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The Law Commission (LAW COM. No. 177) CRIMINAL LAW A CRIMINAL CODE FOR ENGLAND AND WALES VOLUME 2 COMMENTARY ON DRAFT CRIMINAL CODE BILL Laid before Parliament by the Lord High Chancellor pursuanttosection 3(2)of the Law Commissions Act 1965 Ordered by The House of Commons to beprinted 17th April 1989 LONDON HER MAJESTY’S STATIONERY OFFICE 299 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are - The Honourable Mr . Justice Beldam, Chairman Mr. Trevor M. Aldridge Mr. Richard Buxton, Q.C. Professor Brenda Hoggett, Q.C. The Secretary of the Law Commission is Mr. Michael Collon and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WCIN 2BQ. A CRIMINAL CODE FOR ENGLAND AND WALES VOLUME 2: COMMENTARY ON DRAFT CRIMINAL CODE BILL CONTENTS Report relating to Part I of the Draft Bill Paragraphs Page PART &PRELIMINARY PROVISIONS 4.1-4.1 1 175 Introduction 4.1 175 Clause 1 Short title, commencement and extent 4.2 175 Clause 2 Application of this Act and other penal legislation 4.3-4.7 175 Clause 3 Creation of offences 4.8 176 Clause 4 Effect on common law 4.9 177 Clause 5 Amendments and repeals 4.10 177 Clause 6 General interpretation 4.11 177 PART 5-PROSECUTION AND PUNISHMENT 5.1-5.37 178 Introduction 5.1-5.2 178 Clause 7 Prosecution, punishment and miscellaneous matters 5.3-5.7 178 Clause 8 Alternative verdicts 5.8-5.18 179 Clause 9 Conviction of preliminary offence when ulterior offence completed 5.19-5.22 180 Clause 10 Act constituting two or more offences 5.23 181 Clause 11 Double jeopardy 5.24-5.36 181 Clause 12 Multiple convictions 5.37 183 PART &PROOF 6.1-6.5 184 Clause 13 Proof 6.1-6.3 184 Clause 14 Proof or disproof of states of mind 6.4-6.5 184 PART 7-EXTERNAL ELEMENTS OF OFFENCES 7.1-7.22 185 Introduction 7.1-7.3 185 External elements 7.4-7.5 185 Clause 15 Use of “act” 7.6 186 Clause 16 Offences of omission and situational offences 7.7-7.8 186 Omissions 7.9-7.13 186 Clause 17 Causation 7.14-7.22 188 PART &FAULT: PRINCIPLES OF INTERPRETATION AND LIABILITY 8.1-8.61 190 Introduction 8.1-8.3 190 Clause 18 Fault terms 8.4-8.21 190 Clause 19 Degrees of fault 8.22-8.24 195 Clause 20 General requirement of fault 8.25-8.28 195 Clause 21 Ignorance or mistake of law 8.29-8.32 196 Clause 22 Intoxication 8.33-8.51 196 Clause 23 Supervening fault 8.52-8.55 200 Clause 24 Transferred fault and defences 8.56-8.61 201 PART %PARTIES TO OFFENCES (1): PRINCIPALS, ACCESSORIES AND VICARIOUS LIABILITY 9.1-9.50 203 Introduction 9.1-9.4 203 Clause 25 Parties to offences 9 59.7 203 Clause 26 Principals 9.8-9.16 204 Clause 27 Accessories 9.17-9.42 206 Clause 28 Parties-procedural provisions 9.43-9.46 211 Clause 29 Vicarious liability 9.47-9.50 211 iii Paragraphs Page PART 10-PARTIES TO OFFENCES (2): CORPORATIONS, UNINCORPORATED ASSOCIATIONS AND CHILDREN 10.1-10.28 213 Clause 30 Corporations 10.1-10.18 213 Clause 31 Liability of officer of corporation 10.19-10.22 216 Unincorporated bodies 10.23-10.25 217 Clause 32 Children 10.26-10.28 218 PART 1 1-INCAPACITY AND MENTAL DISORDER 11.1-11.37 219 Incapacity 11.1-11.6 219 Clause 33 Automatism and physical incapacity 11.1-11.6 219 Mental disorder 11.7-11.37 220 Disability in relation to the trial 11.7-11.8 220 Code provisions on mental disorder 11.9- 1 1.12 220 Clause 34 Mental disorder: definitions 11.13-11.14 221 Clause 35 Case for mental disorder verdict: defence of severe disorder 11.15-11.22 222 Clause 36 Case for mental disorder verdict: evidence of disorder 11.23-11.29 223 Clause 37 Plea of not guilty by reason of mental disorder verdict 11.30 225 Clause 38 Evidence of mental disorder and automatism 11.31-11.33 225 Clause 39 Disposal after mental disorder verdict 11.34-11.36 226 Clause 40 Further effect of mental disorder verdict 11.37 226 PART 12-DEFENCES 12.1-12.43 227 Introduction 12.1-12.5 227 Clause 41 Belief in circumstance affording a defence 12.6-12.10 228 Clause 42 Duress by threats 12.11-12.19 229 Clause 43 Duress of circumstances 12.20-12.23 230 Clause 44 Use of force in public or private defence 12.24-12.37 23 1 Clause 45 Acts justified or excused by law 12.38- 12. rl1 234 Clause 46 Non-publication of statutory instrument 12.42-12.43 235 PART 13-PRELIMINARY OFFENCES 13.1-13.59 236 Introduction 13.1-13.3 236 Clause 47 Incitement to commit an offence 13.4-13.19 236 Clause 48 Conspiracy to commit an offence 13.20-13.41 240 Clause 49 Attempt to commit an offence 13.42-13.49 243 Clause 50 Impossibility and preliminary offences 13SO-13.53 245 Clause 51 Preliminary offences under other enactments 13.54-13.55 246 Clause 52 Jurisdiction and preliminary offences 13.56-13.57 246 Prosecution and punishment 13.58 247 Withdrawal 13.59 247 Report relating to Part I1 of the Draft Bill 248 PART 1APART 11, CHAPTER I-OFFENCES AGAINST THE PERSON 14.1-14.60 249 Introduction 14.1 249 Clause 53 Interpretation 14.2-14.4 249 Clause 54 Murder 14.5-14.9 249 Clause 55 Manslaughter 14.10-14.14 250 Clause 56 Diminished responsibility 14.15-14.16 25 1 Clause 57 Evidence of mental abnormality 14.17 25 1 Clause 58 Provocation 14.18 25 1 Clause 59 Use of excessive force 14.19 25 1 Clause 60 Jurisdiction over murder and manslaughter 14.20 25 1 Clause 61 Attempted manslaughter 14.22 252 Clause 62 Suicide pact killing 14.23-14.24 252 iv Paragraphs Page Clause 63 Complicity in suicide 14.25 252 Clause 64 Infanticide 14.26-14.28 252 Clause 65 Threats to kill or cause serious personal harm 14.29 253 Clause 66 Abortion 14.30-14.31 253 Clause 67 Self-abortion 14.32 253 Clause 68 Supplying article for abortion 14.33 253 Clause 69 Child destruction 14.34 253 Clause 70 Intentional serious personal harm 14.35-14.36 253 Clause 71 Reckless serious personal harm 14.37 254 Clause 72 Intentional or reckless personal harm 14.38 254 Clause 73 Administering a substance without consent 14.39 254 Clause 74 Torture 14.40 254 Clause 75 Assault 14.41-14.43 254 Clause 76 Assault on a constable 14.44 255 Clause 77 Assault to resist arrest 14.45 255 Clause 78 Assault to rob 14.46 255 Offences of detention and abduction 14.47-14.50 255 Clause 79 Interpretation 14.51 255 Clause 80 Unlawful detention 14.52 255 Clause 81 Kidnapping 14.53 255 Clause 82 Hostage-taking 14.54 256 Clause 83 Abduction of child by parent 14.55 256 Clause 84 Abduction of child by other persons 14.56 256 Clause 85 Aggravated abduction 14.57 256 Clause 86 Endangering traffic 14.58 256 Offences in the Offences against the Person Act 1861 not included 14.59 256 Other offences not included 14.60 257 PART 15-PART 11, CHAPTER IICEXUAL OFFENCES 15.1-15.74 258 Introduction 15.1-15.2 258 Clause 87 Interpretation 15.3-15.10 258 Clause 88 Intoxication 15.11 259 Clause 89 Rape 15.12-15.16 259 Clause 90 Procurement of woman by threats 15.17 26 1 Clause 91 Procurement of woman by deception 15.18 26 1 Clause 92 Use of article to overpower for sexual purposes 15.19 261 Clause 93 Intercourse with girl under thirteen 15.20- 15.21 26 1 Clause 94 Intercourse with girl under sixteen 15.22 26 1 Clause 95 Non-consensual buggery 15.23 262 Clause 96 Buggery with child under thirteen 15.24 262 Clause 97 Buggery with girl under sixteen ~~ . 15.25 262 Clause 98 Buggery by man with boy under eighteen 15.26 262 Clause 99 Buggery with boy under eighteen 15.27-15.29 262 Clause 100 Indecency by man with boy under eighteen 15.30 263 Clause 101 Indecency with boy under eighteen 15.31-15.32 263 Clause 102 Homosexual acts on merchant ships 15.33 263 Clauses 103 and 104 Incest 15.34-15.37 263 Clause 105 Intercourse with step child under twenty-one 15.38 263 Clause 106 Intercourse with mentally handicapped woman 15.39-15.41 264 Clauses 107 and 108 Buggery and indecency with mentally handicapped person 15.42 264 Clause 109 Abduction of severely mentally handicapped person 15.43 264 Clause 110 Sexual relations with mentally disordered patient 15.44-15.45 264 Clause 111 Indecent assault 15.46 265 Clause 112 Procurement of gross indecency by threats 15.47 265 Clause 113 Indecent exposure 15.48 265 Clause 114 Indecency with child under thirteen 15.49 265 Clause 115 Indecency with child under sixteen 15.50 265 Clauses 116 and 117 Indecent photographs of children 15.51-15.52 265 Clauses 118 and 119 Bestiality 15.53 266 Clause 120 Sexual acts in public 15.54-15.55 266 Clause 121 Acts in public lavatories 15.56 266 V Paragraphs Page Clause 122 Meaning of “prostitute” 15.57 266 Clause 123 Organising prostitution 15.58 267 Clause 124 Controlling a prostitute 15.59 267 Clause 125 Facilitating prostitution 15.60 267 Clause 126 Meaning of “premises” 15.61 267 Clause 127 Managing premises used for prostitution 15.62 267 Clause 128 Letting premises for prostitution 15.63 267 Clause 129 Permitting use of premises for prostitution 15.64 268 Clause 130 Use of premises for prostitution involving personal harm 15.65 268 Clause 131 Procurement of woman to become prostitute 15.66 268 Clause 132 Procurement of woman under twenty-one 15.67 268 Clause 133 Procurement of homosexual acts 15.68-15.69 268 Clauses 134 to 137 Soliciting for prostitution or sexual purposes 15.70-15.72 268 Clause 138 Soliciting by man for homosexual purposes 15.73 269 Proof of sexual offences 15.74 269 PART 16PART 11, CHAPTER 111-THEFT, FRAUD AND RELATED OFFENCES 16.1-16.19 270 Subject-matter and method 16.1-16.4 270 Notes on draft clauses (139-177) 16.5-16.19 270 PART 17-PART 11, CHAPTER IV4THER OFFENCES RELATING TO PROPERTY 17.1-17.14 274 Subject-matter and method 17.1-17.2 274 Notes on draft clauses (178-196) 17.3-17.14 274 PART IQPART 11, CHAPTER V-OFFENCES AGAINST PUBLICPEACEANDSAFETY 18.1-18.11 277 Subject-matter and method 18.1-18.2 277 Notes on draft clauses (197-220) 18.3-18.11 277 vi THE LAW COMMISSION Item XVIII of the Second Programme CRIMINAL LAW A CRIMINAL CODE FOR ENGLAND AND WALES VOLUME 2: COMMENTARY ON DRAFT CRIMINAL CODE BILL Introduction to Volume 2 Parts 4 to 18 of our Report, contained in this Volume, take the form of a commentary upon the draft Criminal Code Bill (set out in Volume 1, Appendix A) which we have discussed in general terms in Part 3 of Volume 1.
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