreen wipers
did not work. D put petrol in the tank and managed to start it. When he was driving it he
suddenly saw police flashing their lights at him. At that point he panicked and ran off, but
he claimed that until he saw the police he had never thought that it might be a stolen car.
He was convicted, but the Court of Appeal quashed the conviction because the question
was whether D had (or might have had) an honest belief that the owner could not be found
and there was evidence that he might have believed the car was abandoned.
Willing to pay
In some situations D may say that he is willing to pay for the property or may, on taking
property, leave money to pay for it. This does not prevent D’s conduct from being dis-
honest, as s 2(2) states that:
SECTION 461
‘2(2) A person’s appropriation of property belonging to another may be dishonest notwith-

standing that he is willing to pay for the property.’
13.5 DishonestLy
At first this may seem severe, but it prevents D taking what he likes, regardless of the
owner’s wishes. For example, D likes a painting which is hanging in a friend’s home. He
asks the friend how much it is worth and is told that it is only a copy, worth less than
£100, but it was painted by the friend’s grandmother and is of sentimental value. A few
days later D takes the painting without the friend’s consent but leaves £200 in cash to
pay for it. D’s taking of the painting may be considered dishonest, even though he left
more than the cash value of it.
13.5.2 The Ghosh test

As can be seen, s 2 only applies in specific circumstances. It does not create a general rule
or definition about dishonesty. In its Eighth Report, the Criminal Law Revision Commit-
tee stated that it had used the word ‘dishonestly’ in preference to the word ‘fraudu-
lently’ because:
quotation
‘The question “Was this dishonest?” is easier for a jury to answer than the question “Was this
fraudulent?” Dishonesty is something which laymen can recognise when they see it, whereas
“fraud” may seem to involve technicalities which have to be explained by a lawyer.’
It appears that, since they took the view that dishonesty was something laymen could
recognise, there was no need for a definition. Not surprisingly, the early cases on the
Theft Act took the view that whether the defendant’s state of mind was dishonest was a
matter for the jury to decide. In Brutus v Cozens [1972] 2 All ER 1297, the House of Lords
held that the meaning of an ordinary word such as dishonestly was not a question of law
for the judge, but one of fact for the jury.
In Feely [1973] 1 All ER 341, the Court of Appeal did at least give a standard of dishon-
esty to be applied by the jury. Feely was the manager at a branch of bookmakers. The
firm notified all branches that the practice of borrowing from the till was to stop. D knew
this, but still ‘borrowed’ £30. When it was realised there was a shortfall in the till, D
immediately said what he had done and offered an IOU. In addition, he was owed more
than twice the amount by the firm. At his trial the judge directed the jury that what Feely
had done was dishonest and he was convicted of theft. He appealed on the ground that
the question of dishonesty should have been left to the jury. The Court of Appeal allowed
the appeal, stating:
JUDGMENT
‘Jurors, when deciding whether an appropriation was dishonest can reasonably be expected
to, and should, apply the current standards of ordinary decent people. In their own lives they
have to decide what is and what is not dishonest. We can see no reason why, when in a jury
box, they should require the help of a judge to tell them what amounts to dishonesty.’
This does give a guideline to the jury of the ‘current standards of ordinary decent people’.
However, a criticism of this is that different juries might well have different standards,
even though they are notionally applying the ‘current standards of ordinary decent
462 people’. Another criticism is that it is too objective. It does not take into account whether
the defendant believed he was being honest. In Boggeln v Williams [1978] 2 All ER 1061,
a subjective test was used of the defendant’s belief as to his own honesty. The defend-
theft
ant’s electricity had been cut off, but he had reconnected it without authorisation. He
notified the electricity board that he was doing this, and he believed that he would be
able to pay the bill. The court decided that his belief was the most important factor.
This left a conflict of whether the test should be objective (standards of ordinary
decent people) or subjective (whether the defendant believed that what he was doing
was honest). This was finally resolved in Ghosh [1982] 2 All ER 689, which is now the
leading case on the matter.
CASE EXAMPLE
Ghosh [1982] 2 All er 689
Ghosh was a doctor acting as a locum consultant in a hospital. He claimed fees for an opera-
tion he had not carried out. He said that he was not dishonest as he was owed the same
amount for consultation fees. The trial judge directed the jury that they must apply their own
standards to decide if what he did was dishonest. He was convicted and appealed against the
conviction.
The Court of Appeal considered all the previous cases on the matter and decided that
the test for dishonesty should have both objective and subjective elements. It put it in
this way:
JUDGMENT
‘In determining whether the prosecution has proved that the defendant was acting dishon-
estly, a jury must first of all decide whether according to the ordinary standards of reasonable
and honest people what was done was dishonest. If it was not dishonest by those standards,
that is the end of the matter and the prosecution fails. If it was dishonest by those standards,
then the jury must consider whether the defendant himself must have realised that what he
was doing was by those standards dishonest.’
So this means that the jury have to start with an objective test. Was what was done dis-
honest by the ordinary standards of reasonable and honest people? If it was not the
defendant is not guilty. However, if the jury decide that it was dishonest by those
standards, then they must consider the more subjective test of whether the defendant
knew it was dishonest by those standards.
This second test is not totally subjective as the defendant is judged by what he real-
ised ordinary standards were. This prevents a defendant from saying that, although he
knew that ordinary people would regard his actions as dishonest, he did not think that
those standards applied to him. This was made clear in the judgment in Ghosh [1982] 2
All ER 689.
JUDGMENT
‘It is dishonest for a defendant to act in a way which he knows ordinary people consider to be
dishonest, even if he asserts or genuinely believes that he was morally justified in acting as he
did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from
vivisection laboratories are acting dishonestly, even though they may consider themselves to
463
be morally justified in doing what they do, because they know that ordinary people would
consider these actions to be dishonest.’
13.5 DishonestLy
In DPP v Gohill and another [2007] EWHC 239 (Admin), it was stressed that the Ghosh test
had to be dealt with in two parts.
CASE EXAMPLE
DPP v Gohill and another [2007] eWhC 239 (Admin)
The defendants were manager and assistant manager of an outlet hiring plant and equipment to
customers. Ds had allowed some customers to borrow equipment for periods of less than two
hours without charge. These hirings were recorded by Ds on the computer. However, when the
customer returned the item within two hours, Ds had either recorded that it had been returned as
faulty or incorrectly chosen (for which no charge was made under the company’s rules) or altered
the computer records to show that the item had only been reserved and not actually borrowed.
Ds stated that they regarded this as good customer service which kept customers who fre-
quently hired happy. It was not done for personal gain and they did not ask for any money for
doing this. Sometimes the customer would tip them £5 or £10 and at other times they were
not given any money by the customer.
The magistrates acquitted Ds of theft and false accounting on the basis that they ‘were not
satisfied beyond reasonable doubt that by the ordinary standards of reasonable and honest
people the [Ds] had acted dishonestly’.
The Divisional Court allowed the prosecution appeal against the acquittal. They held that
the behaviour of the Ds was dishonest by the ordinary standards of reasonable and honest
people and they remitted the case for retrial by a new bench of magistrates as the two parts
of the Ghosh test had to be considered.
When remitting the case for retrial, Levenson LJ said:
JUDGMENT
‘In my judgment the question posed by the justices must be split into two. Were they entitled
to conclude that by the ordinary standards of reasonable and honest people the [Ds] had not
been proved to have acted dishonestly must be answered in the negative. The second question
is whether the [Ds] themselves must have realised that what they were doing was by those
standards dishonest.’
13.5.3 Problems with the Ghosh test
The case of Gohill emphasises one of the main problems with the Ghosh test, that is that
different people may have different standards of dishonesty. The main criticism is that
it leaves too much to the jury (or lay magistrates as in Gohill), so that there is a risk of
inconsistent decisions with different juries coming to different decisions in similar situ-
ations. It has been argued that it would be better for the judge to rule on whether there
was dishonesty as a point of law rather than leave it as a matter of fact for the jury.
However, this overlooks the fact that the jury still need to decide whether they believe
what the defendant says.
Another criticism of the test is that it places too much emphasis on objective views of
what is dishonest rather than the defendant’s intentions. The first stage of the test
requires the jury to consider whether what was done is dishonest according to the
ordinary standards of reasonable and honest people. This has the odd effect that if the
jury think it is not dishonest, then the defendant will be found not guilty even though he
464 may have thought he was being (and intended to be) dishonest.
The points above were emphasised by Professor Griew in an article he wrote in 1985,
‘Dishonesty: the objections to Feely and Ghosh’ (1985) Crim LR 341. He put forward
theft
several problems with the definition of theft following the decision in Ghosh. As well as
the points above he also pointed out:
 The Ghosh test leads to longer and more difficult trials.
 The idea of standards of ordinary reasonable and honest people is a fiction.
 The Ghosh test is unsuitable in specialised cases.
 It allows for a ‘Robin Hood’ defence.
Longer trials
The complicated nature of the Ghosh test means that trials take longer. The jury have first
to decide whether the defendant’s behaviour was dishonest according to the ordinary
standards of reasonable and honest people. This is not always a straightforward matter.
Then they have to decide if the defendant realised that what he was doing was dishonest
by those standards. This is another difficult point as evidence of a state of mind is not
easy to prove. Griew also thought that the nature of the test meant that more defendants
might decide to plead not guilty in the hope that a jury would decide their behaviour
was not dishonest.
Fiction of community standards

Griew points out that using a test of ordinary standards of reasonable and honest
people assumes that there is a common standard. In fact society is very diverse and
different sections of the community may well have slightly varying standards. Griew’s
view is supported by the Law Commission in its report on the law of fraud in 2002
when it said: ‘There is some evidence that people’s moral standards are surprisingly
varied.’
This creates problems when the jury have to decide on the ordinary standards. The
jurors are likely to come from different backgrounds with different experiences of life.
They can also vary in age from 18 to 70. All these factors may mean that the jury disagree
on what the ordinary standards are. The Ghosh test may backfire in the case of a jury
composed of ‘ordinary dishonest jurors’ whose own standards may be regarded as dis-
honest. In 2009 online research by Finch and Fafinsky of Brunel University involving
15,000 people found that people’s views on what is dishonest do indeed vary quite
widely.
The case of Gohill demonstrates that even magistrates and judges may have differing
standards of what is dishonest. In that case the magistrates trying the case decided they
were not satisfied beyond reasonable doubt that D was dishonest by the standards of
reasonable and honest people. However the Divisional Court took the opposite point of
view with Leveson LJ saying:
JUDGMENT
‘In my judgment, it is quite impossible to justify the proposition that the ordinary standards
of reasonable and honest people would not find dishonest the deliberate falsification of a
company record to permit a customer, however valued, to borrow equipment without
charge in a business that exists solely to hire such equipment for payment, particularly
where the procedures of the company did not permit such alteration to the record in any
event.’ 465
Specialised cases
13.5 DishonestLy
It is even more difficult to apply ordinary standards where the offence involves a spe-
cialised area such a futures trading or other complex financial dealing. The first part of
the Ghosh test is even more unsuitable in such cases. Ordinary people have no experi-
ence of such financial dealing, so how can they say what is ‘honest’ or ‘not honest’ in
such cases?
‘Robin Hood’ defence

Griew points out that the Ghosh test enables a ‘Robin Hood defence’ where the defend-
ant believes that, as a result of the conviction of his own moral or political beliefs, that
‘ordinary people’ will think he is acting correctly. So, in this situation, the defendant will
be acquitted.
Other problems
The reverse situation of ‘Robin Hood’ can occur where the defendant believes that he is
being dishonest, but the jury find that by the first part of the test, he is not dishonest
according to the ordinary standards of reasonable and honest people. As Andrew Halpin
wrote in ‘The test for dishonesty’ (1996) Crim LR 283:
quotation
‘If the point of the test is to prevent a defendant escaping liability in a case that is generally
regarded as involving wrongdoing by using his own personal morality, then it is only when
the defendant’s failure to perceive that his behaviour would ordinarily be regarded as dis-
honest is itself considered to be excusable by ordinary standards that he should be
acquitted.’
Finally, whether the defendant is being dishonest has become much more important in
view of the ruling in Hinks (2000) that appropriation is a neutral word. This means that
whether a theft has occurred or not is dependent on whether the appropriation was
dishonest. The whole of the illegality of the act is based on the mens rea of the defendant.
This makes it even more unsatisfactory that the Ghosh test can be subjected to so many
criticisms.
ACTIVITy
self-test questions on dishonesty in theft
1. Explain the three situations in s 2(1) of the Theft Act 1968 in which D is not regarded as
dishonest.
2. Explain why D may be dishonest even though he is willing to pay for the goods he
appropriates.
3. The Theft Act 1968 does not define ‘dishonesty’. What different approaches have the
courts used in deciding what is meant by ‘dishonesty’?
4. Explain the Ghosh (1982) test.
5. Is it necessary to have an objective element in deciding whether D’s conduct was
dishonest?
466 13.6 With intention to permanently deprive

The final element which has to be proved for theft is that the defendant had the intention
to permanently deprive the other of the property. In many situations there is no doubt
theft
that the defendant had such an intention. For example, where an item is taken and sold
to another person, or where cash is taken and spent by the defendant. This last example
is true even when D intends to replace the money later, as was shown in Velumyl [1989]
Crim LR 299 where D, a company manager, took £1,050 from the office safe. He said that
he was owed money by a friend and he was going to replace the money when that friend
repaid him. The Court of Appeal upheld his conviction for theft as he had the intention
of permanently depriving the company of the banknotes which he had taken from the
safe, even if he intended to replace them with other banknotes to the same value later.
Another situation where there is a clear intention to permanently deprive is where
the defendant destroys property belonging to another. This can be charged as theft,
although it is also criminal damage. There are, however, situations where it is not so
clear and to help in these s 6 of the Theft Act 1968 explains and expands the meaning of
the phrase.
SECTION
‘6(1) A person appropriating property belonging to another without meaning the other per-
manently to lose the thing itself is nevertheless to be regarded as having the intention to per-
manently deprive the other of it if his intention is to treat the thing as his own to dispose of
regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it,
if, but only if, the borrowing or lending is for a period and in circumstances making it equi-
valent to an outright taking or disposal.’
Intention is to treat the thing as his own

So the basic rule is that there must be an intention to treat the thing as his own to dispose
of regardless of the other’s rights. One problem for the courts has been the meaning of
‘dispose of ’ and what, if anything, it adds to ‘treat the thing as his own’. In Cahill [1993]
Crim LR 141, the Court of Appeal accepted that the meaning of ‘dispose of ’ should be
that given by the Shorter Oxford Dictionary: this was ‘To deal with definitely; to get rid of;
to get done with, finish. To make over by way of sale or bargain, sell.’ However, in DPP
v Lavender [1994] Crim LR 297, the Divisional Court did not refer to Cahill (1993) but
ruled that the dictionary definition of ‘dispose of ’ was too narrow as a disposal could
include ‘dealing with’ property.
CASE EXAMPLE
DPP v Lavender [1994] Crim Lr 297
D took doors from a council property which was being repaired and used them to replace
damaged doors in his girlfriend’s council flat. The doors were still in the possession of the
council but had been transferred without permission from one council property to another.
The Divisional Court held that the question was whether D intended to treat the doors as
his own, regardless of the rights of the council. The answer to this was yes, so D was guilty
of theft.
A similar decision was reached in Marshall [1998] 2 Cr App R 282, where the defend-
ants obtained day tickets to travel on the London Underground (LU) from travellers
who had finished with them, and the defendants then sold the tickets to other travel-
lers. They were convicted but appealed on the ground that, as each ticket would be 467
returned to (LU) when they had been used by the second traveller, there was no inten-
tion to permanently deprive LU of the tickets. The Court of Appeal upheld their con-
13.6 With intention to permAnentLy Deprive

victions on the basis that the men were treating the tickets as their own to dispose of,
regardless of LU’s rights. It was not relevant that the tickets would eventually be
returned to LU.
In R v Raphael and another [2008] EWCA Crim 1014, the Court of Appeal held that
taking V’s car and demanding money to return it was treating the car as their own ‘to
dispose of regardless of the other’s rights’.
CASE EXAMPLE
R v Raphael and another [2008] eWCA Crim 1014
V arranged to sell his car to D1. They arranged that D2 would inspect it. When D2 was
doing this (D1 not being present) V was attacked by three other people and his car driven
away. V informed the police. After this he received a phone call telling him that if he wanted
his car back it would cost him £500. D2 was traced by the police and he then phoned V
telling V that he had not intended to set him up and he would try to get the car back but it
would cost V £300. V’s car was eventually found parked in a street and locked. D1 and D2
were convicted of conspiracy to rob. On appeal, they argued that they had no intention
permanently to deprive V of the car. The Court of Appeal dismissed the appeals and upheld
their convictions on the basis that they had treated the car as their own to dispose of
regardless of V’s rights.
On this point of treating the car as their own to dispose of Judge J said:
JUDGMENT
‘The express language of section 6 specifies that the subjective element necessary to establish
the mens rea for theft includes an intention on the part of the taker “to treat the thing as his
own to dispose of regardless of the other’s rights”. In our judgment it is hard to find a better
example of such an intention than an offer, not to return V’s car to him in exactly the same
condition it was when it was removed from his possession and control, but to sell his own
property back to him, and to make its return subject to a condition or conditions inconsistent
with his right to possession of his own property.’
The Court of Appeal also considered whether the abandoning of the car in a street
meant that there was no intention permanently to deprive for the offence of theft, but
instead an offence of taking and driving away under s 12 of the Theft Act. On this point
Judge J said:
JUDGMENT
‘This is not a case in which the vehicle was taken for what is sometimes inaccurately described
as a “joy ride”. Section 12 of the Theft Act has no application to it. It was only “abandoned”
after the purpose of the robbery had been frustrated and its possible usefulness to the robbers
dissipated.’
13.6.1 Borrowing or lending

468 Another difficulty with s 6 is the point at which ‘borrowing or lending’ comes within
the definition. Normally borrowing would not be an intention to permanently deprive.
Take the situation of a student taking a textbook from a fellow student’s bag in order
theft
to read one small section and then replace the book. This is clearly outside the scope
of s 6 and cannot be considered as an intention to permanently deprive. But what if
that student also took a photocopying card, which had a limit placed on its use, used
it, then returned it? The photocopy card has been returned, but it is no longer as valu-
able as it was. So is there an intention to permanently deprive so far as the card is
concerned?
Section 6 states that borrowing is not theft unless it is for a period and in circum-
stances making it equivalent to an outright taking or disposal. In Lloyd [1985] 2 All ER
661 it was held that this meant borrowing the property and keeping it until ‘the good-
ness, the virtue, the practical value . . . has gone out of the article’. In this case a film
had been taken for a short time and copied, then the original film replaced undam-
aged. This was not sufficient for an intention to permanently deprive. Lord Lane CJ
said:
JUDGMENT
‘[s 6(1)] is intended to make clear that a mere borrowing is never enough to constitute the
guilty mind unless the intention is to return the thing in such a changed state that it can truly
be said that all its goodness or virtue has gone.’
From this it appears that in the example of the photocopy card, there would be an inten-
tion to permanently deprive if all the value of the card had been used up, but if it still
had value, then there is no intention to permanently deprive.
Another difficulty is where D picks up property to see if there is anything worth
stealing. What is the position if he decides it is not worth stealing and returns it? This
is what happened in Easom [1971] 2 All ER 945. D picked up a handbag in a cinema,
rummaged through the contents and then replaced the handbag without having taken
anything. He was convicted of theft of the handbag and its contents, but the Court of
Appeal quashed this conviction. They held that even though he may have had a con-
ditional intention to deprive, this was not enough. Note that he could now probably
be charged with attempted theft under the Criminal Attempts Act 1981. (See Chapter
6, section 6.4.)
13.6.2 Conditional disposition
The final part of s 6 covers situations where D parts with property, taking the risk that
he may not be able to get it back.
SECTION
‘6(2) Without prejudice to the generality of subsection (1) above, where a person, having pos-
session or control (lawfully or not) of property belonging to another, parts with the property
under a condition as to its return which he may not be able to perform, this (if done for pur-
poses of his own and without the other’s authority) amounts to treating the property as his
own to dispose of regardless of the other’s rights.’
The first point to note is that this subsection applies even if D is lawfully in possession
or control of the property. The second point is that the act must be done for D’s own 469
purpose and without the other’s authority. The common example given to illustrate this
is where D has been lent an item and then pawns it, but hopes he will have enough

money to redeem it before he is due to give it back to the owner. This is a condition as to
its return which he may not be able to perform and so he is treating it as his own
to dispose of regardless of the other’s rights.
NOTE: see Appendix 2 for an example of how to apply the law of theft to a problem/
scenario type question.
kEy fACTS
Key facts on theft
Section of
Theft Act Definition Comment/cases
1968
s1 A person is guilty of theft if he dishonestly Full definition of theft.

appropriates property belonging to another D is charged under this section.
with the intention of permanently depriving
the other of it.
s2 (1) Not dishonest if believes: No definition of dishonesty in

• has right in law; the Act.
• would have the other’s consent; Ghosh two-part test:
• owner cannot be discovered. • Is it dishonest by ordinary
(2) Can be dishonest even if intends paying for standards?
property. • If so, did D know it was
dishonest by those standards?
s3 Appropriation Held to be assumption of any of

(1) ‘Any assumption of the rights of an the rights of an owner – Gomez
owner.’ (1993).
(2) Bona fide purchaser has not appropriated. Given ‘neutral’ meaning, so
consent irrelevant – Lawrence
(1971) Hinks (2000).
s4 (1) ‘Property’ includes money and all other
property real or personal, including things
in action and other intangible property.
(2) Land cannot be stolen except by trustee or
tenant or by severing property from land.
(3) Wild mushrooms, fruit, flowers and foliage
cannot be stolen unless done for
commercial purpose.
(4) Wild animals cannot be stolen unless
tamed or in captivity.
s5 (1) Property is regarded as belonging to any Not limited to owner – Turner

person having possession or control or any (No 2) (1971).
proprietary right.
(2) Trust property belongs to any person
470 having a right to enforce the trust.
(3) Property belongs to the other where it is Must be a particular way – Hall
received under an obligation to retain and (1972), Klineberg and Marsden
theft
deal with it in a particular way. (1999).

(4) Property received by a mistake where there Attorney-General’s Reference
is a legal obligation to make restoration (No 1 of 1983) (1985).
belongs to the other. Must be a legal obligation –
Gilks (1972).
s6 (1) Intention to permanently deprive includes Conflicting views on ‘dispose of ’

to treat the thing as his own to dispose of – Cahill (1993), Lavender (1994).
regardless of the other’s rights and includes The ‘goodness or practical value
a borrowing or lending for a period and in must have gone from the
circumstances making it equivalent to an property’ – Lloyd (1985).
outright taking or disposal.
(2) Includes disposing of property under a
condition as to its return which he may not
be able to perform.
ACTIVITy
Applying the law
In each of the following situations, explain whether the elements of theft are satisfied.
1. Denise comes from a country where property placed outside a shop is meant for people to
take free of charge. She sees a rack of clothes on the pavement outside a shop and takes
a pair of jeans from it.
2. Katya is given a Christmas cash bonus in a sealed envelope. She has been told by her boss
that the bonus would be £50. When she gets home and opens the envelope she finds there
is £60 in it. She thinks her employer decided to be more generous and so keeps the money.
Would your answer be different if (a) Katya realised there had been a mistake but did not
return the money or (b) the amount in the envelope was £200?
3. Engelbert is given permission by his employer to borrow some decorative lights for use at a
party. Engelbert also takes some candles without asking permission. When putting up the
lights Engelbert smashes one of them. He lights two of the candles so that by the end of
the evening they are partly burned down. One of the guests admires the remaining lights
and asks if he can have them to use at a disco at the weekend. Engelbert agrees to let him
take the lights.
SUMMARy
Definition of theft
Dishonestly appropriating property belonging to another with the intention of perman-
ently depriving the other of it.
Appropriation
 Any assumption of the rights of an owner.
 It includes a later assumption where D has come by the property without stealing it.
 There is an appropriation even though the owner has consented.
 Property includes money and all other property real or personal, including things in
action and other intangible property.
 Things which cannot be stolen are:
 land or thing forming part of land (unless taken by a trustee, or when D is not in
possession of the land and takes a severed item or a tenant who takes any fixture 471
or fitting);
 plants and fungi growing wild and which are not picked for reward, sale or other

commercial purpose;
 wild creatures which are not in the possession of any person.
Belonging to another
 Property shall be regarded as belonging to any person having possession or control
of it, or having in it any proprietary right or interest.
 Where property is received under an obligation to deal with it in a particular way the
property is regarded as ‘belonging’ to the other.
 Where a person gets property by another’s mistake, and is under a legal obligation to
make restoration it is regarded as ‘belonging’ to the other.
Dishonesty
 It is immaterial whether the appropriation is made with a view to gain or is made for
the thief ’s own benefit.
 The Act does not define dishonesty. The courts have developed the Ghosh test for
dishonesty. This is a two-part test, so D is dishonest only if:
 what was done was dishonest according to the ordinary standards of reasonable
and honest people; and
 D realised that what he was doing was dishonest by those standards.
 Section 2(1) Theft Act 1968 states that D is not dishonest if he believes:
 he has in law the right to deprive the other of it, on behalf of himself or of a third
person; or
 he would have the other’s consent if the other knew of the appropriation and the
circumstances of it; or
 the person to whom the property belongs cannot be discovered by taking reason-
able steps.
Intention to permanently deprive
 D is regarded as having the intention to permanently deprive the other of it if his inten-
tion is to treat the thing as his own to dispose of regardless of the other’s rights.
 Borrowing is not theft unless it is for a period and in circumstances making it equi-
valent to an outright taking or disposal. This is keeping it until ‘the goodness, the
virtue, the practical value . . . has gone out of the article’.
SAMPLE ESSAy QUESTION

The key elements in the crime of theft are ‘appropriation’ and ‘dishonesty’. Neither element
was satisfactorily defined in the Theft Act 1968, but the courts have resolved the problems
through case law. Discuss.
State definition of theft s 1(1) of Theft Act 1986:

• Identify appropriation and dishonesty as elements in the definition
• Give definition of appropriation in s 3(1) TA 1968
• Point out there is no definition of dishonesty in Act
Expand on the definition of appropriation:

472 • ‘Any assumption’ of the ‘rights of an owner’
• Explain how this has been interpreted by the courts in cases, e.g.
Pitham v Hehl (1977), Corcoran v Anderton (1980), Lawrence (1972),
theft
Morris (1983), Gomez (1993)
Discuss the problems with the definition of appropriation, e.g.

• Is it right that the wording of s 3(1) should be read as ‘the
assumption of any of the rights of the owner’? Morris
• Is it right that there need be no adverse interference? Gomez
• Should it cover gifts? Hinks (2000)
• Width of meaning places greater emphasis on ‘dishonesty’ in
deciding guilt or innocence
Expand on ‘dishonesty’:
• Although no definition in Act, s 2(1) gives three situations where D is
not dishonest
• Section 2(2) states may be dishonest even if willing to pay test
• Courts have developed Ghosh two-part test
Discuss problems of Ghosh test, e.g.

• The idea of standards of ordinary reasonable and honest people is a
fiction
• It leaves too much to the jury
• Different juries (or magistrates) may have different standards (Gohill
(2007))
• The test may lead to longer and more complicated trials
Conclude
Further reading
Books
Ormerod, D and Williams, D, Smith’s Law of Theft (9th edn, Oxford University Press,
2007).
Articles
Beatson, J and Simester, A P, ‘Stealing one’s own property’ (1999) 115 LQR 372.
Gardner, S, ‘Property and theft’ (1998) Crim LR 35.
Griew, E, ‘Dishonesty: the objections to Feely and Ghosh’ (1985) Crim LR 341.
Halpin, A, ‘The Test for Dishonesty’ (1996) Crim LR 283.
Meissaris, E, ‘The concept of appropriation and the law of theft’ (2007) MLR 581.
Shute, S, ‘Appropriation and the law of theft’ (2002) Crim LR 445.
Smith, A T H, ‘Gifts and the law of theft’ (1999) CLJ 10.
473
further reADing
14
Robbery, burglary and other
offences in the Theft Acts
AIMS AND OBJECTIVES

student After reading this chapter you should be able to:
mentor tip
 Understand the actus reus and mens rea of robbery
‘Learn the
definitions of each  Understand the actus reus and mens rea of burglary and related offences
crime off by
heart.’  Understand the actus reus and mens rea of taking a conveyance
Andrie, University
of Dundee
 Understand the actus reus and mens rea of blackmail
 Understand the actus reus and mens rea of handling stolen goods
 Understand the actus reus and mens rea of making off without payment
 Analyse critically all the above offences
 Apply the law to factual situations to determine whether robbery, burglary or
other offences under the Theft Acts have been committed
In the last chapter we focused on the offence of theft. This chapter discusses other
offences contained in the Theft Act 1968, together with one offence from the Theft
Act 1978. Some of these have theft as an essential element, such as robbery.
Others are connected to theft, such as going equipped for theft or handling stolen
goods.
14.1 Robbery
Robbery is an offence under s 8 of the Theft Act 1968 and is, in effect, theft aggravated
by the use or threat of force.
SECTION
‘8 A person is guilty of robbery if he steals, and immediately before or at the time of doing so,
and in order to do so, he uses force on any person or puts or seeks to put any person in fear
of being then and there subjected to force.’
14.1.1 The actus reus of robbery
The elements which must be proved for the actus reus of robbery are:
 theft
 force or putting or seeking to put any person in fear of force.
In addition there are two conditions on the force, and these are that it
 must be immediately before or at the time of the theft; and
 must be in order to steal.
14.1.2 Theft as an element of robbery

There must be a completed theft for a robbery to have been committed. This means that
all the elements of theft have to be present. If any one of them is missing then, just as
476 there would be no theft, there is no robbery. So there is no theft in the situation where D
takes a car, drives it a mile and abandons it because D has no intention permanently to
deprive. Equally there is no robbery where D uses force to take that car. There is no
RobbeRy, buRglaRy and otheR offences
offence of theft, so using force cannot make it into robbery. This was illustrated by the
case of Zerei [2012] EWCA Crim 1114.
CASE EXAMPLE
Zerei [2012] eWca crim 1114
D and another man in a car park approached V, whom they knew, and told him they were
going to take his car. D then punched V and pulled out a knife, while the co-defendant held
V, and took V’s car keys. They then drove off in the car. The car was found soon afterwards,
abandoned about one kilometre away. D was convicted of robbery but the conviction was
quashed on appeal.
The Court of Appeal held that the trial judge had misdirected the jury on the issue of inten-
tion to permanently deprive. The judge had given the jury the impression that a forcible taking
was enough to show an intention to permanently deprive. This was not the law. The judge had
also failed to deal with the relevance of the car being abandoned by D after a short time.
D was also convicted of assault occasioning actual bodily harm and that conviction was
upheld.
Another example is where D has a belief that he has a right in law to take the property.
This would mean he was not dishonest and one of the elements of theft would be
missing, as seen in Robinson [1977] Crim LR 173.
CASE EXAMPLE
Robinson [1977] crim lR 173
D ran a clothing club and was owed £7 by I’s wife. D approached the man and threatened
him. During a struggle the man dropped a £5 note and D took it claiming he was still owed
£2. The judge directed the jury that D had honestly to believe he was entitled to get the
money in that way. This was not the test. The jury should have been directed to consider
whether he had a belief that he had a right in law to the money which would have made his
actions not dishonest under s 2(1)(a) of the Theft Act. The Court of Appeal quashed the con-
viction for robbery.
Where force is used to steal, then the moment the theft is complete, there is a robbery.
This is shown by Corcoran v Anderton [1980] Crim LR 385.
CASE EXAMPLE
Corcoran v Anderton [1980] crim lR 385
One defendant hit a woman in the back and tugged at her bag. She let go of it and it fell to the
ground. The defendants ran off without it (because the woman was screaming and attracting
attention). It was held that the theft was complete so the defendants were guilty of robbery.
However, if the theft is not completed, for instance if the woman in the case of Corcoran
v Anderton had not let go of the bag, then there is an attempted theft and D could be
charged with attempted robbery.
477
14.1.3 Force or threat of force
Whether D’s actions amount to force is something to be left to the jury. The amount of
force can be small. In Dawson and James (1976) 64 Cr App R 170, one of the defendants
14.1 RobbeRy
pushed the victim, causing him to lose his balance, which enabled the other defendant
to take his wallet. The Court of Appeal held that ‘force’ was an ordinary word and it was
for the jury to decide if there had been force.
It was originally thought that the force had to be directed at the person and that force
used on an item of property would not be sufficient for robbery. In fact this was the
intention of the Criminal Law Revision Committee when it put forward its draft Bill. It
said in its report that it would
quotation
‘not regard mere snatching of property, such as a handbag, from an unresisting owner as using
force for the purpose of the definition [of robbery], though it might be so if the owner resisted.’
This point was considered in Clouden [1987] Crim LR 56.
CASE EXAMPLE
Clouden [1987] crim lR 56
The Court of Appeal held that D was guilty of robbery when he had wrenched a shopping
basket from the victim’s hand. The Court of Appeal held that the trial judge was right to leave
to the jury the question of whether D had used force on a person.
It can be argued that using force on the bag was effectively using force on the victim, as
the bag was wrenched from her hand. However, if a thief pulls a shoulder bag so that it
slides off the victim’s shoulder, would this be considered force? Probably not. And it
would certainly not be force if a thief snatched a bag which was resting (not being held)
on the lap of someone sitting on a park bench.
This view is supported by P v DPP (2012) in which D snatched a cigarette from V’s hand
without touching V in any way. It was held that as there had been no direct contact between
D and V it could not be said that force had been used ‘on a person’. Therefore D was not
guilty of robbery. The situation was analogous to pickpocketing where D is unaware of
any contact. However, where the pickpocket (or accomplice) jostles V to distract him while
the theft is taking place, there is force which could support a charge of robbery.
Fear of force
The definition of ‘robbery’ makes clear that robbery is committed if D puts or seeks to
put a person in fear of force. It is not necessary that the force be applied. Putting V ‘in
fear of being there and then subjected to force’ is sufficient for robbery. This covers
threatening words, such as ‘I have a knife and I’ll use it unless you give me your wallet’,
and threatening gestures, such as holding a knife in front of V.
CASE EXAMPLE
Bentham [2005] uKhl 18
D put his fingers into his jacket pocket to give the appearance that he had a gun in there. He
then demanded money and jewellery. He was charged with robbery and pleaded guilty. He
was also charged with having in his possession an imitation firearm during the course of the
robbery contrary to s 17(2) of the Firearms Act 1968. His conviction for this was quashed by
478 the House of Lords.
It was clear that D was guilty of robbery as he had sought to put V in fear of being then
and there subjected to force. The fact that it was only his fingers did not matter for the
offence of robbery. However, for the offence of possessing an imitation firearm there
had to be some item and not just a part of D’s body. This was because what had to be
possessed had to be a ‘thing’ and that meant something which was separate and dis-
tinct from oneself. Fingers were therefore not a ‘thing’. In addition, the House of Lords
pointed out that if fingers were regarded as property for the purposes of s 143 of the
Powers of Criminal Courts (Sentencing) Act 2000 then this created the nonsense that
a court could theoretically make an order depriving D of his rights in them! Robbery
is also committed even if the victim is not actually frightened by D’s actions or words.
If D seeks to put V in fear of being then and there subjected to force, this element of
robbery is present. So if V is a plain clothes policeman put there to trap D and is not
frightened, the fact that D sought to put V in fear is enough. This was shown by B and
R v DPP [2007] EWHC 739 (Admin).
CASE EXAMPLE
B and R v DPP [2007] eWhc 739 (admin)
V, a schoolboy aged 16, was stopped by five other schoolboys. They asked for his mobile
phone and money. As this was happening, another five or six boys joined the first five and
surrounded the victim. No serious violence was used against the victim, but he was pushed
and his arms were held while he was searched. The defendants took his mobile phone, £5
from his wallet, his watch and a travel card. The victim said that he did not feel particularly
threatened or scared but that he was bit shocked.
The defendants appealed against their convictions for robbery on the basis that no force
had been used and the victim had not felt threatened. The Divisional Court upheld the convic-
tions for robbery on the grounds that:
 There was no need to show that the victim felt threatened; s 8 of the Theft Act 1968 states
that robbery can be committed if the defendant ‘seeks to put any person in fear of being
then and there subjected to force’.
 There could be an implied threat of force; in this case the surrounding of the victim by so
many created an implied threat.
 In any event, there was some limited force used by holding the victim’s arms and pushing
him.
On any person
This means that the person threatened does not have to be the person from whom the
theft occurs. An obvious example is an armed robber who enters a bank, seizes a cus-
tomer and threatens to shoot that customer unless a bank official gets money out of the
safe. This is putting a person in fear of being then and there subjected to force. The fact
that it is not the customer’s property which is being stolen does not matter.
14.1.4 Force immediately before or at the time of the

theft
The force must be immediately before or at the time of stealing. This raises two prob-
lems. First, how ‘immediate’ does ‘immediately before’ have to be? What about the situ-
ation where a bank official is attacked at his home by a gang in order to get keys and
security codes from him? The gang then drive to the bank and steal money. The theft has
taken place an hour after the use of force. Is this ‘immediately before’? It would seem 479
right that the gang should be convicted of robbery. But what if the time delay were
longer, as could happen if the attack on the manager was on Saturday evening and the
14.1 RobbeRy
theft of the money not until 24 hours later? Does this still come within ‘immediately
before’? There have been no decided cases on this point. The second problem is deciding
the point at which a theft is completed, so that the force is no longer ‘at the time of
stealing’.
CASE EXAMPLE
Hale [1979] crim lR 596
Two defendants knocked on the door of a house. When a woman opened the door they
forced their way into the house and one defendant put his hand over her mouth to stop her
screaming while the other defendant went upstairs to see what he could find to take. He took
a jewellery box. Before they left the house they tied up the householder and gagged her.
They argued on appeal that the theft was complete as soon as the second defendant picked
up the jewellery box, so the use of force in tying up the householder was not at the time of
stealing. However, the Court of Appeal upheld their convictions. The Court of Appeal thought
that the jury could have come to the decision that there was force immediately before the
theft when one of the defendants put his hand over the householder’s mouth. In addition,
the Court of Appeal thought that the tying up of the householder could also be force for the
purpose of robbery as it held that the theft was still ongoing.
JUDGMENT
‘We also think that [the jury] were also entitled to rely upon the act of tying her up provided
they were satisfied (and it is difficult to see how they could not be satisfied) that the force
so used was to enable them to steal. If they were still engaged in the act of stealing the
force was clearly used to enable them to continue to assume the rights the owner and per-
manently to deprive Mrs Carrett of her box, which is what they began to do when they first
seized it . . .
To say that the conduct is over and done with as soon as he laid hands on the property . . .
is contrary to common-sense and to the natural meaning of words . . . the act of appropriation
does not suddenly cease. It is a continuous act and it is a matter for the jury to decide whether
or not the act of appropriation has finished.’
So, in this case for robbery, appropriation is viewed as a continuing act or a course of
conduct. However, Hale (1979) was decided before Gomez (1993), which is the leading
case on appropriation in theft. Gomez (1993) rules that the point of appropriation is when
D first does an act assuming a right of the owner. This point was argued in Lockley [1995]
Crim LR 656. D was caught shoplifting cans of beer from an off-licence, and used force
on the shopkeeper who was trying to stop him from escaping.
He appealed on the basis that Gomez (1993) had impliedly overruled Hale (1979).
However, the Court of Appeal rejected this argument and confirmed that the principle
in Hale (1979) still applied in robbery.
But there must be a point when the theft is complete and so any force used after this
point does not make it robbery. What if in Lockley (1995) D had left the shop and was
running down the road when a passer-by (alerted by the shouts of the shopkeeper) tried
to stop him? D uses force on the passer-by to escape. Surely the theft is completed before
this use of force? The force used is a separate act to the theft and does not make the theft
480 a robbery. The force would, of course, be a separate offence of assault.
The point that force must be used ‘immediately before or at the time of stealing’ was
the critical issue in Vinall [2011] EWCA Crim 6252.
CASE EXAMPLE
Vinall [2011] eWca crim 6252
Ds punched V causing him to fall off his bicycle. One of the defendants said to V, ‘Don’t try
anything stupid, I’ve got a knife.’ V fled on foot chased by Ds. Ds gave up the chase and went
back to the bicycle and walked off with it. They abandoned it by a bus shelter about 50 yards
from where V had left it.
The trial judge directed the jury that the intention to permanently deprive V of the bicycle
could have been formed either at the point in time when the bicycle was first taken or when
it was abandoned as this would amount to a fresh appropriation. The jury convicted Ds of
robbery. On appeal the Court of Appeal quashed their convictions.
They pointed out that robbery requires proof that D stole and used (or threatened) force
either ‘immediately before or at the time of ’ stealing and that the force was used in order to
steal. It was not possible to know whether the jury had decided that the intention to perman-
ently deprive was formed at the time when the bicycle was first taken or when it was left at
the bus stop. If the jury had found that the intention for theft was only formed at the time of
abandonment, then there was no robbery. So the convictions were unsafe.
Finally it should be noted that the threat of force in the future cannot constitute robbery,
although it may be blackmail.
14.1.5 Force in order to steal

The force must be used in order to steal. So if the force was not used for this purpose,
then any later theft will not make it into robbery. Take the situation where D has an
argument with V and punches him, knocking him out. D then sees that some money has
fallen out of V’s pocket and decides to take it. The force was not used for the purpose of
that theft and D is not guilty of robbery, but guilty of two separate offences: an assault
and theft.
14.1.6 Mens rea for robbery

D must have the mens rea for theft, that is, he must be dishonest and he must intend to per-
manently deprive the other of the property. He must also intend to use force to steal.
14.1.7 Possible reform of law of robbery
Robbery is a combination of two offences: theft and an assault of some level. The amount
of force required is very small. Andrew Ashworth in ‘Robbery reassessed’ (2002) Crim
LR 851 points out that non-fatal offences against the person reflect the amount of force
used and suggests that robbery should have at least two levels with different degrees of
force. Ashworth also questions whether it is necessary for the offence to exist. Instead of
charging robbery it would be possible to charge D with separate offences of theft and the
relevant assault.
quotation
‘A more radical proposal would be to abolish the offence of robbery. It would then be left to
prosecutors to charge the components of theft and violence separately, which would focus
the court’s attention on those two elements, separately and then (for sentencing purposes) in 481
combination. The principal difficulty with this is the absence from English law of an offence of
threatening injury: between the summary offence of assault by posing a threat of force, and
14.1 RobbeRy
the serious offence of making a threat to kill, there is no intermediate crime. This gap ought
to be closed, and, if it were, there would be a strong argument that the crime of robbery
would be unnecessary.’
kEy fACTS
Key facts on robbery
Element Law Case

Theft There must be a completed theft; if any Robinson (1977)
element is missing there is no theft and
therefore no robbery.
The moment the theft is completed Corcoran v Anderton (1980)
(with the relevant force) there is robbery.
Force or threat The jury decide whether the acts were Dawson and James (1976)
of force force, using the ordinary meaning of the
word.
It includes wrenching a bag from V’s Clouden (1987)
hand.
It does not include snatching a cigarette P v DPP (2012)
from V’s fingers
Immediately For robbery, theft has been held to be a Hale (1979)
before or at the continuing act.
time of the theft Using force to escape can still be at the Lockley (1995)
time of the theft.
In order to steal The force must be in order to steal. –
Force used for another purpose does not
become robbery if D later decides to steal.
On any person The force can be against any person. –
It does not have to be against the victim
of the theft.
Has D stolen any property? Not robbery because there is
NO no theft
YES
Has D used force or put Not robbery because no

any person in fear of NO force
force?
YES
Was the force used Not robbery but separate

immediately before or at NO offences of theft and assault
482
the time of the theft?
YES
Was the force used in order Not robbery because there is

to steal? NO no theft
YES
The offence of robbery has

been committed
Figure 14.1 Flow chart on robbery.
ACTIVITy
applying the law
Explain whether or not a robbery has occurred in each of the following situations.
1. Arnie holds a knife to the throat of a one-month-old baby and orders the baby’s mother to
hand over her purse or he will ‘slit the baby’s throat’. The mother hands over her purse.
2. Brendan threatens staff in a post office with an imitation gun. He demands that they hand
over the money in the till. One of the staff presses a security button and a grill comes down
in front of the counter so that the staff are safe and Brendan cannot reach the till. He leaves
without taking anything.
3. Carla snatches a handbag from Delia. Delia is so surprised that she lets go of the bag and
Carla runs off with it.
4. Egbert breaks into a car in a car park and takes a briefcase out of it. As he is walking away
from the car, the owner arrives, realises what has happened and starts to chase after Egbert.
The owner catches hold of Egbert, but Egbert pushes him over and makes his escape.
5. Fenella tells Gerry to hand over his Rolex watch and, that if he does not, Fenella will send
her boyfriend round to beat Gerry up. Gerry hands over the watch.
NOTE: see Appendix 2 for an example of how to apply the law of robbery in a problem/
scenario type question.
14.2 Burglary
This is an offence under s 9 of the Theft Act l968.
SECTION
‘9(1) A person is guilty of burglary if –
(a) he enters any building or part of a building as a trespasser and with intent to commit
any such offence as is mentioned in subsection (2) below; or
(b) having entered a building or part of a building as a trespasser he steals or attempts
to steal anything in the building or that part of it or inflicts or attempts to inflict on
any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in
the building or part of a building in question, of inflicting on any person therein any 483
grievous bodily harm, and of doing unlawful damage to the building or anything
therein.’
14.2 buRglaRy
As can be seen by reading these subsections, burglary can be committed in a number of
ways and the following chart shows this.
kEy fACTS
Key facts on different ways of committing burglary
Burglary
Section 9(1)(a) Section 9(1)(b)

Enters a building or part of a building as a trespasser. Having entered a building or part of
a building as a trespasser.
With intent to: • steals or attempts to steal; or
• steal • inflicts or attempts to inflict
• inflict grievous bodily harm grievous bodily harm.
• do unlawful damage.
N.B. used to include intention to rape but this is now
covered by s 63 Sexual Offences Act 2003.
14.2.1 The actus reus of burglary

To prove the actus reus of burglary under s 9(l)(a) the prosecution must show that D
entered a building or part of a building as a trespasser. For the actus reus of burglary
under s 9(l)(b) it has to be proved that D had entered a building or part of a building as
a trespasser and then stolen or attempted to steal or inflicted or attempted to inflict
grievous bodily harm.
Although ss 9(l)(a) and 9(l)(b) create different ways of committing burglary, they do
have common elements. These are that there must be:
 entry
 of a building or part of a building
 as a trespasser.
The distinguishing feature between the subsections is the intention at the time of entry.
For s 9(1)(a) the defendant must intend to do one of the three listed offences (known as
ulterior offences) at the time of entering. However, there is no need for the ulterior
offence to take place or even be attempted. For s 9(1)(b), what the defendant intended on
entry is irrelevant, but the prosecution must prove that he actually committed or
attempted to commit theft or grievous bodily harm.
14.2.2 Entry
‘Entry’ is not defined in the 1968 Act. Prior to the Act, common law rules had developed
on what constituted entry. The main rules were that the entry of any part of the body
(even a finger) into the building was sufficient and also that there was an entry if D did
not physically enter but inserted an instrument for the purpose of theft (for example,
where D used a fishing net to try to pick up items). Initially when the courts had to inter-
pret the word ‘enters’ in the Theft Act 1968, they took a very different line from the old
484 common law rules.
The first main case on this point was Collins [1972] 2 All ER 1105 (see section 14.2.4 for
the facts of Collins). In this case the Court of Appeal said that the jury had to be satisfied
that D had made ‘an effective and substantial entry’. However, in Brown [1985] Crim LR
167, this concept of ‘an effective and substantial entry’ was modified to ‘effective entry’.
CASE EXAMPLE
Brown [1985] crim lR 167
D was standing on the ground outside but leaning in through a shop window rummaging
through goods. The Court of Appeal said that the word ‘substantial’ did not materially assist
the definition of entry and his conviction for burglary was upheld as clearly in this situation his
entry was effective.
However, in Ryan [1996] Crim LR 320, the concept of ‘effective’ entry does not appear to
have been followed.
CASE EXAMPLE
Ryan [1996] crim lR 320
D was trapped when trying to get through a window into a house at 2.30 a.m. His head and
right arm were inside the house but the rest of his body was outside. The fire brigade had to
be called to release him. This could scarcely be said to be an ‘effective’ entry. However, the
Court of Appeal upheld his conviction for burglary, saying that there was evidence on which
the jury could find that D had entered.
14.2.3 Building or part of a building

The Theft Act 1968 does not define building but does give an extended meaning to it to
include inhabited places such as houseboats or caravans, which would otherwise not be
included in the offence. This is set out in s 9(4).
SECTION
‘9(4) References . . . to a building shall apply also to an inhabited vehicle or vessel, and shall
apply to any such vehicle or vessel at times when the person having a habitation is not there
as well as at times when he is.’
The main problems for the courts have come where a structure such as a portacabin has
been used for storage or office work. In a very old case decided well before the Theft Act
1968, Stevens v Gourley (1859) 7 CB NS 99, it was said that a building must be ‘intended
to be permanent, or at least to endure for a considerable time’.
This means that the facts of each case must be considered. There are two cases on
whether a large storage container is a building. In these cases the court came to different
decisions after looking at the facts.
 In B and S v Leathley [1979] Crim LR 314 a 25-foot-long freezer container which had
been in a farmyard for over two years was used as a storage facility. It rested on
sleepers, had doors with locks and was connected to the electricity supply. This was
held to be a building.
 In Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167 a lorry trailer with
wheels which had been used for over a year for storage, had steps that provided
access and was connected to the electricity supply was held not to be a building. The
fact that it had wheels meant that it remained a vehicle. 485
Part of a building
The phrase ‘part of building’ is used to cover situations in which the defendant may
14.2 buRglaRy
have permission to be in one part of the building (and therefore is not a trespasser in that
part) but does not have permission to be in another part. A case example to demonstrate
this is Walkington [1979] 2 All ER 716. D went into the counter area in a shop and opened
a till. He was guilty of burglary under s 9(1)(a) because he had entered part of a building
(the counter area) as a trespasser with the intention of stealing. Other examples include
storerooms in shops where shoppers would not have permission to enter or where one
student entered another student’s room in a hall of residence without permission.
14.2.4 As a trespasser
In order for D to commit burglary he must enter as a trespasser. If a person has permis-
sion to enter he is not a trespasser. This was illustrated by the unusual case of Collins
(1972). N.B. Since May 2004, Collins would be charged with an offence under s 63, Sexual
Offences Act 2003.
CASE EXAMPLE
Collins [1972] 2 all eR 1105
D, having had quite a lot to drink, decided he wanted to have sexual intercourse. He saw an
open window and climbed a ladder to look in. He saw there was a naked girl asleep in bed.
He then went down the ladder, took off all his clothes except for his socks and climbed back
up the ladder to the girl’s bedroom. As he was on the window sill outside the room, she woke
up, thought he was her boyfriend and helped him into the room where they had sex. He was
convicted of burglary under s 9(1)(a), i.e. that he had entered as a trespasser with intent to
rape. (He could not be charged with rape, as the girl accepted that she had consented to sex.)
He appealed on the basis that that he was not a trespasser as he had been invited in. The
Court of Appeal quashed his conviction, pointing out:
JUDGMENT
‘there cannot be a conviction for entering premises “as a trespasser” within the meaning of s
9 of the Theft Act 1968 unless the person entering does so knowing he is a trespasser and
nevertheless deliberately enters, or, at the very least, is reckless whether or not he is entering
the premises of another without the other party’s consent.’
So to succeed on a charge of burglary, the prosecution must prove that the defendant
knew, or was subjectively reckless, as to whether he was trespassing.
Going beyond permission

However, where the defendant goes beyond the permission given, he may be considered
a trespasser. In Smith and Jones [1976] 3 All ER 54, Smith and his friend went to Smith’s
father’s house in the middle of the night and took two television sets without the father’s
knowledge or permission. The father stated that his son would not be a trespasser in the
house; he had a general permission to enter. The Court of Appeal referred back to the
judgment in Collins (1972) and added this principle.
JUDGMENT
‘It is our view that a person is a trespasser for the purpose of s 9(1)(b) of the Theft Act 1968 if
486 he enters premises of another knowing that he is entering in excess of the permission that has
been given to him to enter, or being reckless whether he is entering in excess of [that]
permission.’
This meant that Smith was guilty of burglary. This decision was in line with the Austral-
ian case of Barker v R (1983) 7 ALJR 426, where one person who was going away asked
D, who was a neighbour, to keep an eye on the house and told D where a key was
hidden should he need to enter. D used the key to enter and steal property. He was
found guilty of burglary. The Australian court said:
JUDGMENT
‘If a person enters for a purpose outside the scope of his authority then he stands on no better
position than a person who enters with no authority at all.’
Professor Sir John Smith argued that this would mean that a person who enters a shop
with the intention of stealing would be guilty of burglary as he only has permission to
enter for the purpose of shopping. However, it would be difficult in most cases to prove
that the intention to shoplift was there at the point of entering the shop.
There are many situations where a person has permission to enter for a limited
purpose. For example, someone buys a ticket to attend a concert in a concert hall or to
look round an historic building or an art collection. The ticket is a licence (or permission)
to be in the building for a very specific reason and/or time. If D buys a ticket intending
to steal one of the paintings from the art collection, this line of reasoning would suggest
that he is guilty of burglary. However, in Byrne v Kinematograph Renters Society Ltd [1958]
2 All ER 579, a civil case, it was held that it was not trespass to gain entry to a cinema by
buying a ticket with the purpose of counting the number in the audience, not with the
purpose of seeing the film. This case was distinguished in Smith and Jones (1976) on the
basis that the permission to enter a cinema was in general terms and not limited to
viewing the film and was very different from the situation where D enters with the
intention to steal (or cause grievous bodily harm or criminal damage).
If a person has been banned from entering a shop (or other place), then there is no
problem. When they enter they are entering as a trespasser. This means that a known
shoplifter who is banned from entering a local supermarket would be guilty of burglary
if he or she entered intending to steal goods (s 9(1)(a)) or if, having entered, he then stole
goods (s 9(1)(b)).
The law is also clear where D gains entry through fraud, such as where he claims to
be a gas meter reader. There is no genuine permission to enter and D is a trespasser.
14.2.5 Mens rea of burglary
There are two parts to the mental element in burglary. These are in respect of:
 entering as a trespasser;
 the ulterior offence.
First, as stated above, the defendant must know, or be subjectively reckless, as to whether
he is trespassing. In addition, for s 9(1)(a) the defendant must have the intention to
commit one of the offences at the time of entering the building. Where D is entering
intending to steal anything he can find which is worth taking, then this is called a condi-
tional intent. This is sufficient for D to be guilty under s 9(1)(a). This was decided in
Attorney-General’s References Nos 1 and 2 of 1979 [1979] 3 All ER 143.
For s 9(1)(b), the defendant must have the mens rea for theft or grievous bodily harm
when committing (or attempting to commit) the actus reus of these offences.
487
14.2.6 Burglary of a dwelling
This carries a higher maximum sentence than burglary of other types of building as a
14.2 buRglaRy
result of an amendment to the Theft Act 1968 by the Criminal Justice Act 1991. Section
9(3) now reads:
SECTION
‘9(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment
for a term not exceeding –
(a) where the offence was committed in respect of a building or part of a building
which is a dwelling, fourteen years;
(b) in any other case, ten years.’
This reflects the public view that burglary of someone’s home is more serious (and
more frightening for the victim) than burglary of another type of building such as a
shed or an office or a warehouse. The word ‘dwelling’ includes an inhabited vehicle
or vessel.
kEy fACTS
Key facts on burglary
Elements Comment Case/section

Entry This has changed from
• ‘effective and substantial’ entry to Collins (1972)
• ‘effective’ entry to Brown (1985)
• evidence for the jury to find D had Ryan (1996)
entered.
Building or part Must have some permanence. B and S v Leathley (1979)
of a building Norfolk Constabulary v Seekings and
Gould (1986)
Includes inhabited vehicle or vessel. s 9(4) Theft Act 1968
Can be entry of part of a building. Walkington (1979)
As a trespasser If has permission is not a trespasser. Collins (1972)
If goes beyond permission then can Smith and Jones (1976)
be a trespasser.
Mens rea Must know or be subjectively reckless
as to whether he is a trespasser
PLUS EITHER
intention at point of entry to commit s 9(1)(a) Theft Act 1968
• theft or
• grievous bodily harm or
• criminal damage
OR
mens rea for theft or grievous bodily s 9(1)(b) Theft Act 1968
harm at point of committing or
488 attempting to commit these offences
in a building.
ACTIVITy
applying the law
In each of the following, explain whether or not a burglary has occurred, and if so whether it
would be an offence under s 9(1)(a) or s 9(1)(b).
1. Jonny has been banned from a local pub. One evening he goes there for a drink with a
friend. While he is waiting for the friend to get the drinks at the bar, Jonny sees a handbag
under one of the chairs. He picks it up and takes a £10 note from it. He then puts the
handbag back under the chair.
2. Ken and his partner, Lola, have split up and Ken has moved out of the flat he shared with
Lola, taking most of his belongings with him. One evening he goes back there to collect the
rest of his belongings. Lola is out so Ken asks the neighbour to let him have the spare key
which the neighbour keeps for emergencies. While Ken is packing his clothes, Lola returns.
They have an argument and Ken beats up Lola causing her serious injuries.
3. Mike works as a shelf-filler in a DIY store. One day when he is putting packs of batteries
out on to a shelf, he slips one in his pocket. He does not intend to pay for it. Later in the
day he sees the manager leave her office. Mike goes in and takes money from the desk.
The door to the office has a notice saying ‘Private’.
4. Nigella, who is a pupil at the local comprehensive, goes to the school buildings late in the
evening after school. She intends to damage the science lab as she hates the teacher. She
gets in through a window but is caught by the caretaker before she does any damage.
NOTE: see Appendix 2 for an example of how to apply the law of burglary to a problem/scen-
ario type question.
14.3 Aggravated burglary

This is where a burglary is made more serious by the carrying of an article which could
be used to inflict injury. The Criminal Law Revision Committee in its Eighth Report
pointed out that ‘burglary when in possession of the articles mentioned [in s 10] is so
serious that it should in our opinion be punishable with imprisonment for life. The
offence is comparable with robbery . . . It must be extremely frightening to those in the
building, and it might well lead to loss of life.’
The offence is set out by s 10 of the Theft Act 1968:
SECTION
‘10 A person is guilty of aggravated burglary if he commits any burglary and at the time has
with him any firearm or imitation firearm, any weapon of offence, or any explosive, and for
this purpose –
(a) “firearm” includes an airgun or air pistol and “imitation firearm” means anything
which has the appearance of being a firearm, whether capable of being discharged or
not; and
(b) “weapon of offence” means any article made or adapted for use for causing injury to
or incapacitating a person, or intended by the person having it with him for such use;
and
(c) “explosive” means any article manufactured for the purpose of producing a practical
effect by explosion, or intended by the person having it with him for that purpose.’ 489
These articles cover a wide range of things, especially ‘weapon of offence’, which is
14.3 aggRavated buRglaRy

much wider than the definition of ‘offensive weapon’ in the Prevention of Crime Act
1953. In s 10 it includes any article intended by D to cause injury or to incapacitate a
person. This appears to include such items as rope or masking tape which D intends to
use to tie up the householder.
14.3.1 Has with him

A key part of the offence of aggravated burglary is that D has the article with him at the
time of the burglary. So for a s 9(1)(a) burglary, he must have it at the moment of entry,
but for a s 9(1)(b) burglary he must have it at the point when he commits or attempts to
commit the ulterior offence. These points are illustrated by the case of Francis [1982]
Crim LR 363.
CASE EXAMPLE
Francis [1982] crim lR 363
The defendants, who were armed with sticks, demanded entry. Having been allowed to
enter, they then put down the sticks. Later they stole items from the house. Their convictions
for aggravated burglary were quashed because although they had the weapons with them
on entry, there was no evidence that they intended to steal at that point. Then, when they
did actually steal, they did not have the weapons with them, so the condition for s 9(1)(b) was
not satisfied.
Conversely the fact that D has no weapon when he enters does not prevent him from
being guilty of aggravated burglary if he picks up an article in the house and has it with
him when he then steals or causes grievous bodily harm. This was the position in O’Leary
(1986) 82 Cr App R 341. D did not have a weapon when he entered a house as a tres-
passer, but while in the house he picked up a knife from the kitchen. He then went
upstairs and threatened the occupants with the knife so that they gave him property. He
had the knife with him when he stole and, as this was the point at which he committed
a s 9(1)(b) burglary, he was guilty of aggravated burglary. It is also worth noting that, as
D had the knife with him at the point at which the burglary was committed, he would
have been guilty of aggravated burglary even if he had not used the knife.
Joint burglars
Where there are two or more offenders participating in the burglary, but only one of
them has a weapon, all of them may be guilty of aggravated burglary. The key fact is
that those without a weapon must know that one of the others has a weapon. However,
in Klass [1998] 1 Cr App R 453, it was decided that if the accomplice with one of the
aggravating articles remains outside the building, then the person entering will not have
committed aggravated burglary.
14.4 Removal of items from a place open to the public

This offence was included in the Theft Act 1968 to cover situations where an item is
removed from a museum, art gallery or historic house etc., but where it might not be
possible to prove an intention to deprive permanently for a charge of theft. The offence
is set out in s 11 of the Theft Act 1968:
490
SECTION
‘11(1) . . . where the public have access to a building in order to view the building or any part
of it, or a collection or part of a collection housed in it, any person who without lawful author-
ity removes from the building or its grounds the whole or part of any article displayed or kept
for display to the public in the building or that part of it shall be guilty of an offence. For this
purpose “collection” includes a collection got together for a temporary purpose, but refer-
ences in this section to a collection do not apply to a collection made or exhibited for the
purpose of effecting sales or other commercial dealings.’
14.4.1 Actus reus of removal of items from a public place

It has to be proved that an article was taken in the following circumstances:
 It must be from a place where the public have access; this can be a building or part of
a building or its grounds.
 The article must be displayed or kept for display; so this includes items which are not
at the time on display, e.g. those in a storeroom or upon which restoration work is
being carried out.
 The display must not be for a commercial purpose.
Section 11(2) makes it clear that where there is a permanent display, such as in a museum
or art gallery, then, even if the taking is on a day when the public do not have access to
the building, this offence is committed. However, where the display is temporary the
taking must be on a day when the public have access.
ACTIVITy
self-test questions
1. Explain the amount of force needed to prove robbery.
2. How does the ruling in Lockley (1995) appear to conflict with the ruling in Gomez (1993)
on appropriation?
3. Explain the different tests the courts have used for ‘entry’ in burglary.
4. How do the courts define trespasser for the purposes of burglary?
5. Why is it necessary to have an offence of removal of items from a public place (s 11 Theft
Act 1968) when there are offences of theft and burglary?
14.5 Taking a conveyance without consent
This is another offence which does not require proof of an intention permanently to
deprive. There are instances where the taking of a vehicle is theft and can be charged as
that; for example, where an expensive car is stolen and then sold to an innocent third
party. This section is not intended for that type of situation. It is meant to cover situ-
ations which are commonly referred to as ‘joyriding’; in other words, where D tempor-
arily takes or drives a vehicle and then abandons it.
The rationale for the offence is to cover temporary use of a conveyance, since it is
often difficult to prove that there was the intention permanently to deprive which is
necessary for proving theft.
The basic offence is set out in s 12(1) of the Theft Act 1968.
SECTION
491
‘12(1) Subject to subsections (5) and (6) below, a person shall be guilty of an offence if,
without having the consent of the owner or other lawful authority, he takes any conveyance
14.5 taKing a conveyance Without consent

for his own or another’s use or, knowing that any conveyance has been taken without such
authority, drives it or allows himself to be carried in or on it.’
Subsection (5) states that s 12(1) does not apply to pedal cycles, but instead it creates a
separate offence of taking a pedal cycle.
Subsection (6) goes to D’s mens rea and states that ‘a person does not commit an
offence under this section by anything done in the belief that he has lawful authority to
do it or that he would have the owner’s consent if the owner knew of his doing it and the
circumstances of it’.
14.5.1 Actus reus of taking a conveyance

There are three ways in which the actus reus of this offence can be committed:
 taking for his own or another’s use;
 driving;
 allowing oneself to be carried.
Each of these needs to be further explained.
Taking for his own or another’s use

There have been several cases on what is meant by taking. In Bogacki [1973] 2 All ER 864
the three defendants had got onto a bus in a depot and tried, unsuccessfully, to start it.
The Court of Appeal quashed their conviction because there was no ‘taking’. They
explained the decision by saying:
JUDGMENT
‘[It must] be shown that he took the vehicle, that is to say, that there was an unauthorised
taking possession or control of the vehicle by him adverse to the rights of the true owner,
coupled with some movement, however small . . . of that vehicle following such unauthorised
taking.’
In Bogacki (1973) the defendants could have been guilty of attempting to take the bus, but
not of the completed offence under s 12. In Bow [1977] Crim LR 176 D, his brother and
father were stopped by a gamekeeper, who suspected they were poaching. The game-
keeper parked his Land Rover blocking the way so that they could not drive off in their
own car. D got into the Land Rover, released the handbrake and sat in it while it rolled
about 200 yards, so that their escape route was no longer blocked. He did not start the
engine.
It was accepted that if D had not been in the vehicle while it rolled down the road,
then he would not have been guilty of an offence, as he had not taken it for his own or
another’s use. The Court of Appeal referred to J C Smith and B Hogan, Smith and Hogan’s
Criminal Law (3rd edn, Oxford University Press, 1973) and quoted the following
passage:
quotation
‘But subject to the requirement of taking, the offence does seem, in essence, to consist in
492
stealing a ride. This seems implicit in the requirement that the taking be for “his own or
another’s use”. Thus if D releases the handbrake of a car so that it runs down an incline, or
releases a boat from its moorings so that it is carried off by the tide this would not as such be
an offence within the section. The taking must be for D’s use or the use of another and if he
intends to make no use of the car or the boat there would be no offence under section 12.
But it would be enough if D were to release the boat from its moorings so that he would be
carried downstream in the boat.’
The taking does not need to involve driving or being in the conveyance, provided it is
intended for use later. This was shown in Pearce [1973] Crim LR 321 where D took a boat
away on a trailer.
Drive or allow himself to be carried

Where a person did not ‘take’ the conveyance, he can still be guilty under this section,
if he
 drove it knowing that it had been taken without consent; or
 allowed himself to be carried in it knowing that it had been taken without consent.
14.5.2 Without consent

The usual situation in cases charged under this section is where D has taken a car from
the street or a car park. In this type of situation there is no question that D did not have
the consent of the owner. However, there are cases where the owner has given consent
for some use of the conveyance but D has gone beyond the permission given. In these
cases it is still possible for D to be guilty.
An example is McGill (1970) 54 Cr App R 300.
CASE EXAMPLE
McGill (1970) 54 cr app Rep 300
D was given permission to use a car to drive another person to the station, on the condition
that D then returned the car immediately. D drove to the train station but then continued to
use the car and did not return it for some days. It was held that he was guilty under s 12. The
taking without permission occurred from the moment he used the car for his own purpose
after leaving the station.
This situation can also happen where an employee has permission to drive a company
vehicle for work. If he uses it for his own purposes, then that is a taking without consent
of the owner. In McKnight v Davies [1974] RTR 4 the Queen’s Bench Divisional Court
upheld the conviction of a lorry driver who had not returned a lorry at the end of his
working day but had used it for his own purposes, only returning it in the early hours
of the following morning.
In both these cases there was a clear limit on the permission given to D and when D
went beyond that permission he was guilty under s 12. However, in Peart [1970] 2 All ER
823 it was held that D was not guilty of an offence under s 12 when he obtained the use
of a van by pretending that he had an urgent appointment in Alnwick and would return
the van by 7.30 p.m. In fact, he drove to Burnley and was found there with the van by the
police at 9 p.m. The Court of Appeal took the view that the owner had merely been
deceived as to the purpose for which the van was to be used and this did not vitiate the
owner’s consent to the taking of the van at the start of the journey. The Court of Appeal
could not consider whether there was a taking at a later point (either when D diverted 493
from the route to Alnwick or when he continued to use the van after 7.30 p.m.), because
this point had not been left to the jury.
14.5 taKing a conveyance Without consent

In Whittaker v Campbell [1983] 3 All ER 582 the Queen’s Bench Divisional Court came
to the decision that D was not guilty of a s 12 offence where D, who did not hold a
driving licence, hired a van using a driving licence belonging to another person. The
fraud went only to the hiring of the van and not its use. The actual use that D made of
the van was within the terms of the hiring.
14.5.3 Conveyance
What can be taken? The word used is ‘conveyance’ and this is defined very widely in s
12(7)(a):
SECTION
‘12(7)(a) “Conveyance” means any conveyance constructed or adapted for the carriage of a
person or persons whether by land, water or air, except that it does not include a conveyance
constructed or adapted for use only under the control of a person not carried in or on it, and
“drive” shall be construed accordingly.’
So this does not cover just road vehicles: it also includes trains, boats and aircraft. There
are only two conditions placed on this wide definition. The first is that the conveyance
must have been constructed or adapted for carrying people. The second is that the oper-
ator (or person in control) must also be carried in it or on it. This excludes radio-operated
vehicles.
14.5.4 Mens rea of taking a conveyance

The mens rea of this offence differs according to whether D has taken, driven or allowed
himself to be carried.
Where D has taken the conveyance, the taking must be intended. D must also know
that he does not have the consent of the owner or any other lawful authority for the
taking. Under s 12(6) D does not commit an offence if he believes he has the owner’s
consent or has lawful authority for the taking. The test for this appears to be subjective.
Provided D has a genuine belief that the owner would have consented, it does not matter
that the owner did not in fact consent.
Where D is not the original taker, but drives or allows himself to be carried in the
conveyance, then the prosecution must prove that D knew the conveyance had been
taken without the owner’s consent or other lawful authority. ‘Wilful blindness’ as to this
probably suffices for the mens rea.
NOTE: see Appendix 2 for an example of how to apply the law of taking a conveyance
in a problem/scenario type question.
14.6 Aggravated vehicle-taking

This offence was added to the Theft Act 1968 by the Aggravated Vehicle-Taking Act
1992 because of the number of cases under s 12 where cars, having been taken, were
driven dangerously, causing injury or damage. It was clear that a higher penalty was
needed for such cases. The new section states:
494
SECTION
‘12A(1) Subject to subsection (3) below, a person is guilty of aggravated taking of a vehicle if –
(a) he commits an offence under section 12(1) above (in this section referred to as
a ‘basic offence’) in relation to a mechanically propelled vehicle; and
(b) it is proved that, at any time after the vehicle was unlawfully taken (whether by
him or another) and before it was recovered, the vehicle was driven, or injury or
damage caused in one or more of the circumstances set out in paragraphs (a) to
(d) of subsection (2) below.
(2) The circumstances referred to in subsection (1)(b) above are –
(a) that the vehicle was driven dangerously on a road or other public place;
(b) that, owing to the driving of the vehicle, an accident occurred by which injury
was caused to any person;
(c) that, owing to the driving of the vehicle, an accident occurred by which damage
was caused to any property, other than the vehicle;
(d) that damage was caused to the vehicle.’
So in order to prove this offence the prosecution must show that

1. the basic offence was committed; and
2. that this was in relation to a mechanically propelled vehicle; and
3. one of the following:
 dangerous driving;
 injury owing to the driving;
 damage to other property owing to the driving;
 damage to the vehicle.
14.6.1 Dangerous driving

There is a two-part test for dangerous driving set out in s 12A(7). First, the way D drives
must fall ‘far below what would be expected of a competent and careful driver’, and
second, ‘it would be obvious to a competent and careful driver that driving the vehicle
in that way would be dangerous’. This imposes an objective standard on D.
14.6.2 Injury or damage
For the three situations set out in ss 12A(2)(b), 12A(2)(c) and 12A(2)(d), it is not neces-
sary to prove any fault in the driving of the defendant. The prosecution need only show
that D committed the basic offence and that one of the three things then occurred. This
was shown in the case of Marsh [1997] Crim LR 205, where a pedestrian ran out in front
of the car and was slightly injured. The Court of Appeal held that D was guilty even
though there was no fault in his driving.
Section 12A(3) allows for a person to be not guilty in two situations. These are:
 if the driving, accident or damage occurred before the basic offence was committed;
 if he was not in or on the vehicle or in the immediate vicinity when the driving, acci-
dent or damage occurred.
NOTE: see Appendix 2 for an example of how to apply the law of aggravated vehicle-
taking in a problem/scenario type question. 495
14.7 Abstracting electricity
14.8 blacKmail
It is necessary to have a separate offence for this, since electricity does not come within
the definition of property for the purposes of theft.
Section 13 of the Theft Act 1968 makes it an offence where a person ‘dishonestly
uses without due authority, or dishonestly causes to be wasted or diverted, any
electricity’.
The concept of dishonesty is that in the Ghosh [1982] 2 All ER 689 test (see Chapter 13,
section 12.5.2) so the first question is, was what was done dishonest by the ordinary
standards of reasonable and honest people? If it was not the defendant is not guilty.
However, if the jury decide that it was dishonest by those standards, then they must
consider the more subjective test of whether the defendant knew it was dishonest by
those standards.
14.8 Blackmail
This is an offence under s 21 Theft Act 1968 which states:
SECTION
‘21(1) A person is guilty of blackmail if, with a view to gain for himself or another or with
intent to cause loss to another, he makes any unwarranted demand with menaces;
and for this purpose a demand with menaces is unwarranted unless the person
making it does so in the belief –
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
(2) The nature of the act or omission demanded is immaterial, and it is also immaterial
whether the menaces relate to action to be taken by the person making the demand.’
So, from this it can be seen that there are four elements to be proved:
 a demand
 which is unwarranted; and
 made with menaces
 with a view to gain or loss.
For the actus reus D must make an unwarranted demand with menaces. For the mens rea
D must act with a view to gain or loss and must also intend to make an unwarranted
demand with menaces.
14.8.1 Demand
There must be a demand, but that demand may take any form, for example it may be
by words, conduct, in writing or by e-mail. It need not even be made explicitly to the
victim. In Collister and Warhurst (1955) 39 Cr App R 100 two police officers discussed the
chances of them dropping a charge against the defendant in return for payment. They
did this in circumstances where the defendant could easily overhear them and they
meant him to overhear them. Even though they did not make a direct demand, this was
held to be a demand for the purpose of blackmail. This case established that the demand
need not be made in an aggressive or forceful manner. It was followed in Lambert [2009]
EWCA Crim 2860.
496
CASE EXAMPLE
Lambert [2009] eWca crim 2860

A owed D money, so D phoned A’s grandmother pretending to be A. He said ‘Nana this is [A].
They’ve got me tied up. They want £5,000, Nana.’ The grandmother believed the caller was A
but said she did not have the money. A second demand was also unsuccessful. D was con-
victed of blackmail. It was held that the phone call of D was clearly a demand.
Making the demand is the actus reus of the offence. It does not have to be received by
the victim. So, if a demand is sent through the post then the demand is considered
made at the point the letter is posted. This was decided by the House of Lords in
Treacy [1971] 1 All ER 110, when D posted a letter containing a demand with menaces
posted in England to someone in Germany. The offence of blackmail was therefore
committed in England. However, Lord Diplock thought that the demand continues
until it reaches the victim. So, if the reverse had happened, i.e. a letter posted in
Germany to someone in England, the demand can also be considered as occurring at
the point when the victim reads it and, again, the offence would have been committed
in England.
In Lambert (2009) the Court of Appeal also pointed out that a demand was still a
demand even if it was impossible to carry it out.
14.8.2 Unwarranted demand

Section 21 explains that any demand made with menaces is unwarranted unless the two
tests set out in s 21(1)(a) and s 21(1)(b) are fulfilled. This means that D has to show that
he believed:
 he had reasonable grounds for making the demand;
 the use of the menaces was a proper means of reinforcing the demand.
These tests focus on D’s belief and so give a subjective element to what is an unwar-
ranted demand. They also mean that where D has a genuine claim, he can still be guilty
of blackmail if he does not believe that the use of the menaces was a proper means of
reinforcing the demand. This was clearly the intention of the Criminal Law Revision
Committee, which wrote in its Eighth Report:
quotation
‘The essential feature of the offence will be that the accused demands something with menaces
when he knows either that he has no right to make the demand or that the use of the
menaces is improper. This, we believe, will limit the offence to what would ordinarily be
thought to be included in blackmail. The true blackmailer will know that he has no reasonable
grounds for demanding money as the price of his victim’s secret: the person with a genuine
claim will be guilty unless he believes that it is proper to use the menaces to enforce his
claim.’
The report also explained that the word ‘proper’ was chosen because ‘it directs the mind
to the consideration of what is morally and socially acceptable’.
The fact that menaces were not a proper means of reinforcing a demand was essential
in Harvey (1981) 72 Cr App R 139.
497
CASE EXAMPLE
14.8 blacKmail
Harvey (1981) 72 cr app R 139
D and others had paid the victim £20,000 for what was claimed to be cannabis. In fact it was,
as D put it, ‘a load of rubbish’. The defendants wanted their money back as they felt they had
been ‘ripped off ’ to the tune of £20,000. In fact, as the deal was an illegal contract, there was
no right in law to recover the money. However, it could be accepted that the defendants
believed they had ‘reasonable grounds for making the demand’. But the defendants rein-
forced their demand by kidnapping the victim, his wife and child, and threatened to cause
them serious physical injury if the money was not repaid. They were guilty.
The same point was made in Lambert [2009] EWCA Crim 2860 where D was owed money
by A. D attempted to get the money paid by A’s grandmother by pretending to be A and
stating that he was being held for ransom. D argued that as he was owed the money the
demand was not unwarranted. His conviction was upheld as threatening A’s grand-
mother was not a proper means of enforcing his demand. Menacing the grandmother in
the way he did is unlikely to be a ‘morally and socially acceptable’ way of enforcing a
debt.
14.8.3 Menaces
The demand must be made with menaces. Menaces have been held to be a serious threat,
but are wider than just a threat. In Thorne v Motor Trade Association [1937] 3 All ER 157,
Lord Wright said:
JUDGMENT
‘I think the word “menace” is to be liberally construed and not as limited to threats of violence
but as including threats of any action detrimental to or unpleasant to the person addressed. It
may also include a warning that in certain events such action is intended.’
In Clear [1968] 1 All ER 74 it was said that the menace must either be ‘of such a nature
and extent that the mind of an ordinary person of normal stability and courage might be
influenced or made apprehensive by it so as to unwillingly accede to it’. It is not neces-
sary to prove that the victim was actually intimidated. So if the menaces would affect an
ordinary person, this is sufficient, but if they would not, then blackmail cannot usually
be proved. However, in Garwood [1987] 1 All ER 1032 the Court of Appeal said that
where a threat is made which would not affect a normal person, this can still be menaces
if the defendant was aware of the likely effect on the victim.
CASE EXAMPLE
Harry [1974] crim lR 32
D, who was the treasurer of a college rag committee, sent letters to 115 local shopkeepers
asking them to buy a poster, with the money to go to charity. The poster contained the
words ‘These premises are immune from all Rag 73 activities whatever they may be’. The
letter sent out indicated that paying for a poster would avoid ‘any rag activity which could
in any way cause you inconvenience’. Of the 115 shopkeepers who received that letter, only
498 about five complained. The trial judge pointed out that as a group, the shopkeepers who
had received the letter were unconcerned about the supposed ‘threat’. He, therefore, ruled
that according to the definition given in Clear (1968), blackmail was not proved. There had
not been any ‘threat’ which influenced or made them apprehensive so as to unwillingly
accede to the demand.
It is irrelevant that D is not in a position to effect the menaces. In Lambert [2009] EWCA
Crim 2860, D pretended to be A and claimed that he was tied up and money was being
demanded for his release. As A was not tied up by anyone, the menaces could not be
carried out. The Court of Appeal referred to s 21(2) of the Theft Act 1968 which states
that it is immaterial whether the menaces relate to action to be taken by the person
making the demand.
14.8.4 View to gain or loss

The mens rea of blackmail is that D must be acting with a view to gain for himself or
another or with intent to cause loss to another. The interpretation section in the Theft Act
1968, s 34(2)(a) defines ‘gain’ and ‘loss’. This states that:
SECTION
‘34(2) For the purposes of this Act –
(a) “gain” and “loss” are to be construed as extending only to gain or loss in money
or other property, but as extending to any such gain or loss whether temporary or
permanent; and –
(i) “gain” includes a gain by keeping what one has, as well as a gain by getting
what one has not; and
(ii) “loss” includes a loss by not getting what one might get, as well as a loss by
parting with what one has.’
So the gain or loss must involve money or other property, but need not be permanent; it
can be temporary.
An unusual case on view to a gain or a loss was Bevans [1988] Crim LR 236 where D,
who was suffering from severe osteoarthritis, pointed a gun at his doctor and demanded
a morphine injection for pain relief. The doctor gave him the injection. It was held that
the morphine was property and, also, that it was both a gain for the defendant and a loss
to the doctor from whom it was demanded.
Has D made a demand? NO Not blackmail
YES
Is the demand unwarranted? NO Not blackmail
YES
Was the demand made with

NO Not blackmail
menaces? 499
YES
14.9 handling stolen goods

Was demand made with a
view to gain or cause a NO Not blackmail
loss?
YES
The offence of blackmail has

been committed
Figure 14.2 Flow chart on blackmail.
14.9 Handling stolen goods

This is an offence under s 22 Theft Act 1968, which states that:
SECTION
‘22 A person handles stolen goods if (otherwise than in the course of stealing) knowing or
believing them to be stolen goods he dishonestly receives the goods, or dishonestly under-
takes or assists in their retention, removal, disposal or realisation by or for the benefit of
another person or he arranges to do so.’
So to prove a charge of handling the following must be shown:

 The property comes within the definition of ‘goods’ in s 34(2)(b).
 Those goods were stolen at the time of the handling.
 The handler received or undertook or assisted in their retention, removal, disposal or
realisation.
 Where the allegation is that D undertook or assisted in their retention, removal, dis-
posal or realisation, this must be by another person or for another person’s benefit.
 D knew or believed the goods to be stolen.
 D was dishonest.
The first four points are the actus reus of the offence, and the last two points are the
mens rea.
14.9.1 Goods
The definition of goods set out by s 34(2)(b) is:
SECTION
‘34(2)(b) “goods” . . . includes money and every other description of property except land, and
includes things severed from the land by stealing.’
500
This definition does not specifically mention ‘a thing in action’ but the Court of Appeal,
in Attorney-General’s Reference (No 4 of 1979) [1981] 1 All ER 1193, was prepared to take
the view that it could be included in the wide definition of ‘every other description of
property’. The only exception to what can be handled is land. Things which have been
severed from land can be handled but the land itself (even though it is possible to steal
land in some circumstances) cannot be handled.
14.9.2 Stolen
The goods must be stolen for the full offence of handling to be committed, but where the
defendant believes the goods are stolen there can be an attempt to handle them, even
though they are not stolen. This was decided in Shivpuri [1986] 2 All ER 334 which,
although not a case on handling, overruled Anderton v Ryan [1985] 2 All ER 355 on the
point of attempting to commit the impossible (see Chapter 6, section 6.4).
Section 24(4) states that as well as goods obtained by theft (and remember that theft
is an element of robbery and can also be an element of burglary), stolen goods for the
purposes of the Theft Act 1968 include those obtained by deception under s 15(1) and
those obtained by blackmail.
Section 24(2) extends the definition of stolen goods to include other goods which
represent the stolen goods:
SECTION
‘24(2) . . . references to stolen goods shall include, in addition to the goods originally stolen
and any parts of them (whether in their original state or not) –
(a) any other goods which directly or indirectly represent the stolen goods in the
hands of the thief as being the proceeds of any disposal or realisation of the whole
or part of the stolen goods or of goods representing the stolen goods; and
(b) any other goods which directly or indirectly represent or have at any time repres-
ented the stolen goods in the hands of a handler of the stolen goods or any part
of them as being the proceeds of any disposal or realisation of the whole or part
of the stolen goods handled by him or of goods so representing them.’
This means that if the original goods are sold for cash, the money obtained for them is
proceeds, and is also regarded as stolen. This was accepted by the Court of Appeal in
Attorney-General’s Reference (No 4 of 1979), where it was stated that:
JUDGMENT
‘where . . . a person obtains cheques by deception and pays them into her bank account, the
balance in that account may, to the value of the tainted cheque, be goods which “directly . . .
represent . . . the stolen goods in the hands of the thief as being the proceeds of any disposal
or realisation of the . . . goods stolen” . . . within the meaning of section 24(2)(a).’
Also note that it is sufficient if D handles part of the goods. This could apply where a car
is stolen and broken up to be used in other cars. If D buys one of these cars (knowing or
believing that it or part of it is stolen), then he is guilty of handling.
A thief cannot be charged with handling for anything done in the course of the theft.
The correct charge against him is theft. However, if he steals, passes the goods on to an
accomplice and then later receives them back, at this point he can be guilty of handling
those goods, even though he stole them originally. 501
Goods ceasing to be stolen

Section 24(3) states that, where stolen goods have been restored to the person they
were stolen from, or to other lawful possession or custody, they are not considered
stolen goods for the purposes of handling. This has been important in cases where it
is discovered that goods have been stolen and a plan has been made to trap the handler
as, if the plan involves the goods returning into lawful possession, they will no longer
be stolen goods and D will not be guilty of handling. If the owner or person from
whom they were stolen (or the police) merely follows the thief to catch the handler,
then the goods have not been ‘restored to the person they were stolen from or to other
lawful possession or custody’. For example, in Greater London Metropolitan Police
Commissioner v Streeter (1980) 71 Cr App R 113, the goods were marked in order to trap
the handler, but they were still considered to be stolen goods. It was made clear in
Attorney-General’s Reference (No 1 of 1974) [1974] 2 All ER 899 that the facts of each case
have to be carefully considered.
CASE EXAMPLE
Attorney-General’s Reference (No 1 of 1974) [1974] 2 all eR 899
A police officer suspected that goods in the back of a parked car were stolen, so he removed
the rotor arm of the car to prevent it being driven away and kept watch. When D returned to
the car the officer questioned him about the goods and arrested him because he could not
give a satisfactory account. The jury acquitted the defendant and the Attorney-General referred
the point of law to the Court of Appeal. The Court held that the jury should have been asked
to consider the officer’s intention. If he had not made up his mind to take possession of the
goods before questioning D, then the goods would have remained stolen goods. If he had
already decided to take possession of the goods, then, by removing the rotor arm he had
reduced them into his possession. The police officer’s state of mind was something which
should have been left to the jury to find as a fact.
14.9.3 Handling
Section 24 creates a number of ways in which the actus reus of handling may be commit-
ted. These are:
 receiving or arranging to receive stolen goods;
 undertaking or assisting or arranging their
 retention
 removal
 disposal
 realisation.
These last four must be by another person or for the benefit of another person.
Each word used in s 24 to describe handling has a separate meaning. Receiving means
taking possession or control. As arranging to receive is sufficient for guilt, D does not
have to be in possession or control if he has arranged to be so in the future.
‘Retention’ means ‘keep possession of, not lose, continue to have’. This was demon-
strated by the case of Pitchley [1972] Crim LR 705.
502 CASE EXAMPLE

Pitchley [1972] crim lR 705
D was given £150 in cash by his son who asked him to take care of it for him. D put the money
into his Post Office savings account. At the time of receiving the money D was not aware that it
was stolen. His son said he had won it betting on horse races. Two days later D found out that it
was stolen, but did nothing, leaving the money in the account. He was convicted of handling. By
leaving the money in the account he had retained it on behalf of another person.
‘Removal’ is literally moving goods from one place to another. So this covers carrying
the goods from one house to the next-door house, up to arranging for the goods to be
flown out of the country. ‘Disposal’ is getting rid of them. This can be by destroying the
goods, giving them away or doing another act such as melting down silver items. ‘Reali-
sation’ means selling.
As already stated, the retention, removal, disposal and realisation must be done for
the benefit of another. In Bloxham [1982] 1 All ER 582 D purchased a car which he later
came to believe was stolen. He sold the car very cheaply to another person and was
charged with handling on the basis that he had disposed of or realised the car for anoth-
er’s benefit, the prosecution alleging that this was for the benefit of the purchaser. The
House of Lords held that he had been wrongly convicted. The disposal was for his own
benefit. It was the purchase which benefited the purchaser; and a purchase was not a
disposal or realisation of the car by the purchaser.
14.9.4 Undertaking or assisting

To be an offence the undertaking or assisting must be done in relation to retention,
removal, disposal or realisation of the goods. To be considered as assistance, something
must be done by the offender towards one of those four things. Knowing that stolen
items are being kept in your neighbour’s garage is not enough. Even using them does
not come within the offence. This was decided in Sander [1982] Cr App R 84, where D
used a stolen heater and battery charger in his father’s garage. By using them he had not
assisted in retaining or removing them (nor, of course, had he assisted in disposing of or
realising them). If he had allowed the items to be stored in his own garage, then that
would have been assisting in retaining them.
Although the undertaking or assistance is often by a physical act, for example, helping
to carry goods, it can also take the form of verbal or written representations. In addition,
the assistance need not be successful in achieving the retaining, removal, disposal or reali-
sation of the goods. Both these points were illustrated in Kanwar (1982) 75 2 All ER 528.
CASE EXAMPLE
Kanwar [1982] 2 all eR 528
D’s husband had used stolen goods to furnish their home. D was aware that the items were
stolen. When the police called and made inquiries about them, she gave answers which were
lies. The Court of Appeal in their judgment gave two specific examples. These were first that
in relation to a painting which was hanging on their living room, she said that she had pur-
chased it at a shop and had a receipt for it. She was unable to produce any receipt and tacitly
admitted that no such receipt existed. The second example was when she told the police that
she had bought a mirror in the market. Again this answer was a lie. Her conviction for hand-
ling stolen goods was upheld on the basis that her lies were aimed at assisting the retention
of the stolen goods.
The Court of Appeal explained the offence in this way:

503
JUDGMENT

‘To constitute the offence, something must be done by the offender, and done intentionally
and dishonestly, for the purpose of enabling the goods to be retained. Examples of such
conduct are concealing or helping to conceal the goods, or doing something to make them
more difficult to find or identify. Such conduct must be done knowing or believing the goods
to be stolen and done dishonestly and for the benefit of another.
We see no reason why the requisite assistance should be restricted to physical acts. Verbal
representations, whether oral or in writing, for the purpose of concealing the identity of stolen
goods may, if made dishonestly and for the benefit of another, amount to handling stolen
goods by assisting in their retention . . . The requisite assistance need not be successful in its
object.’
The court went on to explain that if the assistance had to be successful, it would lead to
the absurd situation that D would be not guilty of assisting in the retention of goods
when caught in the act of doing something such as hiding them. D could argue that, as
the police had recovered the goods, his effort at hiding them had not succeeded and he
should be not guilty.
14.9.5 Mens rea of handling

The defendant must know or believe the goods to be stolen at the time he does the act of
handling. In Pitchley (1972) D was not guilty when he received the money from his son
because at that time he did not know or believe it to be stolen. He only became guilty
when he knew the money was stolen and he then assisted by keeping the money. This
was why the charge related to the ‘retention of ’ the money, as D did retain the money
after he had the knowledge that the money was stolen.
The test is subjective. It is what D knows or believes, and not what he ought to have
known or realised. ‘Know’ is where D has first-hand information about the fact the
goods are stolen, e.g. he has been told by the thief that this is so. ‘Believe’ is the state of
mind where D says to himself, ‘I cannot say I know for certain that these goods are
stolen, but there can be no other reasonable conclusion in the light of all the circum-
stances.’ This definition of ‘believe’ was given in Hall [1985] Crim LR 377. The Court of
Appeal went on to say that ‘What is not enough, of course, is mere suspicion.’ This part
of the judgment was held later in Forsyth [1997] Crim LR 581 to be confusing because of
the use of the word ‘mere’. This might lead juries to consider that although ‘mere’ sus-
picion was not enough, ‘great’ suspicion was enough to convict, when in fact suspicion
is never enough to convict.
Professor Sir John Smith puts forward the theory that the Criminal Law Revision
Committee thought ‘believe’ would in fact cover a high level of suspicion. The Commit-
tee pointed out in its Eighth Report that there was a ‘serious defect’ in the law prior to
the 1968 Act, as the prosecution had to prove actual knowledge that the goods were
stolen and this was often impossible. It said:
quotation
‘In many cases indeed guilty knowledge does not exist, although the circumstances of the
transaction are such that the receiver ought to be guilty of an offence. The man who buys
goods at a ridiculously low price from an unknown seller whom he meets in a public house
may not know that the goods are stolen, and he may take the precaution of asking no ques-
504 tions. Yet it may be clear on the evidence that he believes that the goods were stolen.’
Cmnd 2977 (1966), para 64
Professor Sir John Smith said that this showed they intended to include what is known
as ‘wilful blindness’, which has been held in some offences to be included in the word
‘knowing’. In other words, D could be guilty of handling where he had great suspicion
that the goods were stolen, and chose to shut his eyes to the fact. However, the decision
in Forsyth (1997) means that even a very high level of suspicion does not come within the
definition of ‘believe’.
Dishonestly
The handling must be done dishonestly. The test for dishonesty is the same Ghosh (1982)
test as for theft. Was what was done dishonest by the ordinary standards of reasonable
and honest people? If it was not, the defendant is not guilty. However, if the jury decide
that it was dishonest by those standards, then they must consider the more subjective
test of whether the defendant knew it was dishonest by those standards.
14.10 Going equipped for stealing

This is an offence under s 25(1) Theft Act 1968, which states:
SECTION
‘25(1) A person shall be guilty of an offence if, when not at his place of abode, he has with
him any article for use in the course of or in connection with any burglary, theft or cheat.’
For the purposes of this section, ‘theft’ includes taking a conveyance under s 12(1) of the
Theft Act 1968 and ‘cheat’ refers to any offence under s 15.
14.10.1 Actus reus of going equipped

From s 25, it can be seen that the requirements for the actus reus of this offence are:
 D has with him
 any article
 for use in the course of or in connection with any burglary, theft or cheat; and
 D must not be at his place of abode.
Are the goods stolen?
YES
Has D done any of the following with the goods?

• received
• undertaken or assisted in for another
• retention
• removal
• disposal
• realisation
505
YES
14.10 going equipped foR stealing

Correct
Has this been done in the charge
YES
course of stealing? theft
NO
Did D know or believe that

the goods were stolen?
NO
Was D dishonest?
YES
D is guilty of handling
Figure 14.3 Flow chart on handling stolen goods.
Has with him

This, of course, includes items which D physically has on his person, such as car keys
which are in his pocket or gloves which he is wearing. But it also includes situations
where D can be thought of as being in possession or control of an article, such as a car he
has parked down the street. The items do not need to belong to him. It can be something
which he has just picked up. This point of view is supported by Minor v DPP [1988] Crim
LR 55, where D and another man were seen getting ready to siphon petrol from a car.
They had two empty petrol cans and a tube with them. There was no evidence that they
had brought these from their homes, but they clearly had them with them when the
police stopped them, and this was enough to make them guilty under s 25.
Any article
The Criminal Law Revision Committee made it clear that any article could come within
this section if it was intended for use in committing a burglary, theft or obtaining by
deception. In its Eighth Report it said:
quotation
‘[T]he offence under the [section] applies to possessing articles of any kind. There is no reason
for listing particular kinds of articles . . . anything intended for use in committing any of the
offences referred to should be included. The offence will apply for example, to firearms and
other offensive weapons, imitation firearms, housebreaking implements, any articles for the
purpose of concealing identity (for example, face masks, rubber gloves and false car number-
plates) and . . . [a variety of] car keys and confidence tricksters’ outfits. The reference to the
offender having the article for use “in the course of or in connection with” any of the offences
506 mentioned will secure that the offence under the clause will apply to having an article (for
example a motor car) for getting to the place of the crime.’
Cmnd 2799 (1966), para 148
The word ‘article’ has indeed been interpreted very widely by the courts, so that as well
as the type of items mentioned in the extract above, such articles as bottles of wine and
clothing with fake brand names have been included.
CASE EXAMPLE
Doukas [1978] 1 all eR 1061
D was a wine waiter in a hotel. He took bottles of wine into the hotel, intending to sell them
to people dining at the hotel, so that he could pocket the money. There was no doubt that the
bottles of wine were articles for the purpose of s 25. The main point on appeal was whether
they were for use in a s 15 offence of obtaining money by deception. In the earlier case of
Rashid [1977] 2 All ER 237, where a British Rail waiter had taken his own tomato sandwiches
to sell on board a train, Bridge LJ had suggested, obiter, that there would be no obtaining by
deception. It was thought that customers on the train would be indifferent as to whether their
sandwiches were ‘genuine’ British Rail sandwiches or from another source, so the deception
would not have any effect on their actions.
The Court of Appeal in Doukas (1978) disagreed with the obiter dicta statements in Rashid
(1977). It thought that any diner in the hotel would refuse to have the wine if they knew that
it was brought in by D for his own profit.
For use
In Minor v DPP (1988) it was held that it did not matter when D had come into posses-
sion of the cans and tube. The important point was that the ‘having with’ must be before
the theft or other offence. This was also seen in Ellames [1974] 3 All ER 130 where D was
stopped and he had with him articles which had been used in a robbery (masks, guns,
gloves) and which he was trying to get rid of. He was not guilty of having with him
these articles ‘for use’, as the robbery was in the past. The court did, however, say that D
could commit the offence if he had the items for future use by another person.
Under s 25(3) Theft Act 1968, proof that a person had with him any article made or
adapted for use in committing a burglary, theft or cheat shall be evidence that he had it
with him for such use. Where the item has an innocent use, such as a pair of gloves, then
it is for the prosecution to prove that the defendant intended to use it for a burglary,
theft or cheat.
Not at his place of abode
In Bundy [1977] 2 All ER 382 D argued that he used his car as his ‘place of abode’, as he had
nowhere to live. However, when he was arrested he had been driving the car and was not
at the site where he usually parked it to sleep. It was accepted that a car could be a ‘place
of abode’, but in the circumstances he was not there and so was guilty under s 25.
14.10.2 Mens rea of going equipped

The prosecution must prove that D
 knew he had the article; and
 intended to use it in the course of or in connection with one of the listed crimes.
The intention to use must be for a future crime. See Ellames above.
14.11 Making off without payment 507
This offence was created as it became obvious that the Theft Act 1968 left gaps in the law
where D was not guilty of any offence, even though his conduct would be seen as ‘crimi-
14.11 maKing off Without payment

nal’ by most people. The Criminal Law Revision Committee in its Thirteenth Report,
Section 16 of the Theft Act 1968, Cmnd 6733 (1977) recommended a new Act to fill those
gaps. This was done by the Theft Act 1978.
One of the gaps had become apparent in Greenburg [1972] Crim LR 331, where D had
filled his car up at a garage and then driven off without paying. He was not guilty of
theft because at the moment he appropriated the petrol it belonged to him. This is
because the civil law rules on the transfer of ownership in a sale of goods state that the
goods become D’s the moment that the petrol is put into the tank of his car. It was also
not possible to prove an offence of obtaining the petrol by false pretences because he
claimed he had gone into the garage intending to pay, and so made no deception about
his conduct. He only decided not to pay when he had filled up the tank.
This situation is now covered by s 3(1) of the Theft Act 1978 (remember this is a dif-
ferent Act from the Theft Act 1968), which makes it an offence, stating:
SECTION
‘3(1) Subject to subsection 3 below, a person who, knowing that payment on the spot for any
goods supplied or service done is required or expected from him, dishonestly makes off without
having paid as required or expected and with intent to avoid payment of the amount due shall
be guilty of an offence.
14.11.1 Actus reus of making off without payment

The points that have to be proved for the actus reus are the following:
 Goods have been supplied or a service done.
 Payment is required on the spot.
 D has made off.
 D has not paid as required.
Goods supplied or service done

The goods supplied or service done must be lawful. If the supply of goods is unlawful
(e.g. cigarettes to someone under 16) or the service is not legally enforceable (e.g. prosti-
tution), then under s 3(3) no offence has been committed.
If the service is not complete then there is no offence. This is shown by the case of
Troughton v Metropolitan Police [1987] Crim LR 138.
CASE EXAMPLE
Troughton v Metropolitan Police [1987] crim lR 138
D, who was drunk, hired a taxi to take him home but did not give the driver his exact address.
The driver stopped to get directions from D and there was an argument in which D accused
the driver of taking an unnecessary diversion. As the taxi driver could not get the exact address
from D, he drove to the nearest police station to see if someone could help. When the taxi
stopped D ran off.
The magistrates convicted D but, on appeal to the Divisional Court, the conviction was
quashed. This was because the journey had not been completed. That meant there was a
breach of contract by the taxi driver and so D was not required to pay the fare.
508
The offence covers a wide range of situations which include making off without paying
for a haircut or a taxi ride. It can also apply to customers in restaurants who leave without
paying for their meal or hotel guests who leave the hotel without paying for their
room.
Payment required on the spot

It has to be proved that payment on the spot was required or expected. In Vincent [2001]
Crim LR 488 D had stayed at two hotels and not paid his bills. He said that he had
arranged with the proprietors of each to pay when he could, so payment on the spot was
not required or expected. At his trial the judge directed the jury that D could not rely on
a dishonestly obtained agreement to avoid payment. His conviction was quashed, as s 3
merely states that payment on the spot must be required or expected. If there had been
an agreement not to expect payment on the spot, it was irrelevant for the purposes of s
3 that that agreement had been dishonestly obtained. In fact D could have been charged
with an entirely different offence under s 2(1)(b) of the Theft Act 1978.
Makes off
A key ingredient of the offence is that D ‘makes off ’. In other words, he leaves the scene
where payment was expected. In McDavitt [1981] Crim LR 843 D had an argument with
the manager of a restaurant and refused to pay his bill for a meal. He got up and started
to walk out, but was advised not to leave as the police had been called. He then went
into the toilet and stayed there until the police came. The judge directed the jury to
acquit D at the end of the prosecution case, as he had not ‘made off ’.
D has not paid

This is a question of fact. The payment must be of the amount due.
14.11.2 Mens rea of making off without payment

The mens rea of the offence involves:
 dishonesty (this is the same test as for theft; see Chapter 3, section 3.1.5);
 knowledge that payment on the spot is required;
 an intention to avoid payment.
The Act only states ‘with intent to avoid payment of the amount due’, but in Allen [1985]
2 All ER 641 the House of Lords held that there must be an intent permanently to avoid
payment. D owed £1,286 for his stay at a hotel. He left without paying, but his defence
was that he genuinely intended to pay in the near future, as he was expecting to receive
sufficient money to cover the bill. The House of Lords agreed with the decision of the
Court of Appeal, who had said:
JUDGMENT
‘[T]he phrase “and with intent to avoid payment of the amount due” adds a further ingredi-
ent: an intention to do more than delay or defer, an intention to evade payment altogether.’
It has been argued that this decision in Allen (1985) allows defendants to put forward
fictitious defences of what they hoped to be able to do about payment in the future. But
there have been no further cases on this point, so presumably the law is working
satisfactorily.
509
ACTIVITy
14.11 maKing off Without payment

applying the law
The following scenarios involve offences covered in this chapter. In each situation, explain
what offences have or may have been committed.
1. Aziz rides his own bicycle to college and leaves it in the cycle park available for students.
When he leaves to go home he takes Ben’s bicycle, which is the same model, by mistake.
The next morning he realises his mistake but he decides to keep the bicycle for a few days.
Two days later he abandons the bicycle near the college.
2. Cate takes several skeleton keys out with her as she intends to break into a house to steal
money. She goes round to the back of one house and manages to open the back door. In
the house she finds a wallet which she takes. She then hears the front door being opened
and realises that the householder, who is an elderly woman, has come home. Cate is
unable to leave without being seen, so she punches the woman and knocks her out,
causing her a serious head injury. Cate then leaves the house.
3. Dylan, who is a known shoplifter, has been banned from entering his local supermarket. He
is very annoyed about this and persuades Errol to come to the shop with him in order to cause
damage to the displays. On entering the shop Dylan goes to the magazine stand and sprays
paint over the magazines on it. Errol goes through a door marked ‘staff only’ and takes a
bottle of whisky he finds in the room there. He is caught in there by Frankie. Frankie tells Errol
that he will call the manager unless Errol gives him all the money he has on him.
4. Gina knows that her boyfriend has stolen some television sets from a warehouse. Two
weeks later he brings a set round to her house and asks her if he can leave it there. Gina is
suspicious that it may be one of the ones he stole, and tells him she will not have it in the
house but he can put it in the garage.
SUMMARy
Robbery
 Section 8 Theft Act l968 (TA 68) – stealing, and immediately before or at the time of
doing so, using force or putting someone in fear of being subjected to force.
 There must be a completed theft.
 D must use force or put or seek to put any person in fear of force: the amount of force
can be small.
 The force must be immediately before or at the time of the theft and it must used be
in order to steal.
 Theft has been held to be ongoing so that the force is still at the time of the theft.
 D must intend to steal and intend to use force to steal.
Burglary
 Section 9(l)a TA 68 – entering a building or part of a building as a trespasser
 intending to steal, inflict grievous bodily harm or
 do unlawful damage.
 Or s 9(l)b TA 68 – having entered a building or part of a building as a trespasser,
steals or attempts to steal or inflicts or attempts to inflict grievous bodily harm.
 Being a trespasser includes where D has gone beyond the permission to enter.
510  Building includes inhabited vehicles and boats.
Aggravated burglary
 Section 10 TA 68 – a burglary where D has with him any firearm, imitation firearm,
any weapon of offence or any explosive.
Removal of items from a place open to the public

 Section 11 TA 68 – where the public have access to a building in order to view the build-
ing or a collection and D removes an article displayed or kept for display to the public.
Taking a conveyance without consent

 Section 12 TA 68 – D, without having the consent of the owner or other lawful authority,
takes any conveyance for his own or another’s use or, knowing that any conveyance has
been taken without such authority, drives it or allows himself to be carried in or on it.
Aggravated vehicle-taking
 An offence (under s 12 TA 68) of taking a mechanically propelled conveyance and
which involves one of the following:
 dangerous driving;
 injury owing to the driving;
 damage to other property owing to the driving;
 damage to the vehicle.
Blackmail
 Section 21 TA 68 – D, with a view to gain for himself or another or with intent to
cause loss to another, makes any unwarranted demand with menaces.
 The demand can be in any form or even implicit.
 A demand is unwarranted unless D can show that he believed:
 he had reasonable grounds for making the demand;
 the use of the menaces was a proper means of reinforcing the demand.
 The gain or loss must involve money or other property, but need not be permanent.
 Menaces means a serious threat that either the menace be such that an ‘ordinary
person of normal stability and courage might be influenced or made apprehensive
by it so as to unwillingly accede to it’ or one that would affect the V.
Handling stolen goods
 Section 22 TA 68 – D knowing or believing goods to be stolen goods dishonestly
receives them, or dishonestly undertakes or assists in their retention, removal, dis-
posal or realisation by or for the benefit of another person or arranges to do so.
Going equipped to steal

 Section 25 TA 68 – D, when not at his place of abode, hasanalyse
Critically with him
caseany
law article for use
on the rights of shareholders
in the course of or in connection with any burglary, theft or
to enforce thecheat.
articles of association to demonstrate
Making off without payment contractual effect of the articles is limited to provisions
of the on
 Section 3 Theft Act 1978 – D, knowing that payment articles concerned
the spot for anywith
goods thesup-
membership and
plied or service done is required or expected from him, dishonestly makes off without
having paid as required or expected and with intent to avoid payment.
511
sample essay question

To what extent is the offence of burglary adequately defined in the Theft Act 1968?
State the definition of burglary:

• S 9(1)(a) and 9(1)(b) TA 1968
• Identify the key elements of ‘entry’, trespasser’, ‘building or part of a
building’
• Note that the only definition in the Act is for building, s 9(4)
Expand on the element of ‘entry’:

• No definition in Act
• Discuss difficulties and changing definitions that have emerged in
cases:
• Collins (1972)
• Brown (1985)
• Ryan (1996)
Expand on the element of ‘trespasser’:

• No definition in Act
• Assumed that civil definition of trespass would apply
• The addition of ‘knowing he was a trespasser or intended to trespass’
Collins (1972)
• Discuss the extension of ‘trespasser’ to those who go beyond the
permission to enter Smith and Jones (1976)
• Should shoppers who steal be liable for burglary?
Expand on the element of ‘building or part of a building’:
• Give definition of ‘building’
• Discuss problems in cases such as B and S v Leathley (1979) and
Norfolk Constabulary v Seeking and Gould (1986) which leave it to
the facts of each case
• Discuss the problems of ‘part of a building’ and the case of
Walkington (1979) – should this have been burglary?
Conclude
512
Further reading
Books
Ormerod, D and Laird, K, Smith and Hogan Criminal Law: Cases and Materials (11th edn,
Oxford University Press, 2014), Chapters 23–25, 27–29.
Articles
Ashworth, A, ‘Robbery reassessed’ (2002) Crim LR 851.
Pace, P J, ‘Burglarious trespass’ (1985) Crim LR 716.
Reed, A, ‘Case comment: robbery: the use of force and s 8 of the Theft Act 1968’ (2012) J
Crim L 282.
Spencer, J, ‘Handling, theft and the mala fide purchaser’ (1985) Crim LR 92 and 440.
Spencer, J, ‘The Aggravated Vehicle-Taking Act 1992’ (1992) Crim LR 699.
Williams, G, ‘Temporary appropriations should be theft’ (1981) Crim LR 129.
15
Fraud
AIMS AND OBJECTIVES

 Understand the reasons for the enactment of the Fraud Act 2006
 Understand the offences of fraud created by the Fraud Act 2006
 Understand the offence of obtaining services by fraud
 Analyse critically all the above offences
 Apply the law to factual situations to determine whether an offence of fraud has
been committed
15.1 Background to the Fraud Act 2006

Prior to the Fraud Act 2006 there had been various attempts at creating laws to cover
situations of fraud. There had been a major reform of the law with the Theft Act 1968
which abolished all earlier offences involving deception or fraud. This Act created an
offence of obtaining property by deception (s 15) and an offence of obtaining a pecu-
niary advantage by deception (s 16). This latter offence originally could be commit-
ted in one of three ways, but part (a) of s 16 quickly proved to be unsatisfactory and
it was repealed by the Theft Act 1978. This second Theft Act created offences of
obtaining services by deception (s 1) and securing remission of a liability (s 2). Section
2 of the Theft Act 1978 was complex as it included three ways in which the offence
could be committed. These were:
 remission of a liability;
 inducing a creditor to wait for or forgo payment;
 obtaining an exemption from or an abatement of a liability.
Even these reforms did not cover all the gaps in the law and, in addition, there was
confusion due to the overlapping of the offences.
One gap in the law was highlighted in the case of Preddy [1996] 3 All ER 481 where
the defendants made false representations in order to obtain a number of mortgage
advances from building societies to purchase houses. They intended to repay the mort-
gages when they sold the houses, as they hoped, at a profit. The mortgage advances
were in the form of money transfers. The House of Lords quashed Ds’ convictions on the
basis that no property belonging to another had been obtained. As a result of this deci-
sion a further amendment was made to the Theft Act 1968 by the Theft (Amendment)
Act 1996. This inserted an extra section (s 15A) into the Theft Act 1968 creating the
offence of obtaining a money transfer by deception.
15.2 The need for reform

All the reforms to the Theft Act 1968 left the law very fragmented and difficult to apply.
The Law Commission in its report Fraud (Law Com No 276 (2002)) stated that:
514 quotation
‘3.11 Arguably, the law of fraud is suffering from an “undue particularisation of closely allied
crimes”. Over-particularisation or “untidiness” is undesirable in itself, but it also has undesir-
Fraud
able consequences.
3.12 First, it allows technical arguments to prosper. When the original Theft Act deception
offences were first proposed by the CLRC in their Eighth Report, this problem was foreseen by
a minority of the committee members: To list and define the different objects which persons
who practise deception aim at achieving is unsatisfactory and dangerous, because it is imposs-
ible to be certain that any list would be complete . . .
3.20 The second difficulty that arises from over-particularisation is that a defendant may
face the wrong charge, or too many charges.’
Various cases had highlighted areas where the law was difficult to apply. One problem
that arose was whether silence could be a deception. In DPP v Ray [1973] 3 All ER 131 D
had ordered a meal and then run off without paying for it. At that time (1973) there was
no offence of making off without payment (see section 14.11), so D was charged with
obtaining property by deception. The Court of Appeal quashed his conviction, but the
House of Lords reinstated the conviction, taking the view that ‘where a new customer
orders a meal in a restaurant, he must be held to make an implied representation that he
can and will pay for it before he leaves’. They also thought that this was an ongoing
representation.
Another problem was that the prosecution had to prove the deception caused the
obtaining. V must have acted because of D’s deception. This meant that if V knew D was
lying, and still handed over property, then the offence of obtaining property by decep-
tion had not been committed (although there would have been an attempt). It also
created problems where V stated that the deception had not been relevant to the handing
over of property. For example, in Laverty [1970] 3 All ER 432 D changed the registration
number plates and the chassis number on a car and sold the car to V. The changing of
the numbers was a representation that the car was the original car to which these
numbers had been allocated. However, D’s conviction was quashed as there was no
evidence that the deception regarding the number plates had influenced V to buy the
car, so there was no proof that D had obtained the purchase money from V as a result of
that deception.
This showed a gap in the law, although in later cases the courts became inventive in
finding that V had acted as the result of the particular deception. This was seen in Lambie
[1981] 2 All ER 776.
CASE EXAMPLE
Lambie [1981] 2 all er 776
D had a credit card (Barclaycard) with a £200 limit. She exceeded this limit and the bank
which had issued the card wrote asking her to return the card. She agreed that she would
return the card, but she did not do so. She then purchased goods in a Mothercare shop with
the card. She was convicted of obtaining a pecuniary advantage by deception, contrary to s
16(1) of the Theft Act 1968. The departmental manager in Mothercare made it plain that she
made no assumption about the defendant’s credit standing at the bank. Provided the signa-
ture matched that on the card and the card was not on a ‘stop list’ the manager would hand
over the goods.
Because of this the Court of Appeal allowed her appeal as the deception had not been the
cause of the obtaining, but the House of Lords reinstated the conviction. The Law Lords held
that it was not necessary to have direct evidence of the reliance on a particular deception if the 515
facts were such that ‘it is patent that there was only one reason which anybody could suggest
for the person alleged to have been defrauded parting with his money’. They thought that in
the case of credit cards it would make the law unworkable if there had to be direct evidence
15.2 The need For reForm

that the deception induced the obtaining in every case.
Another problem arose where the deception was made to a machine so that no human
person had been deceived. The Law Commission in its report Fraud (Law Com No 276
(2002)) explained this problem:
quotation
‘3.34 A machine has no mind, so it cannot believe a proposition to be true or false, and there-
fore cannot be deceived. A person who dishonestly obtains a benefit by giving false informa-
tion to a computer or machine is not guilty of any deception offence. Where the benefit
obtained is property, he or she will normally be guilty of theft, but where it is something other
than property (such as a service), there may be no offence at all.’
This was becoming an increasingly important gap in the law as the Law Commission
went on to point out in the next paragraph of the report:
quotation
‘3.35 This has only become a problem in recent years, as businesses make more use of
machines as an interface with their customers. There are now many services available to the
public which will usually be paid for via a machine. For example, one would usually pay an
internet service provider by entering one’s credit card details on its website. Using card details
to pay for such a service without the requisite authority would not currently constitute an
offence. As the use of the internet and automated call centres expands, this gap in the law will
be increasingly indefensible.’
15.2.1 Proposals for reform

In 1999 the Law Commission published a Consultation Paper No 155, Legislating the
Criminal Code: Fraud and Deception. It followed this by publishing a report, Fraud (Law
Com No 276) which had a draft Bill attached to it. In 2004 the government consulted on
the report and this led to the passing of the Fraud Act in 2006.
15.3 Fraud Act 2006
tutor tip The Fraud Act 2006 repealed ss 15, 15A, 15B, 16 and 20(2) of the Theft Act 1968 and also
‘Make sure you ss 1 and 2 of the Theft Act 1978. The previous offences are replaced by four new offences
understand how under the Fraud Act 2006. These are:
the Fraud Act
2006 has  fraud by false representation (s 2);
reformed the law.’
 fraud by failing to disclose information (s 3);
 fraud by abuse of position (s 4);
 obtaining services dishonestly (s 11).
The 2006 Act also creates other offences connected to fraud. The main ones are:
 possession etc. of articles for use in frauds (s 6);
516  making or supplying articles for use in frauds (s 7).
15.4 Fraud by false representation

Fraud
Under s 2 of the Fraud Act 2006, the offence of fraud by false representation is commit-
ted if D:
SECTION
‘2(1) (a) dishonestly makes a false representation, and
(b) intends, by making the representation –
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to the risk of loss.’
The actus reus of the offence is that the defendant must make a representation which is
false. The mens rea has three parts to it. The defendant must be dishonest, he must know
the representation is or might be untrue or misleading and he must have an intention to
make a gain or cause a loss.
15.4.1 False representation

Section 2 of the Act defines false representation.
SECTION
‘2(2) A representation is false if –
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
2(3) ‘Representation’ means any representation as to fact or law, including a representation
as to the state of mind of
(a) the person making the representation, or
(b) any other person.
2(4) A representation may be express or implied.’
From this, it can be seen that ‘representation’ covers a wide area. A representation as to
fact clearly covers situations where someone uses a false identity or states that they own
property when they do not. It also covers situations such as someone stating that a car
has only done 22,000 miles when they know it has done double that amount.
A representation as to state of mind covers such matters as a customer saying they
will pay their bill when they have no intention of doing so.
Express representations
The Act also states that a representation may be express or implied (s 2(4)). For an express
representation, the Explanatory Notes to the Act make it clear that there is no limit on
the way in which the representation must be expressed. The notes point out that it could,
for example, be written or spoken or posted on a website.
The Explanatory Notes to the Act also point out that the offence can be committed by
‘phishing’ on the Internet. That is where a person sends out an email to a large number
of people falsely representing that the email has been sent by a legitimate bank. The
email asks the receiver to provide information such as credit card and bank numbers so
that the ‘phisher’ can gain access to others’ assets. 517
There have been no cases appealed on substantial points of law, but there have been
appeals on sentencing in cases charged under the Fraud Act. These cases give examples
15.4 Fraud by False represenTaTion

of the type of conduct charged under s 2 and two examples are given below.
CASE EXAMPLE
Hamilton [2008] eWCa Crim 2518
V’s son had bought some new fence panels for V’s garden, but as they had turned out to be
the wrong size he left them leaning up against the side of the house until such time as he was
able to replace them. D and his brother called at V’s house claiming that they had come to
collect payment for the panels. In fact, the victim’s son had already paid for them in full. D told
V that once that sum was paid they would arrange for replacement panels to be delivered. V
paid them £60.
This is clearly an express representation as D told V the panels had not been paid for
when they had. Another case where there was an express representation was Cleps
(2009).
CASE EXAMPLE
Cleps [2009] eWCa Crim 894
D went to a building society and falsely claimed to be George Roper. He opened a Liquid Gold
account in the name of George Roper. Two days later D returned to the same branch. He
produced a passport in the name of George Roper and the passbook for the Liquid Gold
account as identification. He asked to close a Guarantee Reserve account (held by the real
George Roper) and had the £181,950 in that account transferred into the Liquid Gold account.
He then obtained a banker’s draft for that amount.
The representation that he was George Roper was an express representation.
Implied representations
There are many ways in which it is possible to make an implied representation through
one’s conduct. This was shown by the old case of Barnard (1837) 7 C & P 784.
CASE EXAMPLE
Barnard (1837) 7 C & p 784
D went into a shop in Oxford wearing the cap and gown of a fellow commoner of the univer-
sity. He also said he was a fellow commoner and as a result the shopkeeper agreed to sell him
goods on credit. The court said, obiter, that he would have been guilty even if he had said
nothing. The wearing of the cap and gown was itself a false pretence.
In fact the case of Barnard demonstrates both an implied representation and an express
representation. The wearing of the cap and gown was an implied representation while
the statement that he was a fellow commoner was an express representation.
A more modern example of an implied representation would be standing on a street
corner with a collecting box labelled ‘Guide Dogs for the Blind’. This is implying that D
is collecting on behalf of the charity. If D intends to pocket the money then he is guilty
518
of an offence under s 2 of the Fraud Act 2006.
Although there is no definition of what is meant by implied false representation by
conduct in the Fraud Act, the Explanatory Notes to the Act state that:
Fraud
quotation
‘An example of a representation by conduct is where a person dishonestly misuses a credit card to
pay for items. By tendering the card, he is falsely representing that he has the authority to use it.’
This example is the same situation as occurred in the case of Lambie (1981) under the old
law on deception (see section 15.2). It is likely that the courts will still look back to deci-
sions under the old law on the point of whether D’s acts are an implied representation,
though, of course, the courts do not have to do so.
Under the old law several other situations of implied representation were identified.
These included the following:
 Ordering and eating a meal in a restaurant: this is a representation that the meal will
be paid for.
 Paying by cheque: this is a representation that the bank will honour the cheque.
 Use of a cheque guarantee card: this represents that the bank will meet any cheque
up to the limit on the card.
All these situations were considered in cases under the law prior to the Fraud Act.
Ordering and eating a meal in a restaurant
CASE EXAMPLE
DPP v Ray [1973] 3 all er 131
D went to a restaurant with three friends. He did not have enough money to pay for a meal but
one of his friends agreed to lend him enough to pay for the meal. After eating the meal they all
decided not to pay for it. Ten minutes later when the waiter went into the kitchen all four ran out
of the restaurant without paying. The Court of Appeal had quashed the defendant’s conviction
for obtaining a pecuniary advantage under s 16(2)(a) of the Theft Act 1968 (this section has now
been repealed). The House of Lords reinstated the conviction. The problem was whether the
defendant could be guilty when his original representation that he would pay was genuine. Did
the change of mind produce a deception? The House of Lords held that it did.
Paying by cheque
CASE EXAMPLE
Gilmartin [1983] 1 all er 829
D, a stationer, paid for supplies with post-dated cheques which he knew would not be met. This
was held to be a deception. By drawing the cheques he was representing that there would be
funds in the account to meet the cheques on the dates they were due to be presented.
Use of a cheque guarantee card
CASE EXAMPLE
Metropolitan Police Commander v Charles [1976] 3 all er 112 519
D had a bank account with an overdraft facility of £100. The bank had issued him a cheque
card which guaranteed that any cheques he wrote up to £30 would be honoured by the bank.

D wrote out 25 cheques for £30 in order to buy gaming chips and backed each cheque with
the cheque card. He knew that the bank would have to pay the gambling club the money so
there was no deception in respect of the fact that the cheques would be honoured. However,
he knew that he did not have enough money in his account to meet the cheques and also that
the amount would exceed his overdraft limit. He had also been told by the bank manager that
he should not use the card to cash more than one cheque of £30 a day.
The House of Lords held that there was a false representation that he had the bank’s
authority to use the card in the way he did and upheld his conviction under s 16 of the
1968 Act of obtaining a pecuniary advantage by deception.
Representations to machines
The representation can be made to a person or to a machine. Section 2(5) of the Fraud
Act 2006 specifically covers representations made to any system or device. It states:
SECTION
‘2(5) A representation may be regarded as made if it (or anything implying it) submitted in any
form to any system or device designed to receive, convey or respond to communications (with
or without human intervention).’
This is designed to cover the many situations in the modern world where it is possible
to obtain property via a machine or the Internet or other automated system such as cash
dispensers or automated telephone services. The provision in the Act is wide enough to
cover putting a false coin into a machine to obtain sweets or other goods or submitting
a claim on the Internet. The Explanatory Notes to the Act make this clear. They state:
quotation
‘The main purpose of this provision is to ensure that fraud can be committed where a person
makes a representation to a machine and a response can be produced without any need for
human involvement. (An example is where a person enters a number into a “CHIP and PIN”
machine.)’
The Explanatory Notes also state:
quotation
‘This offence would also be committed by someone who engages in “phishing”: i.e. where a
person disseminates an email to large groups of people falsely representing that the email has
been sent by a legitimate financial institution. The email prompts the reader to provide informa-
tion such as credit card and bank account numbers so that the “phisher” can gain access to
others’ assets.’
15.4.2 False
For the purposes of the Fraud Act a representation is false if
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
520
So making a false representation means representing what one knows is untrue or might
be untrue or what one knows is misleading or might be misleading. It does not matter
Fraud
whether anyone believes the representation.

It is a matter of fact whether something is true or not. The difficult word in the phrase
is ‘misleading’. It is not defined in the Act, but the government in its paper, Fraud Law:
Government Response to Consultation (2004) stated that a representation was misleading if
it was:
quotation
‘less than wholly true and capable of interpretation to the detriment of the victim.’
A statement can be misleading even if it is true. For example, if a salesperson says of a

car ‘I have never had anyone complain about this model’ but in actual fact the sales-
person has never sold anyone this particular model before. This statement is literally
true, but it is clearly misleading.
Another problem area is the scenario where the statement is true when D makes it,
but it later becomes untrue and D knows this. If D is under a legal duty to disclose
information, then he can be charged under s 3 of the Fraud Act 2006 (see section 15.5).
However, if D is not under a legal duty to disclose information, can he be guilty under
s 2? The likelihood is that the courts will follow the case of DPP v Ray (1973) (see section
15.4.1) and hold that D, by staying silent when he knew the circumstances had changed,
made an implied representation.
Yet another area in which difficulties may arise is that of quotations for work to be
done. If D quotes a very much higher price than the job is worth has he made a false or
misleading statement? Prior to the Fraud Act 2006, in Silverman [1987] Crim LR 574, D
gave an excessive quotation to two elderly sisters for work to be done on their flat. He
had done work for them previously and had built up a situation of mutual trust.
Although the Court of Appeal quashed his conviction because of an inadequate sum-
ming-up to the jury, they held that by giving an exorbitant quotation he was deceiving
them as to the true cost of the repairs and the amount of profit he was making.
This case had special circumstances through the previous dealings of the parties, but
caveat emptor will excessive quotations in any circumstances now be caught by the new Act? Or should
Let the buyer such situations be ones of caveat emptor? As C M V Clarkson and H M Keating point
beware
out:
quotation
‘In a free market economy it is regarded as acceptable to maximise one’s profits – in short, to
make as big a profit as possible. Those making grossly inflated quotations had, in the past,
only to contend with the risk of their quotations being rejected. Since this case [Silverman] the
risk of criminal prosecution is a possibility. Again we are dealing with dubious business practice
being criminalised.’
Clarkson and Keating Criminal Law: Text and Materials (6th edn, Sweet & Maxwell, 2007)
This will make the element of dishonesty (see section 15.4.4) important in distinguishing
between quotations where there should be criminal liability and those where there
should not.
15.4.3 Gain or loss 521

The offence requires that D intends to make a gain for himself or another, or to cause loss
to another or to expose another to the risk of loss. The definition of ‘gain’ and ‘loss’ is
given in s 5 of the Act and is the same for all three fraud offences.

SECTION
‘5(2) “Gain” and “loss” –
(a) extend only to gain or loss in money or other property;
(b) include any such gain or loss whether temporary or permanent; and “property”
means any property whether real or personal (including things in action and other
intangible property).
5(3) “Gain” includes a gain by keeping what one has, as well as a gain by getting what one
does not have.
5(4) “Loss” includes a loss by not getting what one might get, as well as a loss by parting
with what one has.’
The definitions of gain and loss are essentially the same as in s 34(2) of the Theft Act 1968
(see blackmail at section 14.8). An important point is that the gain or loss does not actu-
ally have to take place. The offence is complete if D intends to make a gain or cause a
loss. This is different from the previous law of obtaining by deception where it had to be
proved that something had been obtained.
The gain or loss can be permanent or temporary. For example, D asks his neighbour
(V) if he can borrow V’s lawnmower as D’s is not working. After using the mower for
an hour, D returns it to the neighbour. The gain to D of the use of the lawnmower (and
the loss of it to V) is a temporary one. If D had lied about the fact that his mower was
not working in order to persuade his neighbour to let him borrow the neighbour’s
mower, then D has committed an offence under s 2 of the Fraud Act. He has made a
false representation with the intention of making a gain or causing loss, even though
these are only temporary and the mower is returned in perfect condition to the
neighbour.
Property for the purposes of ‘gain or loss’ is defined as ‘any property whether real
or personal including things in action and other intangible property’. Note that this
also is very similar to the definition of property in s 4(1) of the Theft Act 1968.
Obvious examples of ‘gain’ and ‘loss’ are shown in the case of Kapitene [2010] EWCA
Crim 2061 where D appealed against sentence.
CASE EXAMPLE
Kapitene [2010] eWCa Crim 2061
D, who was an illegal immigrant, applied for a job at ISS Cleaning Services Ltd. He signed a dec-
laration stating that he was legally entitled to remain in the United Kingdom and showed them a
Congolese passport containing his details, his photograph and an immigration stamp indicating
that he had “indefinite leave” to remain in the United Kingdom. He began work as a cleaner. D’s
‘gain’ was the wages he was paid by ISS Cleaning Services. V’s ‘loss’ was the wages paid out.

As already stated in the opening section of this chapter, the mens rea of the offence of
fraud by false representation has three parts to it. The defendant must
 be dishonest;
522
 know that the representation is, or might be, untrue or misleading;
 have an intention to make a gain or cause a loss.
Fraud
Dishonesty
There is no definition of dishonesty in the Act. The Law Commission in its report pro-
posed that the Ghosh test for dishonesty used in theft cases (see section 13.5.2) should
apply to fraud. The government in the Explanatory Notes issued with the Act makes it
clear that this proposal has been accepted. Also, during the debates on the Bill in Parlia-
ment, the Attorney General confirmed that the Ghosh test should apply (Hansard, House
of Lords Debates, 19 July 2005, col 1424).
Ghosh sets out a two-stage test. The first question is whether a defendant’s behaviour
would be regarded as dishonest by the ordinary standards of reasonable and honest
people. If the answer to that question is ‘yes’, then the second question is whether the
defendant was aware that his conduct was dishonest and would be regarded as dishonest
by reasonable and honest people. See section 13.5.2 for a fuller discussion of the test.
The difference from the meaning of ‘dishonesty’ in theft is that there is no equivalent
to s 2(1) of the Theft Act 1968 which states that D is not dishonest if he believed he had
in law the right to deprive the other of it. The Law Commission explained why it had not
included a ‘claim of right’ defence in the draft Bill:
quotation
‘7.66 We do not therefore recommend that a “claim of right” should be a complete defence
to the offence of fraud, nor do we recommend that “belief in a claim of right” should be a
complete defence. However, we believe that in the vast majority of such cases the require-
ments of Ghosh dishonesty will suffice to ensure that justice is done, and that the civil and
criminal law are kept closely in line with each other.
7.67 The first limb of the Ghosh test requires the jury to consider, on an objective basis,
whether the defendant’s actions were dishonest. If the defendant may have believed that she
had a legal right to act as she did, it will usually follow that the jury will be unable to conclude
that they are sure that she was dishonest, on an objective basis. In appropriate cases we believe
it would be proper for a judge to direct the jury to the effect that if that is the case then an acquit-
tal should follow, without their having to consider the second limb of the Ghosh test.’
Know the representation is or might be untrue or misleading

To be guilty the defendant must know that the representation he is making is, or might be,
untrue or misleading. This is a subjective test. The focus is on what the defendant knew.
Knowledge is a strict form of mens rea. The House of Lords pointed this out in Saik
[2006] UKHL 18 when they said:
JUDGMENT
‘the word “know” should be interpreted strictly and not watered down . . . knowledge means
true belief.’
However, in the Fraud Act, the knowledge required from D is at the lowest level only
that he knew the representation might be misleading. This is a very different level from
that of knowing that a representation is untrue. Does this low level put salespeople who
make ambitious claims for the product they are selling at risk of being found guilty of
fraud? For such situations the need for dishonesty is very important in protecting people
from the risk of being prosecuted for fraud.
523
Intention to make a gain or cause a loss
‘Intention’ has the same meaning as throughout the criminal law (see Chapter 3). So it

will include foresight of a virtual certainty. If D makes a false representation realising
that it is virtually certain that this will cause V a loss, then D will be guilty, even though
he may hope that V will not suffer a loss.
An example of where D could be held to have intended to expose V to the risk of loss
is where D makes a false representation on a health insurance form stating that he does
not smoke when, in fact, he does. D does not want to become ill and hopes that he will
not need the insurance. However, he intends the insurance company to be exposed to
the risk of loss by paying out if he is ill.
The wording of the offence means that it is not necessary for the fraud to succeed. It
is only necessary for the defendant to intend to make a gain or cause a loss.
Under the old law the prosecution had to prove that the deception had caused the
obtaining of property. This led to problems in many cases, for example, Laverty (1970)
where D changed the registration number plates and the chassis number on a car and
sold the car to V. Under the old law it was held that no offence had been committed
because V did not rely on the false representation made by changing the number plates.
However, under the offence of fraud by false representation it is not necessary to show
that V was influenced to buy the car because of its new number plates and D would be
guilty. All the prosecution has to prove is that D intended to make a gain or cause a loss
through this act.
It does not matter that the victim becomes suspicious, does not hand over any prop-
erty and reports the matter to the police. The defendant has still committed the com-
pleted offence as he intended to make a gain or cause a loss.
kEy fACTS
Key facts on fraud by false representation
Definition of offence D dishonestly makes a false s 2(1) Fraud Act 2006.

representation, and intends, by
making the representation
• to make a gain for himself or
another, or
• to cause loss to another or to
expose another to the risk of loss.
Actus reus • Make a representation. Can be any representation as to
fact or law, including making a
representation as to state of
mind, s 2(3) Fraud Act 2006.
Representation can be express or
implied, s 2(4) Fraud Act 2006.
• Representation must be false. It is false if it is untrue or
misleading, s 2(2) Fraud Act 2006.
Mens rea • Dishonestly Ghosh two-part test is intended
to apply.
• knows or believes representation Explanatory Notes
to be untrue or misleading
• intends to make a gain or cause Gain/loss must be of money or
a loss. property, s 5 Fraud Act 2006.
524
Representations made A representation is regarded as s 2(5) Fraud Act 2006.
to machines or being made when it is submitted
Fraud
automated services to any form of system or device.
15.5 Fraud by failing to disclose information

Under s 3 of the Fraud Act 2006 the offence of fraud by failing to disclose information
will be committed where a person
SECTION
‘3 (a) dishonestly fails to disclose information to another person which he is under a legal
duty to disclose; and
(b) intends by failing to disclose the information:
Originally the Law Commission in its draft Bill, as well as including fraud where there
was a legal duty to disclose, had also included any situation where:
 The information is the kind that V trusts D to disclose.
 D knows this.
 Any reasonable person would disclose the information.
After consultation, the government omitted this type of failure to disclose from the Bill that
went before Parliament. The omission of this means that the prosecution will have to prove
there was a legal obligation on D. Will this cover the situation in Rai [2000] Crim LR 192?
CASE EXAMPLE
Rai [2000] Crim lr 192
D applied for a grant from the local council towards installing a downstairs bathroom for his
elderly mother. A grant of £9,500 was approved by the council, but two days later his mother
died. D carried on with the improvement and did not tell the local council of his mother’s death.
The Court of Appeal upheld his conviction for obtaining property by deception under s 15 of the
1968 Act.
Under the Law Commission’s additional duty to disclose this would clearly have been
covered. But is there a legal duty to disclose the fact that his mother had died after the
application had been approved?
15.5.1 Legal duty

Arlidge and Parry on Fraud (3rd edn, Sweet and Maxwell, 2007) states that there are two
situations where a person may be under a legal duty to disclose information. First, he is
literally under a legal obligation. Second, where he is precluded from enforcing a trans-
action or retaining the benefit of it on the ground that he had failed to disclose relevant
information to another party before the other party entered into the transaction.
The Fraud Act does not define legal duty but it seems it intends to cover both kinds
of duty. The Explanatory Notes published with the Act make it clear that the Law Com-
mission’s definition of ‘legal duty’ is relevant as it quotes from the Law Commission’s
report on Fraud (Law Com No 276 Cm 5560 (2002)) where it stated:
525
quotation
15.5 Fraud by noT disClosing inFormaTion

‘7.28 Such a duty may derive from statute (such as the provisions governing company prospec-
tuses), from the fact that the transaction in question is one of the utmost good faith (such as
a contract of insurance), from the express or implied terms of a contract, from the custom of
a particular trade or market, or from the existence of a fiduciary relationship between the
parties (such as that of agent and principal).
7.29 For this purpose there is a legal duty to disclose information not only if the defendant’s
failure to disclose it gives the victim a cause of action for damages, but also if the law gives the
victim a right to set aside any change in his or her legal position to which he or she may
consent as a result of the non-disclosure. For example, a person entering into a contract with
his or her beneficiary, in the sense that a failure to make such disclosure will entitle the benefi-
ciary to rescind the contract and to reclaim any property transferred under it.’
Also, when the Bill was before Parliament, the Attorney General echoed para 7.28 when
he said:
quotation
‘There are many occasions in the law where there is a duty of disclosure: under certain market
customs or certain contractual arrangements.’
So it appears that s 3 is intended to apply to non-disclosure in the course of negotiations

towards a transaction rather than being intended to apply to a breach of duty to disclose
in the strict sense. This raises the question of whether the section is too wide and will
catch situations where the civil law provides an adequate remedy.

There are two parts to this. D must
 be dishonest; and
 intend to make a gain or cause a loss.
However, it must be noted there is no requirement set out in that Act that D has to be
aware of the circumstances that generate the duty of disclosure. The Law Commission’s
draft Bill did explicitly include the requirement that D must either know that the
circumstances exist which give rise to the duty to disclose or be aware that they might
exist. The Fraud Act does not include this, but unawareness of a duty to disclose is likely
to mean that D is not dishonest.
The Explanatory Notes give two examples of situations which would be covered by s
3. These are (1) the failure of a solicitor to share vital information with a client within the
context of their work relationship, in order to perpetrate a fraud upon that client and (2)
where a person intentionally failed to disclose information relating to his heart con-
dition when making an application for life insurance.
15.6 Fraud by abuse of position

Under s 4 of the Fraud Act 2006 the offence of fraud by abuse of position will be commit-
ted where a person
526 SECTION
‘4(1) (a) occupies a position in which he is expected to safeguard, or not to act against, the
Fraud
financial interests of another person;

(b) dishonestly abuses that position, and
(c) intends by means of abuse of that position:
Subsection 4(2) states that this offence can be committed by an omission as well as by an
act.
The original Law Commission draft included the word ‘secretly’ so that it read in (b)
‘dishonestly and secretly abuses that position’. As the Act does not include the word
‘secretly’, s 4 will apparently cover situations where V knows what is going on. This may
be intended to cover situations such as Hinks [2000] 4 All ER 833 (see section 13.2.4)
where D accepted gifts of large sums of money from a vulnerable person whom she had
befriended and was found guilty of theft. A charge of fraud by abuse of position seems
more appropriate in such circumstances.
15.6.1 Occupies a position

The position must be one where D is expected to safeguard or not act against the finan-
cial interests of another person. The Explanatory Notes to the Fraud Act quote from the
Law Commission’s Report to demonstrate the types of ‘position’ the Act is meant to
cover:
quotation
‘7.38 The necessary relationship will be present between trustee and beneficiary, director and
company, professional person and client, agent and principal, employee and employer, or between
partners. It may arise otherwise, for example within a family, or in the context of voluntary work,
or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will
be recognised by the civil law as importing fiduciary duties, and any relationship that is so recog-
nised will suffice. We see no reason, however, why the existence of such duties should be essen-
tial. This does not of course mean that it would be entirely a matter for the fact-finders whether
the necessary relationship exists. The question whether the particular facts alleged can properly
be described as giving rise to that relationship will be an issue capable of being ruled upon by the
judge and, if the case goes to the jury, of being the subject of directions.’
So the Law Commission expects the judge to rule on whether the particular facts of
the case are capable of giving rise to the necessary relationship and direct the jury
accordingly. The jury will then have to decide if there has been an abuse of that
position.
The words ‘expected to safeguard, or not act against, the financial interests of another
person’ are not defined. Arlidge and Parry on Fraud (3rd edn, Sweet & Maxwell, 2007)
suggests that they are ‘impenetrable’.
The Solicitor General in the course of debates on the Bill in the Standing Committee
indicated that an obligation arising from a ‘position’ can extend beyond the actual time
of employment etc. He stated:
quotation
‘A person can occupy a position where they owe a duty that goes beyond the performance 527
of a job. A contract that is entered into that obliges a person to have duties of confidentiality,
perhaps, can go well beyond the time when that employment ceases. The duty may, however,
15.6 Fraud by abuse oF posiTion

still arise. The person entered into the duty at the beginning of the employment and it exists
indefinitely. Therefore a person may still occupy a position in which there is a legitimate
expectation.’
This suggestion that a duty can be owed indefinitely goes beyond the normal expecta-
tion in employment contracts. Where there is a clause in the contract protecting the
employer from competition when an employee leaves his post, that clause is usually
limited to a relatively short period of time. If it is too wide it may be held to be void
under contract law. It seems unlikely that that criminal liability would extend beyond
the period thought suitable for civil liability.
15.6.2 Abuse of position

The Explanatory Notes state that the term ‘abuse’ is not limited by a definition, because
it is intended to cover a wide range of conduct. The Notes give examples of ‘abuse’.
These are:
 an employee who fails to take up the chance of a crucial contract in order that an
associate or rival company can take it up instead at the expense of the employer;
 an employee of a software company who uses his position to clone software prod-
ucts with the intention of selling the products on;
 where a person who is employed to care for an elderly or disabled person has access
to that person’s bank account and abuses his position by transferring funds to invest
in a high-risk business venture of his own.
It would also cover the situation in the case of Doukas [1978] 1 All ER 1061 where D was
a wine waiter in a hotel. He took bottles of wine into the hotel, intending to sell them to
people dining at the hotel, so that he could pocket the money (see section 14.10.1). D was
clearly in a position where he was expected not to act against the financial interests of his
employer and, by selling his own wine instead of the hotel’s wine, he was abusing that
position.
An example charged under s 4 of the Fraud Act is the case of Marshall [2009] EWCA
Crim 2076.
CASE EXAMPLE
Marshall [2009] eWCa Crim 2076
D was the joint manager of a residential care home. V was a resident in the home and had
severe learning difficulties. V had a bank account which she could not exercise any proper
control over herself. She was dependent on others to do so on her behalf. There were strict
rules governing withdrawals from her account. They should only have been done in V’s pres-
ence and, of course, the money withdrawn should have been used entirely for her benefit. D
made several withdrawals and used the money for her own benefit. She pleaded guilty to
offences under s 4 of the Fraud Act and was sentenced to 12 months’ imprisonment.
This is an obvious type of situation which s 4 was enacted to cover. Another more
unusual case under s 4 is Gale [2008] EWCA Crim 1344.
528
CASE EXAMPLE
Gale [2008] eWCa Crim 1344
Fraud
D was an office manager for one of DHL’s divisions at Heathrow Airport. He used that position to
send a large crate from Heathrow to New York. He certified the crate as ‘known cargo’. Because
of this and the paperwork he provided stating that the crate contained empty plastic pots and the
fact that he, himself, took the crate to the airline’s goods reception agents, it was passed through
without the usual X-ray screening. In fact the crate contained 500 kilos of khat, a drug that is not
illegal in England but is illegal in America. He pleaded guilty to fraud by abuse of position.

As with ss 2 and 3 D has to be dishonest and intend to make a gain or cause a loss. There
is no specific requirement that D is aware that he is in a position where he is expected to
safeguard V’s financial interests. However, if D was unaware of this then it would
presumably go to the issue of dishonesty.
Fraud
s 2 Fraud by false s 3 Fraud by failure to s 4 Fraud by abuse of

representation disclose position
Dishonestly making a Dishonestly failing to Where D occupies

false representation disclose information a position in which
intending to make a which D is under a he is expected to
gain or cause a loss legal duty to disclose safeguard or not act
A representation is intending to make a against the financial
false if it is untrue or gain or cause a loss interests of another
misleading and dishonestly
abuses that position
intending to make a
gain or cause a loss
Figure 15.1 The offences of fraud in the Fraud Act 2006.

ACTIVITy
applying the law
Discuss whether there are breaches of ss 2, 3 or 4 of the Fraud Act 2006 in the following
situations:
1. Anna has discovered that fake coins provided with one of her child’s toys fit into a slot
machine selling sweets and drinks. She uses one of the fake coins to obtain a packet of
chocolate from the machine.
2. Barack, who smokes occasionally, does not mention this fact on his application form for
health insurance.
3. Chantelle, who owns a shop, puts a collecting box on the counter with a label ‘Cancer
Research’ on it. Customers often put coins in it. Chantelle keeps all the money which cus-
tomers put in the box.
4. Dmitri applies for a credit card. On the form he states that he is self-employed as a taxi
529
driver. In fact, he is unemployed. Dmitri is given the card and he uses it to buy goods, but
has always paid the money back to the credit card company.
5. Ellis applies for car insurance. He has had points on his licence for driving offences, but they
15.7 possession oF arTiCles For use in Fraud

expired ten years ago. Ellis does not mention this in his application as he believes the
offences are not relevant as they were so long ago.
6. Ferdinand works for a cinema operating the digital projector for the films. He takes the
most popular films home and makes copies of them which he sells.
15.7 Possession of articles for use in fraud

Section 6 Fraud Act 2006 states:
SECTION
‘(1) A person is guilty of an offence if he has in his possession or under his control any article
for use in the course of or in connection with any fraud.’
In the Act it is made clear that ‘article’ includes any program or data held in electronic
form.
The wording of this section draws on that of the existing law in s 25 of the Theft Act
1968 (going equipped for stealing etc.; see section 14.10). There is a difference between
this section and s 25 of the Theft Act 1968 in that a s 6 offence can be committed any-
where, including at D’s home. Section 25 specifically states that the offence must be
committed when D is not at his place of abode.
This difference is because articles for use in fraud are quite likely to be used at home.
For example, a computer program or electronic data could be used in the course of or in
connection with any fraud. There is no requirement that that article is specifically
designed for fraud. A computer program such as a spreadsheet can be used legitimately,
but if it is intended to be used to produce a false set of accounts for the purpose of fraud,
then this is an article for use in the course of or in connection with any fraud.

The Explanatory Notes to the Act state that the intention is to attract the case law on s 25,
which has established that proof is required that the defendant had the article for the
purpose or with the intention that it be used in the course of or in connection with the
offence. For this offence under the Fraud Act a general intention to commit fraud will
suffice.
The Notes quote from R v Ellames [1974] 3 All ER 130, where the court said that:
JUDGMENT
‘In our view, to establish an offence under s 25(1) the prosecution must prove that the defend-
ant was in possession of the article, and intended the article to be used in the course of or in
connection with some future burglary, theft or cheat. But it is not necessary to prove that he
intended it to be used in the course of or in connection with any specific burglary, theft or
cheat; it is enough to prove a general intention to use it for some burglary, theft or cheat; we
think that this view is supported by the use of the word ‘any’ in s 25(1). Nor, in our view, is it
necessary to prove that the defendant intended to use it himself; it will be enough to prove
that he had it with him with the intention that it should be used by someone else.’
For this offence under the Fraud Act a general intention to commit fraud will suffice.
530
15.8 Making or supplying articles for use in frauds
Fraud
This is an offence under s 7 of the Fraud Act 2006.
SECTION
‘7(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any
article –
(a) knowing that it is designed or adapted for use in the course of or in connection
with any fraud, or
(b) intending it to be used to commit, or assist in the commission of, fraud.’
As with s 6 the word ‘article’ includes any program or data held in electronic form. The
wording of s 7 means there are a number of ways that the actus reus can be committed.
These are by:
 making an article;
 adapting an article;
 supplying an article;
 offering to supply an article.
The Explanatory Notes give as an example the person who makes devices which, when
attached to electricity meters, cause the meter to malfunction. The actual amount of elec-
tricity used is concealed from the provider, who thus makes a loss.

The mens rea can be shown in two distinct ways. These are
 knowledge that the article is designed or adapted for use in the course of or in con-
nection with any fraud; or
 intention that it will be used to commit, or assist in the commission of, fraud.
The person making, adapting, supplying or offering to supply the article does not have
to intend to use it personally. It is enough that it is intended to be used at sometime by
someone for the purpose of a fraud.
15.9 Obtaining services dishonestly
This offence was created to replace s 1 of the Theft Act 1978. The offence is set out in s 11
of the Fraud Act 2006 which states:
SECTION
‘11(1) A person is guilty of an offence under this section if he obtains services for himself or
another –
(a) by a dishonest act, and
(b) in breach of subsection (2).
(2) A person obtains services in breach of this subsection if –
(a) they are made available on the basis that payment has been or will be made for
or in respect of them;
531
(b) he obtains them without any payment having been made for or in respect of
them or without payment having been made in full, and –
(c) when he obtains them he knows –
15.9 obTaining serviCes dishonesTly

(i) that they are being made available on the basis described in paragraph (a),
or
(ii) that they might be,
but intends that payment will not be made, or will not be made in full.’
The actus reus of this offence has several parts to it. These are:
 obtains
 services
 not paid for or not paid in full.
Note that there must be an act; the offence cannot be committed by omission. The mens
rea consists of three parts:
 dishonesty;
 knowing that the services are or might be being made available on the basis that
payment has been or will be made for them;
 intention not to pay or not to pay in full.
We will now go on to look at the actus reus and mens rea in more detail.
15.9.1 Actus reus of obtaining services dishonestly

Obtains
The offence requires that the services are actually obtained. This is unlike the offence of
fraud by false representation which we considered in section 15.4. For that offence it was
not necessary for anything to be obtained. The making of the false representation intend-
ing to make a gain or cause a loss was sufficient.
Services
These are not defined by the Act, but the Explanatory Notes to the Act give examples of
situations where services are obtained. These include:
 using false credit card details to obtain services on the Internet;
 climbing over a wall and watching a football match without paying the entrance fee.
The Explanatory Notes also give an example of the situation where a person attaches a
decoder to her television to enable viewing access to cable/satellite television channels
for which she has no intention of paying.
There are many other situations which would be offences under this section. These
could include:
 using a false bus pass to get a free or reduced price journey;
 claiming falsely to be under 14 in order to have cheaper admission to see a film in a
cinema;
 using a stolen decoder card to receive satellite television programmes.
Not paid for

The offence is only committed if the defendant does not pay anything or does not pay in
full for the service. Even if the defendant has made a false statement, but pays full price
532 for the service, then he has not committed the offence of obtaining services
dishonestly.
Fraud
15.9.2 Mens rea of obtaining services dishonestly

Dishonesty
This is not defined in the act, nor is any mention made of it in the Explanatory Notes to
the Act. This is different from fraud by false representation where the Explanatory Notes
say that it is intended the Ghosh two-part test should apply.
This makes it difficult to know whether the Ghosh two-part test will be applied by the
courts. However, it seems likely that it will. If so the first question will be whether a
defendant’s behaviour would be regarded as dishonest by the ordinary standards of
reasonable and honest people. If the answer to that question is ‘yes’, then the second
question will be whether the defendant was aware that his conduct was dishonest and
would be regarded as dishonest by reasonable and honest people.
Intention not to pay

The prosecution must prove that the defendant intended not to pay or not to pay in full
for the services. If the defendant thought that someone else had already paid, then he
would not be guilty of this offence.
ACTIVITy
applying the law
Discuss the criminal liability, if any, in each of the following situations.
1. Kadeem goes to a local cinema. He pays for entry, but is late and finds he has missed the
first 20 minutes of the film. When the film is finished, he decides to stay and see the next
performance.
2. Lauren stays at a health spa for two nights. While there she uses the leisure facilities and
has a beauty treatment. She also has meals in the restaurant. When she checks out at the
end of her stay she uses a stolen credit card to pay for everything.
3. Miah works in a sandwich bar. Each day she makes up sandwiches at home from ingredi-
ents she has bought. She then takes these sandwiches to work and sells them, pocketing
any money she makes on them. Her employers do not know she does this.
4. Nic advertises an electronic device for sale that he knows can be used to make electricity
meters give lower readings.
Has D obtained services for Not obtaining services
NO
himself or another? dishonestly
YES
Were the services made

available on the basis that Not obtaining services
NO
payment has been or will be dishonestly
made for them?
YES
Has D obtained them without 533

payment or payment in full Not obtaining services
NO
being made? dishonestly
15.9 obTaining serviCes dishonesTly

YES
When D obtained them did D

know that they were available Not obtaining services
NO
on the basis that payment was dishonestly
made?
YES
Not obtaining services

Was D’s act dishonest? NO
dishonestly
YES
The offence of obtaining

services dishonestly has been
committed
Figure 15.2 Flow chart for obtaining services dishonestly.
SUMMARy
Reasons for the enactment of the Fraud Act 2006
 Previous law on deception under the Theft Acts was very fragmented and difficult to
apply.
 Over-particularisation of the law meant that a defendant could face the wrong charge
or too many charges.
 Obtaining from a machine or by electronic means was not covered by the old law on
deception.
Fraud by false representation (s 2 FA 2006)
 Committed if D dishonestly makes a false representation, and intends, by making the
representation to make a gain for himself or another, or to cause loss to another or to
 The actus reus of the offence is that D must make a representation which is false.
 The mens rea has three parts to it. D must be dishonest, he must know or believe the
representation to be untrue or misleading and must have an intention to make a gain
or cause a loss.
Fraud by failing to disclose information (s 3 FA 2006)

 Committed if D dishonestly fails to disclose information to another person which he
is under a legal duty to disclose, intending to make a gain for himself or another, or
to cause loss to another or to expose another to the risk of loss.
534
Fraud by abuse of position (s 4 FA 2006)
 Committed if D occupies a position in which he is expected to safeguard, or not to act
Fraud
against, the financial interests of another person and D dishonestly abuses that posi-
tion intending to make a gain for himself or another, or to cause loss to another or to
Possession of articles for use in fraud (s 6 FA 2006)

 Committed if D has in his possession or under his control any article for use in the
course of or in connection with any fraud.
Making or supplying articles for use in frauds (s 7 FA 2006)

 Committed if D makes, adapts, supplies or offers to supply any article knowing that
it is designed or adapted for use in the course of or in connection with any fraud, or
intending it to be used to commit, or assist in the commission of, fraud.
Obtaining services dishonestly (s 11 FA 2006)

 Committed if D obtains services for himself or another by a dishonest act.
 The services must be made available on the basis that payment has been or will be
made for or in respect of them.
 D must obtain them without any payment or payment in full having been made for
or in respect of them.
 D must know that they are being made available on the basis described in s 11(2)(a)
or that they might be and D must intend that payment or payment in full will not be
made.

To what extent has the Fraud Act 2006 satisfactorily reformed the law on fraud and
deception?
Give a brief outline of old law:

• ss 15, 15A and 16 of Theft Act 1968
• ss 1 and 2 of Theft Act 1978
• The fact that the 1968 Act and the 1978 Act had to be
amended because of problems
Discuss problems with the old law, e.g.

535
• Need to prove that a person was deceived
• Was silence deception?
• The need to prove obtaining of property (s 15 TA 1968)
sample essay quesTion

• Overlap and difficulty of subsections of s 2 TA 1978
• Expand all these with case examples
Expand with comments from:

• Law Commission Consultation Paper: Legislating the
Criminal Code, Fraud and Deception No 155 (1999)
• Law Commission Report: Fraud No 276 (2002)
• Home Office: Fraud Law Reform: Consultation on
Proposals for Legislation (2004)
Set out the main offences in the Fraud Act 2006:

• s 2 fraud by false representation
• s 3 fraud by failing to disclose information
• s 4 fraud by abuse of position
• s 11 obtaining services dishonestly
Discuss problems of Fraud Act 2006:

The fact not all the Law Com’s proposals used, e.g.
• What is meant by legal duty?
• Should s 3 extend to situations where there is no legal
duty to disclose?
• Should s 4 include a secrecy element?
FA has created inchoate offences
Discuss good points of Fraud Act 2006, e.g.
• Consistency of definition across offences
• No need to prove a person was deceived
• No need to prove obtaining (except for s 11)
• False representation is a more sensible way of covering
misuse of credit cards
• Covers representations as to state of mind
Conclude
536
Fraud
Further reading
Books
Arlidge, A, Milne, A and Sprenger, P J, Arlidge and Parry on Fraud (4th edn, Sweet &
Maxwell, 2013), Chapters 5, 6 and 10.
Ormerod, D and Williams, D, Smith's Law of Theft (9th edn, Oxford University Press,
2007), Chapter 3.
Articles
Collins, J, ‘Fraud by abuse of position: theorising s 4 of the Fraud Act 2006’ (2011) Crim
LR 513.
Ormerod, D, ‘The Fraud Act 2006: criminalising lying?’ (2007) Crim LR 193.
Withey, C, ‘The Fraud Act 2006’ (2007) 71 J Crim L 220.
Yeo, N, ‘Bull’s-eye’ (2007) NLJ, Part 1 at 212 and part 2 at 418.
16
Criminal damage
AIMS AND OBJECTIVES

 Understand the actus reus and mens rea of the basic offence of criminal damage
 Understand the actus reus and mens rea of the offence of endangering life when
committing criminal damage
 Understand the actus reus and mens rea of arson
 Understand other offences related to criminal damage
 Analyse critically all offences in the Criminal Damage Act 1971
 Apply the law to factual situations to determine whether there is criminal liability
for an offence under the Criminal Damage Act 1971
The law on criminal damage is contained in the Criminal Damage Act 1971. This
created a complete code for this area of the law, just as the Theft Act 1968 did for the
law on theft. The Criminal Damage Act was the result of a report by the Law Com-
mission, Offences of Damage to Property (1970) Law Com No 29. As well as codifying
the law on criminal damage, one of the aims of the Law Commission was to bring the
law in line with the law on theft, so far as was practicable. For this reason some of the
words used in the Act are the same as the words used in the Theft Act 1968.
The Criminal Damage Act creates four offences which are:
 the basic offence of criminal damage;
 aggravated criminal damage;
 arson;
 aggravated arson.
16.1 The basic offence

The basic offence is set out in s 1(1) of the Criminal Damage Act 1971:
SECTION
‘1(1) A person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as to whether any
such property would be destroyed or damaged shall be guilty of an offence.’
The actus reus is made up of three elements. These are that D must
 destroy or damage
 property
 belonging to another.
16.1.1 Destroy or damage

538 This phrase is not defined in the 1971 Act. However, the same phrase was used in the
law prior to 1971 (the Malicious Damage Act 1861), and old cases ruled that even slight
damage was sufficient to prove damage. For example, in Gayford v Chouler [1898] 1 QB
316, trampling down grass was held to be damage. The cases prior to the Criminal
Criminal damage
Damage Act 1971 are, of course, no longer binding, but they may still be used as per-
suasive precedent.
Destroy
‘Destroy’ is a much stronger word than ‘damage’, but it includes where the property has
been made useless even though it is not completely destroyed.
Damage
Damage covers a wide range, and in Roe v Kingerlee [1986] Crim LR 735, the Divisional
Court said that whether property has been damaged was a ‘matter of fact and degree
and it is for the justices to decide whether what occurred was damage or not’. In that
case D had smeared mud on the walls of a police cell. It had cost £7 to have it cleaned off
and it was held that this could be damage even though it was not permanent.
In an Australian case, Samuels v Stubbs [1972] SASR 200 it was stated that:
JUDGMENT
‘[I]t is difficult to lay down any very general rule and, at the same time, precise and absolute
rule as to what constitutes “damage”. One must be guided in a great degree by the circum-
stances of each case, the nature of the article and the mode in which it is affected or treated
. . . [T]he word is sufficiently wide in its meaning to embrace injury, mischief or harm done to
property, and that to constitute “damage” it is unnecessary to establish such definite or actual
damage as renders property useless, or prevents it from serving its normal function.’
In Samuels v Stubbs (1972) D had jumped on a policeman’s cap, denting it. There was no
evidence that it was not possible to return the cap to its original shape without any cost
or real trouble. Even so the judge ruled that there was damage, as there was a ‘tempo-
rary functional derangement’ of the cap.
In English cases under the Criminal Damage Act 1971, although it has been held that
non-permanent damage can come within the definition of ‘damage’, the courts’ approach
seems to be based on whether it will cost money, time and/or effort to remove the
damage. If so, then an offence has been committed, but if not then there is no offence.
This is illustrated in the following case.
CASE EXAMPLE
Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim lr
330 Cnd
Protesters, to mark the fortieth anniversary of the dropping of the atomic bomb on Hiroshima,
painted silhouettes on the pavement with water-soluble paint. The local council had the paint-
ings removed with water jets. The defendants argued that the damage was only temporary
and the paintings would have quickly been erased by the weather and by people walking on
them and there was no need for the local council to go to the expense of having the paintings
removed by high-pressure water jets. The court held that this was damage.
Similar decisions were made in Blake v DPP [1993] Crim LR 586. D wrote a biblical quo-
tation on a concrete pillar. This needed to be cleaned off and so was held to be criminal
damage. The same decision was reached in Roe v Kingerlee (1986) where it cost £7 to
539
remove mud from a cell wall.
The ‘temporary impairment of value or usefulness’ was the key factor in Fiak [2005]
EWCA Crim 2381.
16.1 The basiC offenCe

CASE EXAMPLE
Fiak [2005] eWCa Crim 2381
D was arrested on suspicion of being in charge of a vehicle when he was over the limit for
alcohol and for assault on a police officer. He was taken to a police station and placed in a cell.
He put a blanket in the toilet in the cell and flushed the toilet several times. This caused water
to overflow and flood the cell and two adjoining cells. The blanket was not visibly soiled but it
had to be cleaned and dried before it could be used again. The cells had to be cleaned. This
was held to be criminal damage.
However, in A (a Juvenile) v R [1978] Crim LR 689, spit which landed on a policeman’s

uniform was not damage as it could be wiped off with a wet cloth with very little effort.
But what if the spit had landed on a light coloured T-shirt and left a stain, so that the T-shirt
needed washing or dry cleaning? It seems that could be enough to constitute damage.
A debatable decision is that in Fancy [1980] Crim LR 171 where D was charged under
s 3 of the Criminal Damage Act 1971 with possessing an article with intent to damage
property. D was found in possession of a bucket of paint and a roller. He admitted that
he had painted over National Front slogans on walls. The judge at the Crown Court
ruled that there was no case to answer. The judge said he was not satisfied that applying
white paint over ‘mindless National Front graffiti could constitute damage to a wall per
se’. This decision was criticised by the editors of Smith and Hogan Criminal Law in the
following way:
quotation
‘The defendant’s opinion that what he did was not damage is irrelevant if damage is caused
in law and fact. V’s wall is damaged by D’s graffiti irrespective of whether D regards it as an
improvement.’
Smith and Hogan Criminal Law (13th edn, Oxford University Press, 2011) p. 1015
So, even though the application of white paint was to cover a previous layer of graffiti,
the white paint should still have been classified as damage. Indeed it would cost money
to have the paint removed. The only possible argument might be where the white paint
did no new damage to the wall. That would have to mean that it exactly covered the
graffiti without doing any further damage to the wall. So there would be no extra cost of
cleaning. Even so, it is probable that having to clean two layers of paint off would take
more effort than removing just the original.
The type and purpose of the property may be relevant, as in Morphitis v Salmon [1990]
Crim LR 48 DC, where it was held that a scratch on a scaffolding pole was not damage.
Scaffolding poles are likely to get quite scratched in the ordinary course of use and it
does not affect their usefulness or integrity. However, a scratch on a car would almost
certainly be considered damage.
Computer disks and programs

Altering computer programs was held to be within the definition of criminal damage
in Whiteley (1991) 93 Cr App R 25, when a computer hacker had altered and deleted
540 files and changed some passwords. It was held that there was damage to the magnetic
particles on the hard disk which made the computer inoperable. However, it was rec-
ognised that there were problems in proving damage in some cases of computer
hacking, and the Computer Misuse Act 1990 was passed to clarify the law. This Act
Criminal damage
creates an offence of ‘unauthorised modification of computer material’. It also makes

it clear that the Criminal Damage Act no longer applies as s 3(6) provides that ‘[F]or
the purposes of the Criminal Damage Act 1971 a modification of the contents of a
computer shall not be regarded as damaging any computer or computer storage
medium unless its effect on that computer or computer storage medium impairs its
physical condition’.
ACTIVITy
applying the law
Explain whether there is ‘damage’ within the meaning of the Criminal Damage Act 1971 in
each of the following situations.
1. Aisha throws a bucket of clean water over Bess. The water thoroughly wets Bess’s jacket
and skirt. Would it make any difference to your answer if the water was muddy?
2. Conrad writes on the brick wall of the local town hall with white chalk.
3. Dan is working on a construction site. He throws a spanner down. It hits a wall which is
being constructed and causes a small piece of brick to chip off. The spanner also hits a scaf-
folding post and causes a small dent in it.
16.1.2 Property
‘Property’ is defined in s 10(1) of the Criminal Damage Act 1971:
SECTION
‘10(1) In this Act “property” means property of a tangible nature, whether real or personal,
including money and –
(a) including wild creatures which have been tamed or are ordinarily kept in captivity,
and any other wild creatures or their carcasses if, but only if, they have been
reduced into possession which has not been lost or abandoned or are in the
course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of
a plant growing wild on any land.’
The wording of this is similar to the Theft Act 1968 but there are two main differences.
First, land is property which can be damaged although it cannot normally be stolen and,
second, intangible rights cannot be damaged, though they may be stolen.
16.1.3 Belonging to another

Again, the definition of ‘belonging to another’ set out in s 10(2) is similar to the definition
which is used for the purposes of theft.
SECTION
‘10(2) Property shall be treated for the purposes of this Act as belonging to any person –
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising
only from an agreement to transfer or grant an interest); or 541
(c) having a charge on it.
(3) Where property is subject to a trust, the person to whom it belongs shall be so treated

as including any person having a right to enforce the trust.’
This gives the same wide definition of ‘belonging to’ as in theft. It is not restricted to the
owner. In fact a co-owner can be guilty of criminal damage as the other co-owner has a
proprietary right in the property, as shown in Smith [1974] 1 All ER 632.
CASE EXAMPLE
Smith [1974] 1 all er 632
D removed some electrical wiring, which he had earlier fitted in the flat which he rented. In
doing this he damaged some of the fixtures he had put in. In civil law these fixtures belong to
the landlord and this was property ‘belonging to another’. However, D was found not guilty
because he lacked the necessary mens rea (see section 16.1.4).
It is important to note that for the purposes of the basic offence the property affected
must belong to another. A person cannot be guilty of the basic offence if the property he
destroys or damages is his own. But for the aggravated offence a person can be guilty
even though it is his own property (see section 16.2).
16.1.4 Mens rea of the basic offence

The defendant must do the damage or destruction either intentionally or recklessly. For
the meanings of intention and recklessness, the Law Commission meant the previous
principles of mens rea used in criminal damage cases to apply. So far as intention is con-
cerned the courts have done this, but the meaning of the word ‘reckless’ has caused
problems and debate.
Prior to the passing of the Criminal Damage Act 1971 the law on criminal damage
was contained in the Malicious Damage Act 1861 and amending Acts. These used the
phrase ‘unlawfully and maliciously’. Maliciously was taken to have the meaning of
either intending the damage or knowing there was a risk of damage and taking that risk.
This type of risk taking is known as subjective recklessness. When the Law Commission
recommended reform of the law it identified the essential mental element in the mali-
cious damage offences as ‘intent to do the forbidden act or recklessness in relation to its
foreseen consequences’. It suggested replacing the old-fashioned word of maliciously
with the phrase ‘intending or being reckless’. This was meant to have the same meaning
as the courts had given to the word ‘maliciously’.
Intention
D must intend to destroy or damage property belonging to another. As Professor Sir
John Smith pointed out:
quotation
‘It is not enough that D intended to do the act which caused the damage unless he intended
to cause the damage; proof that D intended to throw a stone is not proof that he intended to
break a window. Nor is it enough that D intends to damage property if he does not intend to
damage property of another.’
Smith and Hogan Criminal Law (13th edn, Oxford University Press, 2011), p. 1019
542
The first point made by Professor Sir John Smith that proving the act is not enough, there
must be intention to do the damage, was seen in the old case of Pembliton [1874–80] All
Criminal damage
ER Rep 1163 where D threw a stone at some men whom he had been fighting with. The
stone missed them but hit and broke a window. D was not guilty of causing damage to
the window as he had no intention to damage the window (or any other property), even
though he intended to throw the stone. (But note that under the Criminal Damage Act
1971 he may have been reckless if he aimed at a person standing in front of a window.)
The second point on the need to intend to damage property belonging to another was
illustrated in Smith [1974] 1 All ER 632. Smith mistakenly believed that the property he
was damaging was his own. His conviction was quashed by the Court of Appeal, who
said:
JUDGMENT
‘The element of mens rea relates to all the circumstances of the criminal act. The criminal act
in the offence is causing damage to or destruction of “property belonging to another” and the
element of mens rea, therefore, must relate to “property belonging to another”. Honest
belief, whether justifiable or not, that the property is the defendant’s own negatives the
element of mens rea.’
Where D intends to do what is caused then, if this is damage, D has the mens rea for the
offence. This was seen in Seray-White [2012] EWHC 208 Admin.
CASE EXAMPLE
Seray-White [2012] eWhC 208 admin
Dr Seray-White wrote with a black marker pen on two parking notices, which had been placed
by the management company in the estate where D lived. He said he did not intend to cause
damage nor was he reckless as to whether damage was caused. He was convicted and
appealed first to the Crown Court and from there to the Divisional Court.
The Crown Court had found the writing to be damage and this was confirmed by the Court
of Appeal. As D had intended to do the writing the Court of Appeal held that he had intention
to cause criminal damage. They held that no question of recklessness arose as the case con-
cerned an act with an intended result.
The decision in Seray-White can be contrasted with that in Pembliton (1874). In Pembliton
D had thrown a stone with the intention of hitting the men with whom he had been
fighting. The damage (the broken window) was not an intended result. In Seray-White,
D intended to write on the parking notices. As that writing was found to be damage
within the meaning of s 1 of the Criminal Damage Act 1971, then D intend to do the
damage.
Reckless
This word has caused problems. In Stephenson [1979] 2 All ER 1198, D was a tramp who
sheltered in a hollow in a haystack and, because he was cold, lit a fire there. The haystack
caught fire and was destroyed. The Court of Appeal quashed D’s conviction on the
grounds that, although an ordinary person would realise the risk of the haystack catch-
ing fire, he did not as he suffered from schizophrenia and this point should have been
left to the jury to decide. The Court of Appeal was using the subjective test for reckless.
However, in Caldwell [1981] 1 All ER 961, the House of Lords stated that a person is 543
reckless if he did an act which in fact created an obvious risk that property will be
destroyed, and when he did the act he either:

 had not given any thought to the possibility of there being any risk (objective); or
 had recognised that there was some risk involved and had nonetheless gone on to
take it (subjective).
tutor tip This became known as Caldwell (1981) recklessness and, as can be seen, it included both
‘Case examples subjective and objective recklessness. The objective test considered whether the risk was
are important as obvious to an ordinary prudent person. If so, then the fact that the defendant did not
there are many
fine distinctions on
give any thought to the possibility of there being any risk was enough to make the
areas such as what defendant guilty.
constitutes This objective test was harsh in its application, particularly where the defendant was
damage.’
young or mentally backward. This was seen in Elliott v C [1983] 2 All ER 1005, where the
defendant was incapable of appreciating the risk but was still guilty under this test. D
was a 14-year-old girl with severe learning difficulties who had been out all night
without food or sleep. She got into a garden shed and in an effort to get warm, poured
white spirit on to the carpet and set light to it. The magistrates found that she had given
no thought to the possibility that the shed might be destroyed. They also found that in
the circumstances the risk would not have been obvious to her and they acquitted her.
The prosecution appealed by way of case stated to the Queen’s Bench Divisional Court
which ruled that as the risk would have been obvious to a reasonably prudent man, the
magistrates had to convict the girl. A similar decision was reached by the Court of
Appeal in Gemmell and Richards [2002] EWCA Crim 192, but was later reversed by the
House of Lords (G and another [2003] UKHL 50).
CASE EXAMPLE
G and another [2003] UKhl 50
The defendants were two boys aged 11 and 12 years. During a night out camping, they went
into the yard of a shop and set fire to some bundles of newspapers which they threw under a
large wheelie bin. They then left the yard. They expected that as there was a concrete floor under
the wheelie bin the fire would extinguish itself. In fact the bin caught fire and this spread to the
shop and other buildings, causing about £1 million damage. The boys were convicted under both
s 1 and s 3 of the Criminal Damage Act 1971. The Court of Appeal upheld their convictions but
the House of Lords quashed the convictions overruling the case of Caldwell (1981).
The trial judge directed the jury that whether there was an obvious risk of the shop and
other buildings being damaged should be decided by reference to the reasonable man,
i.e. the reasonable adult. He said: ‘the ordinary reasonable bystander is an adult . . . He
has got in mind that stock of everyday information which one acquires in the process of
growing up’ and ‘no allowance is made by the law for the youth of these boys or their
lack of maturity or their own inability, if you find it to be, to assess what was going on’.
The Court of Appeal held that this direction was in line with the law in Caldwell (1981)
and dismissed the appeal on the basis that Caldwell (1981) was binding on it.
However, it certified the following point of law of general public importance:
quotation
‘Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on
the basis that he was reckless as to whether property was destroyed or damaged when he
544 gave no thought to the risk but, by reason of his age and/or personal characteristics the risk
would not have been obvious to him, even if he had thought about it?’
Criminal damage
The House of Lords ruled that a defendant could not be guilty unless he had realised the
risk and decided to take it. It overruled the decision in Caldwell (1981), holding that in
that case the Law Lords had ‘adopted an interpretation of section 1 of the 1971 Act which
was beyond the range of feasible meanings’. It emphasised the meaning that the Law
Commission had intended and which Parliament must also have intended. Lord
Bingham said:
JUDGMENT
‘[S]ection 1 as enacted followed, subject to an immaterial addition, the draft proposed by the
Law Commission. It cannot be supposed that by “reckless” Parliament meant anything differ-
ent from the Law Commission. The Law Commission’s meaning was made plain both in its
Report (Law Com No 29) and in Working Paper No 23 which preceded it. These materials (not,
it would seem, placed before the House in R v Caldwell) reveal a very plain intention to replace
the old expression “maliciously” by the more familiar expression “reckless” but to give the
latter expression the meaning which R v Cunningham [1957] 2 QB 396 had given to the
former . . . . No relevant change in the mens rea necessary for the proof of the offence was
intended, and in holding otherwise the majority misconstrued section 1 of the Act.’
Lord Bingham also quoted from the Law Commission’s Draft Criminal Code when he
said that he would answer the certified question. He gave cl 18(c) of the Draft Bill for the
Criminal Code (1989) Law Com No 177, as his answer:
CLAUSE
‘18(c) A person acts recklessly within the meaning of section 1 of the Criminal Damage Act
1971 with respect to –
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur; and it is in the circumstances
known to him, unreasonable to take the risk.’
This judgment by the House of Lords in G and another (2003) affects the meaning of reck-
less for all the offences created by s 1.
In Seray-White (2012), although the Divisional Court ruled that D intended the
damage and so his conviction under s 1 of the Criminal Damage Act was safe on that
basis, the court also commented on the question of recklessness. D had argued on
appeal that the Crown Court had applied an objective test with respect to reckless-
ness. The Divisional Court pointed out that the Crown Court concluded that they
were sure D appreciated that damage was likely to result from his writing on parking
notices (see section 16.1.1 for full facts of the case). This was a subjective state of mind
and complied with the ruling in G (2003) that only a subjective test should be used
to decide if D was reckless. Lloyd Jones J giving judgment in the Divisional Court
said:
JUDGMENT
‘I am entirely satisfied that there is ample evidence from which the Crown Court could infer 545
that [D] foresaw a risk of damaging the signs by writing on them. Not only was this an obvious
risk in itself, but [D], having done the same thing before, was aware that the cleaning up
operation on that earlier occasion had failed to erase all traces of the pen.’

16.1.5 Without lawful excuse
The Act defines two lawful excuses in s 5. These are available only for the basic offence.
SECTION
‘5(2) A person charged with an offence to which this section applies shall whether or not he
would be treated for the purposes of this Act as having a lawful excuse apart from this
subsection, be treated as having a lawful excuse –
(a) if at the time of the act or acts alleged to constitute the offence he believed that
the person or persons whom he believed to be entitled to consent to the destruc-
tion of or damage to the property in question had so consented, or would have so
consented to it if he or they had known of the destruction or damage and its cir-
cumstances; or
(b) if he destroyed or damaged or threatened to destroy or damage the property in
question . . . in order to protect property belonging to himself or another or a right
or interest in property which was or which he believed was vested in himself or
another, and at the time of the act or acts alleged to constitute the offence he
believed –
(i) that the property was in need of immediate protection; and
(ii) that the means of protection adopted or proposed to be adopted were or
would be reasonable in all the circumstances.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is
honestly held.’
There is therefore a defence under s 5 in two circumstances. D must honestly believe

either that
 the owner (or another person with rights in the property) would have consented to
the damage; or
 other property was at risk and in need of immediate protection and what he did was
reasonable in all the circumstances.
Belief in consent
In Denton [1982] 1 All ER 65, D, who worked in a cotton mill, thought that his employer
had encouraged him to set fire to the mill so that the employer could make an insurance
claim. The Court of Appeal quashed his conviction as he had a defence under s 5(2)(a).
The combination of s 5(2)(a) and s 5(3) allows a defence of mistake to be used, even
where the defendant makes the mistake because they are intoxicated as seen in Jaggard v
Dickinson [1980] 3 All ER 716.
CASE EXAMPLE
Jaggard v Dickinson [1980] 3 all er 716
D, who was drunk, went to what she thought was a friend’s house. There was no one in and so
she broke a window to get in as she believed (accurately) her friend would consent to this. Unfor-
546 tunately in her drunken state she had mistaken the house and had actually broken into the house
of another person. The Divisional Court quashed her conviction, holding that she could rely on
her intoxicated belief as Parliament had ‘specifically required the court to consider the defend-
Criminal damage
ant’s actual state of belief, not the state of belief which ought to have existed’.
The Divisional Court in Jaggard pointed out that a belief may be honestly held whether
it is caused by intoxication, stupidity, forgetfulness or inattention.
Belief that other property was in immediate need of protection

Under s 5(2)(b) there is a defence where D believes the destruction or damage of prop-
erty is needed for the immediate protection of other property. This could give a defence
in situations where trees are cut down or a building demolished to prevent the spread of
fire. A case in which the defence was successfully pleaded in a jury trial was in April
2000 when Lord Melchett and several other members of Greenpeace damaged geneti-
cally modified (GM) crops in order to prevent non-GM crops in neighbouring fields
being contaminated with pollen from the GM crops. The judge allowed the defence to
go to the jury, but they were unable to agree on a verdict. A retrial was ordered and this
time the jury acquitted the defendants.
If D has another purpose in doing the damage, then the court may rule that the
defence is not available to him. Also there is an objective test to decide whether the act
that the defendant did was done for the immediate protection of other property. This
was stressed in Hunt (1977) 66 Cr App R 105.
CASE EXAMPLE
Hunt (1977) 66 Cr app r 105
D helped his wife in her post as deputy warden of a block of old people’s flats. He set fire to
some bedding in order, as he claimed, to draw attention to the fact that the fire alarm was not
in working order. The judge refused to allow a defence under s 5(2)(b) to go to the jury as his
act was not done in order to protect property which was in immediate need of protection. The
Court of Appeal upheld his conviction, despite the very subjective wording of s 5(2)(b). They
held that the question whether or not a particular act of destruction or damage or threat of
destruction or damage was in order to protect property belonging to another must be, on the
true construction of the statute, an objective test. In this case the damage was done in order
to draw attention to the defective fire alarm.
Hunt was followed in the cases of R v Hill: R v Hall (1988) 89 Cr App R 74.
CASE EXAMPLE
R v Hill: R v Hall (1988) 89 Cr app r 74
Both Ds were convicted of possessing articles with intent to damage. They had gone to a US
naval base in south Wales with hacksaws and the intention of damaging the perimeter fence.
They believed the naval base was an obvious target for a nuclear attack and that, as a result,
surrounding homes were in need of protection. They wanted the naval base to be removed.
The Court of Appeal upheld their convictions. The court held that the correct approach was
whether it could be said as a matter of law, on the facts believed by Ds, cutting the perimeter
fence could amount to something done to protect their homes. This was an objective test and
the proposed act was too remote from the eventual aim.
In Jones (Margaret) and another [2004] EWCA Crim 1981; (2004) 4 All ER 955, the question
of whether the damage D is seeking to prevent has to be unlawful damage was addressed. 547
The defendants entered an airbase and caused damage to three refuelling trucks, two
munitions trailers and their tractor units. It was their intention to prevent the United

States and the United Kingdom from using the base to support the war in Iraq. The
Court of Appeal pointed out that the defence was not limited to lawful damage by the
Act. Latham LJ said:
JUDGMENT
‘Whilst there are clearly strong policy arguments for imposing such a further restriction on the
availability of the defence, the fact is that the statute does not so provide.’
The Court of Appeal dismissed Ds’ appeals against conviction on other grounds. The
case was appealed to the House of Lords but the point on whether the damage has to
be unlawful to come within the s 5 defence was not taken there. In the case of Blake v
DPP [1993] Crim LR 586, the defendant put forward defences under both s 5(2)(a) and
s 5(2)(b).
CASE EXAMPLE
Blake v DPP [1993] Crim lr 586
D was a vicar who believed that the government should not use military force in Kuwait and
Iraq in the Gulf War. He wrote a biblical quotation with a marker pen on a concrete post
outside the Houses of Parliament. He claimed that
 he was carrying out the instructions of God and this gave him a defence under s 5(2)(a), as
God was entitled to consent to the damage of property; and
 the damage he did was in order to protect the property of civilians in Kuwait and Iraq and
so he had a defence under s 5(2)(b).
He was convicted and appealed, but both the claims were rejected. The court held that God
could not consent to damage and that what the vicar had done was not capable of protecting
property in the Gulf judged objectively, again despite the apparent subjective wording of both
s 5(2)(a) and (b).
Property
Property is defined in s 10 of the Criminal Damage Act and the same definition applies
to property that a defendant is trying to protect. This was important in Cresswell and
Currie v DPP [2006] EWHC 3379 (Admin).
CASE EXAMPLE
Cresswell and Currie v DPP [2006] eWhC 3379 (admin)
Ds had destroyed four badger traps that had been placed by officers of the Department for
Environment, Food and Rural Affairs (DEFRA) in the course of a cull on farmland in Cornwall
where there were badger setts. They argued that they had acted with lawful excuse under
s 5(2) because they had destroyed the traps in order to protect badgers and that badgers were
property as they were ‘in the course of being reduced into possession’. Ds were convicted and
548 the Court of Appeal upheld their convictions. It was held that wild badgers were not property
within the definition in s 10. They were not in the course of being reduced into the possession
of DEFRA.
Criminal damage
Keene LJ also pointed out that DEFRA owned the badger traps which Ds damaged and
so, if the badgers had become the property of DEFRA, it could not be a lawful excuse to
seek to protect them against actions by those who own them. He said:
JUDGMENT
‘It is not the purpose of s 5(2), as I see it, to prevent the owner of property from destroying it
or damaging it if he wishes to do so, unless that in itself is an unlawful act (in which case
another defence will arise) or someone in addition has some interest in the property in
question.’
The other judge, Walker LJ was not convinced that this was a correct interpretation of
the law. He thought that there might be circumstances where it could be possible to use
s 5 as a defence even though both the property being damaged and the property being
protected belonged to the same person. He gave as an example the situation where the
owner of a valuable piece of antique furniture was drunkenly swinging at it with an axe,
where it might be desirable that a bystander should be entitled to act so as to protect the
property. However, he declined to give a ruling on this point as it had not been argued
before the court.
No defence to protect a person

Oddly enough the Act does not provide a defence where D believes he is acting to protect
a person from harm. In Baker and Wilkins [1997] Crim LR 497, the two defendants believed
that Baker’s daughter was being held in a house. They tried to enter the house, causing
damage to the door. They were convicted and their conviction was upheld on appeal as
s 5(2)(b) only provides a defence where other property is in immediate need of
protection.
The Law Commission in its report, Legislating the Criminal Code: Offences against the
Person and General Principles (1993) Law Com No 218 at para 37.6 acknowledged that it is
anomalous that no defence is available for protection of people when there is a defence
for protection of property. It recommended that s 5 should be brought into line with self-
defence and a defence allowed when the act is for the immediate protection of a
person.
16.2 Endangering life
This is an aggravated offence of criminal damage under s 1(2) Criminal Damage Act
1971, which states:
SECTION
‘1(2) A person who without lawful excuse destroys or damages any property, whether
belonging to himself or another –
(a) intending to destroy or damage any property or being reckless as to whether any
property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being
reckless as to whether the life of another would be thereby endangered; shall be
guilty of an offence.’
549
This offence is regarded as much more serious than the basic offence and it carries a
maximum sentence of life imprisonment.
16.2 endangering life

16.2.1 Danger to life
The danger to life must come from the destruction or damage, not from another source in
which damage was caused. In Steer [1987] 2 All ER 833, D fired three shots at the home of
his former business partner, causing damage to the house. The Court of Appeal quashed
his conviction as it held the danger came from the shots, not from any damage done to the
house through those shots. It certified the following question to go to the House of Lords:
quotation
‘Whether, upon a true construction of s 1(2)(b) of the Criminal Damage Act 1971, the pro-
secution are required to prove that the danger to life resulted from the destruction of or
damage to the property, or whether it is sufficient for the prosecution to prove that it resulted
from the act of the defendant which caused the destruction or damage.’
The House of Lords ruled that as the Act used the phrase ‘by the destruction or damage’,
it could not be extended to mean ‘by the damage or by the act which caused the damage’.
It also pointed out that if it did include the act (as opposed to the damage), then there
would be an anomaly which Parliament could not have intended, which it illustrated in
the following way.
JUDGMENT
‘If A and B both discharge firearms in a public place, being reckless whether life would be
endangered, it would be absurd that A, who incidentally causes some trifling damage to the
property, should be guilty of an offence punishable with life imprisonment, but that B, who
causes no damage, should be guilty of no offence. In the same circumstances, if A is merely
reckless but B actually intends to endanger life, it is scarcely less absurd that A should be guilty
of the graver offence under s 1(2)(b) of the 1971 Act, B of the lesser offence under s 16 of the
Firearms Act 1968.’
In the later conjoined cases of Webster and Warwick [1995] 2 All ER 168, the Court of
Appeal strained to distinguish the decision in Steer (1987). In Webster (1995) three defend-
ants pushed a large stone from a bridge on to a train underneath. The stone hit the roof
of one coach and caused debris to shower the passengers in that coach, although the
stone itself did not fall into the carriage. In Warwick (1995), D rammed a police car and
threw bricks at it causing the rear window to smash and shower the officers with broken
glass. The Court of Appeal quashed the conviction in Webster (1995) because the judge
had misdirected the jury that an intention to endanger life by the stone falling was suf-
ficient for guilt, but it substituted a conviction based on recklessness. In Warwick (1995)
it upheld the conviction. Lord Taylor CJ stated:
JUDGMENT
‘[I]f a defendant throws a brick at a windscreen of a moving vehicle, given that he causes some
damage to the vehicle, whether he is guilty under s 1(2) does not depend on whether the brick
hits or misses the windscreen, but whether he intended to hit it and intended that the damage
therefrom should endanger life or whether he was reckless as to that outcome. As to the drop-
550 ping of stones from bridges, the effect of the statute may be thought strange. If the defend-
ant’s intention is that the stone itself should crash through the roof of a train . . . and thereby
directly injure a passenger or if whether he was reckless only as to that outcome, the section
Criminal damage
would not bite . . . If, however, the defendant intended or was reckless that the stone would
smash the roof of the train or vehicle so that metal or wood struts from the roof would or
obviously might descend upon a passenger, endangering life, he would surely be guilty. This
may seem a dismal distinction.’
It is of interest to note that the Court of Appeal’s decision in these cases is contrary to
obiter statements in the judgment in Steer (1987), where Lord Bridge specifically con-
sidered this type of situation:
JUDGMENT
‘Counsel for the Crown put forward other examples of cases which he suggested ought to be
liable to prosecution under s 1(2) of the 1971 Act, including that of the angry mob of striking
miners who throw a hail of bricks through the window of a cottage occupied by the working
miner and that of people who drop missiles from motorway bridges on passing vehicles. I
believe that the criminal law provides adequate sanctions for these cases without the need to
resort to s 1(2) of the 1971 Act. But, if my belief is mistaken, this would still be no reason to
distort the plain meaning of that subsection.’
16.2.2 Life not actually endangered

Life does not actually have to be endangered. In Sangha [1988] 2 All ER 385, D set fire to
a mattress and two chairs in a neighbour’s flat. The flat was empty at the time and,
because of the design of the building, people in adjoining flats were not at risk. The
Court of Appeal applied the now discredited test from Caldwell (1982) when it said
that:
JUDGMENT
‘The test to be applied is this: is it proved that an ordinary prudent bystander would have per-
ceived an obvious risk that property would be damaged and that life would thereby be endan-
gered? 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 the perception is relevant is the time when the fire started.’
This decision took the objective test to a ridiculous degree. It meant that if D was an
expert and knows there is no risk of endangering life by his actions, he would not have
been judged by that but by whether an uninformed ordinary prudent bystander would
think there was a risk. This objective interpretation must now be taken to be superseded
by the use of subjective recklessness in G and another (2003). So, the test is whether the
defendant realised that life might be endangered. If he did then he would be guilty even
if there was no actual risk.
16.2.3 Own property

Section 1(2) applies where the property damaged is the defendant’s own. This can be
justified in most situations, as the aim of the section is to make D guilty where he has
intended or been reckless as to whether life is endangered by the damage he does. It
does not matter whether the damage is to his property or someone else’s. However,
the case of Merrick [1995] Crim LR 802 shows how the section can be extended to
551
absurd lengths.
In Merrick (1995), D was employed by a householder to remove some old television
cable. While doing this D left the live cable exposed for about six minutes. The Court
16.2 endangering life

of Appeal upheld his conviction under s 1(2) of the 1971 Act. In this case the house-
holder was using Merrick (1995) as an agent, but if the householder had done the work
personally it seems that he would equally have been guilty. The other anomaly shown
by this case is that Merrick (1995) was guilty only because he was removing old cable
and ‘damaging’ it by this process. If he had been installing new wiring and left that
exposed for six minutes it would have been difficult to argue that there was any
damage and so he would have been not guilty. Yet the action and the danger in both
situations are the same.
16.2.4 Mens rea

There are two points which the prosecution must prove. These are:
1. intention or recklessness as to destroying or damaging any property;
2. intention or recklessness as to whether life is endangered by the destruction or
damage.
Intention and recklessness have the same meaning as for the basic offence (see section
16.1.4). This means that the Caldwell (1982) test for recklessness has been overruled
and the prosecution must prove that the defendant was aware both that there was a
risk the property would be destroyed or damaged and that life would be
endangered.
The decision in R (Stephen Malcolm) (1984) 79 Cr App R 334, where the Court of
Appeal followed the decision in Elliott v C (1983), even though they were reluctant to
do so, must be taken as overruled. In that case the defendant was a 15-year-old boy
who, with two friends, had thrown milk bottles filled with petrol at the outside wall of
a neighbour’s ground-floor flat. These had caused sheets of flame which flashed across
the window of the flat, endangering the lives of the occupants. D argued that he had
not realised the risk, but the Court of Appeal held that the test was whether an ordinary
prudent man would have appreciated the risk that life might be endangered. The deci-
sion following G and another (2003) would be whether the defendant had realised the
risk.
This was confirmed in Cooper [2004] EWCA Crim 1382 and Castle [2004] EWCA Crim
2758.
CASE EXAMPLE
Cooper [2004] eWCa Crim 1382
D, who lived in a hostel for people needing support for mental illness, set fire to his mattress
and bedding. There was no serious damage. When asked by the police if it had crossed his
mind that people might have been hurt, he replied ‘I don’t think, it did cross my mind a bit but
nobody would have got hurt.’ He was charged with arson being reckless as to whether life
would be endangered. The trial judge directed the jury in accordance with Caldwell. D was
convicted but the conviction was quashed as the Court of Appeal held that the Caldwell test
was no longer appropriate. The test for recklessness was subjective.
Rose LJ made it clear that G and R (2003) had affected the law in respect of the level of
recklessness required for all criminal damage offences when he said:
552
JUDGMENT
‘In the light of the House of Lords speeches in G and R, the Caldwell direction was a misdirec-
Criminal damage
tion. It is now, in the light G and R, incumbent on a trial judge to direct a jury, in a case of this
kind, that the risk of danger to life was obvious and significant to the defendant. In other
words, a subjective element is essential before the jury can convict of this offence.’
A similar decision was reached in Castle [2004] EWCA Crim 2758 where D broke into
some offices at night to burgle them. On leaving he set fire to the premises. There were
two flats above the offices but neither of the occupants was at home. These flats suffered
Endangering life s 1(2)

Basic offence
plus
intending to endanger life or being reckless
as to whether life was endangered
BASIC OFFENCE Arson s 1(3)

s 1 Criminal Damage Act 197
71
7
19711
Basic offence committed by
destroying or damaging
property by fire
Aggravated arson s 1(3)

Basic offence committed by destroying
or damaging property by fire
plus
intending to endanger life or being reckless
as to whether life was endangered
Figure 16.1 Offences of criminal damage.

smoke and soot damage from the fire. The trial judge directed the jury in accordance
with Caldwell. As in Cooper the Court of Appeal quashed D’s conviction stating that the
Caldwell test was no longer appropriate. The test for recklessness was subjective.
16.3 Arson
Under s 1(3) Criminal Damage Act 1971, where an offence under s 1 Criminal Damage
Act 1971 is committed by destroying or damaging property by fire, the offence becomes
arson. The maximum penalty is life imprisonment.
The basic offence of criminal damage must be destruction or damage by fire. All the
other ingredients of the offence are the same as for the basic offence. Where aggravated
arson is charged then it is necessary for the prosecution to prove that the defendant
intended or was reckless as to whether life was endangered by the damage or destruc-
tion by fire.
In Miller [1983] 1 All ER 978, the House of Lords held that arson could be committed 553
by an omission where the defendant accidentally started a fire and failed to do anything
to prevent damage from that fire.
16.3 arson
kEy fACTS
Key facts on criminal damage
Criminal
Damage Act Actus reus Comment/case Mens rea Comment/case
1971
s 1(1) Basic Destroy or Damage need only be Intending or Normal principles
offence damage slight and non- being reckless of intention
property permanent Roe v as to apply.
belonging to Kingerlee (1986) destruction or Cunningham
another. but must need some damage. (1957)
effort to remove it A recklessness
(a Juvenile) (1978). applies.
Any tangible property G and another
including land can be (2003).
damaged.
Having a proprietary
right.
s 1(2) Basic offence Danger must come Mens rea for Intention and
Endangering and intending from destruction or basic offence recklessness have
life or being damage (Steer (1987); and intention the same
reckless as to Webster and Warwick or recklessness meaning as for
whether life (1995)). as to whether the basic offence
was Can commit offence by life was (Castle (2004)).
endangered. damaging own endangered.
property.
s 1(3) Arson Committed by Can be committed by The intending –
fire. omission (Miller (1983)). or being
Aggravated reckless as to
offence destruction or
committed by damage must
fire. be by fire.
16.4 Threats to destroy or damage property
This is an offence against s 2 of the Criminal Damage Act 1971:
SECTION
‘2 A person who without lawful excuse makes to another a threat, intending that that other
would fear it would be carried out –
(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger
the life of that other or a third person; shall be guilty of an offence.’
The threat is, therefore, of conduct which would be an offence under s 1 of the Act.
However, there is a key difference in that the defendant must intend that the other
554
would fear the threat would be carried out. Section 2 does not give any alternative of
being reckless as to whether the other would fear the threat would be carried out. In
Cakman and others, [2002] Crim LR 581, the defendants had occupied two of the ‘pods’
Criminal damage
of the London Eye, demonstrating against human rights abuses in Turkey. They used
an intercom to contact the operator of the wheel. They threatened to set fire to them-
selves if any attempt was made to storm the pods. Some of the protesters were seen
to pour liquid over themselves. They were convicted of an offence under s 2(b).
The Court of Appeal quashed the convictions as they held that it was not enough to
prove that the threatener was reckless as to whether the person threatened feared that
the threats would be carried out. It had to be proved that the person making the threat
intended that the person threatened would fear that the threat would be carried out.
There is no mention of ‘recklessly’ in s 2, whereas in s 1, for the basic offence, ‘recklessly’
is expressly included. The Court of Appeal also pointed out that the nature of the threat
of damage to the property had to be considered objectively. It does not matter what the
person threatened thought.
16.5 Possessing anything with intent to destroy or

damage property
Section 3 of the Criminal Damage Act 1971 sets out:
SECTION
‘3 A person who has anything in his custody or under his control intending without lawful
excuse to use it or cause or permit another to use it –
(a) to destroy or damage any property belonging to some other person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger
the life of some other person; shall be guilty of an offence.’
The actus reus is having the item in one’s custody or control. The possession must be for
the purpose of committing an offence under s 1. There is no time limit on when the
offence will be committed, so there is no need to prove that it was imminent. The mens
rea is the intention of using the item to commit a s 1 offence. This can be a conditional
intention where the defendant only intends to use the item if he has to or in a certain
event.
16.6 Racially aggravated criminal damage
This is an offence under s 30(1) of the Crime and Disorder Act 1998. An offence under s
1(1) of the Criminal Damage Act 1971 must have been committed together with the
special circumstances set out in s 28 of the Crime and Disorder Act 1998. These are that
 at the time of committing the offence, or immediately before or after doing so, the
offender demonstrates towards the victim of the offence hostility based on the
victim’s membership (or presumed membership) of a racial group; or
 the offence is motivated (wholly or partly) by hostility towards members of a racial
group based on their membership of that group.
The meaning of s 28 is the same as for racially or religiously aggravated assaults (see section
11.6). However, as the offence is aimed at property and not a person, s 30(3) of the Crime
and Disorder Act 1998 states that s 28(1) of the Act shall have effect as if the person to
whom the property belongs or is treated as belonging were the victim of the offence. 555
Note that only the basic offence of criminal damage under s 1(1) of the Criminal
Damage Act 1971 can become a racially or religiously aggravated offence. There is no
16.6 raCially aggravaTed Criminal damage

provision for the offence of arson to be a racially or religiously aggravated offence. This
is because the purpose of making an offence a racially or religiously aggravated one is to
increase the maximum penalty. As arson has a maximum term of imprisonment of life,
it is impossible for the maximum to be increased.
The penalty for racially or religiously aggravated criminal damage is 14 years as com-
pared to ten years for the straightforward basic offence.
SUMMARy
Basic offence
D destroys or damages any property belonging to another intending to destroy or
damage any such property or being reckless as to whether any such property would be
destroyed or damaged and without lawful excuse.
Section 5 defences
D has a lawful excuse for the damage or destruction in the following circumstances:
 Section 5(2)(a) if at the time of the act or acts alleged to constitute the offence, D
believed that the person(s) entitled to consent to the destruction of or damage to the
property had consented, or would have so consented to it if he had known of the
destruction or damage and its circumstances.
 Section 5(2)(b) if D destroyed or damaged the property in question in order to protect
property belonging to himself or another, and at the time of the act or acts alleged to
constitute the offence he believed –
(i) that the property was in need of immediate protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would
be reasonable in all the circumstances.
For s 5(2)(a) D has a defence even if he made a mistake through intoxication.
Endangering life
 This is where D commits the basic offence and intends by the destruction or damage
to endanger the life of another or is reckless as to whether the life of another would
be endangered.
 Life does not actually have to be endangered.
 The offence can be committed even though the property damaged is the defendant’s
own.
Arson
 Where the basic offence of criminal damage is destruction or damage by fire.
Aggravated arson
 Life was endangered and D intended or was reckless as to whether life was endan-
gered by the damage or destruction by fire.
Threats to destroy or damage property

556 Where, without lawful excuse, D makes a threat to another, intending that that other
would fear it would be carried out:
 to destroy or damage any property belonging to that other or a third person; or
Criminal damage
 to destroy or damage D’s own property in a way which he knows is likely to endan-
ger the life of that other or a third person.
Possessing anything with intent to destroy or damage property

Where D has anything in his custody or under his control intending without lawful
excuse to use it or cause or permit another to use it:
 to destroy or damage any property belonging to some other person; or
 to destroy or damage his own property in a way which he knows is likely to endan-
ger the life of some other person.
Racially aggravated criminal damage

Where D commits an offence under s 1 and at the time of the offence, or immediately
before or after doing so, demonstrates towards V hostility based on V’s membership (or
presumed membership) of a racial group or is motivated by hostility towards members
of a racial group.
ACTIVITy
applying the law
Discuss what offences, if any, have been committed in the following situations.
1. Anwal, aged ten, stands at the side of a country road and throws stones at passing cars.
One stone hits the door of a car and causes a slight mark on the door. Another stone hits
the side window of the car causing it to smash, showering the driver with glass. The driver
swerves but manages to stop the car safely. Would your answer be different if Anwal was
aged 20 and throwing stones on to cars from a bridge across a busy motorway?
2. Charlene has had an argument with her flatmate, Louisa. Charlene decides to teach Louisa
a lesson by setting fire to some of her clothes. Charlene hangs an expensive dress out of
the window and sets it alight. She then goes out. The flames from the dress set the window
curtains alight and the fire spreads to the rest of the flat.
3. Donovan writes racially abusive words in chalk on the pavement outside a neighbour’s
house. The next day it rains and the chalk is washed away.
4. Errol and Fred are demolition workers for a local council. They are given instructions to
demolish houses owned by the council in Green Street. The house numbers they are
given are 1, 3, 5, 7, 9 and 11. When they arrive at Green Street they find that the houses
are semi-detached in pairs, 1 and 3, 5 and 7, 9 and 11. They start by demolishing the pair
of numbers 1 and 3. They then use heavy machinery to knock down the side wall of
number 5. At this point Hannah comes out from number 7 and tells them to stop as she
owns number 7 and if they continue to demolish number 5 it will damage her house.
Errol and Fred insist they have the right to demolish both number 5 and number 7. While
Hannah is arguing with them, her son, Ian, aged 14, removes some wiring from the
engine of their demolition machinery. This means they are unable to do any more work.
However, they have so weakened the structure of number 5 that it collapses and causes
damage to number 7.
557
Critically discuss whether the defences under s 5 of the Criminal Damage Act 1971 should
sample essay qUesTion

be reformed.
State the defences under s 5:

• s 5(2)(a) believed would have consent of person whose
property was damaged
• s 5(2)(b) damage done in order to protect property
• s 5(3) immaterial whether a belief is justified or not if it is
honestly held
Defences only available to basic offence
Explain the effect of s 5(2)(a):

Consider decisions such as:
• Denton (1982)
• Jaggard v Dickinson (1980)
Explain the effect of s 5(2)(b):

Consider decisions such as:
• Hunt (1977)
• R v Hill; R v Hall (1988)
• Jones (Margaret) and another (2004)
• Cresswell and Currie v DPP (2006)
Discuss points such as:
• Defence under s 5(2)(b) not available for protection of
people Baker and Wilkins (1997)
• Law Commission recommendations regarding a defence
for protection of people
• Should protection of property be limited to where the
risk is from unlawful damage?
• Should the defence be allowed where the damage is
caused due to a drunken mistake as in Jaggard v
Dickinson?
558
Compare the defences under s 5 with defences
available for assaults especially:
Criminal damage
• Drunken mistake cannot be relied on in defence of self-

defence to assault although it is allowed for criminal
damage
Conclude
Further reading
Books
Ormerod, D and Laird, K, Smith and Hogan Criminal Law: Cases and Materials (11th edn,
Oxford University Press, 2014), Chapter 30.
Articles
Elliott, D W, ‘Endangering life by destroying or damaging property’ (1997) Crim LR
382.
Haralambous, N, ‘Retreating from Caldwell: restoring subjectivism’ (2003) NLJ 1712.
Law Commission, Criminal Law: Report on Offences of Damage to Property (1970) (Law
Com No 29).
17
Public order offences
AIMS AND OBJECTIVES

 Understand the actus reus and mens rea of the offences of riot, violent disorder and
affray
 Understand the actus reus and mens rea of other offences created by the Public
Order Act 1986
 Analyse critically offences under the Public Order Act 1986
 Apply the law to factual situations to determine whether there is criminal liability
for an offence under the Public Order Act 1986
The main public order offences are now contained in the Public Order Act 1986 as
amended by the Crime and Courts Act 2013, though there are other offences, for
example wearing a uniform for a political purpose under the Public Order Act 1936,
and aggravated trespass under s 68 of the Criminal Justice and Public Order Act
1994.
The Public Order Act 1986 abolished the old common law offences of riot, rout,
unlawful assembly and affray and created three new offences in their place. These
are riot, violent disorder and affray. The law has been made more coherent, with
common themes of using or threatening unlawful violence, and conduct which
would cause a person of reasonable firmness present at the scene to fear for his per-
sonal safety.
Although these offences are aimed at maintaining public order, the Act states that
all three offences can be committed in private as well as in a public place.
17.1 Riot
This is an offence under s 1 of the Public Order Act 1986:
SECTION
‘1(1) Where twelve or more persons who are present together use or threaten unlawful viol-
ence for a common purpose and the conduct of them (taken together) is such as would
cause a person of reasonable firmness present at the scene to fear for his personal
safety, each of the persons using unlawful violence for the common purpose is guilty of
riot.
(2) It is immaterial whether or not the twelve or more use or threaten unlawful violence
simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or likely to be, present at the
scene.
(5) Riot may be committed in private as well as public places.’
560
17.1.1 The actus reus of riot

This has several elements. It requires:
 at least 12 people to be present together with a common purpose;

 violence to be used or threatened by them;
 so that the conduct would cause a person of reasonable firmness present at the scene
to fear for his personal safety.
The 12 or more people need not have agreed to have assembled together; the fact that
they are there together is the key point. The common purpose need not have been
previously agreed. As s 1(3) states, the common purpose can be inferred from the
conduct of the 12 or more people. This covers situations where a number of people
come to the scene (whether together or one by one) and then because of an incident
involving one person (perhaps being arrested by the police), 12 or more of the people
there start threatening the police. All those threatening or using violence will then be
guilty of riot.
The offence of riot can be committed even if the common purpose is lawful, for
example employees want to discuss redundancies with their employer. But if 12 or more
of them use or threaten unlawful violence they may be guilty of riot.
Violence
The meaning of ‘violence’ is explained in s 8 of the Act:
SECTION
‘8 . . . (i) except in the context of affray, it includes violent conduct towards property as
well as violent conduct towards persons, and
(ii) it is not restricted to conduct causing or intended to cause injury or damage but
includes any other violent conduct (for example, throwing at or towards a person
a missile of a kind capable of causing injury which does not hit or falls short).’
Only unlawful violence can create riot. If the violence is lawful, for example in preven-
tion of crime, or self-defence, then there is no offence.
17.1.2 Mens rea of riot
Section 6(1) states the mental element required for the offence:
SECTION
‘6(1) A person is guilty of riot only if he intends to use violence or is aware that his conduct
may be violent.’
Were there 12 or more Not riot – not enough people

present? NO
YES 561
Were the 12 or more people Not riot – no unlawful violence
17.1 riot
threatening unlawful violence? NO
YES
Did the people have a common

purpose? Not riot – no common purpose
NO
N.B.: The common purpose can
be inferred from conduct
YES
Would the conduct cause a

person of reasonable firmness to
Not riot
fear for his personal safety? NO
N.B.: No need for such a person
to be present
YES
Did D intend to use violence or Not riot – no mens rea

was he aware that his conduct NO
might be violent?
YES
All elements of riot are present
Figure 17.1 Flow chart on riot.

So from this it can be seen that intention or ‘awareness’ is the mental element. Inten-
tion has the normal meaning in criminal law. However, awareness is a new concept.
It has some similarity to Cunningham (1957) recklessness (see Chapter 3, section 3.3) as
it is a partly subjective test: the defendant must be aware that his conduct may be
violent. But it is not fully subjective as it does not require the defendant to be aware
that it is unreasonable to take the risk that his conduct may be considered violent or
threatening.
Section 6 also has a subsection specifically on the effect of intoxication on a defend-
ant’s mens rea. Section 6(5) states that:
SECTION
‘6(5) For the purposes of this section a person whose awareness is impaired by intoxication
562 shall be taken to be aware of that which he would be aware if not intoxicated, unless he
shows either that his intoxication was not self-induced or that it was caused solely by the
taking or administration of a substance in the course of medical treatment.’
This makes riot a basic intent offence. However, unlike other basic intent offences, it
puts the onus of proving that the intoxication was involuntary on the defendant.
Intoxication is defined in s 6(6) as ‘any intoxication, whether caused by drink, drugs
or other means, or by a combination of means’.
17.1.3 Trial and penalty

Riot is viewed as a serious offence and has to be tried on indictment at the Crown Court.
The maximum penalty is imprisonment for ten years. Riot is regarded as serious because
there is criminal behaviour by a large group of persons.
17.2 Violent disorder

This is an offence under s 2 Public Order Act 1986:
SECTION
‘2(1) Where three or more persons who are present together use or threaten unlawful viol-
ence and the conduct of them (taken together) is such as would cause a person of
reasonable firmness present at the scene to fear for his personal safety, each of the
persons using or threatening unlawful violence is guilty of violent disorder.
(2) It is immaterial whether or not the three or more use or threaten unlawful violence
simultaneously.
scene.
(4) Violent disorder may be committed in private as well as public places.’
17.2.1 Present together

As can be seen from s 2(1) above, one of the requirements for the actus reus of violent
disorder is that three or more persons must be present together. The meaning of ‘present
together’ was considered in NW [2010] EWCA Crim 404.
CASE EXAMPLE
NW [2010] eWcA crim 404
A friend of NW dropped litter and was asked to pick it up by a police officer. The friend did
pick it up but then dropped it again. The police officer asked her to pick it up again and when
she failed to do so, the police officer took hold of her arm. NW intervened and held on to her
friend’s jacket. The incident escalated into violence with NW using violence towards the police,
and a crowd gathering some of whom also threatened or used violence towards the police.
The defendant and two others were charged with violent disorder and convicted.
On appeal, the defence argued that although there did not need to be a common purpose,
there must be some degree of conscious participation or cooperation with others or at least
some foresight that more widespread disorder might result from his or her actions. The Court
of Appeal rejected this argument and held that the offence was committed when three
persons were present threatening or using violence. The expression ‘present together’ meant 563
no more than being in the same place at the same time. They pointed out that three or more
people threatening or using violence in the same place at the same time is a daunting prospect
for other people who may be there. It makes no difference whether the threat or use of viol-
17.2 Violent disorder

ence is for the same purpose or a different purpose. The court also pointed out that ss 1 (riot),
2 (violent disorder) and 3 (affray) in the Public Order Act 1986 were all aimed at public disorder
of a kind which would cause ordinary people at the scene to fear for their safety.
The decision in NW (2010) stresses the fact that no common purpose is needed for the
offence of violent disorder.
17.2.2 Mens rea of violent disorder

Under s 6(2) of the Public Order Act 1986, the mens rea required is that D intends to use
or threaten violence or be aware that his conduct may be violent or threaten violence.
The same rule on intoxication under s 6(5) of the Act that applies to riot also applies to
violent disorder. So violent disorder is a basic intent offence. If D claims that the intoxi-
cation was involuntary, then the burden of proving this is on the defendant.
17.2.3 Comparison with riot

tutor tip Most of the elements are the same as for riot. The similarities are the following:
‘Make sure that  The people must be present together.
you understand
the difference  They must use or threaten unlawful violence so that their conduct would cause a
between riot, person of reasonable firmness present at the scene to fear for his personal safety.
violent disorder
and affray.’  The violence can be to a person or to property.
 It can be in either a public or a private place.
 There must be intention to use violence or awareness by D that his conduct may be
violent. This is specifically stated in s 6(2) of the Act.
 Section 6(5) applies to both riot and violent disorder, so violent disorder is also a
basic intent offence and D has to prove that any intoxication was involuntary.
The differences are:

 There need only be three people involved (although it can be charged where there is
a greater number of persons involved – even where there are 12 or more).
 There is no need for a common purpose.
Violent disorder is regarded as less serious than riot. It is intended to be used where
fewer people are involved or for less serious happenings of public disorder. This can be
seen by the fact that it is triable either way (though in most cases it is tried on indict-
ment). Where it is tried on indictment, the maximum penalty is imprisonment for five
years.
17.3 Affray
This is an offence under s 3 Public Order Act 1986:
SECTION
564
‘3(1) A person is guilty of affray if he uses or threatens unlawful violence towards another
and his conduct is such as would cause a person of reasonable firmness present at the
scene to fear for his personal safety.
(2) If two or more persons use or threaten unlawful violence, it is the conduct of them
taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section a threat cannot be made by the use of words alone.
scene.
(5) Affray may be committed in private as well as public places.’
17.3.1 Actus reus of affray

For this offence there has to be:
 use or threat of violence towards another person; and
 conduct which would cause a reasonable person present at the scene to fear for his
safety.
Use or threat of violence towards another person

There must be someone present at the scene, as the use or threat of unlawful violence
must be against a person. (This is different from riot and violent disorder.) The point
was decided in I, M and H v DPP [2001] UKHL 10.
CASE EXAMPLE
I, M and H v DPP [2001] uKHl 10
All three Ds were members of a gang. They had armed themselves with petrol bombs which
they intended to use against a rival gang. Before the rival gang came on the scene, the police
arrived, and the group (including the three Ds) threw away their petrol bombs and dispersed.
The stipendiary magistrate found that there was no one present apart from the police. There
was no threat to the police because the moment they arrived, the gang dispersed. The House
of Lords quashed their conviction, as affray can only be committed where the threat was dir-
ected towards another person or persons actually present at the scene.
Lord Hutton in his judgment pointed out that the defendants should have been charged
under s 1 of the Prevention of Crime Act 1953 or s 4 of the Explosive Substances Act
1883.
Conduct
The threat cannot be made by words alone, even if the words are very threatening and
the tone of voice aggressive. There must be some conduct. In Dixon [1993] Crim LR 579,
the Court of Appeal upheld D’s conviction for affray where the police had been called to
a domestic incident. When they got there D ran away, accompanied by his Alsatian-type
dog. The police officers cornered him and he encouraged the dog to attack them. Two
officers were bitten before extra police arrived, and D was arrested. Encouraging the dog
to attack was held to be conduct.
Person of reasonable firmness

Section 3(4) states that it is not necessary for a person of reasonable firmness to have
been at the scene. This point was illustrated in Davison [1992] Crim LR 31, where the
police were called to a domestic incident. D waved an eight-inch knife at a police officer
saying, ‘I’ll have you.’ The Court of Appeal upheld his conviction for affray. It was not
a question of whether the police officer feared for his personal safety. The test was 565
whether a hypothetical person of reasonable firmness who was present at the scene
would have feared for his personal safety.
The offence of affray is a public disorder offence designed for the protection of the
17.3 AffrAy
bystander. In R (on the application of Leeson) v DPP [2010] EWHC 994 Admin, the court
had to consider a purely domestic incident.
CASE EXAMPLE
R (on the application of Leeson) v DPP [2010] eWHc 994 Admin
D, who had a history of irrational behaviour, lived with V. D, while holding a knife, walked into
the bathroom of their home where V was taking a bath. She was very calm and said ‘I am
going to kill you.’ V did not believe that she would use the knife and easily disarmed her. The
magistrates convicted D of affray on the basis that, although the chance of anyone arriving at
the house while D was holding the knife was small, it could not be discounted. The Divisional
Court allowed D’s appeal as on the evidence they did not think that any bystander would have
feared for his own safety.
In her judgment Rafferty J reviewed earlier cases, in particular the case of Sanchez [1996]
Crim LR 527 where D had tried to attack her former boyfriend with a knife outside a
block of flats. V deflected the blow and ran. The Court of Appeal quashed her conviction
for affray as the violence was merely between the two individuals, and as it was out-
doors in an open space, there was ample opportunity for any bystander to distance
himself from the violence. Thus, there was no real possibility that any bystander would
fear for his personal safety.
17.3.2 Mens rea of affray

The defendant is only guilty if he intends to use or threaten violence or is aware that his
conduct may be violent or threaten violence. This is the same rule as for violent disorder
(s 6(2) of the Act). Like riot and violent disorder, affray is also a basic intent offence, and
the same rule also applies of the onus being on the defendant to prove that any intoxica-
tion was involuntary (s 6(5)).

Affray is triable either way, but it is usually tried summarily at a magistrates’ court. If it
is tried on indictment then the maximum penalty is three years’ imprisonment.
kEy fACTS
Key facts on riot, violent disorder and affray
Violent
Riot Affray
disorder
Public Order Act 1986 s1 s2 s3
Number needed 12 3 1
Use or threaten alone (s 3(3)) Yes Yes Yes, but not words,
unlawful violence
Common purpose required Yes No No

Can be inferred from
566 conduct (s 1(3))
Can be in public place or in Yes Yes Yes

private (s 1(5)) (s 2(4)) (s 3(5))
Can include violent conduct Yes Yes No

towards property (s 8(a)) (s 8(a))
Must intend violence or be aware Yes Yes Yes

conduct might be violent (s 6(1)) (s 6(2)) (s 6(2))
17.4 Fear or provocation of violence

Section 4 of the 1986 Act states:
SECTION
‘4(1) A person is guilty of an offence if he:
(a) uses towards another person threatening, abusive or insulting words or behaviour,
or
(b) distributes or displays to another person any writing, sign or other visible repres-
entation which is threatening, abusive or insulting, with intent to cause that person
to believe that immediate unlawful violence will be used against him or another by
any person, or to provoke the immediate use of unlawful violence by that person or
another, or whereby that person is likely to believe that such violence will be used
or it is likely that such violence will be provoked.
(2) An offence under this section may be committed in a public or private place, except that
no offence is committed where the words or behaviour are used, or the writing, sign or
other visible representation is distributed or displayed, by a person inside a dwelling and
the other person is also inside that or another dwelling.’
This is a summary offence, triable only in a magistrates’ court and carrying a maximum
sentence of six months’ imprisonment.
17.4.1 Actus reus of a s 4 offence

This offence can be committed in four different ways:
 using threatening, abusive or insulting words towards another person;
 using threatening, abusive or insulting behaviour towards another person;
 distributing to another person any writing, sign or other visible representation which
is threatening, abusive or insulting;
 displaying to another person any writing, sign or other visible representation which
is threatening, abusive or insulting.
The offence can be committed in a public or private place, but s 1(2) specifically excludes
events that occur within a dwelling. In Atkin v DPP [1989] Crim LR 581, D used threaten-
ing words while in his own home. This could not be an offence under s 4 of the Act.
17.4.2 Threatening, abusive or insulting

The common element of the four ways of committing this offence is the phrase ‘threaten-
ing, abusive or insulting’. These words are not defined in the Act, but they were previ- 567
ously used in the Public Order Act 1936. Cases on that Act held that these words should
be given their ordinary meaning. In Brutus v Cozens [1972] 2 All ER 1297, it was even
stated that it was not helpful to try to explain them by the use of synonyms or dictionary
17.4 feAr or ProVocAtion of Violence

definitions, because ‘an ordinary sensible man knows an insult when he sees or hears it’.
In this case the House of Lords held that whether something was ‘threatening, abusive
or insulting’ was a question of fact.
CASE EXAMPLE
Brutus v Cozens [1972] 2 All er 1297
D made a protest about apartheid in South Africa by running onto the court during a tennis
match at Wimbledon and blowing a whistle and distributing leaflets. The protest lasted about
two or three minutes. The magistrates acquitted him of an offence under s 5 of the Public
Order Act 1936 (since repealed) and found as a fact that his behaviour was not insulting. The
House of Lords held that this finding of fact was not unreasonable and the acquittal could not
therefore be challenged.
Although it was said that ‘an ordinary sensible man knows an insult when he sees or
hears it’, there have been some convictions under s 4 which appear strange. In Masterson
v Holden [1986] 3 All ER 39, intimate cuddling by two homosexual men in Oxford Street
at 1:55 a.m. in the presence of two young men and two young women was held capable
of being insulting.
17.4.3 Towards another person

Section 4(1)(a) provides that the threatening, abusive or insulting words must be towards
another person. In Atkin v DPP (1989) it was held that this means ‘in the presence of and
in the direction of another person directly’. In Atkin (1989), D knew that a bailiff was in
a car outside his house. He told customs officers who entered his house that if the bailiff
came in, he was ‘a dead un’. The bailiff was informed of this and felt threatened.
However, because he was not present and the words were not used at him, D was not
guilty.

Section 6(3) states:
SECTION
‘6(3) A person is guilty of an offence under section 4 only if he intends his words or behaviour,
or the writing sign or other visible representation, to be threatening, abusive or insulting, or is
aware that it may be threatening, abusive or insulting.’
The first point is that D must intend, or be aware, that his words or behaviour towards
the other person might be threatening, abusive or insulting. Then, for an offence under
this section to be proved, it must also be shown that:
 D intends that the other person will believe that immediate unlawful violence will be
used against him; or
 D intends to provoke the immediate use of unlawful violence by the other person;
or
568
 the other person is likely to believe that immediate unlawful violence will be used
against him; or
 it is likely to provoke the immediate use of unlawful violence.
If D carries out an attack, but does not intend V to be aware that D is about to use unlaw-
ful violence on V, then D cannot be guilty under s 4. This was the situation in Hughes v
DPP [2012] EWHC 606 (Admin).
CASE EXAMPLE
Hughes v DPP [2012] eWHc 606 (Admin)
D approached V from V’s right side and from slightly behind V. D struck V a violent blow to
the side of V’s head. V immediately fell down, unconscious. D’s conviction for a s 4 offence
was quashed as there was no evidence that D intended V to believe that immediate
unlawful violence would be used against him. The way D approached V from slightly behind
and the fact that D hit V without warning suggested that D’s intention was to hit V
before V knew what was happening. This did not show that D had the necessary mens rea
for s 4.
17.5 Intentionally causing harassment, alarm

or distress
Section 4A was added to the Public Order Act 1986 by the Criminal Justice and Public
Order Act 1994. It creates a more serious version of the offence in s 5 of the 1986 Act, as
D must act intending to cause harassment, alarm or distress. There are also similarities
with s 4, as there must be:
 threatening, abusive or insulting words or behaviour or distribution or display of
writing, sign or other visible representation which is threatening, abusive or insult-
ing (although there can also be a charge where there is disorderly behaviour);
 this can be in a public or private place, but not a dwelling.
Section 4A states:
SECTION
‘4A(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or
distress, he
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour,
or
(b) displays any writing, sign or other visible representation which is threatening,
abusive or insulting, thereby causing that or another person harassment, alarm or
distress.’
Like s 4, this is a summary offence triable only in a magistrates’ court.

It must be proved both that D intended to cause a person harassment, alarm or dis-
tress and that D’s behaviour did in fact cause someone harassment, alarm or distress. 569
This was shown by R v DPP [2006] EWHC 1375 (Admin).
17.5 intentionAlly cAusing HArAssment, AlArm or distress

CASE EXAMPLE
R v DPP [2006] eWHc 1375 (Admin)
D, aged 12, was with his sister when she was arrested for criminal damage. D made mas-
turbatory gestures towards the police and called them ‘wankers’. One police officer, who
was over six feet in height and weighed over 17 stones, arrested D, and he was charged
with an offence contrary to s 4A. The officer gave evidence that he was not personally
annoyed by D’s behaviour but that he found it distressing that a boy of D’s age was acting
in such a manner. The Divisional Court quashed D’s conviction as there was no evidence
that D intended to cause real emotional disturbance or upset to the police officer. Also the
Youth Court could not properly have concluded on the evidence of the police officer that
he was distressed by D’s behaviour.
In the consideration of the word ‘distress’ Toulson J stated:
JUDGMENT
‘The word “distress” in section 4A takes its colour from its context. It is part of a trio of words:
harassment, alarm or distress. They are expressed as alternatives, but in combination they give
a sense of the mischief which the section is aimed at preventing. They are relatively strong
words befitting an offence which may carry imprisonment or a substantial fine. I would hold
that the word “distress” in this context requires emotional disturbance or upset. The statute
does not attempt to define the degree required. It does not have to be grave but nor should
the requirement be trivialised. There has to be something which amounts to real emotional
disturbance or upset.’
In Dehal v DPP [2005] EWHC 2154 (Admin), it was held that there should be a threat to
public order for a prosecution to be the method of dealing with behaviour. If not, then
there could be a breach of the right to freedom of speech under art 10 of the European
Convention on Human Rights.
CASE EXAMPLE
Dehal v DPP [2005] eWHc 2154 (Admin)
D entered a temple and placed a notice stating that the preacher at the temple was ‘a hypo-
crite’. D was convicted of an offence under s 4A of the Public Order Act 1986. D argued that
his right to freedom of expression was infringed by being prosecuted for his action. The Divi-
sional Court quashed his conviction. They held that the criminal law should not be invoked
unless the conduct amounted to such a threat to public order that it required the use of the
criminal law and not merely the civil law.
Mens rea
For the mens rea of s 4A, D must intend to cause another person harassment, alarm or
distress.
570
17.5.1 Defences
Section 4A(3) provides a specific defence to a charge under s 4A. This states that:
SECTION
‘4A(3) It is a defence for the accused person to prove –
(a) that he was inside a dwelling and had no reason to believe that the words or
behaviour used, or the writing, sign or other visible representation displayed
would be heard or seen by a person outside that or any other dwelling, or
(b) that his conduct was reasonable.’
Note that the burden of proof is on the defendant.

The first point is that D must be in a ‘dwelling’. Dwelling is defined in s 8 of the Act
as ‘any structure or part of a structure occupied as a person’s home or as other living
accommodation’. The dwelling can be separate or shared with others. In R v Francis
(2007) The Times, 17 January 2007, D was charged with racially aggravated harassment
under s 31(1)(b) of the Crime and Disorder Act 1998. For this offence it has to be shown
that there has been a s 4A offence committed. The offence had taken place in a police cell,
and the defence argued that there was no s 4A offence as a police cell was a ‘dwelling’
within the definition in s 8. The trial judge accepted this argument and ruled that the
offence under s 4A had not been made out. The prosecution appealed against this ruling
to the Court of Appeal. The Court of Appeal held that a police cell was not a home or
living accommodation, and the judge had been wrong in his ruling.
Another case on the meaning of dwelling is Le Vine v DPP [2010] EWHC 1129 (Admin)
where the incident took place in the communal laundry of a block of flats.
CASE EXAMPLE
Le Vine v DPP [2010] eWHc 1129 (Admin)
D and V were residents in separate self-contained flats in sheltered accommodation. All resi-
dents had the use of a communal lounge and a communal laundry room. A friend of D was
using the washing machine when V entered the laundry room. V told D that she would come
back to use the machine after it had finished its cycle. When V returned to the room she found
it empty and the washing machine finished but the washing still in the machine. She removed
that load of washing and put her own in. D came into the room and shouted at V saying she
would knock her block off.
D was convicted of a s 4 offence. He appealed on the basis that the laundry room was part
of a dwelling, and he therefore had a defence under s 4A(3).
The High Court upheld the conviction on the ground that the communal laundry was not
occupied as part of D’s home even though it had a domestic function.
In his judgment Elias LJ stated:
JUDGMENT
‘In my judgment [the laundry] is a communal room shared by those who live in a number of
homes within the building, but cannot be properly described as part of the structure of any
individual home in this building . . . The communal room is open to a number of persons. It is
true it is limited to those who are in the flats or those connected with people in the flats, and
to that extent it is only a small section of the public, but in my judgment the interpretation of
the section I have given is compatible with a principle which is seeking to exclude disputes in 571
people’s homes, but not otherwise.’
17.6 HArAssment, AlArm or distress

For the defence to succeed, the defendant also has to prove that he had no reason to
believe that his behaviour or words would be seen or heard by anyone outside the
dwelling.
Alternatively, the defendant has to prove that his conduct was reasonable. It could be
argued that this last requirement is difficult to fulfil as behaviour which is intended to
cause harassment, alarm or distress is not likely to be reasonable.
17.6 Harassment, alarm or distress

Section 5 of the 1986 Act as amended by s 57 Crime and Courts Act 2013 provides that:
SECTION
‘5(1) A person is guilty of an offence if he –
(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening or
abusive, within the hearing or sight of a person likely to be caused harassment,
alarm or distress thereby.’
The person who is likely to be caused harassment, alarm or distress can include a police
officer who is called to deal with a domestic incident. This was shown in the case of
DPP v Orum [1988] 3 All ER 449.
CASE EXAMPLE
DPP v Orum [1988] 3 All er 449
D had an offensive and public argument with his girlfriend. The police intervened, and he was
abusive to them. They arrested him for breach of the peace. When he was put in the back of
a police van, he assaulted a police officer. He was charged with and found guilty of an offence
under s 5 and assaulting a police officer in the execution of his duty.
The Divisional Court held that a police officer may be a person who is likely to be
harassed, alarmed or distressed for the purpose of s 5(1).
In this case, the use of a public order offence seems inappropriate. There were other
offences the defendant could have been charged with. Indeed, he was also charged, far
more appropriately, with assaulting a police office in the execution of his duty.
In Taylor v DPP [2006] EWHC 1202 (Admin), it was held that proving there was
someone near enough to hear the words was sufficient. It was not necessary to prove
that any person actually heard. In Taylor v DPP, a police officer gave evidence that D had
shouted, screamed and sworn using racist language. There were a number of people on
the scene near enough to hear the abusive language. The Divisional Court held that this
was sufficient to uphold D’s conviction.
The words ‘harassment, alarm or distress’ are the same as in s 4A of the Public Order
Act 1986. The Divisional Court considered the meaning of these words in Southard v
DPP [2006] EWHC 3449 (Admin).
CASE EXAMPLE
572
Southard v DPP [2006] eWHc 3449 (Admin)
D and his brother were cycling with poor lighting at about midnight. They were stopped by
the police. While his brother was being searched by one of the officers, D approached the
officer twice and swore at him, interfering with the search process. D also took photos of the
search on his phone saying, ‘Don’t fucking touch me, you can’t touch him.’ D was convicted
of an offence under s 5 of the Public Order Act 1986.
On appeal the defence put forward several arguments. These included that the conduct had
not occurred in the presence of a person ‘likely’ to be caused harassment by it as D’s behaviour
was of the sort which police often encountered and they were not likely to be caused harass-
ment, alarm or distress by it. The defence also referred to the judgment in R v DPP [2006]
EWHC 1375 (Admin) (see section 17.5) and pointed out that the court in that case had ruled
that there had to be ‘real emotional disturbance or upset’ and that swearing at a police officer
was unlikely to cause this. The police’s reaction to such behaviour would be more likely to be
‘mere irritation or annoyance’. The defence also argued that using the word ‘fucking’ twice
could not amount to threatening, abusive or insulting words.
The Divisional Court rejected all these submissions and upheld the conviction.
Note: when this case was heard, in respect of the wording of s 4, the behaviour and/or
words had to be ‘threatening, abusive or insulting’. The word ‘insulting’ was removed
by the Crime and Courts Act 2013.
When considering whether D’s behaviour was ‘likely to cause harassment’, the court
pointed out that the three words, ‘harassment, alarm or distress’ do not have the same
meaning as each other. So, although the court agreed with Toulson J’s analysis of what
was required for distress (see R v DPP (2006) in section 17.5), it was not relevant in
Southard’s case as the allegation was that his behaviour had caused harassment. Fulford
J said:
JUDGMENT
‘Whilst I respectfully agreed with Toulson J’s analysis of what is required in this regard for
distress, I do not consider that the same applies to harassment. Distress by its very nature
involves an element of real emotional disturbance or upset but the same is not necessarily true
of harassment. You can be harassed, indeed seriously harassed, without experiencing emo-
tional disturbance or upset at all. That said, although the harassment does not have to be
grave, it should also not be trivial.’
In relation to the defence’s submission that words such as ‘fuck you’ or ‘fuck off ’ were
not threatening, abusive or insulting, the Court stated that ‘frequently though they may
be used these days, we have not yet reached the stage where a court is required to con-
clude that those words are of such little significance that they no longer constitute
abuse’.
This decision appears to make the offence very wide. Although the conduct was in
the open, it was midnight and there were only the police and the two brothers present.
D did not touch the officer, and, indeed, the other officer said that after D had sworn the
first time he (the officer) had called him back. D had come back straightaway without
causing any problem, and the officer then warned him about his language. A little later
D had again gone towards the officer searching his brother and sworn at him the second
time, and this was when he was arrested. Did this behaviour really go beyond ‘trivial’
harassment?
It is possible that the amendment of the act to remove the word ‘insulting’ may cause
any future case to be viewed differently. However, as the judgment referred to ‘abuse’ 573
rather than ‘insulting’, the decision may still stand.
The case of Harvey (2012) 176 JP 265 also involved D using swear words when speak-
17.6 HArAssment, AlArm or distress

ing to the police, but in this case the High Court held that there was no evidence of the
language causing harassment, alarm or distress.
CASE EXAMPLE
Harvey (2012) 176 JP 265
Two police officers stopped and searched a group of people including D, whom they sus-
pected were in possession of cannabis. D objected to the search, saying, ‘Fuck this man, I ain’t
been smoking nothing.’ The officer warned him about his language stating that he would
charge him with a s 5 offence if he continued. No drugs were found on D, whereupon he said,
‘Told you, you won’t find fuck all.’ D was again warned about his swearing. The officer carried
out a name search and asked D for his middle name. D replied ‘No, I have already fucking told
you so.’ D was charged with a s 5 offence and found guilty at the magistrates’ court. The High
Court allowed his appeal as no evidence had been given that the officers had been caused
harassment, alarm or distress.
The difference between the cases of Southard and Harvey is purely on the evidence given.
In Southard the police stated that D’s language and behaviour had caused them harass-
ment, while in Harvey no evidence on this point was given at the trial. Swearing is not a
crime in itself, but if the language causes harassment, alarm or distress, then a s 5 offence
is committed.
In Harvey only the police and the rest of D’s group were present and the judge pointed
out that it was highly unlikely that the young people in the vicinity had experienced
harassment, alarm or distress by hearing such commonplace swear words. Had there
been evidence that other members of the public were within earshot, then there might
have been a possible basis for inferring harassment, alarm or distress.
17.6.1 Defences
As with a s 4A offence, there are special defences. For this section these (set out in s 5(3))
are that:
(a) D had no reason to believe that there was any person within sight who was likely to
be caused harassment, alarm or distress; or
(b) he was inside a dwelling and had no reason to believe that the words or behaviour
used, or the writing, sign or other visible representation displayed would be heard or
seen by a person outside that or any other dwelling; or
(c) his conduct was reasonable.
The defences at (a) and (c) were considered in the case of Gough v DPP [2013] EWHC
3267 (Admin).
CASE EXAMPLE
Gough v DPP [2013] eWHc 3267 (Admin)
For some ten years D had walked naked (wearing only socks, walking boots and a hat) through-
out many places in the United Kingdom. On this occasion he walked naked through the town
574 centre of Halifax. His attitude was that being naked was a natural state and being naked was
not indecent. He was charged and found guilty of an offence under s 5(1) of the Public Order
Act 1986. Among the issues on appeal were (1) whether he had a defence to the charge as he
had no reason to believe that there was any person within sight who was likely to be caused
harassment, alarm or distress and/or (2) that his conduct was reasonable. The appeal was
rejected as D knew from previous occasions that many members of the public would be both
alarmed and distressed by the sight of his naked body.
D also raised the issue that, under art 10 of the European Convention on Human Rights, he
had the right to freedom of expression and that going about naked was a form of that expres-
sion. The court held that, although he had the right to freedom of expression, the restriction
of this right imposed by s 5 corresponded to social need. As s 5 was only a level 3 summary
offence with a maximum fine of £1,000 the restriction was proportionate.
17.6.2 Mens rea of a s 5 offence

Under s 6(4) of the Act, D can only be guilty if he intends his words or behaviour, or the
writing, sign or other visible representation, to be threatening or abusive, or is aware
that it may be threatening or abusive or (as the case may be) he intends his behaviour to
be or is aware that it may be disorderly.
Figure 17.2 summarises the offences under ss 4, 4A and 5.
17.7 Racially aggravated public order offences

Section 31 of the Crime and Disorder Act 1998 created racially aggravated versions of
the offences under s 4, s 4A and s 5 of the Public Order Act 1986.
These involve the offences above committed in the special circumstances set out in
s 28 of the Crime and Disorder Act 1998. These are that
tim’s membership (or presumed membership) of a racial group; or
 the offence is motivated (wholly or in part) by hostility towards members of a racial
It is clear that if a defendant uses words identifying specific nationalities or races, then
this can make the offence an aggravated one within the definition of s 28. It has also been
held that more general words such as ‘foreigners’ or ‘immigrants’ come within the scope
of s 28.
Public Order Act s 4, s 4A and s 5
s 4 Fear or provocation s 4A Intentional s 5 Harassment, alarm

of violence harassment, alarm or or distress
distress
(a) uses threatening, a) uses threatening, a) uses threatening or

abusive or insulting abusive or insulting abusive words or
words or behaviour words or behaviour or behaviour or
or disorderly behaviour disorderly behaviour
(b) distributes or or or
displays anything (b) distributes or (b) distributes or 575
threatening, abusive displays anything displays anything
or insulting threatening, abusive threatening or abusive
17.7 rAciAlly AggrAVAted offences

and or insulting and
with intent to and within the hearing or
cause fear of intends to cause a sight of a person likely
violence or to person harassment, to be caused
provoke violence alarm or distress harassment, alarm or
distress
Figure 17.2 Sections 4, 4A and 5 of the Public Order Act 1986.
CASE EXAMPLE
Rogers (Philip) [2007] uKHl 8
D encountered three Spanish women. D, who was using a mobility scooter, called them
‘bloody foreigners’ and told them to go back to their own country. He then pursued them to
a kebab house in an aggressive manner. He was convicted of using racially aggravated abusive
or insulting words contrary to s 31(1)(a) of the Crime and Disorder Act 1998. He appealed on
the basis that his words were not capable of demonstrating hostility based on membership of
a racial group. ‘Foreigners’ did not constitute a racial group as defined in s 28(4) of the Act.
The Court of Appeal certified the question ‘Do those who are not of British origin constitute a
racial group within s 28(4) of the Crime and Disorder Act 1998?’.
The House of Lords answered this question ‘Yes’ and upheld his conviction. They held that
a racial group within the definition of s 28(4) did not have to be distinguished by particular
racial characteristics. The definition was sufficiently wide to embrace within a single racial
group all those who were ‘foreign’.
The House of Lords referred to the judgment of the Divisional Court in DPP v M (minor)
[2004] EWHC 1453 (Admin); [2004] 1 WLR 2758 where D had used the same phrase
‘bloody foreigners’ and the Divisional Court had decided that this was capable of
describing a racial group. They also referred to the decision in Attorney-General’s Reference
(No 4 of 2004) [2005] EWCA Crim 889; [2005] 2 Cr App R 26 where the Court of Appeal
held that using the words ‘an immigrant doctor’ was capable of demonstrating hostility
based on the doctor’s membership of a racial group.
Wholly or in part
The offence can be motivated wholly or in part by hostility based on race or religion. In
DPP v Johnson [2008] All ER (D) 371 (Feb), the fact that the offence was motivated only
in part by the racial origin of V was held to be sufficient for D to be guilty of an offence.
CASE EXAMPLE
DPP v Johnson [2008] All er (d) 371 (feb)
D walked towards two parking attendants who were checking on cars. He said to them ‘leave
us alone, you’re always picking on us up here’. He then went on to say ‘why don’t you get up
. . . with your white uncles and aunties’. He was convicted of an offence contrary to s 5 Public
Order Act and the conviction upheld by the Divisional Court. They held it did not matter that
D’s conduct was also motivated partly by the fact that Vs were parking attendants. The hostil-
ity was partly based on membership or presumed membership of a racial group and that was
576
sufficient for D to be guilty of the offence.
SUMMARy
Riot (s 1 POA 1986) is where 12 or more persons present together use or threaten unlaw-
ful violence for a common purpose. The conduct must be such as would cause a person
of reasonable firmness to fear for his personal safety, but no such person need actually
be present. D has to intend to use violence or be aware that his conduct may be violent.
Violent Disorder (s 2 POA 1986) is where three or more persons present together use
or threaten unlawful violence. The conduct must be such as would cause a person of
reasonable firmness to fear for his personal safety, but no such person need actually be
present. D has to intend to use or threaten violence or be aware that his conduct may be
violent or threaten violence.
Affray (s 3 POA 1986) is where a person sues or threatens unlawful violence, and this
conduct would cause a person of reasonable firmness to fear for his personal safety, but
no such person need actually be present, although there must be some other person at
the scene. D has to intend to use or threaten violence, or be aware that his conduct may
be violent or threaten violence.
Fear or provocation of violence (s 4 POA 1986)

For the actus reus D must:
 use threatening, abusive or insulting words towards another person; or
 use threatening, abusive or insulting behaviour towards another person; or
 distribute to another person any writing, sign or other visible representation which
is threatening, abusive or insulting; or
 display to another person any writing, sign or other visible representation which is
threatening, abusive or insulting.
For the mens rea D must intend his words or behaviour, or the writing sign or other
visible representation, to be threatening, abusive or insulting, or be aware that it may be
threatening, abusive or insulting.
Intentionally causing harassment, alarm or distress (s 4A POA 1986)

 use threatening, abusive or insulting words or behaviour, or disorderly behaviour;
or
 display any writing, sign or other visible representation which is threatening, abusive
or insulting;
 thereby causing that or another person harassment, alarm or distress.
For the mens rea D must intend to cause another person harassment, alarm or distress.
There is a special defence that D was inside a dwelling and had no reason to believe that
his words or act would be seen or heard by anyone else or that his conduct was
reasonable.
Harassment, alarm or distress (s 5 POA 1986)

 use threatening or abusive words or behaviour, or disorderly behaviour; or
 display any writing, sign or other visible representation which is threatening or
abusive;
577
 within the hearing or sight of a person likely to be caused harassment, alarm or dis-
tress thereby.
17.7 rAciAlly AggrAVAted offences

For the mens rea D must intend his words or behaviour, or the writing, sign or other
visible representation, to be threatening or abusive, or is aware that it may be threaten-
ing or abusive or disorderly.
Special defences are that D:
 had no reason to believe that there was any person within sight who was likely to be
caused harassment, alarm or distress; or
 that he was inside a dwelling and had no reason to believe that the words or beha-
viour used, or the writing, sign or other visible representation displayed would be
heard or seen by a person outside that or any other dwelling; or
 that his conduct was reasonable.
Racially aggravated public order offences

Section 31 of the Crime and Disorder Act 1998 creates racially aggravated versions of the
offences under s 4, s 4A and s 5 of the Public Order Act 1986. An offence is racially aggra-
vated if:
tim’s membership (or presumed membership) of a racial group; or
 the offence is motivated (wholly or in part) by hostility towards members of a racial
ACTIVITy
self-test questions
1. Explain the differences between riot and violent disorder.
2. What is unusual about the effect of s 6(5) of the Public Order Act 1986?
3. Explain the rules on what has to be proved about the presence and/or effect on a person
of reasonable firmness in the offence of affray.
4. Is the fact that riot, violent disorder and affray can be committed in private satisfactory?
5. Why is the offence under s 4A of the Public Order Act 1986 regarded as more serious than
the offence under s 4 of the same Act?
ACTIVITy
Applying the law
Explain what offences, if any, have been committed in the following situation.
Critically
Sonya and Tex are against the use of animals for testing analyse
drugs. Theycase lawto
agree ondemonstrate
the rights of shareholders
outside a local drugs company who use animals for to thisenforce
purpose. theThey
articles
haveofa association
banner which to demonstrate
reads ‘Death to those who do tests on animals’. They why you agree
stand or disagree
outside with theto
the entrance proposition
the that the
company holding up this banner and shouting. Wilbur contractual
and Zoe, who effecthave
of the articles
been is limited
drinking, see to provisions
of the
them and think that it will be amusing to join the protest. Theyarticles
standconcerned with and
opposite Sonya the Tex,
membership and
constitution
shouting and making it difficult for workers to get past of theway
them on their company.
into work.
578
Public order offences must maintain a balance between maintaining public order while
protecting human rights. Discuss.
Briefly set out the main public order offences (POA

1986):
s 1 Riot
s 2 Violent disorder
s 3 Affray
s 4 Fear or provocation of violence
s 5 Intentionally causing harassment, alarm or distress
s 6 Harassment, alarm or distress
Discuss how such offences are important in

maintaining public order and include such points as:
• Violent behaviour whether by a group or an individual
must be discouraged
• Unlawful violence is justifiably criminalised
• Innocent people need to be protected from threatening
behaviour
Explain key human rights which can be affected by

public order offences:
• Right to liberty
• Freedom of association
• Freedom of expression
Discuss how public order offences may interfere with
such rights: include points such as:
• Arrest for an alleged offence interferes with liberty
• The offences carry a potential custodial sentence
• Freedom of association is curtailed by s 1 and s 2,
though only if there is unlawful violence
• Freedom of expression is curtailed by s 4, s 5 and s 6
Consider and discuss whether a balance between

public order and human rights exists: 579
Refer to cases such as
I, M and H v DPP (2001)
furtHer reAding
R v DPP (2006)
Dehal v DPP (2005)
Taylor v DPP (2006)
Southard v DPP (2006)
Conclude
Further reading
Articles
Hare, I, ‘Legislating against hate: the legal response to bias crimes’ (1997) 17 OJLS 415.
Newman, C J, ‘Racially aggravated public order offence: motivation of racial remark an
absence of a victim’ (2009) 173 JP 88.
Thompson, K and Parpworth, N, ‘Flag desecration: an offence under s 5 of the Public
Order Act 1986?’ (2002) 166 JPN 220.
Appendix 1
Problem-solving questions
The following scenarios require you to apply the law from different areas:
1. Annika and Britney are the directors of a small company, Bustit Ltd, which is unable
to pay its debts. Annika and Britney decide to spend the weekend in a luxury hotel
to discuss the financial problems. The hotel reservations are made by the company
secretary. After reviewing the company accounts, Annika and Britney leave the hotel
without paying the bill.
Consider the criminal liability, if any, of Annika, Britney and Bustit Ltd.
2. Craig and Del are next-door neighbours and workmates. Some of Craig’s work tools,
including a powerdrill, have gone missing and he suspects that Del has taken them.
One evening, when Del is out, Craig enters Del’s garden and goes into a garden shed
to look for his possessions. He finds two screwdrivers which he mistakenly believes
are his and takes them. He also finds a powerdrill which he suspects is his. He decides
to teach Del a lesson and he alters the wiring in the drill so that it will give Del an
electric shock when he next uses it. In fact the two screwdrivers and the powerdrill
are Del’s own.
The next day Del lends the powerdrill to a friend, Elmer. When Elmer switches the
drill on, he gets a massive electric shock which kills him.
Discuss the criminal liability, if any, of Craig.

3. Fiona meets a friend, Grant. Fiona knows that Grant is a drug dealer and has convic-
tions for violence. Grant threatens Fiona that he will ‘mark’ her two-year-old son
unless Fiona agrees to take some crack cocaine to another friend, Hayley and bring
back £200 which Hayley owes Grant. Fiona reluctantly agrees to do this. She goes to
Hayley’s house and tells her she has the cocaine for her, but that she must have the
£200 before she will hand it over. Hayley refuses to give her the money, so Fiona
grabs Hayley’s purse from her hand. Hayley tries to stop her and Fiona pushes her
hard, causing her to fall and cut her head.
Discuss the criminal liability, if any, of Fiona.

4. Ian’s car has broken down on a country road. He finds that he has left his mobile
phone at home, so he decides to walk to a cottage which he had passed a mile back
down the road to get help. When he gets to the cottage he knocks on the door, but no
one answers. Ian can see that there is a telephone in the hallway and so he uses a
penknife to open a window catch and climbs into the house. He phones a local garage
who say they cannot come out for at least an hour. As it is cold, Ian decides to wait in
the house and make himself a cup of tea. When he is sitting in the kitchen, the house-
holder, Jamal, returns. Jamal sees Ian’s penknife with the blade open on the table
and, thinking Ian will attack him, Jamal seizes the knife. Ian tries to stop him and
both Ian and Jamal suffer cuts to their hands. Ian then pushes Jamal away from him,
causing Jamal to hit his head on a shelf. Jamal falls to the floor, unconscious. Ian runs
out of the house, leaving Jamal there. Jamal suffers bleeding to the brain. He is not
discovered for two days and dies as a result.
Discuss the criminal liability, if any, of Ian.
5. Kate and her friend, Lennox, decide to demonstrate against the visit of a foreign poli-
tician from a country in which there are human rights abuses. They stand silently
outside a hotel where he is staying. After half an hour Malcolm, who has been watch-
ing them, starts shouting abuse at them. Kate and Lennox ignore this to start with but
when Malcolm starts making racist remarks about Lennox, Kate rushes at him and
threatens to hit him. Two women who are walking past are afraid that there will be
a fight.
Discuss the criminal liability, if any, of Kate, Lennox and Malcolm.

6. Naomi, Olga and Peter are drug addicts. At Olga’s flat Naomi fills a syringe with
heroin and gives it first to Olga who injects herself. Naomi then injects herself and
then hands the empty syringe to Peter who refills it and injects himself. Naomi is HIV
positive but does not tell Peter, nor warn him not to use the needle she has just used. 581
All three lapse into unconsciousness after taking the heroin. When Naomi and Peter
come round they realise that Olga’s breathing is very bad and they cannot rouse her.
They both leave the flat, leaving Olga still unconscious. Olga is found dead the next
Appendix 1
day. Some weeks later, Peter discovers that he is HIV positive.
Discuss what offences, if any, have been committed by Naomi.

7. Robert belongs to a teenage gang. One day they all decide to ‘see off ’ a rival gang.
Fourteen of them arm themselves with sticks and drive to a street where they know
the other gang often meet. They park their vehicles and join up at the end of the
street. Before they can start walking down the road, they see a police car coming
towards them. They all drop their sticks and run away.
Discuss what criminal offences, if any, have been committed.

Appendix 2
How to answer questions
When studying law you will be expected to write essays and you will also have to apply
the law in legal problems based on scenarios. This appendix gives some hints on the
skills you need for both of these.
Legal problem solving

There are four essential ingredients to answering problem questions. You need to:
1. Identify the important facts in the questions and from these identify the area of law
you need to apply.
2. Define the area of law.
3. Expand your definition including relevant sections and cases to show that you know
and understand the area of law thoroughly.
4. Apply the law to the problem and reach a conclusion.
The initial letters of this list give IDEA: a simple idea to remember!
Consider the following situation.

Ella and Gary agree to steal electrical goods from a local shop. Ella takes a car belong-
ing to her next-door neighbour without the owner’s permission, so that the number
plate cannot be traced to either Ella or Gary. She drives Gary to the shop and waits
around the corner in the car while he goes in.
In the shop Gary takes a basket and selects several expensive small items, placing them
in the basket. He notices that only two check-outs are staffed and he goes to one of the
empty check-outs at the far end of the line. He leans into the cashier’s area and tries to open
the till, but is unable to do so. Unknown to him, the till has just been emptied. As he is
doing this, a store attendant notices him and walks over to the till. Gary runs out of the
shop and is chased by the store attendant, who catches him. Gary punches the man hard
in the face, breaking his jaw. Gary then runs round the corner and jumps into the car. He
shouts at Ella to drive off fast. Ella does this but a mile down the road she loses control of
the car and it crashes into a barrier. Gary and Ella get out of the car and run off.

Identifying the facts
The tutor or examiner who sets the question will make sure that most of the facts are
relevant. So work your way through, looking at what both Ella and Gary do. Where
there are two or more people involved in the criminal activity it is often easier to tackle
one person at a time. So, starting with Gary, the main facts are:
1. an agreement to steal;
2. being a passenger in a car which has been taken without the owner’s consent;
3. places items in a basket provided by the store and eventually leaves the store without
paying for these;
4. leans into the cashier’s area and tries to open a till;
5. assaults the store attendant who is chasing him;
6. encourages Ella to drive fast.
From these, now identify the areas of law involved. Some of them are very clear from
writing down these facts.
1. Wherever there is an agreement to do a criminal act, the law on conspiracy is
relevant.
2. Being a passenger in a car which has been taken without the owner’s consent brings
s 12 of the Theft Act 1968 into play.
3. For the goods in the shop the offence of theft (s 1 Theft Act 1968) is relevant.
4. Trying to open the till makes the law on attempt relevant. Also, as he has leaned into
the cashier’s area, consider burglary as a possibility.
5. The assault is an offence against the person, but it is also linked to the theft so robbery
must also be considered.
6. Is there participation by encouraging dangerous driving?
583
Having identified the areas of law you must now explain them in more detail, especially
where there is some doubt on the point. So now look at the relevant law in detail and
apply it.
Appendix 2
1. Conspiracy
The definition of ‘conspiracy’ is in s 1 of the Criminal Law Act 1977: agreeing a course of
conduct which will necessarily amount to or involve the commission of an offence by
one or more of the parties to the agreement. The agreement to commit theft is clearly
within this definition of ‘conspiracy’.
2. Section 12
Under s 12 of the Theft Act 1968 it is an offence to allow oneself to be carried in a convey-
ance knowing that it has been taken without the consent of the owner. The scenario does
not state whether Gary knew that Ella had taken the car without her neighbour’s consent.
If he does (and this includes where he wilfully shuts his eyes to the obvious), he is guilty
of this offence. If he does not then he is not guilty of the offence.
3. Theft
The definition of ‘theft’ is in s 1 of the Theft Act 1968: dishonestly appropriating prop-
erty belonging to another with the intention of permanently depriving that other of it.
The only point for discussion in this scenario is exactly when the appropriation took
place. This is at the point when Gary puts the goods in the basket: Morris [1983] 3 All ER
288, Gomez [1993] 1 All ER 1.
4. (a) Attempted theft

The Criminal Attempts Act 1981 s 1(1) defines an attempt as where ‘with intent to
commit an offence a person does an act which is more than merely preparatory to the
commission of the offence’. As Gary has tried to open the till, this is clearly more than
merely preparatory. However, there is nothing in the till so the law on attempting the
impossible must be considered. Under s 1(2) of the Criminal Attempts Act 1981 a person
may be guilty of attempting to commit an offence even though the facts are such that the
commission of the offence is impossible. This subsection makes Gary guilty of attempted
theft even though there is nothing in the till to steal.
(b) Burglary
Under s 9(1)a of the Theft Act 1968 one of the ways of committing burglary is where the
defendant enters as a trespasser with intent to commit theft. Has Gary entered as a
trespasser? He intends to steal, so is going beyond the purpose for which he is permitted
to enter: Smith and Jones [1976] 3 All ER 54. He therefore enters as a trespasser. Also, he
has leaned into a private area of the shop where shoppers do not have permission to go.
In Walkington [1979] 2 All ER 716 the defendant was held guilty of burglary where he
walked behind the counter in a shop and opened the till. To be a trespasser there must
be effective entry. Is leaning in an effective entry? Brown [1994] 1 AC 212 was guilty of
burglary by leaning through a window, so by analogy Gary is likely to be guilty.
5. (a) Assault
Under s 47 of the Offences Against the Person Act 1861 it is an offence to occasion actual
bodily harm; under s 20 it is an offence to inflict grievous bodily harm; under s 18 it is an
offence to cause grievous bodily harm with intent to do so. Applying this to the punch
by which Gary breaks the store attendant’s jaw, at the least Gary is guilty of s 47. The
points for discussion are: is a broken jaw capable of being grievous bodily harm and, if
so, has Gary the necessary mens rea for s 18?
584
(b) Robbery
Section 8 of the Theft Act 1968 says that robbery is committed where a person steals, and
Appendix 2
immediately before or at the time of doing so, and in order to do so, he uses force on any
person or puts or seeks to put any person in fear of being then and there subjected to
force. The points which need exploring are whether the force was ‘at the time’ of the
theft and was it used ‘in order to’ steal. In Hale [1979] Crim LR 596 it was held that the
act of appropriation can be a continuing one, so that any force used in order to steal
while the appropriation is continuing would make this robbery. This contrasts with
Gomez (1993) where it was decided that the point of appropriation in theft is when D first
does an act assuming a right of the owner. So which decision should be applied to Gary?
A similar situation to Gary’s occurred in Lockley [1995] Crim LR 656 where D was caught
shoplifting cans of beer from an off-licence and used force on the shopkeeper who was
trying to stop him from escaping. In that case the Court of Appeal rejected an argument
that Gomez (1993) had impliedly overruled Hale and confirmed that the principle in Hale
(1979) still applied in robbery. As Gary has left the shop before he uses force the Hale
principle is not likely to apply.
6. Participation
To be a secondary party the defendant must ‘aid, abet’, counsel or procure’ the commis-
sion of an offence (s 8 Accessories and Abettors Act 1861). Abetting has been held to be
any conduct which instigates, incites or encourages the commission of the offence,
including shouting encouragement or paying for a ticket for an illegal performance as in
Wilcox v Jeffrey [1951] 1 All ER 464. As Gary shouts encouragement, this could make him
liable as a secondary party for any offence of dangerous driving committed by Ella as
principal.
Now move on to consider Ella. The relevant facts for Ella are:
1. an agreement to steal;
2. takes a car without consent of the owner;
3. getaway driver for Gary;
4. drives too fast, crashes car.
The first point on conspiracy has already been identified and dealt with under Gary. The
same law will apply to Ella. For the other points the areas of law which need to be identi-
fied are s 12 taking a conveyance without consent (and possibly theft of the car), second-
ary participation in the theft from the shop, the burglary, assault and robbery and,
finally, aggravated vehicle-taking through the possibility of dangerous driving and/or
the damage to the car.
1. Section 12 Theft Act 1968

Section 12 makes a person guilty of an offence if, without having the consent of the
owner or other lawful authority, he takes any conveyance for his own or another’s use.
The only possible point for discussion is whether Ella believed she would have her
neighbour’s consent, giving a defence under s 12(6) which states that ‘a person does not
commit an offence under this section by anything done in the belief that he has lawful
authority to do it or that he would have the owner’s consent if the owner knew of his
doing it and the circumstances of it’. However, it is highly unlikely that consent would
be given to use the car to commit a crime.
2. Theft of car
Theft requires that there is an intention permanently to deprive the owner. Applying 585
this to the scenario, it is unlikely that Ella has committed theft.
Appendix 2
3. Secondary participation
As already stated in relation to Gary, to be a secondary party it is necessary to prove that
D aided, abetted, counselled or procured the commission of an offence (s 8 Accessories
and Abettors Act 1861). Aiding is giving help, support or assistance. This can be before
the offence or during the time it is being committed, for example acting as look-out, as
in Betts and Ridley (1930) 22 Cr App R 148. By driving Gary to the shop and waiting
outside as getaway driver, Ella is a secondary participant in the theft of the goods in the
shop. The point which needs more detailed examination is whether she is also a second-
ary participant in the burglary, the assault or the robbery.
In Chan Wing-Siu [1985] 1 AC 168 and also in Powell [1999] AC 1; (1997) 4 All ER 545;
[1997] UKHL 45 it was held that contemplation or foresight that the principal might
commit a certain type of offence is sufficient to a make a secondary party liable for the
offence committed by the principal offender. Ella knows that Gary is going to steal so
clearly she is a secondary party to that. Is burglary sufficiently close to be within the
range of possible offences, as in Maxwell v DPP of Northern Ireland [1978] 1 WLR 1350?
Almost certainly. However, the plan did not involve any violence. Ella can only be liable
as a secondary party for these if she contemplated or foresaw that Gary might use viol-
ence if he was challenged by anyone in the shop. So, if she knows he has used violence
in such situations in the past she may be a secondary party to both the assault and
robbery.
4. Aggravated vehicle-taking
Finally, Ella crashed the car, bringing in aggravated vehicle-taking (s 12A Theft Act
1968). Under s 12A the basic offence must be committed plus an aggravating factor. Two
of these factors are that the vehicle was driven dangerously on a road or other public
place, or that damage was caused to the vehicle. The test for ‘dangerous’ is objective, in
that ‘the driving must fall far below what would be expected of a competent and careful
driver’ and that ‘it would be obvious to a competent and careful driver that driving the
vehicle in that way would be dangerous’. Discuss Ella losing control of the car because
of excessive speed in the light of these tests.
General hints
Where the potential defendant is involved in more than one situation, make a list of the
relevant facts. Where there is more than one person’s criminal liability involved, always
make a list of the facts relevant to each one separately. Doing this will help to identify
the different aspects of law relevant to the scenario.
Legal essay writing

Consider the following essay title:
‘Critically discuss the way in which the courts have interpreted the meaning of
“appropriation” in the definition of theft.’

There are nearly always two key elements in answering essays in law. These are:
1. setting out certain factual information on a particular area of law with supporting
statutes and cases;
2. answering the actual question set which usually takes the form of some sort of crit-
586 ical element. This may be discussing development of law or analysing case decisions
or comment on an area of law or evaluating the contribution of a case or the need for
reform of an area, etc.
Appendix 2
The first element is the easiest to do, but you must be careful to explain only relevant
areas of law. Usually the question will be quite specific on the area required. In the ques-
tion above the area is limited to ‘appropriation’ in the definition of theft. This means that
there is no requirement to set out the law on the other elements of theft.
The second part involving analysis, criticism, evaluation, etc., is more demanding,
but needs to be based on the law you have set out. Arguments must be supported with
reference to relevant decisions. Where the judges have given different reasons for a deci-
sion or where there is a dissenting judgment then the differences need to be explored
and commented on.
Putting this into practice

When explaining the law for the above title, start with the definition of appropriation in
s 3(1) of the Theft Act 1968 which states ‘any assumption by a person of the rights of an
owner amounts to an appropriation, and this includes, where he has come by the prop-
erty (innocently or not) without stealing it, any later assumption of a right to it by
keeping or dealing with it as owner’. Then it is necessary to cover the following points:
1. Discuss what is meant by ‘the rights’ in particular, whether the assumption has to be
of all of the rights or whether it can just be of any of the rights: Morris (1983).
2. Explain what the courts have decided where the defendant has taken the item with
the consent of the owner: Lawrence [1972] AC 626; Gomez (1993).
3. Explain the decision in Hinks (2000) 4 All ER 833 on there being appropriation even
though the consent was genuine and the goods were gifts.
4. Explain the problem of when appropriation takes place in appropriation of credit
balances: Tomsett [1985] Crim LR 369; Governor of Pentonville Prison, ex parte Osman
[1989] 3 All ER 701; Governor of Brixton Prison, ex parte Levin [1997] 3 All ER 289.
5. Explain the decisions in cases of robbery that appropriation is a continuing act: Hale
(1979); Lockley (1995).
Remember that simply writing out the decisions is not enough. The question demands
that you critically discuss these various decisions. There is plenty of material for discus-
sion and comment. The points which can be raised include:
1. The fact that if appropriation had to be of all the rights of an owner, then there would
be far fewer successful prosecutions for theft. The decision in Morris (1983) can be
regarded as sensible and pragmatic.
2. The fact that cases where consent is obtained by fraud could be charged under s 15
Theft Act 1968 as obtaining by deception and the problem the judges faced when this
charge had not been brought in the cases of Lawrence (1972) and Gomez (1993). The
decisions can be criticised as an endeavour to ensure that the convictions for theft
were upheld, because the actions of the defendants were ‘criminal’.
3. Is the extension of this principle in Hinks (2000) to a situation where the victim had
genuinely consented pushing the definition of ‘appropriation’ beyond what was
meant in the Theft Act? The comments by Lord Hobhouse in his dissenting judgment
can be usefully explored on this point.
4. The conflicting decisions in Tomsett (1985) and Governor of Pentonville Prison, ex parte
Osman (1989) on when appropriation took place. Is it necessary that appropriation 587
takes place in only one location?
5. Are decisions in the two robbery cases in conflict with the decision in Gomez (1993)?
Appendix 2
Can the judgment of the Court of Appeal in Lockley (1995) that Gomez (1993) had not
impliedly overruled Hale (1979) be justified?
Conclusion
Having discussed all your points, you must then end with a conclusion in which you
briefly summarise your arguments, showing where decisions are justified and where a
decision is open to criticism.
Glossary
Glossary ofoflegal
legalterminology
terminology
absolute liability diminished responsibility
an offence where no mens rea is special and partial defence to murder
required and where actus reus need not (see Chapter 10 for full discussion)
be voluntary – very rare direct intent
actual bodily harm mental or fault element involving aim,
any physical or mental harm purpose or desire
actus reus due diligence
the physical element of an offence (see where D has taken all possible care not to
Chapter 2 for full discussion) do the forbidden act or omission
aiding and abetting duress
providing help or encouragement to general defence where D is forced by
another person to commit a crime threats or circumstances to commit an
attempt offence (see Chapter 8 for full discussion)
trying to commit an offence, with intent ex turpi causa
to do so from his own wrong act
automatism grievous bodily harm
general defence where D lacks control serious physical or mental harm
of the muscles or is unconscious (see gross negligence manslaughter
Chapter 9 for full discussion) causing death by breaching a duty of
coincidence care in circumstances of gross negligence
principle that the actus reus and mens rea infanticide defence
elements of an offence must occur at the offence where a woman kills her own
same time child under 12 months
bankruptcy indictable offence
a declaration by a court that a person’s an offence that can only be tried in the
liabilities exceed his assets Crown Court
caveat emptor insanity
let the buyer beware general defence where D suffers a ‘defect
conspiracy of reason’ caused by a ‘disease of the
an agreement to commit a criminal mind’ (see Chapter 9 for full discussion)
offence intoxication
constructive manslaughter general defence where D fails to form
where V is killed by an unlawful and mens rea because of alcohol and/or
dangerous act (see Chapter 10 for full drugs (see Chapter 9 for full
discussion) discussion)
contemplation principle joint enterprise
mental or fault element in joint where two or more people commit an
enterprise cases offence together (see Chapter 5 for full
contempt of court discussion)
interfering with course of justice especially lien
in relation to court proceedings a right to retain an article in one’s
corporation possession
a non-human body which has a sepa- loss of control
rate legal personality from its human special and partial defence to murder
members (see Chapter 10 for full discussion)
counselling M’Naghten rules
advising or persuading another person the legal principles governing the
to commit a crime insanity defence
doli incapax malice aforethought
incapable of wrong the mental or fault element in murder
maliciously recklessness
mental or fault element meaning either foresight by D of an unjustifiable risk (see
intentionally or recklessly Chapter 3 for full discussion)
mens rea sexual assault
the mental or fault element of an offence (see non-consensual sexual touching
chapter 3 for full discussion) suicide pact
murder special and partial defence to murder (see
the unlawful killing of a human being with malice Chapter 10 for full discussion)
aforethought summary offence
nolle prosequi an offence that can only be tried in a magistrates’
an order halting the prosecution of case court
novus actus interveniens thing in action
a new intervening act – something which breaks a right which can be enforced against another
the chain of causation person
oblique intention transferred malice
where D has foreseen a consequence as virtually situation where the mental or fault element for an 589
certain offence is transferred from one victim to another
personal property triable either way offence
all moveable property an offence which can be tried in either the magis-
glossary GLOSSARY OF LEGAL TERMINOLOGY

procuring trates’ court or the Crown Court
taking steps to cause another person to commit a volenti 571
crime willingly (or consenting)
rape wound
non-consensual vaginal, anal or oral sex a cut of all the layers of skin
real property
land and buildings
Index
Page numbers in italics denote tables, those in bold denote figures.
abandoned property, proprietary rights 455 of battery 382–7
abetting 115–16, 135, 584 malicious wounding 33, 34, 393–5
abolition 136 wounding or grievous bodily harm with intent
abortion 6 394–5, 397
procuring an 367 participation
absolute liability 110 principal 113
abstracting electricity 495 secondary 114–20, 122
abuse, of position see position public order offence, fear or provocation of
Accessories and Abettors Act 1861 114, 136, 138, 584–5 violence 566–7, 576
accessory see secondary party public order offences
accused, the see defendant affray 564–5
act riot 560
actus reus and 19, 33 rape 33, 34, 409
authorised 182 robbery 476
in common assault 380 sex with a child family member 161
continuing (battery through) 383 sexual assault 427
indirect (battery through) 384 statutory conspiracy 152–3
dangerous or unlawful, manslaughter by 349–52 theft 437
doing of an 163, 165 theft related offences
duty to 36–41 handling stolen goods 500
breach of see omission taking a conveyance 491
cessation 40–1 theft-related offences
release from 40 conveyance-taking without consent 491
insanity and not knowing nature/quality/ going equipped for stealing 504
wrongness of 278–9 making off without payment 507
new intervening 49 removal of items from a public place 490
omitting to see emissions adult, vulnerable, causing/allowing death 362–4
reasonable, as defence 166 affray 565
reflex 289–90 age of consent, homosexual acts 7
see also conduct age of criminal responsibility 153, 174
action, things in see things aggravated offences
actual bodily harm 388–90 burglary 488–9
consent issues 391–3 damage
actus reus (physical/external elements; guilty act) arson 553
33–60 endangering life 549, 553
affray 564 racially see racially or religiously aggravated
assisting or encouraging crime 163–4 offences
attempt 142–51 vehicle-taking 495, 510
burglary 483–4 agreement (to commit offence), statutory law 152–3
coincidence of mens rea and 76–8 aiding 115, 135
damage to property 538 abolition 136
definition 18–19 see also assistance
fraud AIDS 261–2
failure to disclose information 524 alarm, causing 571–4
false representation 516, 524 alcohol (and drunkenness)
making or supplying articles for use in 530 ‘lacing’ (involuntary intoxication) 119, 293–4
services obtained dishonestly 531–2 long-term abuse (alcoholism), diminished
homicide 317–19 responsibility and 332–4
non-fatal offences against the person see also intoxication
actual bodily harm 389–90 American law Institute 66
assault 380–2 American Law Institute’s Model Penal Code 66
battery 33, 34, 380, 382–7 anal penetration see buggery
animal, penetration of 431 belief
animal welfare, prosecuting offences relating to 10 an act one encouraged or assisted will be
any articles, see articles committed 166
appeal courts, hierarchy 15–18 in other property needing immediate protection
arrest/detention 546–8
categories of police powers of 12–13 in owner consent
lawful, intent to resist 397–8 to appropriation 460
arson 35, 69–71, 147, 165, 278, 295, 299–301, 307, 350, to damage 546
357, 537, 552–3, 555–6 of right at law 460
arson (fire setting) 553 that owner can’t be found 460
articles see also honest/genuine belief; mistake; reasonable
making or supplying for use in fraud 530 belief
possession of see possession ‘belonging to another’ (property) 437, 453, 459, 466
damage to 541
asleep 39, 65, 245, 268, 276, 286, 288, 292, 304, 306, 343,
definition 453
385, 393, 417–18, 423
belonging to another set 541
assault
bigamy 187
battery without 387 591
birth and homicide 317–18
common see common assault blackmail 495–9, 510
mens rea 61 blasphemous libel 90
non-fatal see non-fatal offences blasphemy 31, 90
index
assistance bodily harm
in handling stolen goods 502–3 actual see actual bodily harm
see also aiding grievous see grievous bodily harm
assisting or encouraging crime borrowing 468
and incitement 161 boxing 254–5, 263, 267–8, 392
liability 161–3 branding 267
assumption branding (of persons), scope of consent 259–60
of care for another, duty arising from 37–8 buggery 104, 120, 235, 262, 293, 409
of owner(s) rights 438–9 buildings, theft from (or from part of) 484, 485–7
‘at the time has with him’ see ‘has with him’ burden (onus) of proof 19–21
attempt(s) 141–51 ‘acting reasonably’ and 166
liability, assisting or encouraging crime 167 fitness to plead, mentally ill persons 179
murder 74, 116, 143, 146, 148, 151, 217, 220, 224–6, homicide
249, 253, 266–7, 299, 304, 324 diminished responsibility 324–5
under duress 224–5 loss of self-control defence 337–8
reforms 151 human rights and 22–6
successful 151 murder, suicide pact defence 348
authorised acts 182 reverse onus 21
automated services 524 burglary 490
automatism 274, 276–7, 280, 285–91, 295, 305, 309, 313 actus reus 483–4
definition 285 aggravated 488–9
intoxication and 305 joint enterprise 490
but for 18, 33, 43–4, 55–6, 59, 160, 192, 229, 307, 337,
self-induced 288–9
358, 365–6, 372, 489
‘but for’ test 43–4
banking
appropriation 447–8
Caldwell (test of) recklessness 68–9
false representation 517 cannabis 91, 157, 215, 229, 233
bankruptcy 100, 109, 182, 185 medical use 28, 230
basic intent see intention, basic capacity (capability)
battery children 174–8
actus reus 33, 34, 380, 382–7 corporate liability 186–93
consent and 385–6 corporate manslaughter 194–205
continuing act 383 mentally ill persons 178–81
hostility as element in 383 vicarious liability 181, 186
indirect act 384 car see conveyance-taking; dangerous driving
mens rea 61, 387–8 care
by omission 384–5 for another, duty arising from assumption of 37–8
unlawful force 386 corporate duty 198
without assault 387 gross breach 199
gross negligence manslaughter and breach of duty conveyance-taking without see conveyance
of 356–60 fraud and 250–3, 420–3
gross negligence manslaughter and duty (and human rights and 263–5
breach of duty) of duty 356–60 to killing (euthanasia) 253
case law see common law real 250
causation scope 253–63
breaking the chain of 33, 47–51, 53, 56–8, 354–5, 372 sexual offences and, absence of consent 410–15
factual 43–4 conspiracy 141, 152–60, 583
legal 44–56, 372 chain 153
caused 13 common law 153, 158–60, 170
caveat emptor 520 to corrupt morals 10, 152, 158–9, 170
chain of causation, breaking the 33, 47–51, 53, 56–8, impossibility defence 160
354–5, 372 reform 160
cheque wheel 153
appropriation 448 conspiracy to corrupt public morals, creation of the
guarantee card 519 offence 10
child safety order 175, 177, 204 constable, assault on a 400
592 children constructive manslaughter 349–55
10 and over 175–8 contact sports 254–7, 258, 262, 267, 386, 392
capacity to commit crime 174–8 contemplation principle 121, 126–7, 138–9
index
child safety orders 175 see also foresight

dealing with child defendants 177 contempt of court 90–1
death, causing/allowing 362–4 continuing act 380, 383, 410, 480, 586
see also infanticide penetration is a 36
destruction 366–7 control, of property 453
under the age of 10 174–5 convention countries 318
see also age of responsibility conveyance (vehicle)-taking without consent (joy-
Children and Young Persons Act 1933 174, 177, 350 riding) 491–4
circumcision, female 258 aggravated 494–5
circumstances see also dangerous driving
duress of 225–8 co-owner’s proprietary interests 455
‘normal’ person placed in the circumstances of D corporate liability
346–7 breach of statutory duty 193
Civil Partnership Act 2004 153 exceptions 186–7
classification of offences 12–13 identification principle 187–91
codification of criminal law 8–9 vicarious liability 192
removal from the law reform programme 9 corporate manslaughter
see also Draft Criminal Code liability 197–8
common assault 388 organisations, reasons for criminal liability of 202–3
consent and 391 penalties 199, 202
common law (case law) plea bargaining 201–2
attempt 142, 151 previous law 194–6
marital rape 11, 425 prosecuting difficulties 201
retroactive effect 11–12 reforms 196–7
computers relevant duty of care 198
banking, appropriation 448 gross breach 199
disk and program damage 540 Corporate Manslaughter and Corporate Homicide
conditional disposition 469 Act 2007 197–202
conduct problems 199
affray 565 use of 200–201
conspiracy and course of 154–5 corporation, definition 186
involuntary see involuntary conduct corpse, sexual penetration of a 431
substantially impaired ability to understand nature counselling 115
of (in voluntary manslaughter) 328–9 abolition 136
voluntary 35 courts
consciousness, uncontrolled or impaired 285 hierarchy 18
consent types of 14
to actual bodily harm 391–3 creation of new offences
to appropriation, owner’s see owner human rights and 10
common assault (incl. battery) by 385–6 technology and 10
through case law 10–11 danger to life, damage causing 549–50
credit balances, appropriation 446–8 dangerous act 349, 355, 357, 371, 373, 375
crime dangerous driving 494
classification 12–13 causing death by 364–5
defining 10–12 dangerous or unlawful act, manslaughter by 349–52
elements of a 18–19 Day J 89
Crime and Disorder Act 1998 175–8, 401, 404, 555, 570, death
574–5, 577 causing by dangerous driving 364–5
Criminal Appeal Act 1995 16 legal definition 318
Criminal Attempts Act 1981 142, 147–8, 160, 167, time-limit for homicide abolished 319
169–71, 468, 583 see also homicide; suicide
offences excluded under 150 deception 268, 414, 416, 420–3, 436, 440–1, 444, 501,
criminal code, France’s 9 506–7, 513–15, 518–19, 521, 523–4, 533, 535
criminal damage see damage consent to appropriation without 444–5
criminal damage obtaining goods/property by 500, 506
legislation 8 rape by 420–3
the mens rea 61 see also dishonesty; fraud
Criminal Justice Act 1925 234 defence, raising a 20–1 593
Criminal Justice Act 1967 63, 300, 302, 310 defence(s)
Criminal Justice Act 1972 17 consent 250–66
index
Criminal Justice Act 1988 380 created by judicial decision 7
Criminal Justice Act 2003 15, 17–18 duress 209–28
Criminal Justice and Immigration Act 2008 90, 236–7, general 209–69
242, 244–7, 249, 267 marital coercion 234
Criminal Justice and Public Order Act 1994 6, 407, mistake 234–6
409, 559, 568 necessity 228–34
criminal justice system 14, 18 self-defence 236–50
criminal law (general aspects) deliberate acts by victim 47–8, 51
codification 8–9 demand 496, 498
see also Draft Criminal Code unwarranted, with menaces 496–8
sources 7–10 destruction (destroying) of property, see also damage
criminal law detention see arrest
changing nature of 6 detention, police powers of 13
educational function 4 diminished responsibility (incl mental illness/
purpose of 3–7 insanity) 323–35
substantive 3 direct intent, definition 62
Criminal Law Act 1967 135, 151, 236 disclose information, legal duty to 525
Criminal Law Act 1977 152, 158–60, 169–70, 583 dishonesty 72, 160, 459
Criminal Law Amendment Act 1885 6, 153 Ghosh test see Ghosh test
criminal libel 90, 110, 181, 185, 205 handling goods/property 504
criminal preparation 151, 170 Theft Act 1968 459–66
Criminal Procedure (Insanity and Unfitness to Plead) see also deception
Act 1991 272 disposition (of stolen items)
Criminal Procedure (Insanity) Act 1964 179, 272, conditional 469
324–5 meaning of ‘dispose of’ 466
criminal prosecutions, main state agency 10 distress, causing 571–4
criminal punishment, and human rights 264 District (Magistrates’) Courts 14
Crown Court district judges, qualifications 14
appeals from 16–17 Divisional Court, Queen’s Bench 15, 87, 175, 193, 384,
appeals to 16 401, 457, 493, 543
categories of offences tried 13–14 Domestic Violence, Crime and Victims Act 2004 15,
rights of appeal 17 114, 179, 272, 362, 371
trials in the 14–15 driving
use of juries 15 dangerous see dangerous driving
Crown Prosecution Service (CPS) 10, 62, 197, 414 without consent see conveyance-taking
Cunningham test of recklessness 67, 69–71 drug(s)
and constructive manslaughter 354
damage, criminal 537–58 dealing, and manslaughter 354
basic offence 537–48 intoxication see intoxication
definition 538 due diligence defence 87, 89, 93, 106, 108, 110
duress (and coercion/compulsion) 209–28 female circumcision 258
not existing in abstract 213–14 fetus see foetus
intoxication under 296 firearms (guns) 19–20, 26, 64, 95, 106, 120–1, 124–5,
marital 234 132, 143–4, 166–70, 213, 349, 381–2, 478, 489
murder 220–4, 370 Firearms Act 1982 26, 95, 106, 213, 478, 549
attempted 224–5 fire-setting (arson) 553
as partial defence 370 foetus 317
reform 225 offences against 318, 366–8
scope of defence 220–5 force
sources of 210 excessive 243, 248–50, 267, 340
by threat 210–24 reasonableness 243, 267, 386
voluntary exposure to risk of 214–17 in robbery 477–80
‘Dutch courage’ 303 unlawful
duty, gross negligence manslaughter and breach of battery and 386
356–60 victim to apprehend immediate 381–2
duty to act 35–42, 56–8, 150, 165, 384, 404 foresight of consequences (oblique intent) 65, 120, 397
dwelling (home; health; place of abode) defining 62
594 burglary of a 487 as evidence of intention 65
meaning of 570 reform proposals 66–7
see also contemplation principle
index
electricity, abstracting 495 France, criminal code 9

endangering life by damage 549–50 fraud (defrauding) 513–36
not actually 550 conspiracy 159, 170
see also danger by failing to disclose information 524–6
entry 484 by false representation 516–24
epilepsy 275–7, 284–5, 288, 290, 309, 312–13, 334 Fraud Act 2006 72
equipped for stealing, going 504–7 rape through 250–3, 420–3
escaping see also deception
liability by withdrawal from joint enterprise 133–5, Fraud Act 72
138 fraud trials, attempt to restrict the use of juries in 15
from threat, opportunities 213 Free Will and Responsibility (Kenny) 107
European Convention of Human Rights 423 freedom
European Convention on Human Rights 10–11, 21, 23, of expression 30–1, 142
25–7, 32, 96–7, 128, 142, 168, 177, 230, 282, 359, 569, of peaceful assembly 31
574 fright or flight by victim 48
see also human rights ‘fundamentally different’ rule 128–9
European Court of Human Rights 6, 11–12, 18, 22, 24,
29–30, 32, 41, 96–7, 263 gain
euthanasia 6, 40, 232, 253, 321–2 false representation with 521–2
evidence and evidential problems unwarranted demand with 495
automatism 285–6 Gammon criteria 91, 94–5, 98–9, 110
diminished responsibility 326 gangs, controlling 128
insanity 272 gender (sex), deception 414
intoxication 302 Ghosh test 461–5, 522
ex turpi causa rule 198, 357 problems with 464–5
excessive force in self-defence 248, 340 going equipped for stealing 504–7
excuse, lawful, damage with/without 545–8 Gomez decision 440–2
explosive, definition 489 goods see property and goods
express representation 517 grievous bodily harm
external elements see actus reus definition 395
inflicting 394
fact, mistake of 234–5 wounding or, with intent 62, 397
factual causation 44 gross negligence 38, 72, 79, 358
failure to disclose information 524–6 manslaughter see manslaughter
fair trial, human right 22 guilty act see actus reus
fallback argument, intent offences 298 guilty mind see mens rea
family members, sexual offences involving 161
family/private life, right to respect for 28, 30, 264–5 harassment, causing 571–4
fear of serious violence, as trigger for loss of self- hard disk damage 540
control 342 harm
caused by crime, offence classified by type of 13 incitement 161, 163, 167, 169–70
children or vulnerable adults, causing/allowing abolition of offence 161
death or 362–4 Indecency with Children Act 1960 100, 104–5
constructive manslaughter and subjecting victim to indecent assault see sexual assault; touching
risk of 353 indictable offences
see also actual; grievous; injury place of trial 12
‘has with him’ (at the time) 489 police powers of detention 13
weapon 510 Infant Life (Preservation) Act 1929 366
homicide (unlawful killing) 317–77 infanticide 365–6
actus reus 317–19 infidelity, sexual 344–6, 377
structure of offences 368 information
within any county of the realm 318–19 failure to disclose 524–6
see also euthanasia; manslaughter; murder legal duty to disclose 525
homosexual acts informed consent 252–3
age of consent 7 rape 415
moral values and 4 injury
sado-masochistic 261, 392 intentional or reckless 399
honest/genuine belief 102–6, 234–6, 242, 249, 258, 306, meaning of 400 595
409, 424, 431, 460–1, 493, 542 reform proposals 399–401
horseplay 258 in vehicle taking 495
see also bodily harm; harm; wounding
index
hostility
as element in battery 383 innocence, presumption of 19, 21–2, 24, 30, 96
An Inquiry into Criminal Guilt (Brett) 96
to racial or religious groups 401
insanity defence 271–84
human rights
criticisms 280–2
burden of proof 22–6
defect of reason 273
criminal law and 21, 21–31
disease of the mind 274–8, 279
and criminal procedure 30
fitness to plead 179
freedom of expression 30
Human Rights issues 282
and imposition of strict liability 109
irresistible impulse 279
inhuman or degrading treatment 28 medical evidence, importance of 272
and new laws 10 the M’Naghten Rules 272–9
private or family life 28, 30 procedure 271–2
no punishment without law 26–7 reform proposals 282–4
right to a fair trial 22 the special verdict 272
strict liability and 96–8 wrongness of the act, not knowing 278–9
and trial by jury 15 intangible property 449, 452
and uncertainty 27 intention
husband see marital issues basic and specific 297–301, 302
to cause harassment/alarm/distress 568–71
identification conditional 146, 155
in corporation, principle of 187–91 conspiracy and
distinction from vicarious liability 192 in common law 159
illegal immigration 99 in statutory law 154–8
impersonation, rape through 423 criticism 66
implication homicidal
of consent to battery 386 manslaughter (reform proposals) 370
of representation 517–18 murder 320
imposition of liability procuring a miscarriage 367
criminal 120 intoxication and basic intent 301–2
on large numbers of people 43 to make gain or cause loss 523
medical treatment and 51 to participate
impossible offences conspiracy and 155
attempts 148–50 secondary parties 120
conspiracy 160 to not pay 508–9, 532
encouraging or assisting 167 to permanently deprive 466–8
imprisonment possession of any article with see possession
human rights and 109 specific
strict liability and 95–6 basic intent vs 298–301
incest 187 crimes of 299
inchoate offences 141–72 types of intent 62
interest, proprietary 455–6 assisting or encouraging crime 161–3
Interpretation Acts of 1889 and 1978 186 attempts 167
intervening act, new 49 children see children
intervention, applying the law 66 corporate 186–93
intoxication 9, 244–5, 249, 283, 288–9, 291–308, 309, escaping by withdrawal from joint enterprise
329–32, 345, 420, 423, 546, 555, 562–3, 565 133–5, 138
and automatism 305 for failure to act see omissions
and basic intent 301–2 in joint enterprise 130–3
criticisms 306–7 secondary 113, 116, 123, 136–8, 169
no defence if D still formed mens rea 292–3 strict see strict liability
diminished responsibility and 329–32 vicarious see vicarious liability
‘Dutch courage’ 303 libel, criminal 90, 110, 181, 185, 205
evidential burden 302 life-support machines 54–6
and insanity 303 loss, view to causing, false representation with 521–2
involuntary 293–6 lost property, proprietary rights 455
Majewski rule 235, 294, 296, 301–2, 307, 310
medically prescribed drugs 294–5 machines, representations to 519–20
596 mistake and 244–5, 305–6 Magistrates’ Court
reform proposals 307–9 appeals from 15–16
statutory exceptions 306 categories of offences tried 13
index
under duress 296 trials in the 14

voluntary 296–302 Majewski rule 235, 294, 296, 301–2, 307, 310
see also alcohol; poisoning making articles for use in fraud 530
involuntary conduct making off without payment 507–9
automatism see automatism malice
intoxication see intoxication aforethought 320
manslaughter 349–62 poisoning with 403
wounding with 393, 396
joint enterprise actus reus 393–5
burglary 490 manslaughter
escaping liability by withdrawal from 133–5, 138 assisting or encouraging 137
liability of principal and accessories for different committed by a British citizen outside the UK 318
offences 130 constructive 349–55
reform proposals 136–8 corporate see corporate manslaughter
joy-riding see conveyance-taking without consent diminished responsibility, pleading guilty on
judge-directed acquittals, percentage of in Crown grounds of 325–6
Court 15 excessive force in self-defence reducing murder
judges charge to 248–50
conduct criminalised by 10–11 gross negligence 355–61
defences created by decisions of 7 involuntary 349–62
district 14 mens rea 354
juries the mens rea 61
corporate manslaughter and 198–9 physical element requirements 33
‘nobbling’ 17 reckless 361
trial by and human rights 15 reform proposals 369
voluntary 323–48
killing, mercy 233, 318, 320–2 marital 11, 234, 250, 306, 423, 425, 432
King’s Peace, killing under the 317–18 marital issues (spouse/wife/husband/civil partner)
knowledge, of nature/quality/wrongness of act lack coercion defence 234
278–9 immunity of spouse and its abolishment 153
Kumar case 104 rape 11–12, 26, 425
medical condition, recognised (in Coroners and
‘lacing’ drink with alcohol 293–4 Justice Act 2009) 327–8
law, classification by source 12 medical evidence
Lawrence test of recklessness 68 diminished responsibility 326
lay justices, qualifications 14 importance of for insanity defence 272
legal duty to disclose information 525 medical treatment 5–6, 51–6, 224
lending 468 medically prescribed drugs, intoxication 294–5
liability mens rea (guilty mind; fault element) 61–81
absolute 84, 110 assisting or encouraging crime 164–6
attempt 146–8 insanity 271–84
coincidence of actus reus and 76–8 intoxication 291–308
conveyance-taking without consent 493–4 mental element (of offence/unlawful act)
damage to property 541–5 burglary 487
endangering life 551–3 manslaughter 350–1
definition 18–19 see also mens rea
dishonesty 72 mental functioning, abnormality of (in Coroners and
fraud Justice Act 2009) 326–7
abuse of position 528 mentally ill persons
failure to disclose information 525–6 diminished responsibility 180
false representation 522–4 insanity at time of offence 180
making or supplying articles for use in 530 sentencing offenders 180–1
obtaining services dishonestly 532 unfitness to plead 178–80
possession of articles for use in 529–30 mercy killing 233, 318, 320–2
going equipped for stealing 507 miscarriage, procuring a 367
intention 62–7 mistake (mistaken belief) 234–6
criticism 66 consent to an assault with injury 393
direct 62, 66 of fact 234–5 597
directions not always necessary 64 intoxicated 235, 244–5
foresight as evidence of 65 of law 235
index
the Nedrick/Woollin test 64, 65–6 mistake, property obtained by 458–9
oblique (indirect) 62–7 M’Naghten Rules 272–9
manslaughter 354 money
the mental element 61–2 definition 449
murder 61, 62, 320 see also payment
negligence 72 morals (public morals; moral values) 4–6
non-fatal offences against the person actus reus and 42
actual bodily harm 390–1 conspiracy to corrupt 10, 152, 158–9, 170
assault 387–8 more than merely preparatory 142, 144–6, 149–51, 167,
battery 61, 387–8 170–1, 583
wounding or grievous bodily harm with intent mouth, penetration see penetration
395–7 murder
penetration 427 actus reus 33
public order offences committed by a British citizen outside the UK 318
affray 565 definition 7, 317
harassment/alarm/distress 570 diminished responsibility/insanity 323–35
threatening/abusive/insulting behaviour 574 first-degree 368
violent disorder 563 mens rea 61, 62, 320
rape 72, 409 mercy killings and euthanasia 321–3
recklessness 71 second-degree 369
the Cunningham test 67 under duress 220–4
definition 67 under Queen’s Peace 318
distinguishing between intention and 66 Murder, Manslaughter and Infanticide (Law
G and another, restoration of Cunningham 67, Commission, 2006) 66
69–71
secondary party 120 necessity, vs duress of circumstances 226
statutory conspiracy 154–8 new laws, and human rights 10
summary 79 nolle prosequi 10
theft 437, 459 non-fatal offences against the person 379–406
theft related offences, handling stolen goods 500, non-jury trials, situations allowing 15
503–4 ‘normal’ person test 345–6
theft-related offences see also reasonable belief
blackmail 498 novus actus interveniens 49
conveyance-taking without consent 491 noxious thing or substance 402–3
going equipped for stealing 507
making off without payment 508 objective innocence 149
robbery 480 objective tests
transferred malice 72–6 dangerous act 351, 362
mental capacity defences 271–313 reasonableness of force 249
automatism 285–91 recklessness 67, 69, 79, 543
obligation, property received under 456–8 personal property, definition 449
oblique intent see foresight poisoning 43, 402
obtaining services dishonestly (dishonesty) 531–3 see also noxious thing
occupation of position and fraud 526–7 police
offences, classifying 13 assault on a constable 400
Offences against the Person Act (OAPA) 1861 powers of detention, categories of 12
section 18 396–8 protection by 212–13
section 20 393–6 position, abuse of, fraud by 526–9
section 23 and 24 and poisoning 404–5 position of trust 430
section 47 388–93 possession
omissions (failure/breach of duty to act) 35–43 of anything/any article (with intent) for use
abetting by 117 in destruction or damage of property 554
battery by 384–5 in fraud 529–30
breach of duty to act 42 of property belonging to another person 453–5
cessation of duty to act 40–1 post-traumatic stress disorder (dissociation) 220,
commission by omission 35–6 276–7, 288, 290
imposition of a duty to act 36–8 pre-emptive strike 239, 249
598 manslaughter due to 350 pregnancy
offences that can be committed by 57 duress in 219
reforms 42 procuring an abortion 367
index
release from duty to act 40 termination see abortion

outraging public decency 7, 90, 110, 158–9 preparation, criminal
owner(s) more than merely 142, 144–6, 149–51, 167, 170–1,
belief he can’t be found 460 583
consent to appropriation 439–40 proposed new offence 151
belief in 460 pre-planned criminal activity, withdrawal 133–4
without deception 444–5 prescribed drugs, and intoxication 294–5
consent to damage, belief in 546 presumption of innocence 19, 21–2, 24, 30, 96
rights Prince 85–6, 102, 104
assumption of 438–9 Prince decision 85
proprietary rights 455–6 principal offender (perpetrator) 113
difficulties in identifying 113
palliative care 51 as innocent agent 114
partial defences see special and partial defences liability in joint enterprise 122–33
participation (parties to a crime) 113–40 vicarious liability 182, 185
intended see intention private life, right to respect for 22, 29, 31
secondary see secondary party procuring 115, 119
withdrawal from 133–5, 138 abolition 136
see also conspiracy; joint enterprise; third parties program (computer) damage 540
payment proof
not making, by making off without paying 507–9 burden and standard of 19–21
willing to make 461 see also burden
peaceful assembly 31 property, definitions 540–1
penetration (vagina/anus/mouth) property and goods
actus reus 426 belief in other property in immediate need of
assault by 425–6 protection 546–8
by penis 409–10 belonging to another see belonging to another
animal 431 definition 500
intent 423 handling stolen goods 499–504
see also buggery; rape obtained by deception 441, 500
penetration proprietary rights 455–6
of a corpse, sexual 431 prosecution, role of the state 10
digital 427 prostitution 4
perjury 187 protection
permanently depriving, intention of 466–8 belief in other property in immediate need of 546–8
permission, trespass as going beyond 486 person, no defence (in criminal damage) of 548
persistent vegetative state (PVS) 6, 40, 56, 322 of person, innocent purchasers 448–9
person (individual) protective offence 167
non-fatal offences against the 379–406 provocation 8, 51, 219, 224, 321, 342
protection see protection abolition 335, 342, 369
public, removal of items from the place open to the duress 225
490 failure to act 42
public decency, outraging 7, 12, 90, 110, 158–9 foresight 66–7
public morals 170 homicide 368–70
public nuisance 89–90 corporate manslaughter 196–7
Public Order Act 1986 559 manslaughter 370
public order offences 579 reckless manslaughter 362
punishment (penalty) insanity defence 282–4
administering poison 402 intoxication 307–9
arson 553 joint enterprise 136–8
child offenders 177 murder 321
corporations 187, 199, 202 non-fatal offences against the person 399–401
no, punishment without law 26–7 provocation defence 335
public order offences robbery 481
affray 565 strict liability 109
riot 562 technology and the creation of new offences 10
racially or religiously aggravated offences 401, 555 transferred malice 76
see also imprisonment regulatory (quasi) offences 94, 109, 186, 190 599
purchasers, innocent, protection 448–9 relationship, duty arising out of a 37
religiously-aggravated offences see racially or
index
qualifying triggers to loss of self-control 337, 341–6, religiously-aggravated offences
348 remoteness principle 130
Queen’s Bench Divisional Court 15 representation
Queen’s Peace, killing under the 317–18 express 517
false 516–24
racially or religiously-aggravated offences implied 517–18
assault 401 resisting
criminal damage 555 lawful arrest 397–8
public order offences 574–6 threats 217–20
raising a defence 20–1 result crimes 35–6, 42–4, 56, 58, 150
rape reverse onus (burden of proof on defendant) 20, 25–6
actus reus 33, 34, 409 rights
anal 409, 417 human see human rights
attempted 144, 147–8, 306 in law, belief of 460
capability of boys under the age of 14 177 with property, owner’s see owner
of a child under 13 years 106, 177 proprietary 455–6
consent issues 410–23 riot 560–2
convictions of 114, 411, 415, 419–20 violent disorder compared with 563–4
definition 408 robbery 482
definition of 36, 250, 300, 407 ‘Robin Hood’ defence 465
drug-assisted 433 reverse of 465
extended definition of 409 RSPCA, prosecuting capacity 10
male 409
marital 11–12, 26, 425 sado-masochism 259–61, 264–6, 268, 383
mens rea 72, 409 scope of consent 260–3
oral 409 safety orders, child 175
real property 449, 451 secondary party (accessory) 114
reasonable belief, consent to penetration 423–5 joint enterprise and, distinction 122
reasonable doubt 20–1, 25–6, 32, 90, 97, 179, 283, 285, liability in joint enterprise, escape from by
287, 290, 325, 337–8, 463, 465 withdrawal from participation 133–5, 138
reasonable firmness, person of 565 reform 138
reasonable force 243, 267, 386 woman guilty of rape as 425
recklessness sections, codification of the criminal law 8
attempt and 147 self-control
causing injury 399 homicide, loss of defence 335–48
intoxication and 301 substantially impaired ability to exercise 328–9
manslaughter 361 self-defence
reflex actions 290 force
reforms (and reform proposals) ‘grossly disproportionate’ in ‘householder’ cases
automatism 290–1 246, 248
necessity of 237–41 cases where strict liability has been found 105–6
reasonableness of 241–4 common law 89–90
intoxication, mistake and 244–5, 305–6 deciding elements 101
self-neglect, victim 51 no defence of mistake 87–9
self-neglect by victim 51 definition 85
self-restraint 250, 337, 345–8 no due diligence defence 87
senior management 197–8, 206–7 effectiveness of 102
manslaughter 205 the Gammon criteria 91–2
sentencing and human rights 96–8
aims of 4 issues of social concern 98
guidelines 18 justifications for 107–8
magistrates’ powers of 14 looking at the wording of an Act 92
Serious Crime Act (SCA) 2007 need for reform 103
assisting or encouraging crime, liability under and penalty of imprisonment 95–6
161–3 presumption of mens rea 91
evaluation 168 promoting enforcement of the law 99–100
serious harm, children or vulnerable adults, causing/ proof requirements 19
600 allowing death or 362–4 quasi-criminal offences 94
services, dishonestly obtaining 531–3 reform proposals 109
sexual abuse 97, 219 statutory offences 90–107
index
sexual activity, scope of consent 259, 260–3 the strict liability rule 91
sexual assault (formerly indecent assault) 427–9 summary points 89
actus reus 427 subjective tests
by touching see touching criminal damage 69
sexual infidelity, ruled out as trigger for loss of self- dangerousness 362
control 344–5 dishonesty 462–3, 495, 504
sexual offences 433 false representation 522
legislation 8 recklessness 67, 543, 545
Sexual Offences Act 1956 28, 96, 102–5, 120, 407–8, 432 substance, noxious see noxious thing
Sexual Offences Act 1967 6 substantial risk 63, 125, 130
Sexual Offences Act 2003 430–1 substantive crime
Sheen Report 194–5 early stages (inchoate offences) 141–72
sleeping girl, rape 417 no requirement to be committed 166
sleepwalking 276–7, 281, 285, 309, 313 summary offences
soporific and sedative drugs 295 place of trial 13–14
Southall Rail crash 195–6 police powers of detention 12
special and partial defences supplying articles for use in fraud 530, 534
murder Supreme Court, appeals to the 16–17
diminished responsibility 323 surgery 257–8, 267
duress 370 suspected persons, rights 13
loss of self-control 335–48
suicide pact 348 taking a conveyance see conveyance-taking
sexual infidelity ruled out as 344–5 tattooing 250, 259, 267
spontaneous criminal activity, withdrawal 134–5 scope of consent 259–60
sports, contact 392 technical assault 380
standard of proof 21 technology, and creation of new offences 10
statutory crimes/offences 8, 32, 56–7, 87, 89–90, 92, 99, telex instructions in banking, appropriation 448
105, 110, 137, 181, 185–6, 193, 205 terrorism offences, police powers of detention for 13
stealing theft (stealing) 435–73
going equipped for 504–7 actus reus 33, 437
see also theft attempted 146, 468, 477, 583
stolen goods definition 436
ceasing to be stolen 501 as element of robbery 476–7
definition 500 elements 437
handling 499–504 going equipped for stealing 504–7
see also theft mens rea see mens rea
strict liability related offences 475–512
21st century cases 100 Theft Act 1968 435
absolute liability 85 amendments 436
arguments against 108 appropriation 437–49, 460
‘belonging to another’ 453–9 unjustifiable risk 67, 79, 371
belonging to another see belonging to another unlawful force see force
blackmail 495–9 unlawful goods or services, and payment, making off
burglary 483 without 507
dishonesty 459–66 unlawful or dangerous act, manslaughter by 352
Fraud Act 2006, sections repealed by 516 unwarranted demand with menaces 495–6, 510
going equipped for stealing 504
handling stolen goods 499–504 vaginal penetration see penetration
intention to permanently deprive 466–8 vehicle see conveyance; dangerous driving
making off without payment 507 Venn diagram of mental capacity defences 310
real property 451 vicarious liability 181–6
removal of items from a place open to the public corporate 190
490 criticisms 185–6
robbery 475, 478 delegation principle 182–4
things which cannot be stolen 449–50 and meaning of words 182
Theft Act 1978 435 reasons for 185
things victim(s)
in action 449, 451–2 accused taking V as they find them 49 601
intention of treating thing as one’s own 466–7 actions
said or done as trigger for loss of self-control 342, deliberate acts 47–8, 51
index
344 fright or flight 48
which can’t be stolen 449–50 self-neglect 51
third parties, actions of 46 death see death
threat encouraging or assisting crime and defence for 167
degree/seriousness 210–24 intended, in conspiracy 153
to destroy/damage property 554 violence (and serious violence)
direction of (threat against whom?) 211–12 fear of as trigger for loss of self-control 342
escape opportunities 212–13 as public order offence
imminence 212–13 affray 564
touching 251, 292, 300, 380, 382–3, 385, 418, 427–9, 431, fear or provocation of 566–8
477 riot 560
sexual 428–9 violent disorder 562–4
toxic psychosis 303–4 virtual certainty 63, 66, 79
transferred malice 116 voluntary conduct 35
criticism 75 vulnerable adults, death, causing/allowing 362–4
definition 72
reform 76 war, killing in 318
trespass 485 weapons (arms) 106, 124–7, 129–30, 132–3, 136, 139,
with intent to commit sexual offences 430 213, 223, 233, 237, 246, 248, 489–90, 506, 510
trials wheel conspiracy 153
of children 177 wife see marital issues
Ghosh test (for dishonesty) increasing length of 464 wild animals and plants as things which can’t be
and human rights 15, 22 stolen 450
mentally ill persons 178–9 ‘wilful blindness’ 494, 504
place of, offence classified by 13 willing to pay 461
public order offences withdrawal from participation 133–5, 138
affray 565 women, guilty of rape as secondary party 425
riot 562 wounding
triggers to loss of self-control 340–3 malicious see malice
trust, child sexual touching through abuse of position see also harm; injury
of 430 wounding with intent 396
trust property 456
tutor tips 19, 197, 437, 543, 563 year and a day rule, homicide 319
young offenders, definition 175
ulterior intent 298 young persons 175
ulterior offence 484, 487, 489 see also Children and Young Persons Act 1933
unfitness to plead 179–80

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U N L O C K I N G T H E L A W UNLOCKING

PART I CONCEPTS IN CRIMINAL LAW 1

1 INTRODUCTION TO CRIMINAL LAW 3

1.2 Sources of criminal law 7

1.3 Defining a crime 10

1.4 Classification of offences 12

1.5 Criminal justice system 14

1.7 Elements of a crime 18

1.8 Burden and standard of proof 19

2.2 Voluntary conduct 35

Sample essay questions 57

3.6 Transferred malice 72

3.7 Coincidence of actus reus and mens rea 76

Sample essay question 79

4.2 Strict liability 85

4.3 Common law strict liability offences 89

4.4 Statutory strict liability offences 90

4.5 Justification for strict liability 107

4.6 Proposals for reform 109

Sample essay question 110

Further reading 112

5 PARTIES TO A CRIME 113

5.1 Principal offenders 113

5.2 Innocent agents 114

5.3 Secondary parties 114

5.4 Withdrawal from participation 133

5.5 Assisting an offender 135

5.6 Reform 136

Sample essay question 139

Further reading 140

6.4.2 Liability under the Serious Crime Act 2007 161

8 GENERAL DEFENCES 209

9 MENTAL CAPACITY DEFENCES 271

9.3 Intoxication 291

Sample essay questions 310

Further reading 313

PART II SPECIFIC OFFENCES 315

10.2 Murder 320

10.3 Voluntary manslaughter 323

10.4 Involuntary manslaughter 349

10.5 Causing or allowing the death or serious physical harm of a child or

10.7 Infanticide 365

12 SEXUAL OFFENCES 407

12.3 Sexual assault 427

12.4 Causing a person to engage in sexual activity 429

Sample essay question 432

Further reading 433

13.1 Background 435

13.2.2 Consent to the appropriation 439

13.3 Property 449

13.4 Belonging to another 453

13.5 Dishonestly 459

13.6 With intention to permanently deprive 466

Sample essay question 472

Further reading 473

14 ROBBERY, BURGLARY AND OTHER OFFENCES IN THE

14.2 Burglary 483

14.3 Aggravated burglary 488

14.4 Removal of items from a place open to the public 490