Criminal Law

CONTENTS PAGES

CHAPTER 1 OUTCOMES 2 INTRODUCTION TO CRIMINAL LAW 3-7 ACTUS REUS 8-16 MENS REA 17-31 STRICT LIABILITY 32-35 INCHOATE OFFENCES 36-45 CHAPTER 2 OUTCOMES 46 NON-FATAL OFFENCES AGAINST THE PERSON 47-57 FATAL OFFENCES 58-68 PROPERTY OFFENCES 69-80 CHAPTER 3 OUTCOMES 81 GENERAL DEFENCES 82-94 OVERVIEW OF POLICE POWERS 95-105

Chapter 1 Learning outcomes After studying this chapter you should understand the following main points:

þ the principles of criminal liability; þ the general rule in relation to actus reus; þ the rules on causation; þ the different levels of mens rea; and þ what is meant by an incomplete offence and the justification for punishing those that do not complete and offence.

1.1 Introduction to Criminal Law

1. Introduction

The criminal law is not just a set of rules; it is underpinned by ethical and political principles created to ensure justice for the individual and protection to the community. If the application of a particular rule to a case results in the acquittal of a dangerous person, or convicts someone that is not dangerous or blameworthy according to ordinary standards, something has gone wrong.

Crimes are distinguished from other acts or omissions which may give rise to legal proceedings by the prospect of punishment. It is this prospect which separates the criminal law from the law of contract and tort and other aspects of the civil law.

The threshold at which the criminal law intervenes is when the conduct in question has a sufficiently serious social impact to justify the state, rather than (in the case of breach of contract or trespass) the individual affected, taking on the case of the injured party.

2. What is Crime?

A crime is conduct defined as such by statute or by common law. Every textbook writer tries to define “crime”. It is difficult to attach an exact definition to something which is so diverse.

There are motoring offences ranging from simple parking errors, to death by dangerous driving. Offences against the person range from a slap to murder. Criminal law is usually found under the heading of public law because it is against the state and is punished by the state. First, it is an offence against the public, although it might affect only one person. However, a crime is regarded as being contrary to the interests of society. Crimes are therefore punished by the state and usually reflect the morality of society.

Secondly, that the person who committed an offence will be punished in some manner prescribed by the state. In the case Board of Trade v Owen [1957] AC 602 the court considered that the correct definition of a crime in the criminal law was the following passage from Halsbury's Laws of England:

"A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment."

Whilst this is the standard definition, you may feel it does not encompass modern attitudes to crime, for example, what about compensation?

The Human Rights Act 1998 has affected criminal law in a number of ways, the most notable of which is the right to a fair trial, which is enshrined in Article 6 of the European Convention on Human Rights (ECHR).

There is a lot of overlap between tort and crime and there can also be liability in both; e.g. a defendant can be liable to compensate for assault and battery in tort and also be punished for an assault offence in crime. Differences include:

þ The parties: the state brings the action in crime, whereas an individual brings the action in tort. þ The outcomes: a criminal action may result in a conviction and punishment while an action in tort may result in liability on the part of a defendant and a remedy awarded to the claimant. þ Terminology and procedure. þ The standard of proof: this is higher in crime.

4. Sources of Criminal Law

Many offences are defined by statutes, although some very serious crimes – including murder and involuntary manslaughter – remain common law offences. Codified offences may either have originated in statute or are common law offences whose elements have been incorporated into statute, such as theft and most crimes of violence. Where the offence originated in common law before the statute was created you may still need to look to the common law to find the definition of the full offence.

European Law and the European Convention on Human Rights are other key sources of criminal law. It is important in particular to understand the Convention and its impact. Rarely a month goes past without some aspect of domestic law being challenged for being inconsistent with the Convention.

5. Criminal Procedure

The criminal law’s aims and objectives are met through the operation of the criminal justice system. This includes preventing crime, typically by policing, and also by bringing offenders to justice. The procedure varies according to the nature of the offence committed, an offence may be arrestable or non-arrestable. The former, which includes more serious crimes, allows a suspect to be arrested without an arrest warrant.

The Crown Prosecution Service (CPS) has the overall responsibility for bringing proceedings, they will assess the weight of evidence and decide whether a prosecution should proceed. The CPS follow charging standards when exercising their discretion of whether to charge a person and what to charge a person with.

Offences are triable:

1. Summarily: before magistrates 2. on indictment: in the Crown Court before a judge and jury 3. either way: either summarily or on indictment.

In respect of offences triable either way all defendants have the right to a jury trial but in practice, the majority of offences are heard by magistrates. Whether heard summarily or

The formal accusation made against a defendant is in the form of an indictment or, where the matter is tried summarily before magistrates, an information. This contains a statement of the offence and particulars of the offence charged.

The judge and jury have separate roles in the conduct of a trial. The judge directs the jury as to the meaning and operation of the law and the jury are judges of fact. This means that it is for the jury ultimately to decide how much weight to ascribe to the various pieces of evidence adduced by the prosecution and defence. In the course of the trial, the judge will ensure that no evidence is taken into account which is either irrelevant to the proof of guilt of the defendant or, if relevant, less probative than prejudicial. After the prosecution and then defence have presented their cases, the judge will sum up and will review the facts for the jury. Then the judge will explain to the jury what the law is and what facts they have to find to sustain a conviction. The judge will also tell the jury that the burden of proof is at all times on the prosecution and that the standard of proof is ‘beyond reasonable doubt’. These instructions to the jury are known as jury directions. If the judge makes a mistake in directing the jury this can be appealed on the ground of misdirection.

6. The Elements of Criminal Liability

These basic elements or an offence are prohibited conduct (the external element), and an accompanying mental element (the internal element). The specific elements of a crime may vary enormously; the prohibited conduct may consist of snatching someone’s handbag, poisoning their pet or even killing them. The mental element may be intention, recklessness, wilfulness or knowledge. These elements can be reduced to an equation:

prohibited conduct + mental element = criminal liability

Actus non facit reum nisi mens sit rea is the most important Latin maxim in criminal law. The rough translation is that "the act is not blameworthy unless the mind is guilty". Thus, in the criminal law, a distinction is made between the criminal act and the guilty mind. In general, both must be present for criminal liability. There are three elements of criminal liability:

þ actus reus: the blameworthy conduct of the defendant (D) (“guilty act”); þ mens rea: the blameworthy state of mind relevant to that crime (“guilty mind”); and

þ the absence of a defence.

For almost all crimes, all these elements must be present. There are some offences where the commission of the actus reus is sufficient to establish guilt. These are known as strict liability offences.

The actus reus and mens rea of a crime is in its definition. So assume you are asked to decide whether it is murder where A has killed B, his wife, by poisoning her drink with cyanide in revenge for cheating on him with C. To be guilty of murder A must have committed the actus reus of murder and with the requisite mens rea for murder.

The actus reus of a crime is the behaviour which the law prohibits. The law may prohibit acting in a particular way, as in the offence of careless driving, or bringing about a particular result, as in murder or manslaughter. The law may also prohibit doing something such as in the crime of rape, having intercourse with another without their consent. Therefore, the actus reus of a crime comprises conduct, with or without a designated result, including the presence of any circumstances necessary for that conduct to be criminalised.

6.2 Mens rea

There is a fundamental ethical principle underpinning the criminal law that the state has moral authority to punish its citizens only if they deserve it. This moral principle – that justice in punishment requires punishment to be deserved – is known as the principle of retribution. It is because of this principle that for serious crimes requires proof that the accused was blameworthy in doing what they did. In the criminal law the blameworthy states of mind most commonly used to justify punishment are:

þ intention; þ recklessness; þ dishonesty; þ knowledge; and þ belief.

All these forms of mens rea are states of mind, they reflect a conscious attitude of the accused, i.e the accused is aware of what they are doing. It is this conscious attitude that makes them deserving of punishment because they are consciously defying a standard of conduct which is or was binding on them.

It should be noted that retribution is not the only possible justification for punishment. For example, utilitarian theorists believe that punishment can never be deserved because it involves harming people and ‘two wrongs do not make a right’. The utilitarian justification for punishment is prevention; to reduce the incidence of anti-social and dangerous conduct through punishment’s deterrent or preventive function.

6.3 Defences

The third element in criminal liability is that of criminal defences. Defences operate to absolve or block criminal liability even though the elements of the offence (actus reus and mens rea) are present. This is because of two moral reasons the accused should not be held liable.

The first is that it would be unfair to punish the accused although their act was wrongful, because they lacked the capacity or chance to conform to the prohibition of that behaviour. Such defences, of which duress and insanity are examples, are known as excuses.The second is that although the definition of the offence is satisfied the act of the accused was not wrongful because of special circumstances. Such defences are known as justifications. An example is self-defence.

People are assumed innocent until proven guilty which means that in respect of all the elements of all offences the burden of proof is on the prosecution, i.e the prosecution must prove the elements existed (or in the case of a defence, did not). So, with respect to the actus reus the prosecution must do the proving and it must prove every bit of the actus reus. For example, the actus reus of rape is having intercourse with a person without their consent. The prosecution would need to prove that sexual intercourse between the two parties took place and that the intercourse was non-consensual. The same rules apply to the proving the mens rea, the prosecution must do all the proving. For example, in a case of theft the prosecution must prove that the accused dishonestly took an item intending never to return it.

With respect to defence the prosecution must do the disproving. For example, it must prove that the accused was not acting in self-defence or was not acting under duress. However, the prosecution does not bear this burden unless the defence first adduces some credible evidence that the accused may have been acting in self-defence or under duress. In other words, the prosecution only has to disprove the defence(s) the accused raises that may be taken seriously. The evidential burden on the defence is not heavy but is designed to ensure court time is not wasted proving the obvious.

8. Standard of proof

Supportive of the principle that a person is considered innocent until proven guilty, the prosecution must prove every element of an offence ‘beyond reasonable doubt’. This means that there cannot be a conviction unless the prosecution has made the jury or magistrates believe that all the elements of the offence are present. So, if a jury believe that the relevant actus reus took place but cannot be sure that the necessary mens rea was it must aquit the accused.

1. Introduction

The criminal law cannot punish a person for their thoughts, only for their actions or deeds. Even a criminal attempt requires the defendant to have acted upon their decision to kill someone, injure them or steal their property. Until then, they are free to plan the crime, obtain the poison and reconnoitre the place contemplated for the commission of the crime. It is only when they put their plan into action that the criminal law can get involved.

2. Explain What is Meant by Actus Reus

Actus reus is the Latin phrase for the “guilty act” which must be proved in every criminal case. The burden of proof falls on the prosecution and the standard of proof is “beyond reasonable doubt”.

Each crime must be looked at individually to see what needs to be proved because every crime is different in some aspects from every other crime. The actus reus of a crime will be found in its definition. For example, in murder the actus reus is the unlawful killing of a human being and in theft it is the appropriation of property belonging to another.

There are four things to remember with actus reus:

þ there must usually be a positive act before liability may be incurred; þ omissions can amount to actus reus in certain duty situations; þ the principles of causation; and þ factors may also affect the chain of causation.

Some offences require a certain consequence caused by the defendant’s conduct. For example, in murder the defendant’s conduct must result in the death of a human being. In other offences, certain circumstances are necessary. For instance, in criminal damage the property must belong to someone other than the defendant.

When you are describing the actus reus, you must describe the conduct of the defendant, the circumstances in which the offence took place, and the consequences of the defendant’s conduct.

Conduct - Circumstances - Consequences

An actus reus consists of more than just an act. It also consists of the circumstances and consequences required for the offence in question - i.e. all the elements of an offence other than the mental element.

The defendant must have committed the actus reus on a voluntary basis or of his own volition to incur liability. In other words, he could have chosen not to carry out the guilty act. In Bratty v A-G for Northern Ireland [1961] 3 All ER 523 HL, Lord Denning explained this as follows:

© Association of Costs Lawyers Training 2019 8 “No act is punishable if it is done involuntarily: and an involuntary act in this context... 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...”

An act may be involuntary for a variety of reasons such as automatism.

Automatism occurs where the defendant performs a physical act but is unaware of what he is doing, or is not in control of his actions, because of some external factor. For example, in R v Quick [1973] 3 All ER 347 the defendant took an injection of insulin and had a blackout during which he assaulted the victim. Sometimes people can respond to something with a spontaneous reflex action over which they have no control. The classic example is that given in Hill v Baxter [1958] 1 All ER 193 when the judge used the analogy of a defendant losing control of a car after being stung by a swarm of bees while driving.

The conduct may be involuntary if it is physically forced by someone else, in which case there will be no actus reus, e.g. in Leicester v Pearson [1952] 2 All ER 71 the defendant's car was forced onto a pedestrian crossing after being bumped by the driver behind.

3. Exceptions to the act requirement

There are three exceptions to the usual rule that criminal wrongdoing (actus reus) requires an act. Certain crimes do not require any act at all. These include:

þ situational crimes; þ crimes of possession; and þ crimes of omission.

One group of cases which cannot be discussed in terms of voluntary acts are often referred to as the "state of affairs" cases. These crimes are defined not in the sense of the defendant doing a positive act, but consisting in the defendant "being found", "being in possession" or "being in charge" etc. In these cases, all the prosecution needs to prove is the existence of the factual circumstances which constitute the crime - the existence of the state of affairs.

So, criminal liability may on occasion be based upon being in possession of a prohibited article; for example controlled drugs, extreme pornography, offensive weapons or articles for use in terrorist offences. These are statutory crimes and are known as crimes of possession.

‘Situational liability’ is also an exception to the requirement for a positive act. The prohibition for this category of offence is not some form of act but, similar to crimes of possession, simply being in a prohibited situation. For example, it is a crime to be drunk in a public place, or to be drunk in charge of a vehicle, or to be the owner of certain types of dogs (such as a pit bull terrier) or to allow a dog to be dangerously out of control in a public place.

The problem posed by both possession offences and situational liability is that criminal liability does not depend upon the defendant having chosen to be in possession or be in © Association of Costs Lawyers Training 2019 9 the prohibited situation. In other words no wrongdoing is required. The offence in the case of owning a pit bull terrier is constituted although the dog was by way of an unsolicited gift and although the defendant believed the dog to be of another breed. The offence in the case of the out-of-control dog is constituted although the defendant performed no act and took reasonable steps to keep the dog under control as can be seen in the case of R v Elvin [1994] 1 WLR 1057. In relation to crimes of possession, a person can be guilty of being in possession of a dangerous weapon when they believed the article in their possession was, for example, a torch and not, as it subsequently transpired, a taser (R v Deyemi [2008] 1 Cr App R 25).

4. Omissions

The general rule is that:

“there can be no liability for failing to act, unless at the time of the failure to act the defendant was under a legal duty to take positive action.”

An actus reus usually requires voluntary conduct by the defendant, but the actus reus can, in some situations, be committed by an omission (or failure) to comply with a duty to do something. The difference between positive acts and omissions was highlighted in the case of Airedale NHS Trust v Bland [1993] 1 All ER 821 where the House of Lords held that euthanasia by means of positive steps to end a patient's life, such as administering a drug to bring about his death, is unlawful. However, withdrawing medical treatment, including artificial feeding, from an insensate patient with no hope of recovery when it was known that the result would be that the patient would soon die, is lawful if it was in the patient's best interests not to prolong his life.

The situations when an omission may amount to the requisite actus reus can be divided into two categories, namely:

þ where there is a failure to act when a statute requires you to act in a particular way; and þ where the crime requires an act to cause a result but the result may be caused by doing nothing.

The more controversial exception to the act requirement is the second category, i.e those crimes that concern crimes of commission. Crimes of commission are those crimes that’s definition includes an actus reus which satisfies the act requirement but where the result component may be caused by doing nothing. For example, the actus reus of murder is ‘an unlawful killing’. An act of killing involves some affirmative action such as a stabbing or a a shooting. However, it is possible to ‘cause death’ by doing nothing. For example, a parent who gives her baby no food so that it dies causes the death of the child and only one person can pull a trigger. However, the question arises as to how far that principle should stretch. Every person that walks past a child drowning in a pond but does nothing to help can be said to ‘cause’ the child’s death but it does not follow that they should all be held criminally liable.

To ensure the net of criminal responsibility is not spread too far there are restrictions on criminal liability in cases of harm caused by omission. These are:

© Association of Costs Lawyers Training 2019 10 þ the conduct element of the crime in question must be capable of commission by omission; þ the circumstances must be such as to create a legal duty to act; þ the defendant’s failure to act must be in breach of that duty; þ the defendant’s failure to act must be voluntary; and þ the harm must be caused by the omission.

Most result crimes can be committed by omission. This includes theft, murder, criminal damage, fraud and most forms of manslaughter. Some, however, cannot. The definitions of some offences specify or imply that only acts are sufficient. Assault is one. So in R v Dunn [2015] EWCA Crim 724 the defendant was charged with indecent assault. What he had done was to cause a 15-year-old girl to masturbate him. The Court of Appeal held that the offence was not made out. Indecent assault requires there to be an assault. An assault requires some form of act on the defendant’s part. Here the act was the girl’s and not his. The defendant had committed an offence but not indecent assault. The offence committed was causing a child to engage in sexual activity pursuant to section 10 of the Sexual Offences Act 2003.

Assuming the offence is capable of being committed by omission a successful prosecution can occur only if the defendant’s omission was in breach of a legal duty to act. This is why parents may be guilty of homicide for failing to feed their children, or for neglecting them. They are guilty because parents owe a statutory duty of care to their children. The number of duty situations are limited.

4.1 Statutory Crimes of Omission

Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. In other words, criminal liability may also be based upon a failure to act as the law requires, as in failing to wear a seatbelt, failing to tax one’s car, failing to submit a tax return or failing to display a licence plate. Such offences are typically statutory strict liability offences designed for regulatory rather than retributive purposes. They are known as statutory crimes of omission. A further example is the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child. Hence, by simply failing to provide food for the child, or failing to obtain appropriate medical care, a parent could be held criminally liable for any harm that results. A final example is the Road Traffic Act 1988 which creates the offences of failing to provide a specimen when required to do so and failing to give a correct name and address when required to do so.

4.2 Duty arising from a contract

Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. In R v Pittwood (1902) 19 TLR 37 a gatekeeper of a railway crossing opened the gate to let a car through and forgot to shut it when he went off to lunch. As a result, a hay cart crossed the line while a train was approaching and was hit, causing a number of deaths. The gatekeeper was convicted of manslaughter.

A person in a public office may be under a public duty to care for others as can be seen in the case of R v Dytham [1979] 3 All ER 641. A police officer witnessed the death of a nightclubber, but took no action to help.

4.4 Duty arising where there has been a voluntary assumption of care

There is a common law duty of care where there is a relationship of reliance between defendant and victim. Thus, if someone voluntarily assumes responsibility for another person then they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal. In R v Stone and Dobinson [1977] 2 All ER 341, Stone's sister, Fanny, lived with him and his girlfriend, Dobinson. Fanny was mentally ill and became very anxious about putting on weight. She stopped eating properly and became bed ridden. The defendants made half-hearted and unsuccessful attempts to get medical help and after several weeks she died. They were both convicted of manslaughter and appealed. The Court of Appeal held that they had accepted responsibility for Fanny as her carers and were under a duty to summon help, or care for her themselves. As such, they were liable for her death.

4.5 Duty arising from a person’s prior conduct

If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. For example, in R v Miller [1983] 1 All ER 978 the defendant was squatting in a building. He lay on a mattress, lit a cigarette and fell asleep. Sometime later he awoke to find the mattress on fire. Making no attempt to put the fire out, he simply moved to the next room and went back to sleep. The fire caused £800 of damage. The defendant’s failure to act to put out the fire was treated by the courts as sufficient for the actus reus of arson.

5. Explain What is Meant by Causation

Result crimes require both wrongful conduct and harm. For all result crimes the prosecution bears the burden of proving that the defendant’s conduct caused the prohibited result. For example, in murder or manslaughter this will be the death and in criminal damage it will be the damage done to the property. In the vast majority of cases this will be straightforward.

There must be a direct link from the defendant’s conduct to the consequence. This is known as the chain of causation. In most cases, the chain of causation is clear.

Example: The defendant, Tommy, pushed the victim, Dan, in the chest. Dan staggered backwards and fell down the stairs and twisted his ankle. Clearly there is a direct link/chain from what the defendant did to the injury sustained by the victim.

The prosecution’s task becomes harder, however, when more than one event or act contributes to the result. In such circumstances questions as to whether D’s act or omission was the cause of the harm demand the application of legal principles.

© Association of Costs Lawyers Training 2019 12 In some situations, something else happens after the act by the defendant that contributes to the further injury of the victim. This is called an “intervening act”. In order to break the chain of causation, the intervening act must be both independent of the defendant’s conduct and sufficient to cause the victim serious injury. However, if the defendant has made a “significant contribution” to the injury, the chain of causation remains unbroken.

There are 2 types of causation:

þ causation in fact; and þ causation in law.

5.1 Causation in fact

Causation in fact requires that the consequence would not have occurred “but for” the defendant’s conduct as illustrated in R v Pagett [1983] 76 Cr App R 279 where the defendant kidnapped the victim and used her as a human shield. So, for causation in fact the "but for" test is used. In R v White [1910] 2 KB 124 the accused put cyanide in his mother’s drink intending to kill her. The mother drank about one quarter of the drink. She was later found dead and medical evidence showed that she had died of heart failure not of cyanide poisoning. The defendant was found not guilty. Factual causation and legal causation are both required for a defendant to be found guilty of having caused the death. In this case his mother would have died irrespective of the poison.

It should be noted that to be the factual cause of a criminal harm the defendant does not have to start the process leading to the consequence. It would be sufficient for the defendant to accelerate the consequence. In the case of R v Dyson [1908] 2 KB 454 a child was admitted to hospital with injuries suffered after his father had beaten him severely. At the time of his hospitalisation the child was suffering from meningitis, but the child died from his injuries. Medical evidence showed that the child would have died of meningitis before long. The defendant was charged and convicted of manslaughter and he then appealed on the ground that he was not a but for (factual) cause of his son’s death since the child would have died of meningitis anyway. The court said that it was not necessary to show that the defendant was the only cause of death as long as his action accelerated the time when death would otherwise occur.

Another point to note is that to be the factual cause of a criminal harm the causal connection does not have to be direct. In Mitchell [1983] 2 All ER 427 the accused punched a man who had accused him of queue-jumping in a post office. The man fell on top of an 89-year-old woman, which initially broke her leg and consequently caused her death from a pulmonary embolism. The accused’s conviction for manslaughter was upheld on appeal. He was a but for cause.

5.2 Causation in law

Causation in law can exist only if causation in fact has already been established. It requires that:

þ the defendant’s conduct was more than de minimis, though it need not be the sole cause of the consequence;

© Association of Costs Lawyers Training 2019 13 þ the defendant’s conduct was an operating and substantial cause of the consequence; þ any intervening acts were reasonably foreseeable as a consequence of the defendant’s conduct; þ in some cases the jury will be asked whether the result might “sensibly have been anticipated” instead of whether it was “reasonably foreseeable”.

If there is a possible novus actus interveniens (new intervening act) then a test for legal causation is used.

There are various tests for this, for exempt the “operating and substantial cause” test from R v Smith [1959] 2 QB 35 where the defendant stabbed the victim but the victim was dropped on the way to the medical hut, not treated immediately and eventually given bad treatment. Despite this, the defendant was guilty of murder as he was the operating and substantial cause of death (loss of blood). Smith [1959] 2 QB 35 illustrates the general rule that negligent, poor or inappropriate medical treatment does not break the chain of causation, unless it makes the original injury “merely part of the history”.

6. Explain What Will or Will Not Break the Chain of Causation in Law

6.1 Physical characteristics of the victim

The case of Hayward (1908) 21 Cox 692 illustrates that the characteristics of the victim will not break the chain of causation and you must take your victim as you find them. In this case the defendant shouted at and chased after his wife who then collapsed and died of a medical condition. The defendant was guilty of manslaughter using the “thin skull” rule. It did not matter that no one else would have had such a condition.

6.2 Refusal of medical treatment

The chain of causation will not be broken if the victim refuses treatment or aggravates his own injuries. Blaue [1975] 1 WLR 1411 is a case where the defendant stabbed a Jehovah’s Witness who then refused a blood transfusion on religious grounds and died. The defendant was guilty of manslaughter and the court held that the actions of the victim could not be described as unreasonable.

6.3 Natural consequences of the defendant’s actions

If the victim’s actions are a natural consequence of the defendant’s actions, then it may not break the chain of causation. A case example would be Pagett [1983] 76 Cr App R 279 where the defendant used a woman as a human shield and shot at the police. The police fired back and the woman was killed in the crossfire. It was held that the instinctive, reasonable actions of the police by way of self-defence did not break the chain of causation.

6.4 Reasonable attempt to escape

This is closely linked to the above example. In Roberts [1971] EWCA Crim 4, a woman jumped out of a car after the driver made sexual advances. He was guilty of causing actual bodily harm (ABH) as the victim’s actions were a reasonably foreseeable © Association of Costs Lawyers Training 2019 14 consequence of what the defendant was doing. The Court of Appeal stated that the chain of causation would only be broken by the victim doing something “daft”.

6.5 The switching-off of a life support machine

In the case of Malcherek [1981] 2 ALL ER, the court held that the operating and substantial cause of death had been the original wounds inflicted by the defendant.

6.6 The victim committing suicide

In R v Dhaliwal [2006] 2 Cr App R 24, the defendant was charged with manslaughter and inflicting GBH following his wife’s suicide. Although there was evidence that he had physically and mentally abused her, the trial judge dismissed the case because the prosecution chose not to continue with manslaughter and there was insufficient evidence of psychiatric GBH.

The Court of Appeal stated obiter:

“As to manslaughter, in summary, as a matter of law, the prosecution of a spouse, or partner, or indeed any other individual whose unlawful conduct causes recognisable psychiatric illness, such as, for example, post-traumatic stress disorder, or battered wife syndrome, or reactive depression, with resulting suicide, subject always to issues of causation, is not excluded from the ambit of this offence.”

6.7 Negligent medical treatment

You’ll recall R v Smith [1959] 2 QB 35, where the defendant stabbed the victim, but the victim was dropped on the way to the medical hut, not treated immediately and eventually given bad treatment. Despite this, the defendant was guilty of murder as he was the operating and substantial cause of death (loss of blood).

There are exceptional cases where medical treatment has been found to break the chain of causation. In R v Jordan (1956) 40 Cr App E 152 the defendant stabbed the victim, but the wound was mainly healed at the time of death. The victim was given a drug to which he was allergic and large amounts of liquid through a drip which caused pneumonia and led to death. The defendant was not guilty of murder as the stab wound was merely the setting within which another cause of death (pneumonia) operated.

If medical treatment results in complications, the chain may also be broken. Consider R v Cheshire [1991] 1 WLR 844 where the defendant shot the victim who was taken to hospital and died two months later. The defendant was convicted of murder and appealed on the ground that the death had been caused by a rare complication resulting from the medical treatment the victim had received; and the doctors failing to realise its seriousness and reacting quickly enough. The Court of Appeal upheld the murder conviction asserting that the rare complication was a direct consequence of the defendant’s acts, which remained a significant cause of the victim’s death.

Beldam LJ laid down the following test:

© Association of Costs Lawyers Training 2019 15 “Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.”

1. Introduction

No one can be convicted of a crime unless their criminal conduct (actus reus) was accompanied by a criminal mental element known as mens rea . Each offence defines the particular mens rea which must be proved beyond reasonable doubt in order to secure a conviction. The prosecution will need to prove mens rea in relation to each element of the actus reus. Some offences, such as murder for example, contain several actus reus elements and the defendant must have mens rea in relation to each one.

Mens rea is said to consist of a guilty ‘state of mind’, which is usually the case with the more serious crimes requiring intention, recklessness or dishonesty. These terms represent states of mind where the defendant will have decided or chosen to bring about a result prohibited by the criminal law. They reflect varying degrees of blameworthiness or culpability so as to deserve punishment. In addition, many offences also require knowledge or belief in relation to a particular circumstance. For example, rape requires the absence of reasonable belief in consent.

Gross negligence on the other hand does not represent a definable mental element but an extremely careless and unreasonable standard of conduct. Where grossly negligent conduct leads to harm, it is also regarded as blameworthy. It is nevertheless included here along with the two other major categories of mens rea. Other mens rea terms, may more logically be placed as belonging to statutory offences.

2. Three Main Levels Of Mens Rea

Mens rea in criminal law is concerned with the state of mind of the defendant. Most true crimes will require proof of mens rea. Where mens rea is not required the offence is one of strict liability. There are three main levels of mens rea:

þ intention; þ recklessness; and þ negligence.

It is, in specific cases, possible to be criminally liable for something without having mens rea. This occurs if the offence is one that can be committed negligently or if it is one of strict liability.

Intention requires the highest degree of fault of all the levels of mens rea. A person who intends to commit a crime can generally be said to be more culpable than one who acts recklessly. As the highest form of mens rea it applies to murder, the gravest crime in the criminal justice system. The significance of the principle means you may expect it to have a relatively certain definition. However, there is some uncertainty regarding the line between intention and recklessness.

Intention is the only mens rea requirement of offences of specific or ulterior intent. A crime of specific intent is one where the prosecution must establish intention rather than recklessness in relation to the actus reus of an offence.

Specific intent exists when it is the defendant’s purpose to cause the consequences. In such cases, the prosecution must show that the defendant believed that he might be able to achieve the consequences by his conduct. In R v Mohan [1975] 2 All ER 193 specific intent was defined as a decision to bring about, in so far as it lies within the accused’s power, the prohibited consequence, no matter whether the accused desired that consequence of his act or not.

A crime of ulterior intent is one where mens rea includes an intention to cause a consequence or result beyond the actus reus of the crime in question. An example of an ulterior intent offence would be causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. To be guilty of this offence the defendant must intend to wound or cause GBH or intend to resist arrest. Intending to resist arrest it the ulterior intention and the intention to cause GBH would be the specific intention. If the defendant did not intend one of these outcomes then he would not be liable of the offence.

The development or concept of intention has generally taken place in the context of murder. Consequently, it is a topic which has attracted much academic debate.

In ordinary language, we understand the concept of intention to be linked to immediate voluntary actions that we mean, want or desire to do. In law, there is no statutory definition of intention. Its meaning has evolved through the common law. Intention in criminal law is defined in two ways: direct and indirect or oblique. It is also said to differ from motive or desire (per Lord Bridge in R v Moloney [1985] AC 905). Thus, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering, may well act out of good motives; but, nevertheless, this does not prevent them having the necessary intention to kill.

In R v Moloney [1985] AC 905, Mr Moloney got into an argument with his stepfather about who could load and fire a shotgun the quickest. In the argument the stepfather was shot dead and therefore Moloney was charged with murder. At the trial the judge directed the jury following the principle established in R v Hyam [1975] AC 55, that “intention” may be defined as an express desire and purpose to do something, but need not be. Instead, he explained, it was reasonable to assume intention if the consequences are highly probable on the basis of the action carried out. On these grounds Moloney was convicted; it was not necessarily the case that Moloney set out to kill his stepfather, but it was a probable consequence of his actions. The Court of Appeal supported this decision, but the House of Lords converted it to manslaughter. In so doing a new meaning of “intention” was introduced. Lord Bridge said that intention may be inferred from the common-sense meaning of the term (that the accused has the express purpose of committing some crime and acts to do so). However, if the results are the “natural consequences” of the accused's actions, this supports a belief that intention was present. It was also made clear that, in general, the existence of “intention” could be left for a jury to decide.

The majority of cases will be quite straightforward and involve direct intent. Direct intent can be said to exist where the defendant embarks on a course of conduct to bring about a result which in fact occurs; e.g. the defendant intends to kill his wife. To achieve that result he gets a knife from the kitchen, sharpens it and then stabs her, killing her. The conduct achieves the desired result.

3.2 Oblique intent

Oblique intent is more complex. Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result; e.g. the defendant intends to kill his wife. He knows she is going to be on a particular aeroplane and places a bomb on that aeroplane. He knows that his actions will result in the death of the other passengers and crew of the aeroplane even though that may not be part of his desire in carrying out the action. In this situation the defendant is no less culpable in killing the passengers and crew than in killing his wife as he knows that the deaths will happen as a result of his actions. In this situation the husband should not be absolved from liability for all of the deaths so under the criminal law you can intend a result which is not your aim or purpose. This is more problematic in terms of both definition and principle. Indirect or oblique intention is wider than direct intent. Foresight or knowledge is fundamental to this type of intention as, indeed, it is to recklessness, but there is a vital distinction between the two.

An example of oblique intention is found in the case of Hancock v Shankland [1985] 3 WLR 1014. In this case, the defendant intended to scare someone on the way to work but the consequence was the defendant killed that person on the way to work.

The courts have struggled to find an appropriate test to apply in cases of oblique intent. In particular, the questions which have vexed the courts are:

þ Should the test be subjective or objective? þ What degree of probability is required before it can be said that the defendant intended the result? þ Should the degree of probability be equal to intention or is it evidence of intention from which the jury may infer intention?

A result may not be desired, nor be the aim or purpose, but will be obliquely intended if it is a) a virtually certain result and b) foreseen by as a virtual certainty. Indirect/oblique intent will apply to results caused when the defendant acts with some other purpose in mind. An obliquely intended result is therefore a spin-off or side-effect of the defendant’s main purpose. This means that one can indirectly intend a result which is either a pre-requisite to the achievement of the desired primary purpose or a virtually certain consequence of such purpose.

4. Problems With the Law on Intention

The main problems happen in cases where the defendant intended one thing, but another thing happened (oblique intention). The courts have used the concept of “foresight of

The case R v Woolin [1999] AC 82 shows that, in a murder case, foresight of consequence means that the defendant would intend death or serious injury. In this case the appellant threw his 3-month old baby son on to a hard surface. The baby suffered a fractured skull and died. The defendant did not want to harm the baby but wanted the baby to stop crying. The jury convicted the defendant of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to “substantial risk” the judge had widened the definition of murder and should have referred to virtual certainty in accordance with the Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. On appeal to the House of Lords the murder conviction was quashed and substituted with a manslaughter conviction.

There are problems seen in the historical development of foresight of consequence and an understanding of the historical developments is important to understand the main problem with intention.

4.1 Subjective and objective tests

Before considering the historical development, it is important to ensure you understand the difference between a subjective and objective test.

A subjective test is concerned with the defendant's perspective. In relation to oblique intent it would be concerned only with whether the defendant did foresee the degree of probability of the result occurring from his actions.

An objective test looks at the perspective of a reasonable person; i.e. would a reasonable person have foreseen the degree of probability of the result occurring from the defendant's actions. It is arguable that, since intention requires the highest degree of fault, it should be solely concerned with the defendant's perception. In addition, intention seems to be a concept which naturally requires a subjective enquiry. It seems somehow wrong to decide what the defendant's intention was by reference to what a reasonable person would have contemplated. However, originally an objective test was applied to decide oblique intent.

4.2 DPP v Smith [1961] AC 290

In DPP v Smith [1961] AC 290 a policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged in order to get the police officer off the car. The defendant argued he did not intend to harm the policeman. The policeman was knocked onto the path of an oncoming car and killed. The defendant was convicted of murder. The trial judge directed the jury as follows:

“‘If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was likely to result to that officer ... and that such harm did happen and the officer died in consequence, then the accused is guilty of capital murder. ... On the other hand, if you are not satisfied that he intended to inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable man have contemplated © Association of Costs Lawyers Training 2019 20 that grievous bodily harm would result to the officer in consequence of his actions - well, then, the verdict would be guilty of manslaughter.”

The jury convicted the defendant of murder. The defendant appealed on the grounds that this was a misdirection and that a subjective test should apply. The Court of Appeal quashed his conviction for murder and substituted a manslaughter conviction applying a subjective test. The prosecution appealed to the House of Lords who re-instated the murder conviction and held that there was no misdirection thereby holding an objective test was applicable.

Following this case there was confusion between evidence and the legal definition of intention which can be said to have temporarily broadened the mens rea for murder. The case decided that a man intends the natural and probable consequences of his actions as an irrebuttable presumption of law, regardless of his state of mind. This principle arose from an established rule of evidence that a result which was the natural and probable result of a proven act was presumed to be intended if there was little or no other evidence in a trial to establish mens rea. The degree of risk with which the result was foreseen, despite not being wanted, would be evidence from which intention might be inferred. Proof of foresight of a high degree of probability of the result could confirm the evidential presumption of intention provided there was also other evidence tending to confirm it. Proof of foresight of a lower degree of risk might negate it.

The equation in Smith between an evidential presumption and a definition of intention was potentially misleading. That intention should be presumed without an inquiry into D’s actual state of mind at the time of the crime was seen as controversial. Parliament subsequently passed section 8 of the Criminal Justice Act 1967.

4.3 Section 8 of the Criminal Justice Act 1967

This position was reversed by statute by section 8 of the Criminal Justice Act 1967. The section provides:

“A court or jury, in determining whether a person has committed an offence 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 shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.”

Section 8 explains the means by which intention should be inferred or found from the evidence. Intention may well be disputed by the defendant, in which case the jury will need to take into account all the evidence in the case in order to draw an inference of intention. The jury will be directed to weigh up the facts and all the evidence tendered on behalf of the parties in order to infer or find the defendant’s state of mind at the time of the act. What D thought would happen as a result of his actions and the degree of risk of harm foreseen will be significant. So too the testimony of police officers, other witnesses and experts. The jury will look at forensic and circumstantial evidence. If the evidence is strongly against the defendant, then, despite a denial of intention, and in the absence of any reasonable explanation, the jury will be invited to draw the conclusion, or to find, that the harm was intended. The judge will direct the jury, who decide issues of fact, on the legal meaning of intention and on the weight of the evidence, leaving it to the jury to decide © Association of Costs Lawyers Training 2019 21 whether the defendant’s state of mind was intentional or not. Whether a result was actually intended is essentially a question of fact for the jury not the judge.

Whilst section 8 may look like an objective test an inquiry into the defendant’s state of mind must occur. Section 8 Criminal Justice Act 1967 abolished any suggestion that the test for intention was objective.

The effect of section 8 of the Criminal Justice Act 1967 was considered in R v Hyam [1975] AC 55.

4.4 R v Hyam [1975] AC 55

In R v Hyam [1975] AC 55 the appellant had been having a relationship with a Mr Jones. Mr Jones then took up with another woman, Mrs Booth, and they were soon to be married. On hearing this news, the appellant drove to Mrs Booth's house at 2.00am and poured petrol through the letter box and ignited it with matches and newspaper. She then drove home and did not alert anyone of the incident. Mrs Booth and her young son managed to escape the fire but her two daughters were killed. The trial judge directed the jury:

"If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent."

The jury convicted the defendant of murder. The conviction was upheld by the Court of Appeal. The appellant appealed to the House of Lords on the grounds that knowledge that a certain consequence was a highly probable consequence does not establish an intent to produce that result, but is only evidence from which a jury may infer intent. The appellant's conviction for murder was upheld as there was no misdirection.

In Lord Hailsham's dissenting judgment he said:

“I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.”

The House of Lords accepted a subjective test was applicable. However, the majority decision of the House of Lords was out of line with section 8 of the Criminal Justice Act 1967 in that it was accepted that foresight of consequences being highly probable was sufficient to establish intent. Lord Hailsham’s dissenting point above is a point which was taken and later rectified in R v Moloney [1985] AC 905.

4.5 R v Moloney [1985] AC 905

In R v Moloney [1985] AC 905 the defendant and his father had been to a family party, they then played a game to see who would load their shotgun first. Once the defendant had loaded his shotgun his father said “you don’t have the guts to pull the trigger”. The defendant pulled the trigger, but he did not aim. His conviction for murder was quashed. The House of Lords said that jurors should be told to consider two questions (these later became known as the Moloney guidelines): © Association of Costs Lawyers Training 2019 22 þ Was the death or really serious injury a natural consequence of the defendant’s act? þ Did the defendant foresee that consequence as being a natural result of his act?

The guidelines laid out in R v Moloney [1985] AC 905 left a problem with regards to the degree of probability required - the guidelines did not mention probability at all. This problem was later considered in R v Hancock & Shankland [1985] 3 WLR 1014.

4.6 R v Hancock & Shankland [1985] 3 WLR 1014

The case of R v Hancock & Shankland [1985] 3 WLR 1014 involved appellants who were convicted of murder for the death of a taxi driver. The appellants were miners on strike. They wanted to block the road to the mine to prevent workers breaking the picket line. They had dropped lumps of concrete and a post from a bridge on to the carriageway below as the convoy of workers approached. The taxi was struck by two lumps of concrete resulting in death of the driver. On appeal, it was held that not using the word probable in the Moloney guidelines made them defective and therefore the guidelines should no longer be law.

The degree of probability was still causing problems and the cases of R v Moloney [1985] AC 905 and R v Hancock & Shankland [1985] 3 WLR 1014 were reviewed by the Court of Appeal in R v Nedrick [1986] 1 WLR 1025 which reformulated the test.

4.7 R v Nedrick [1986] 1 WLR 1025

In R v Nedrick [1986] 1 WLR 1025 the appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night, poured paraffin through her letter box and set light to it. A child died in the fire. The trial was held before the judgment was delivered in Moloney. The judge directed the jury as follows:

"If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty of murder."

The jury convicted the defendant of murder and the defendant appealed on the grounds of a misdirection. On appeal it was held that there had been a clear misdirection. The Court of Appeal reviewed the cases of R v Moloney [1985] AC 905 and R v Hancock & Shankland [1985] 3 WLR 1014 and formulated a new direction from the two decisions, as per Lord Lane CJ:

"the jury should be directed that they are not entitled to infer 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 the defendant's actions and that the defendant appreciated that such was the case."

In summary, the Court of Appeal thought that the judgments in R v Moloney [1985] AC 905 and R v Hancock & Shankland [1985] 3 WLR 1014 needed clarifying to make it easier for the jury to understand and apply. The Court of Appeal said that, for the jury to infer intention,

© Association of Costs Lawyers Training 2019 23 the consequence had to be a virtual certainty and for the defendant to have realised it they said it was helpful for the jury to ask themselves two questions:

þ How probable was the consequence which resulted from the defendant’s voluntary act? þ Did the defendant foresee the consequence?

The authority of this test was questioned in the House of Lords case of R v Woollin [1999] AC 82.

4.8 R v Woollin [1999] AC 82

In the case of R v Woollin [1999] AC 82 the House of Lords largely approved of the test with some minor modifications setting the current test of oblique intent. You will recall that in this case the appellant threw his 3-month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to “substantial risk” the judge had widened the definition of murder and should have referred to virtual certainty in accordance with the Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty.

The House of Lords substituted the murder conviction with a manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is:

"Where the charge is murder and in the rare cases where the simple direction is not enough, 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 the defendant's actions and that the defendant appreciated that such was the case."

The decision is one for the jury to be reached upon a consideration of all the evidence.

4.9 Further developments

Re A (conjoined twins) [2001] 2 WLR 480, a case about conjoined twins, saw the Court of Appeal (civil division) state that the decision in R v Woollin [1999] AC 82 laid down the principle that foresight of consequence is intention. This interpretation should be contrasted with R v Mathews and Alleyne [2003] EWCA Crim 192 (CA) where the Court of Appeal (criminal division) held that R v Woollin [1999] AC 82 meant foresight of consequence is not intention and that it is a rule of evidence, so foresight is not equal to intention, simply evidence of it. It is for a jury to decide that the defendant foresaw the virtual certainty of death or serious injury and, if they do, they are entitled to find intention, but do not have to do so.

Recklessness is concerned with causing harm through taking risks. In the hierarchy of mens rea, recklessness is second only to intention but is not as culpable. It appears in offences ranging in gravity from manslaughter at the top end of the scale to criminal damage and a range of statutory offences at the bottom. Offences involving recklessness are called offences of basic intent as opposed to offences requiring proof of intention alone which are called offences of specific or ulterior intent. Recklessness can be distinguished from intention in that the latter is defined as aim or purpose (direct intent) or requires foresight as to a virtually certain result (oblique intent) whereas recklessness is concerned with foresight of lower degrees of risk.

Most people would consider a person to be reckless when he acts without thinking, perhaps with a lack of care or indifference to the risk of causing harm to another’s safety or property. In legal terms, being reckless refers to the taking of an unjustified risk.

Recklessness in criminal law has given rise to difficulty. In particular the question as to whether a subjective or objective test should apply to recklessness. In the context of criminal damage, originally the leading case in this area of R v Cunningham [1957] 2 QB 396 held that a subjective test applied to determine recklessness. Again, it would benefit you to have an understanding of the historical developments of recklessness.

5.1 R v Cunningham [1957] 2 QB 396

In the case of R v Cunningham [1957] 2 QB 396 the appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighboring property where his future mother-in-law was sleeping. She was poisoned by the gas. The defendant was charged under section 23 of the Offences Against the Person Act 1861 which provides:

“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 thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony ...”

The trial judge directed the jury that malicious meant wicked. The jury convicted the defendant and he appealed. It was held that malicious means either:

þ An actual intention to do the particular kind of harm that in fact was done; or þ 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).

This gave rise to “Cunningham recklessness” which asks; did the defendant foresee the harm that in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk.

Cunningham recklessness was followed in R v Briggs [1976] 63 CAE 215. However, the subsequent case of R v Parker (1976) 63 CAS 211 modified the test to include closing one's eyes to an obvious risk. In R v Parker (1976) 63 CAS 211, the defendant tried unsuccessfully to make a telephone call from a kiosk; in his frustration he slammed down the receiver and broke it. The Court of Appeal upheld his conviction for causing criminal damage recklessly despite his defence that it did not occur to him that the phone may break. The Court of Appeal held that he must have known he was dealing with breakable material, even if the fact was not at the forefront of his mind when he slammed the receiver down. So, a man could be reckless in the sense required when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continued in the performance of that act. The rationale was to draw a distinction between culpable inadvertence and mere negligence or oversight.

A subjective approach to recklessness means that account can be taken of the defendant’s individual characteristics. Therefore, if the defendant’s ability to perceive a risk is less than that of a reasonable person, a subjective approach will be fairer. The next case demonstrates the justice of this approach.

In R v Stephenson [1979] QB 695 it was held a subjective test applied. In this case the appellant was homeless and schizophrenic. He found refuge in a haystack where he made a hollow and tried to go to sleep. He was cold so he lit a fire inside the hollow to keep himself warm. Inevitably the whole haystack caught fire and he ran off and was picked up by the police. The defendant contended that he never thought of the possibility of the whole stack catching fire. At his trial a consultant psychiatrist gave evidence that he had a long history of schizophrenia and this would mean that the defendant was quite capable of lighting a fire in a haystack without ever thinking of the danger involved. The trial judge directed the jury:

"First you perhaps want to ask yourselves whether in lighting the fire the accused carried out a deliberate act, and the answer to that one thinks must be yes, because he has said that he lit the fire. Secondly, you may want to ask yourselves whether you regard it or not as an obvious fact that there was some risk of damage, and when the act is the act of lighting a fire inside a straw stack, you may have little difficulty in dealing with the question whether it is an obvious fact that there is some risk of damage. Did he then do that knowing or closing his mind to the obvious fact, in the case from which these words are taken, as I say the reason advanced or the reason found for the man closing his mind to the obvious fact was that he was so angry that he pressed on regardless, and there may be...... all kinds of reasons which make a man close his mind to the obvious fact — among them may be schizophrenia, that he is a schizophrenic."

The jury convicted the defendant. The Court of Appeal quashed the defendant's conviction. The direction was a misdirection. The test should be entirely subjective - if the defendant did not foresee a risk of damage he should not be liable. This case concerned consideration of the Criminal Damage Act 1971 which had replaced the Malicious Damage Act 1861, where mens rea had been defined as ‘maliciously.’ Recklessness was not defined in the new Act but the Court of Appeal in Stephenson gave it the same subjective interpretation as ‘maliciously’ under the previous legislation, ie foresight of a risk of damage.

© Association of Costs Lawyers Training 2019 26 However, this was followed by the House of Lords case of MPC v Caldwell [1982] AC 341. In this case the appellant had been working at a hotel and had a grudge against his employer. One night, after consuming a large quantity of alcohol, he went to the hotel and started a fire. The hotel had 10 guests sleeping in the hotel at the time. Fortunately, the fire was discovered and distinguished early and no people were actually harmed. The appellant was convicted of aggravated criminal damage under section 1(2) of the Criminal Damage Act 1971 and appealed in relation to the required level of recklessness. The defendant argued that he had given no thought as to the possible endangerment of life due to his intoxicated state. The House of Lords upheld his conviction and formulated what has become known as “Caldwell recklessness”:

A person is reckless as to whether property is destroyed or damaged where:

þ he does an act which in fact creates an obvious risk that property will be destroyed or damaged; and þ when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

This became known as the model direction and was proposed by Lord Diplock. This complicated test combined both Cunningham subjective recklessness as well as objective recklessness. What was new was the first limb of the test which states that defendant will be reckless where he fails to give thought to an obvious risk. The two states of mind, both subjective and objective, were equally blameworthy. In other words, the new test would catch those who deserved to be punished for their harmful actions even though the idea of risk may not have been in the forefront of their minds at the time of acting. Stephenson was overruled.

5. 3 Explain the injustices of Caldwell recklessness

Caldwell recklessness radically altered the law and received widespread criticism. The tension between subjective and objective tests of recklessness continued with each test being problematic. The difficulty with a subjective test is that it is based entirely on the defendant's state of mind and it is for the prosecution to prove that the defendant did foresee a risk of harm. It is difficult to prove a state of mind. It allows too many defendants to escape liability by simply claiming they did not foresee a risk. However, Caldwell recklessness is capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk as the following case illustrates.

In Elliot v C [1983] 1 WLR 939, the defendant was a 14-year old girl of low intelligence who had started a fire in a shed. She had poured white spirit on the floor and set it alight. The magistrates applied the test laid down in MPC v Caldwell [1982] AC 341, but inferred that in his reference to "an obvious risk" Lord Diplock had meant a risk which was obvious to the particular defendant. The defendant was acquitted because it was found that the defendant had given no thought at the time to the possibility of there being a risk that the shed and contents would be destroyed, and this risk would not have been obvious to her or appreciated by her if she had thought about the matter. The prosecution appealed by way of case stated. It was held that if the risk is one which would have been obvious to a reasonably prudent person, once it has also been proved that the particular defendant

© Association of Costs Lawyers Training 2019 27 gave no thought to the possibility of there being such a risk, it is not a defence that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.

5.4 Criticisms of Caldwell recklessness

In addition to causing injustice other criticisms of Caldwell reckless were identified:

þ Whilst criminal damage was subject to Caldwell recklessness, Cunningham recklessness applied to offences against the person and thus property was given a greater level of protection. þ The precise limits as to which offences required which type of recklessness were not fully understood or defined. þ Having two definitions for the same word was confusing. þ The test was difficult for juries to understand. þ Having an objective test blurs the distinction between negligence and recklessness. þ There was uncertainty as to whether the Caldwell lacuna existed.

Caldwell recklessness was eventually overruled by the House of Lords in R v G & R [2003] 3 WLR House of Lords. In this case the two appellants, aged 11 and 12, went camping for a night without their parents' permission. The boys found some old newspapers outside the Co-op which they lit with a lighter and then threw them under a wheelie bin. They then left without putting them out assuming they would naturally burn out. In fact, the burning newspapers set light to the wheelie bin and the fire spread to the Co-op shop and caused over £1m of damage. The defendants' convictions were quashed. The House of Lords overruled Caldwell. The appropriate test of recklessness for criminal damage is:

A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to:

þ a circumstance when he is aware of a risk that it exists or will exist; þ 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.

5.5 Recklessness in manslaughter

An area in which subjective recklessness has been re-established is involuntary manslaughter. Following the decision in Caldwell there was a brief period when it was held that both subjective and objective recklessness applied to manslaughter.

Objective recklessness was a very harsh test to apply in the case of such a serious offence. This had the effect that a person could be guilty of manslaughter when he had not personally foreseen any risk at all. In addition, the risk that needed to be foreseen by a reasonable person was only the risk of some injury.

The law was re-stated in 1994 in the case of R v Adomako [1994] 3 WLR 288 which re- introduced a test of gross negligence for manslaughter rather than recklessness in any form. Following this case, it was initially thought that recklessness was no longer relevant to the law of manslaughter. However, in the case of Lidar (2000) 4 Archbold News, it was affirmed © Association of Costs Lawyers Training 2019 28 by the Court of Appeal that involuntary manslaughter could still be based on subjective recklessness.

In R v Lidar [2000] 4 Archbold News, the defendant and others had been asked to leave a pub in Leicester. They went over to a Range Rover which was in the pub car park. One of the passengers shouted something at the victim, who was the doorman of the pub. The victim approached the vehicle and put his arms through the open front passenger window. The defendant then drove off, with the victim half in and half out of the window. After about 225 meters, the victim was dragged under the rear wheel of the Range Rover and suffered injuries from which he died. The defendant was convicted of manslaughter.

To prove manslaughter, it must be shown that the defendant foresaw there was a highly probable risk of serious injury (or death) to the victim. This test of highly probable risk is different to the test for risk-taking in relation to other offences for which recklessness is sufficient for mens rea. For other offences, the level of risk needed to be foreseen by the defendant is only that there is a possible risk of the consequence or circumstance occurring.

6. Negligence in Criminal Law

Negligence plays a minor role in criminal liability. It used to form the basis of some driving offences, but this has largely been superseded by recklessness. Negligence adheres to an objective standard. This is strictly applied as illustrated in McCrone v Riding [1938] 1 All ER 137. In this case, the defendant was a learner driver who knocked down a pedestrian. He was charged with driving "without due care and attention" contrary to section 12 of the Road Traffic Act 1930. The magistrates acquitted him on the basis that he was exercising all the skill and attention to be expected from a person with his short experience. However, on a case stated appeal the Divisional Court directed them to convict. Lord Hewart, the then Lord Chief Justice, said that the:

"standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver."

The main argument against making people liable for negligence is that negligence, involving a low or unreasonable standard of conduct, is simply not as culpable as conscious risk-taking or recklessness. Negligence takes the form of a mistake and is unconscious. There is therefore no point in punishing people for their mistakes because no conscious decision was involved that might be deterred next time. On the other hand, it can be said that penalising negligence will force people to be more careful, to stop and think and take precautions next time.

The main role for negligence in criminal law is with regards to gross negligence manslaughter. This requires the prosecution to establish that the defendant owed a duty of care and was in breach of this duty which resulted in death. The definition of gross negligence was given in R v Bateman (1925) 19 Cr App R 8, where a doctor had killed a pregnant woman giving birth. It had been necessary for him to insert his hand into the womb in order to physically turn the unborn child which was in the wrong position for birth, a procedure known as ‘manual version’. He mistakenly ruptured part of the uterus and ruptured her bladder as a consequence of which she died. The doctor was convicted of © Association of Costs Lawyers Training 2019 29 manslaughter but was acquitted on appeal. The Court of Criminal Appeal held that gross negligence manslaughter involved the following elements:

þ a duty owed by D towards V to take care; þ breach of this duty; þ the breach must cause V’s death; and þ the defendant’s negligence must be gross in showing such disregard for the life and safety of others as to amount to a crime and deserve punishment.

This test makes clear that gross negligence involved not a state of mind but a serious form of negligent conduct. However, it was difficult to be precise about the exact type of negligence required for all occasions and therefore left the matter to the jury. It led to the criticism that the definition was circular in that the jury could only convict if the negligence was criminal but the designation ‘criminal’ was up to them.

The current test for establishing liability for this offence was set out in R v Adomako [1994] 3 WLR 288, a case where the appellant was an anesthetist in charge of a patient during an eye operation. During the operation, an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. On appeal his conviction for gross negligence manslaughter was upheld. Lord Mackay LC set the test for gross negligence manslaughter:

"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."

The test under Adomako, by requiring the jury to ask an additional question of whether the conduct was so bad as to be a crime, although objective, is more favourable than recklessness. But the difficulty is that this question does not indicate that a very serious level of neglect should be required for manslaughter.

7. Transferred Malice

Where the defendant’s mens rea for one crime causes the actus reus of the same crime but either mistakenly or accidentally causes an unintended consequence, mens rea can be transferred. By the doctrine of transferred malice, the defendant can be guilty of intention or recklessness in respect of an injury to someone other than his intended target and be liable for an offence against the injured. This applies only if the actus reus that occurs is the same actus reus as that for which the defendant had mens rea, as in R v Mitchell [1983] QB 741, where the defendant pushed over a man in a Post Office queue and the man knocked over an 89-year-old woman who later died as a result of her injuries. The defendant was liable for the manslaughter of the woman. Malice can only be transferred within the same offence.

There are arguments for and against the doctrine of transferred malice. The most contentious issue is what is called ‘remoteness’.

To be found guilty of the crime, it must be proved that the actus reus and the mens rea coincide at some point during the commission of the offence, although they do not have to coincide at all times. In Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, the defendant’s refusal to move his car off the policeman’s foot was sufficient to establish mens rea.

There have been problems in determining whether in certain circumstances the actus reus and the mens rea are present at some time during the commission of the crime. In R v Thabo-Meli [1954] 1 WLR 228 and R v Church [1965] 2 WLR 1220 it was held that causing death by deliberately disposing of the “body” of someone whom the defendant has badly injured, but who is not yet dead, is sufficient mens rea for manslaughter because the whole series of events (attack, injury, disposal of “body”) is one “transaction”.

1. Introduction

There are certain offences where a defendant can be convicted notwithstanding that he did not have any mens rea. These offences are generally referred to as offences of strict liability. To say that these offences do not require proof of any mens rea may, however, be too sweeping. There are offences where no fault element at all arises – it is perhaps better to classify these as offences of absolute liability. Many so called strict liability offences do in fact require some mens rea in relation to some elements of the offence. The significant factor is that there may be some elements of the actus reus in relation to which no mens rea is required.

It is only in extreme and rare cases where no mens rea is required for liability, thereby making the particular offence "absolute". The following two cases are examples where liability is absolute:

þ R v Larsonneur (1933) 24 Cr App R 74: a French national landed in England with a French passport endorsed in such a way which prevented her from working in the UK. She had to leave England so went to Eire. From there she was deported back to England by the Irish Police. She was found guilty of being in the UK, contrary to the Aliens Act 1920. þ Winzar v Chief Constable of Kent (1983) The Times 28 March 1983: The police were called to remove the defendant, a drunk, from a hospital corridor. He was placed in the police car on the hospital forecourt, then charged and convicted with being found drunk on a highway or a public place. The court held that it was enough to show that the defendant had been present on the highway and was perceived to be drunk. It didn’t matter that his presence on the highway was momentary and not of his own volition.

2. The Presumption

Liability is said to be strict with regard to that element, however there is a presumption that mens rea is required. In the case of R v Prince (1875) LR 2 CCR 154, the defendant was charged with taking an unmarried girl, under the age of sixteen, out of the possession and against the will of her father. The defendant honestly believed that the girl was eighteen. It was held that the underage element of the offence is strict liability and therefore any mistaken belief that he had that the girl was sixteen was irrelevant.

There has been a piecemeal development of the common law presumption of mens rea e.g.:

þ Sweet v Parsley [1970] AC 132: the defendant rented a farmhouse out to students. Students smoked cannabis in the property and the defendant was charged with “being concerned in the management of premises used for the purpose of smoking cannabis resin”. She was found not guilty because the court presumed the offence required mens rea. þ B v DPP [2000] 2 AC 428: a 15-year-old boy asked a 13-year-old to “give him a shiner”. The defendant believed she was over the age of 14. He was charged with

© Association of Costs Lawyers Training 2019 32 “inciting a child under the age of 14 to commit an act of gross negligence”. It was held that the seriousness of this offence and the fact that you could face a prison sentence made the presumption of mens rea stronger. þ R v K [2001] UKHL 41: A 26-year-old man was charged under s.14(1) Sexual Offences Act 1956 with indecent assault on a girl of 14. His defence was that the sexual activity was consensual and that she had told him she was 16 and that he had no reason to disbelieve her. The trial judge ruled that the prosecution had to prove an absence of genuine belief that the victim was aged 16 or over. It was held a defendant is entitled to be acquitted of sexual assault under s.14(1) if he has an honest belief that the girl was over 16. There is no requirement that the defendant had reasonable grounds for his belief. This case affirmed the principle established in B v DPP [2000] 2 AC 428 that R v Prince (1875) LR 2 CCR 154 did not set any rule relating to age related crimes and even if it had, it had not survived the ruling in Sweet v Parsley [1970] AC 132 that there exists a presumption of mens rea.

About half of all statutory offences are one of strict liability. This is a matter of statutory interpretation in this context - the statute won’t contain any mention of mens rea. Most such offences are summary in nature and will therefore be dealt with in the magistrates’ court and are the least serious of the offences, punishable by no more than 6 months’ imprisonment and a £5,000 fine.

Perhaps the most important case in considering strict liability is Gammon (Hong Kong) v A- G for Hong Kong [1985] 1 AC 1. In this case the defendants were involved in building works in Hong Kong when part of a building they were constructing fell down. It was found that the collapse had occurred because the builders had failed to follow the original plans exactly. Hong Kong building regulations prohibited diverting in any substantial way from the plans. On appeal against conviction, the defendants argued that they were not liable because they had not known that the changes they had made were substantial ones. The court held that the relevant regulations created the offences of strict liability and the convictions were upheld. It was confirmed that, although there is a presumption of law that mens rea is required before a person can be found guilty of a criminal offence, this presumption could be displaced by strict liability offences.

Principles referred to in Gammon (Hong Kong) v A-G for Hong Kong [1985] 1 AC 1:

þ There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence. þ The presumption is particularly strong where the offence is “truly criminal” in character. þ The presumption applies to statutory offences and can be displaced only if this is clearly, or by necessary implication, the effect of the statute. þ The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern and public safety is such an issue. þ Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also 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 commission of the prohibited act.

Strict liability offences are justified because of the protection of society from harmful acts and the fact the “quasi-criminal” nature of strict liability offences creates little stigma. Most such offences are regulatory in nature; they are said to promote high standards of care in socially important activities/practical effectiveness. The offences are wide ranging and cover activities such as road traffic, licensing, food safety, pollution etc. The following case authority highlights some of the regulatory offences dealt with in this way:

þ Sherras v De Rutzen [1895] 1 QB 918: The defendant was convicted of supplying alcohol to a constable on duty. The Court of Appeal quashed the conviction. This case is usually cited for its reference to the presumption that mens rea is an essential ingredient in every other offence. þ Alphacell Ltd v Woodward [1972] AC 824: allowing pollution to enter a river. þ Smedleys Ltd v Breed [1974] AC 839: allowing a caterpillar to get into a tin of peas (consumer protection and food safety). þ James & Son v Smee [1955] 1 QB 78: permitted the use of a vehicle with defective brakes (not guilty – not knowingly).

The justification is also founded on the fact there are too many polluted rivers and too many drunk drivers and these types of case carry an administrative inconvenience and burden; there is also a difficulty of establishing mens rea in many such cases and therefore the need to prove mens rea has been removed.

A defendant can be convicted if his voluntary act unintentionally causes a prohibited consequence. This is the case even where the defendant is completely blameless. There is obviously a risk of potential unfairness when convicting of such offences arising from a willingness to dispense with proof of a “guilty mind”. In Callow v Tillstone (1900) 64 JP 823 322 a butcher asked a vet to examine a carcass to see if it was fit to be eaten. The vet confirmed that it was ok to eat and so the butcher offered it for sale in his shop. In fact, the carcass was unfit for human consumption and the butcher was convicted of “exposing unsound meat for sale”. This was a strict liability offence and the butcher was guilty even though he had taken reasonable care not to commit the offence by having the carcass inspected by a vet. The butcher was found guilty even though he was not at fault in any way. The conviction of the morally innocent is never justifiable. In R v Lim Chin Aik [1963] AC 160 the defendant had been convicted under the immigration laws of Singapore by remaining there (after entry) when he had been prohibited from entering. The aim of the law was to prevent illegal immigration. The defendant had no knowledge of the prohibition order and there was no evidence that the authorities had attempted to bring the prohibition order to his notice. Therefore, the Privy Council ordered that the offence was not one of strict liability because it did nothing to promote enforcement of the law.

4. Defences

There are “no-negligence” ”due diligence” general defences. Some statutes creating strict liability offences may provide for such a defence, but there is no “general defence”. In other words, the defendant will not be liable if he can show that he did all that was within his power not to commit the offence. Parliament does not always include a defence of due diligence when creating strict liability offences. Another example of where the defendants were guilty even though they had taken all reasonable steps to prevent the © Association of Costs Lawyers Training 2019 34 offence is the case of Harrow LBC v Shah and Shah [1999] 3 All ER 302. In this case, the defendants owned a newsagents where they sold lottery tickets. They had warned their staff not to sell lottery tickets to anyone under the age of 16 and they also told their staff that if they were in any doubt as to a customer's age then they should ask for ID. A member of staff sold a lottery ticket to a 13-year-old boy without asking for proof of age believing the boy to be over 16. The defendants were charged with selling a lottery ticket to a person under the age of 16 contrary to s 13(1)(c) of the National Lottery Act 1993. The Divisional Court held that the offence was one of strict liability and did not require mens rea. The act of selling the ticket to someone under the age of 16 was enough to make them guilty of the offence even though they had done everything possible to prevent this from happening in their shop

The defence of mistake is not available for strict liability offences. Two cases concerned with the Licensing Act 1872 illustrate this point. In Cundy v Le Cocq (1884) 13 QBD 207 the defendant was charged with selling intoxicating liquor to a drunken person. The court believed that the defendant and his staff had not realised that the customer was drunk. However, the court held that the offence had been committed when it was proved that a sale had taken place and that the person served was drunk.

1. Introduction

There are instances where a substantive offence may not have been completed but nevertheless an offence of a different kind has been committed because of the actions or agreements in preparation for the substantive offence. These are known as inchoate offences. The three forms of liability for inchoate offences in English criminal law were incitement, conspiracy and attempt. For all cases that would have been classified as incitement part 2 of the Serious Crime Act 2007 created three new offences for all those committed after 1 October 2008. In each case liability can be imposed on the defendant even though the completed offence is not committed (inchoate simply means incomplete).

There are broadly two justifications for such offences. The first can be encapsulated in the notion that prevention is better than cure. To intervene and arrest whilst a bombing campaign is being discussed, agreed or arranged, is far better than to deal with its aftermath. The second is based on the argument that by suggesting, agreeing to commit, or trying to commit a crime a defendant has demonstrated his willingness that the crime should be committed. Therein lies the culpability that justifies punishment. In that sense it matters not whether the completed crime is ever committed. There is a further practical matter that should not be over- looked. Even where there is evidence that a completed offence has been committed, it may be easier for the prosecution to secure a conviction for incitement, conspiracy or attempt to commit the crime. The prosecution is at liberty to take this course of action, provided the indictment does not allege an inchoate and completed form of the same offence.

2. Attempts

The rationale behind the law of attempt includes the need to stop criminal behaviour before harm is caused, the need to give the police the opportunity to stop criminals before an offence is committed and the need to balance this against intervention which is too early and could run the risk of punishing people for mere contemplation or minimal activity in pursuit of a crime. Until 1981 the offence of attempt was governed by the common law. With the enactment of the Criminal Attempts Act 1981 it was placed on a statutory footing. There is no surviving form of common law attempt.

An attempt is where the defendant tries to commit an offence, but, for some reason, fails to complete it. This can be seen in the case R v White [1910] 2 KB 124 where the defendant put cyanide in his mother’s drink, intending to kill her but she died of a heart attack before the cyanide took effect. He was convicted of attempted murder. Attempt is defined by statute and can be found in section 1(1) of the Criminal Attempts Act 1981 defined as:

“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 attempting to commit an offence.”

© Association of Costs Lawyers Training 2019 36 It is up to the judge to decide if there is evidence on which the jury could find that there have been acts which fit the test. If there is no evidence of such acts, then the judge must direct them to acquit. However, if the judge decides that the evidence is capable of meeting the threshold, then it is up to the jury to decide whether, on the facts the defendant is liable under section 4(3) of the Criminal Attempts Act 1981. Section 4(3) of the Criminal Attempts Act 1981 provides:

Where, in proceedings against a person for an offence under s 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact.

A trial judge must give the jury a clear direction on what is more than merely preparatory to ensure a safe conviction that will not be appealed. The courts have been much troubled with the factual problem of distinguishing between that which is "merely preparatory" and that which is sufficient to constitute an offence. Under the common law there were various tests. Prior to 1981, attempts were a common law offence, which means the definition was left up to the courts. This in turn led to a lot of confusion, as different judges took different approaches to when an attempt starts. These pre-legislation common law tests are no longer binding, but are persuasive. When the Criminal Attempts Act 1981 came into force, and there was no guidance on what “more than merely preparatory actually meant”, a lot of judges and defendants looked to these tests to help them – defendants especially as a lot of these were stricter, at least in principle, than this new test.

2.1 Actus reus of attempts

The important point which needs to be proved is, has the defendant done an act which is “more than merely preparatory”.

The definition was explored in the case Attorney-General’s Reference (No.1 of 1992) [1993] Crim LR 274 which was an attempted rape case where the man’s penis remained flaccid. He was found liable for attempted rape and it was held that the defendant need not have performed the last act before the crime proper nor need he have reached the “point of no return”. The point was also considered in R v Gullefer [1987] Crim LR 195 in which the Court of Appeal held that “more than merely preparatory” means that the defendant must have gone beyond purely preparatory acts and be “embarked on the crime proper”.

There are a number of cases where the courts have said the acts were merely preparatory:

þ R v Campbell [1987] 84 Cr App R 255: in this case the defendant was found outside a post office with an imitation gun and a threatening note. The defendant was accused of attempted robbery and the court held that this was merely preparatory. þ R v Geddes [1996] Crim LR 894: this case was about someone in a school with a knife, rope and tape. The alleged attempted offence was false imprisonment. The court stated that the question to ask was “Has the defendant actually tried to commit the offence in question?”. The court held that this was merely preparatory because no approach to imprison a child had actually been made.

Further case law where the courts have held that an act is more than merely preparatory:

© Association of Costs Lawyers Training 2019 37 þ R v Boyle and Boyle [1987] Crim LR 111: in this case the defendant was found standing by a door with a broken lock. He was convicted of attempted burglary on the basis that he had done part of a series of acts. þ R v Jones [1991] 3 S.C.R. 110: this was an attempted murder case where the defendant would have been liable for murder had he not left the gun’s safety catch on! Here the court stated that, where there is sufficient evidence of attempt, the question should be left to the jury.

Test one (proximity), came from the case R v Eagleton [1855] Dears CC 515. In this case the defendant attempted to obtain money from the guardians of a parish by falsely pretending to the relieving officer that he had delivered loaves of bread of the proper weight to the outdoor poor, when in fact the loaves were deficient in weight. Parke B held:

"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 ...”.

The defendants were found not guilty.

In R v Robinson [1915] 2 KB 342 Robinson was a jeweller, who had insured his store against theft and burglary. He concealed some jewellery in his shop and tied himself up with the intention of filing a claim for loss with his insurer. He later told the police that he had been robbed. Police later found the jewellery where he had hidden it. Robinson confessed his intentions. He was subsequently convicted of attempting to obtain money by false pretenses. The court followed and confirmed the ratio of Eagleton calling it a “safe guide” and therefore the test of proximity was used.

The proximity test can be a narrow test, as it seems to look backwards from the full offence, to see if what the defendant did was close to it. More than merely preparatory, on the other hand, looks forward from the preparatory acts, to the full offence.

Test two is the rubicon test which was a test that required the defendant to have burnt all his boats or crossed the point of no return. This is really a tighter version of the proximity test and is sometimes known as the “last acts” test. This test came from the case of Director of Public Prosecutions v Stonehouse [1978] AC 55 at 70. In this case a former government minister in England insured his life for his wife's benefit. He then faked his death by drowning overseas. The defendant was convicted of attempting to obtain insurance money by deception. R v Widdowson [1986] 82 Cr App R 314 was a case following the enactment of the legislation, but applied the rubicon test from Stonehouse. The defendant in this case made dishonest representations in a document which might, at a later stage, have led to a hire purchase agreement for the purchase of a car. The defendant's acts were proximate enough to the complete offence of obtaining property by deception and therefore capable of amounting to an attempt.

The third test is the series of acts test. Again, this was a decision following parliament’s intervention. This test comes from an earlier statement from Sir James Stephen in the 19th Century. This is where the defendant’s actions form part of the actus reus of the crime, which would be completed if not interrupted. The case is R v Boyle and Boyle [1987] Crim LR 111 considered above; the conviction for attempted burglary was affirmed by the Court of Appeal. Breaking down the door was more than merely preparatory to "entry as a trespasser" - it was the start of the substantive crime, a series of acts. © Association of Costs Lawyers Training 2019 38

The word proximity is deliberately not used in section 1(1) of the Criminal Attempts Act 1981, so there is an argument that by using these different words, the courts are trying to create a wider test, but is it as wide as “substantial steps”? As the Act does not give guidance it is left to the courts to develop it. To begin with, the Court of Appeal seemed to apply a variety of these older tests (look at the dates of the cases), but that inconsistency is unfair.

The fourth test is “embarked on the crime proper”. This was considered in the case of R v Gullefer [1987] Crim LR 195 in which a man placed a bet on a certain greyhound. Seeing his dog was losing, the defendant tried to interfere with the race in the hope that it would be declared void and all bets consequently returned. The Court of Appeal quashed his conviction for attempting to steal his stake money from the bookmaker and said that, as a matter of law, he had not done enough for the case to go to the jury. His acts were merely preparatory and he had not yet embarked on the crime proper. In R v Gullefer [1987] Crim LR 195 according to Lord Lane CJ, judges should look at the plain ordinary meaning of the words in the Act:

“The words of the act seek to steer a midway course. A crime 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”.

The following case is the most controversial and there are a lot of questions as to whether this was the right decision on the facts. The Law Commission hates it with a vengeance! In fact, as a result of the decision, Parliament had to create a new offence, by way of section 63 of the Sexual Offences Act 2003, of trespass with intent to commit a sexual offence to plug the loophole! The case is one which has been briefly considered previously - R v Geddes [1996] Crim LR 894. In this case, the defendant was found in a boys’ toilet in a school with a knife, rope and tape. The alleged attempted offence was false imprisonment. The Court of Appeal quashed the defendant’s conviction on appeal. It was argued that the defendant had yet to even approach a student. The two questions that needed to be answered were:

þ had the defendant moved from planning or preparation to execution or implementation? þ had the defendant done an act showing that he was actually trying to commit the full offence or had he got only as far as getting ready, or putting himself in that position or equipping himself to do so?

More recent cases follow the principle in Geddes. In the case R v Toothill [1998] Crim LR 876 the victim lived in a house with a garden, which was situated in an isolated area. At about 11pm she saw the defendant standing a few feet from the rear of her house, apparently masturbating. She telephoned the police. He was arrested in the garden, where a knife and a glove were found. He was charged with attempted burglary with intent to rape. The defendant was convicted and appealed on the ground that it was incumbent on the judge to look for evidence not merely of an attempt to burgle, but also an attempt to commit rape. The Court of Appeal dismissed the appeal. In the present case, the actus reus of the offence was the act of entering the property as a trespasser. What converted it into burglary was the presence of the trespasser with the intention to commit one or other of the offences set out in section 9(2) of the Theft Act 1968. The attempt was to do the act,

© Association of Costs Lawyers Training 2019 39 not to have the intention. The crucial step that the defendant took, which established that he had gone beyond the preparatory to the executory stage of his plan, was that he knocked at the proposed victim's door.

In R v Nash [1999] Crim LR 308 (CA) two letters addressed to the "Paper boy" were left in the street. The letters were opened by a paper boy and a paper girl who found that they contained an invitation by the recipient to engage in acts of indecency with the author. At the instigation of the police a third paper boy went to meet the writer of the letter in a local park. There he saw the defendant, who asked him if he was looking for him. The defendant was arrested. A search of his home revealed a typewriter bearing the same typeface as that used in the letters and a letter written in similar terms to the others. He was convicted of three counts of attempting to procure an act of gross indecency. One of the grounds of appeal was that the judge erred in ruling that there was a case to answer on count 3 since the fact of leaving out the third letter was no more than a mere preparatory act and was insufficient to constitute an attempt in law. The Court of Appeal allowed the appeal in respect of count 3. Following the decision in R v Geddes [1996] Crim LR 894, which helpfully illustrated where and how the line was drawn between acts which were merely preparatory and acts which could amount to an attempt, the terms of letter three, which did not contain an overtly sexual invitation, as compared with the terms of letters one and two, were not such as to amount to an unequivocal invitation and were not sufficiently approximate to the act of procurement to amount to an attempt.

2.2 Mens rea of attempts

For an attempt, the defendant should usually have the same intention as would be required for the full offence. This can be seen in the case of R v Easom [1971] 2 QB 315. In this case, the Court of Appeal quashed the conviction of attempted theft. This decision of the Court of Appeal was criticised. Again, in R v Husseyn (1977) 67 Cr App R 131, the Court of Appeal quashed the conviction because of the lack of evidence that there was intention for the full offence and the decision was criticised. AG’s Ref (No 1 and 2 of 1979) QB 180 added some clarity to the matter and the issue was finally resolved when the Court of Appeal decided that, if the defendant had conditional intent, i.e. he intended to steal if there was anything worth stealing, then the defendant could be charged with attempted theft.

Millard and Vernon [1987] Crim.L.R. 391 concerned two defendants who were football supporters. They repeatedly pushed against a wooden wall on a stand at a football ground in an attempt to break it or being reckless as to whether the wall was damaged. It was held that recklessness is not normally sufficient mens rea for an attempt. This is the case even where recklessness would suffice for the complete offence.

This decision should be compared to the decision in Attorney General’s Reference (No.3 of 1992) [1994] 2 All ER 121 in which the defendant threw a petrol bomb at a car with people inside but missed. The defendant was charged with attempted arson with intent to endanger life. The trial judge acquitted the defendant ruling it had to be proved that the defendant intended to damage property and endanger life. This case shows that recklessness is not normally sufficient mens rea, but there is one exception to this general rule, that is, recklessness as to one part of the offence can be sufficient. The case R v Khan [1990] 2 S.C.R. 531 saw the defendant being charged with attempted rape and, as long as he intended to have sex with the woman, it was enough that he was reckless as to whether

© Association of Costs Lawyers Training 2019 40 or not she consented. The defendant appealed and, allowing his appeal, the court said the judge had been wrong to direct the jury in terms of recklessness as to harm. Any attempt requires mens rea in the form of a specific intent to commit the substantive offence.

Following sections 1(2) and 1(3) of the Criminal Attempts Act 1981 it is now possible to be guilty of an attempt to commit the impossible in that a person can be guilty of an attempt even if the commission of the full offence was impossible. In R v Shivpuri [1986] 2. All. ER. 334 the earlier case of Anderton v Ryan [1985] 2 All ER 55 was overruled and is an example of the House of Lords using the practice statement to update the law.

2.3 Jurisdictional Issues

Section 1(4) of the Criminal Attempts Act 1981 provides that s 1 applies to ‘. . . any offence which, if it were completed, would be triable in England and Wales as an indictable offence . . .’. One effect of this is that an attempt can comprise acts outside the jurisdiction that would have lead to the commission of the completed offence within the jurisdiction; see DPP v Stonehouse [1978] AC 55. Jurisdiction over attempts with a foreign element has been widened further by the provisions of the Criminal Justice Act 1993, which provides that courts in England and Wales have jurisdiction to deal with attempts to commit ‘Class A’ offences (defined in the 1993 Act as offences of dishonesty and fraud) provided certain conditions are met. It achieves this by inserting a s 1A after section 1 in the Criminal Attempts Act 1981.

3. Encouraging or Assisting (Incitement)

It used to be a common law offence to ‘incite’ (i.e. encourage) someone to commit a criminal offence. Part 2 of the Serious Crime Act 2007 creates three inchoate offences of:

þ intentionally encouraging or assisting an offence (section 44 of the Serious Crime Act 2007); þ encouraging or assisting an offence believing it will be committed (section 45 of the Serious Crime Act 2007); and þ encouraging or assisting offences believing one or more will be committed (section 46 of the Serious Crime Act 2007).

These offences replace the common law offence of incitement, which was abolished by section 59 of the Serious Crime Act 2007, for all offences committed after 1 October 2008. These offences allow people who assist another to commit an offence to be prosecuted regardless of whether the underlying substantive offence is actually committed or attempted.

Whilst inciting has now been replaced by several new offences in the Serious Crime Act 2007 offences containing the word ‘incite’ can still be found, for example:

þ Soliciting murder (under section 4 of the Offences Against the Person Act 1861). þ Incitement to produce, possess or supply controlled drugs (under section 19 of the Misuse of Drugs Act 1971). þ Inciting certain sexual offences outside the United Kingdom (under section 2 of the Sexual Offences Act 1996). © Association of Costs Lawyers Training 2019 41 þ Inciting a child to engage in sexual activity (under section 10 of the Sexual Offences Act 2003). þ Inciting a child under 13 to engage in sexual activity (under section 8 of the Sexual Offences Act 2003). þ Encouraging terrorism (under section 1 of the Terrorism Act 2006).

The offences under section 44 and 45 Serious Crime Act 2007 are triable in the same way as the anticipated offences. An offence under section 46 of the Serious Crime Act 2007 is indictable only. The maximum penalties are those that would be available for the anticipated offence. In relation to any of the above, when the anticipated offence is murder, the encouraging offence is punishable with life imprisonment.

3.1 The Actus Reus of Encouraging or Assisting (Incitement)

The actus reus ingredients of the section 44 and 45 offences are:

þ do an act; and þ that the act is capable of encouraging or assisting the commission of an offence.

For the section 46 offence there is one variant which is that the act may be capable of encouraging or assisting the commission of one or more offences.

Although these sections clumsily use the phrase “commission of an offence” section 47(2) of the Serious Crime Act 2007 makes it clear that it is sufficient to prove that the defendant intended to “encourage or assist the doing of an act which would amount to the commission of that offence”.

It should be noted that for these offences there needs to be a positive act and the defendant will not be guilty by way of an omission. There must be some communication or gesture on the part of the defendant which might persuade, influence or induce another to commit a crime. It is irrelevant whether or not it actually does persuade him as can be seen in the case DPP v Armstrong [1999] EWHC 270 (QB). In this case an undercover police officer was not affected by defendant’s encouragement. Armstrong approached a police informer seeking child pornography. The informer referred Armstrong to a police officer acting undercover. Armstrong contacted the undercover officer and arrangements were made for a transaction; he was later arrested and charged with inciting the officer to distribute indecent photographs of children contrary to common law. In fact, the police officer had no intention of providing Armstrong with child pornography. Lord Justice Tuckey that neither implied a requirement to prove shared intention as contended by Armstrong.

The defendant doesn’t have to address an individual, the encouragement can be through a meeting/website/ Facebook. For example, in the case of R v Jones [2007] Crim LR 979 the defendant wrote messages on the walls of trains to encourage young girls into sex, he was found to have incited the commission of an offence albeit under section 8 of the Sexual Offences Act 2003 which is the causing or inciting a child under 13 to engage in sexual activity. In R v Blackshaw [2011] EWCA Crim 2312 the defendant was one of two men who wrote messages on Facebook encouraging people to riot in their hometowns, nothing happened, there was no evidence that anyone saw them and reacted to the messages; but they were found guilty and sentences to four years imprisonment.

© Association of Costs Lawyers Training 2019 42 Normally a defendant will be seeking to incite or encourage a particular person, but an incitement can be unilateral, for example where it forms part of an advertisement or broadcast this can be seen by looking at Invicta Plastics v Clare [1976] RTR 251 (DC) where the defendant, a company, made an advert for a piece of equipment capable of detecting police radar devices monitoring traffic; the use of these by private people was found to be illegal therefore the defendant had encouraged this offence by selling them.

The fact that the individual may be willing to commit an offence even without the incitement is irrelevant. This can be seen from the case of R v Goldman [2001] Crim LR 822 a case where the defendant was convicted of ‘incitement’ of distribution of child pornography by offering to buy it, he had placed an order in response to an advertisement offering the supply of indecent photographs of children. The fact that the supplier was a supplier irrespective of the defendant’s offer to buy the pornography did not provide the defendant with a defence.

In R (on the application of O) v Coventry Magistrates Court [2004] Crim LR 948 the defendant had downloaded child pornography and was charged with inciting the man who ran the site to distribute the material despite the fact that man had no knowledge of the defendant visiting the website. The ruling in this case is somewhat problematic as it rests on the argument that the defendant will have incited the programmer who designed the website to commit the offence of supplying child pornography when the reality is that the task of building the site would have occurred before the actus reus of incitement by the defendant.

3.2 The Mens Rea of Encouraging or Assisting (Incitement)

The mens rea for the offence under section 45 of the Serious Crime Act 2007 is intention to encourage or assist in the commission of the offence. This is a specific intention and will not be satisfied by mere recklessness.

The mens rea for the offence under section 45 of the Serious Crime Act 2007 is:

þ a belief that an act constituting the commission of that particular offence was going to be carried out, and þ a belief that the defendant’s conduct was going to assist or encourage the coming about of the act.

The mens rea for the offence under section 46 of the Serious Crime Act 2007 is:

þ at the relevant time, believed one or more of a series of acts would be done that would amount to the commission of one or more of those offences, and þ believed his act or encouragement would assist or encourage the commission of one or more of them.

Sections 45 and 46 of the Serious Crime Act 2007 create offences of encouraging or assisting an offence or offences believing it, or one or more of them, will be committed. In determining 'belief' in Sections 45 and 46, prosecutors should refer to the case law on handling stolen goods because the test is similar. Belief is a state of mind which is more than suspicious, the word ‘belief’ is a word of ordinary usage and does not require any elaboration Treacy v DPP (1971) 55 Cr.App.R. 113. If elaboration is required, a direction © Association of Costs Lawyers Training 2019 43 approved in R v Moys (1984) 79 Cr.App.R.72 should be given, confirming that suspicion, in addition with the fact that the defendant shut his eyes to the circumstances, is not enough, although such matters are relevant to the jury’s determination of the defendant’s knowledge or belief. Alternatively, section 47(5)(a) of the Serious Crime Act 2007 provides another form of mens rea if intention or belief are not satisfied e.g. where S encouraged P to commit the actus reus of an offence not knowing whether P had the sufficient mens rea to make it an offence.

Though Section 46 allows for the belief by the defendant that one or more offence may be committed, where offences with a different maximum sentence are pleaded in a Section 46 count, separate counts should be included on the indictment for each variation so the sentencing judge is clear as to the basis for conviction under Section 46 .

In R v S & H [2011] EWCA Crim 2872 the prosecution had alleged that the defendants were concerned with a national distribution business supplying chemical cutting agents direct to drug dealers and to regional distributors of cutting agents, that the supply of the cutting agents was capable of assisting one or more offences of supplying/being concerned in the supply of Class A or Class B controlled drugs and that the defendants believed that one or more of those offences would be committed and that their act would assist in the commission of one or more of the offences. The Court of Appeal rejected a submission that the offence created by the Serious Crime Act 2007, s. 46 is too vague and uncertain to be compatible with the ECHR, Articles 6 or 7. Section 48(3) of the Serious Crime Act 2007 ensures that a person can only be found guilty of the offence under section 46 of the Serious Crime Act 2007 if the offence or offences that the jury find the defendant believed would be committed are specified in the indictment. This decision effectively abolished section 46 of the Serious Crime Act 2007 and replaced it with multiple counts of section 45 of the Serious Crime Act 2007.

3.3 The Jurisdiction of Encouraging or Assisting (Incitement)

Section 53 should be read in conjunction with Schedule 4 of the 2007 Act. In broad terms, Schedule 4 provides for extra-territorial jurisdiction where the defendant does an act capable of assisting or encouraging a crime but does not know or believe that the substantive offence will occur wholly or partly in England and Wales. The act itself may be done inside or outside England and Wales. In relation to offences to which Schedule 4 applies, Section 53 provides that the prior consent of the Attorney General must be obtained before initiating a prosecution.

The general jurisdictional rules of Schedule 4 are without prejudice to any specific jurisdictional rules which already exist for certain offences. For example, offences under the Sexual Offences Act 2003 already have their own extra-territorial rules. Where this is the case, extra-territoriality is governed by the provisions of the statute which creates the offence, not by Schedule 4 of the 2007 Act.

3.4 Defences and Limitations to Encouraging or Assisting (Incitement)

Section 50 of the Serious Crime Act 2007 provides a defence to the offences in Part 2 where the encouragement or assistance is considered to be reasonable in the circumstances the person knew to exist or he reasonably believed to exist. Section 51 of the Serious Crime Act 2007 provides a limitation on liability to the offences in Part 2 where the offence © Association of Costs Lawyers Training 2019 44 encouraged or assisted was created in order to protect a category of people and the person doing the encouraging or assisting falls into that category and was the person in respect of whom the offence was or would have been committed. This would cover for example a child who encourages or assists a sexual offence of which he or she was to have been the victim.

þ the distinction between assault and battery; þ what is required for GBH and ABH; þ the common law definition of murder; þ the distinction between voluntary and involuntary manslaughter; and þ the offences that may be carried out in relation to property.

2.1 Non-Fatal Offences Against the Person

1. Introduction

Non-fatal offences against the person are generally taken to mean offences which take the form of an attack directed at another person that do not result in the death of any person. The law relating to non-fatal offences against the person is to be found in a hotchpotch of common law and statutory provisions. In English Law these include:

þ assault; þ battery; þ actual bodily harm (ABH) (section 47 of the Offences Against the Person Act 1861); and þ grievous bodily harm (GBH) (sections 18 and 20 of the Offences Against the Person Act 1861).

In addition, there are offences of poisoning, harassment, and racially aggravated forms of assault. The prosecution may also seek to rely on public order offences such as affray and riot.

2. Crown Prosecution Charging Standards

In 1994 the Crown Prosecution Service published the Charging Standards used to guide prosecutors as to the appropriate charge to proceed with in cases of non-sexual, non-fatal assault. The general principles regarding charging practice provide that prosecutors should select charge(s) that ‘accurately reflect the extent of the defendant’s alleged involvement and responsibility, thereby allowing the courts the discretion to sentence appropriately’. In particular, the guidelines provide that:

þ the choice of charges should ensure the clear and simple presentation of the case, particularly where there is more than one defendant; þ it is wrong to encourage a defendant to plead guilty to a few charges by selecting more charges than are necessary; and þ it is wrong to select a more serious charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.

3. Assault

Common assault, contrary to section 39 of the Criminal Justice Act 1988, is committed when a person assaults another person. An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

3.1 Actus reus

The actus reus for assault and battery is causing another to fear for their safety or to apprehend immediate violence. In the case of Tuberville v Savage [1669] EWHC KB J25 the wording “If it were not assize time, I would not take such language from you” was held not to be an assault because what was said showed he was not going to do anything. The

© Association of Costs Lawyers Training 2019 47 actus reus will be present even where the defendant has said he will not hurt the victim as can be seen in the case of R v Light (1857) [1843–60] All ER Rep 934. In this case, the defendant raised a sword above the head of his wife and said, “were it not for the bloody policeman outside, I would split your head open”. It was held that this was an assault - the wife feared force was going to be used on her and the words in the circumstances were not enough to negate that fear. In contradiction to Light is the case of R v Lamb [1967] 2 QB 981. In this case, it was held that the pointing of a gun at someone who knows it is unloaded cannot be an assault. The other person does not fear immediate force.

Causing fear of what the defendant might do next may be sufficient for the actus reus as can be seen in the case Smith v Chief Superintendent of Woking Police Station [1983] 76 Cr App R 234. In this case, the defendant broke into a garden and looked through the victim’s bedroom window on the ground floor at night. The victim was terrified and thought the defendant was about to enter. The defendant was outside the house and no attack could be made at that immediate moment. It was held that the victim was frightened by his conduct. The basis of the fear was that she did not know what he 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.

Letters and silent calls may amount to an assault as can be seen in the case of R v Constanza [1997] Crim LR 576 where the defendant wrote about 800 letters and made a number of phone calls to the victim. The victim interpreted the last two letters as clear threats. It was held that there was an assault as there was a “fear of violence at some time, not excluding the immediate future”. The case of R v Ireland [1997] 3 WLR 534 specifically applied to a scenario where there were a number of silent phone calls and it was held in this case that it would depend on the facts of the case.

3.2 Mens rea

For assault, recklessness is sufficient mens rea. In DPP v Majewski [1977] AC 443, the defendant had consumed large quantities of alcohol and drugs and then attacked the landlord of the pub where he was drinking. It was held that becoming intoxicated by drink and drugs was a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases.

3.3 Table of key case authority

R v Constanza Defendant wrote 800 letters to Assault occurred due to fear of [1997] Crim LR 576 victim and made phone calls. violence. Last two letters were seen as threats by the victim. R v Ireland [1997] 3 Defendant was calling silent Assault has occurred by the WLR 534 phone calls. silence. R v Lamb [1967] 2 Defendant killed friend with No assault as friend did not QB 981 revolver containing two bullets, fear violence and defendant but both believed gun would not believed no bullet would be fire. fired. Smith v Chief Defendant looked though Assault even though Superintendent of woman’s bedroom window late defendant was outside as Woking Police woman believed what © Association of Costs Lawyers Training 2019 48 Station [1983] 76 Cr at night. She was scared, thinking defendant would do was likely App R 234 S would break in. to be violent.

Tuberville v Savage Defendant put hand on sword Words negated the assault [1669] EWHC KB J25 saying if judges were not in town that would have taken place he would act differently. from having hand on sword. R v Light (1857) Defendant raised sword over Assault as wife was feared of [1843–60] All ER Rep wife’s head and threatened her. force and words did not 934 negate fear.

4. Battery

Battery is a criminal offence involving the unlawful physical contact of one person on another, distinct from assault which is the act of creating apprehension of such contact.

4.1 Actus reus

The actus reus of battery is the application of unlawful force. In Collins v Wilcock [1984] 3 All ER 374 two police officers saw two women apparently soliciting for the purposes of prostitution. They asked the appellant to get into the police car for questioning, but she refused and walked away. The police did not know her and one of the officers followed her to find out her identity. She walked away again. The officer then took her by the arm to prevent her from leaving. She became abusive and scratched the officer’s arm. The court held that the officer had committed a battery and the defendant was entitled to free herself. Another case involving the police is Wood v DPP [2008] EWHC 1056 (Admin). In this case, 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. One of the police officers took hold of Wood by the arm and asked if he was Fraser. Wood denied this and struggled. Another officer took hold of Wood’s other arm. It was held that, as the officer had not arrested Wood, then there was a technical battery by the police officers. This meant that Wood was entitled to struggle and was not guilty of any offence of assault against the police.

Unlawful force can include the touching of a person’s clothes as can be seen from the case R v Thomas [1985] 81 Cr App R 331 where the defendant 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”.

Unlawful force can be by both direct and indirect means, the case of DPP v K (a minor) [1990] 1 WLR 1067 best illustrates this point. The defendant was a 15-year-old boy who took sulphuric acid without permission from his science lesson to try its reaction on some toilet paper. While he was in the toilet he heard footsteps in the corridor, 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 acid. The defendant was charged with assault occasioning actual bodily harm and it was held that a common assault (which includes assault and battery) could be committed by an indirect act.

© Association of Costs Lawyers Training 2019 49 Finally, as with most criminal offences there must be a coincidence of actus reus and mens rea. In Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 the defendant parked his car with one of the tyres on the 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 surmised that at the start there was an act, which could be a battery, but the full offence of battery was not committed at that point because there was no element of intention. It became an offence of battery the moment the intention was formed to leave the wheel on the officer’s foot.

4.2 Mens rea

As with assault, recklessness is sufficient mens rea for battery.

4.3 Table of key case authority

Collins v Wilcock Police asked woman to get Conviction of assaulting police [1984] 3 All ER 374 into car for questioning, but officer in execution of duty she walked off. Officers was quashed. Officer held arm grabbed woman to detain unlawfully as no arrest and her, but she scratched officer’s woman was entitled to get arm. free. Wood v DPP [2008] A man believed to be Fraser Conviction of assaulting two EWHC 1056 (Admin) threw ashtray in pub and officers in execution of duty police officer took hold of W was quashed. Force was used who matched the description. to detain not arrest so Wood As Wood tried to pull away entitled to struggle. another officer grabbed Wood’s other arm. R v Thomas [1985] 81 Defendant rubbed hem of Defendant conviction was Cr App R 331 woman’s skirt. upheld as touching clothes of person is same as touching person. Fagan v Metropolitan When defendant directed to Actus reus occurred when Police Commissioner park by policeman wheel of defendant drove car on to [1969] 1 QB 439 car went on officer’s foot. foot. Mens rea occurred when Officer asked to move but intended not to move car and defendant turned engine off offence completed when for several minutes. ignition was turned off. R v Martin (1881) 8 M placed bar across theatre Defendant was convicted QBD 54 doorway, turned off lights and even though he did not touch shouted, “Fire!” Several people anyone directly. were injured. DPP v K (a minor) Defendant was a schoolboy Defendant conviction was [1990] 1 WLR 1067 who stole acid and hid it in hot quashed but Divisional court air hand drier used by another said that battery could be boy who was burned. indirect. Haystead v DPP Defendant punched woman Defendant liable as reckless [2000] 3 All ER 690 who let go of child she was whether act would injure child. holding and child was injured by fall. © Association of Costs Lawyers Training 2019 50 DPP v Santa- Policewoman asked Failure of defendant to tell the Bermudez [2003] defendant if had sharp objects truth created the liability. EWHC 2908 (Admin) before search. Defendant said no but policewoman was injured by needle in defendant pocket. A v UK (1999) 27 EHRR Defendant beat son with Defendant was acquitted by 611 European Court garden cane jury but Court of HR said that of Human Rights UK law offended Article 3 ECHR.

4.4 Crown Prosecution Service Charging Standards

The charging standards make clear that the only factor which distinguishes common assault from assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, is the degree of injury which results. Normally, aggravating factors which may be relevant to sentence and to mode of trial decisions are irrelevant when deciding whether the degree of injury justifies a charge under section 47 of the Offences Against the Person Act 1861.

Where battery results in injury, a choice of charge is available. The Code for Crown Prosecutors recognises that there will be factors which may properly lead to a decision not to prefer or continue with the gravest possible charge. Thus, although any injury can be classified as actual bodily harm, the appropriate charge will be contrary to section 39 of the Criminal Justice Act 1988 where injuries amount to no more than the following:

þ grazes; þ scratches; þ abrasions; þ minor bruising; þ swellings; þ reddening of the skin; þ superficial cuts; and þ a ‘black eye’.

5. Section 47 Offences Against the Person Act 1861 - assault occasioning actual bodily harm

Section 47 of the Offences Against the Person Act 1861 provides:

Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . to [imprisonment for five years].

For these purposes assault bears either its narrow meaning, that is, D causing P to apprehend immediate physical violence, or it can be used in its broad sense to encompass battery.

The actus reus of actual bodily harm (ABH) under section 47 of the Offences Against the Person Act 1861 requires a consequence, this means that causation may become an issue. In R v Roberts (1971) 56 Cr App R 95 (CA) the appellant made indecent advances towards, and indecent suggestions to, the complainant, a young woman who was a passenger in his car. The prosecution case was that the complainant jumped out of the appellant’s car whilst it was moving in order to escape from his advances. Her resulting injuries caused her to be taken to hospital, where she was treated for some concussion and for some grazing and was detained for three days. The defendant was convicted of assault occasioning actual bodily harm. He appealed on the ground that the complainant’s jumping from his moving car was a novus actus interveniens, breaking the chain of causation between his actions and her injuries. It was held that there is no need to establish an intention or recklessness as to the level of force under section 47. It is sufficient to establish that the defendant had intention or was reckless as to the assault or battery. Where the victim's actions were a natural result of the defendant's actions it matters not whether the defendant could foresee the result. Only where the victim’s actions were so daft or unexpected that no reasonable man could have expected it would there be a break in the chain of causation.

In the absence of any statutory definition in the 1861 Act the courts have had to develop an open-textured working definition of actual bodily harm for the purposes of section 47 of the Offences Against the Person Act 1861. It was suggested in Taylor v. Granville [1978] Crim LR 482 503 that any physical injury would be ABH if short of grievous bodily harm (GBH) or wounding. It is a question of fact and degree to be determined by the jury. In R v Donovan [1934] 2 KB 498, Swift J referred to ‘hurt or injury calculated to interfere with the health or comfort of the victim. R v Miller [1954] 2 All ER 529 involved a defendant whose wife had left him and petitioned for divorce. The defendant then had sexual intercourse with her against her will. He was charged with rape and assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The defendant relied on the marital consent exception to rape and that nervous shock does not amount to a bodily injury. It was held that the defendant was liable for ABH, because ABH includes any hurt or injury calculated to interfere with the health or comfort of the victim. That harm cannot be “so trivial as to be wholly insignificant” as was held in R v Chan Fook [1994] 1 WLR 689. This case concerned a defendant who subjected his victim to questioning about the theft of a ring belonging to the defendant's fiancée. The defendant then dragged the victim upstairs to a room and locked him in. The victim feared the defendant’s return and injured himself when he fell to the ground escaping through a window. The court concluded that ABH includes psychiatric injury, but does not include emotions such as fear or panic. The court also held that only expert evidence to this effect should be made to the jury regarding psychiatric injury.

Like battery, the actus reus can include direct and indirect means. ABH can also include:

þ psychiatric injury (R v Ireland [1997] 3 WLR 534); þ four or five bruises caused by a belt; þ the cutting of hair (consider DPP v Smith 2006 [2006] All ER (D) 69 (Jan), the case in which the defendant's ex-girlfriend went round to his house whilst he was asleep in bed; she went up to his bedroom and woke him up. He pushed her down on to the bed, sat on top of her and cut off her hair which was in a ponytail. He did not

© Association of Costs Lawyers Training 2019 52 physically cause any harm to her, other than the cutting of her hair. She sustained no bruises, scratches or cuts, but the defendant was convicted); þ minor abrasions and a bruise (consider R v Jones [1987] Crim LR 123, a schoolboy and others tossed two boys into the air (birthday “bumps”). One boy suffered a ruptured spleen and the other a broken arm. It was held that mere foresight of bruising (or even of greater harm) was not sufficient for GBH, but minor abrasions and a bruise would amount to ABH); þ a painful kick to the stomach leaving some tenderness though no visible injury (See Reigate Justices ex p. Counsell [1984] 148 JP 193); þ a momentary loss of consciousness (T v DPP [2003] EWHC 266 (Admin), [2003] Crim LR 622); and þ bleeding caused by a needle (consider Director of Public Prosecutions v Santa- Bermudez [2003] EWHC 2908 where a policewoman, before searching the defendant’s pockets, asked him if 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 ABH).

The Crown Prosecution Service Charging Standards suggest section 47 would be the appropriate charge where the victim sustained temporary loss of sensory function, minor cuts, severe bruising, a broken nose, loss of or the breaking of a tooth, minor fractures and minor cuts requiring stitching.

5.2 Mens rea

The mens rea is either intention or recklessness. You will recall that, in DPP v Majewski [1977] AC 443, the Law Lords held that becoming intoxicated by drink and drugs was a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. This would also be sufficient for ABH.

The recklessness is subjective recklessness, as demonstrated by R v Spratt [1990] 1 WLR 1073 in which the defendant caused ABH by shooting a 7-year-old girl with an air pistol. He was firing from the window of his flat, aiming at a target in the yard below. The victim was playing in the yard and the defendant had not known she was there. In R v Parmenter and Savage [1991] 94 Cr App R 193 it was held that the offence requires an actus reus of assault causing bodily harm and the mens rea for common assault.

5.3 Table of key case authority

DPP v Smith [2006] Defendant cut off girlfriend’s Divisional Court QBD held that All ER (D) 69 ponytail during argument cutting substantial amount of hair was sufficient. R v Roberts (1971) 56 Defendant tried to remove Defendant was convicted as Cr App R 95 coat of female hitchhiker in intended to apply unlawful force car. She jumped out at 30mph and no mens rea needed for and suffered cuts and bruises. resulting ABH Parmenter and Defendant threw beer over Defendant was convicted was Savage [1991] 94 Cr woman in pub but glass no mens rea for harm but App R 193 intended to apply unlawful force. © Association of Costs Lawyers Training 2019 53 slipped and cut woman’s hand.

5.4 Crown Prosecution Service Charging Standards

The charging standards make it clear that the only factor in law which distinguishes a charge under section 39 of the Criminal Justice Act 1988 from a charge under section 47 of the Offences Against the Person Act 1861 is the degree of injury. It lists the following injuries that should normally be prosecuted under section 47 of the Offences Against the Person Act 1861:

þ loss or breaking of a tooth or teeth; þ temporary loss of sensory functions (which may include loss of consciousness); þ extensive or multiple bruising; þ displaced broken nose; þ minor fractures; þ minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. stitches); and þ psychiatric injury which is more than fear, distress or panic. (Such injury will be proved by appropriate expert evidence.)

6. Section 20 Offences Against the Person Act 1861 - grievous bodily harm

Section 20 of the Offences Against the Person Act 1861 reads:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty”.

6.1 Actus reus

This offence includes wounding, which has been defined in the common law as a piercing of both layers of skin. In JCC v Eisenhower [1983] 3 All ER 230 the defendant, a juvenile, shot the victim with an air gun. The pellet hit the victim near the eye, resulting in a bruise below the eyebrow and fluid filling the front of his eye. The defendant had been charged (together with another juvenile) with unlawful and malicious wounding contrary to section 20 of the Offences Against the Person Act 1861. The only point at issue was whether the victim’s injuries constituted a ‘wound’. It was held that a wound is a break in the continuity of the whole skin; an internal rupturing of the blood vessels is not a wound.

The word ‘grievous’ is not defined in the Offences Against the Person Act 1861, but in modern times the courts have adopted the view that it is sufficient to direct the jury in terms of ‘serious’ or ‘really serious’ harm as can be seen in the case of DPP v Smith [1961] AC 290. In this case, the defendant was trying to escape from the police in a car. He was signalled to stop, but didn’t and a police officer jumped onto the car’s bonnet. The defendant then drove at high speed, swerving from side to side, until the officer was thrown off and killed. The court held that it was clear that he had intended to cause grievous bodily harm, which meant no more and no less than a really serious injury. The case of R v Saunders [1985] Crim LR 230 further aids with understanding what is meant by GBH. In this case the defendant, on a road at night, approached a stranger who was sitting resting at the roadside, asked him what the problem was and, when the victim said that there was no problem, the © Association of Costs Lawyers Training 2019 54 defendant said that he would give him one and punched him in the face. The victim suffered a broken nose and other injuries. It was held that “grievous” means no more and no less than a really serious injury and a broken nose in any view was serious bodily harm.

“To inflict” has been held to include by indirect means. In R v Burstow [1997] UKHL 34 the Court of Appeal certified the following point as of general importance, namely: whether an offence of inflicting grievous bodily harm under section 20 of the Offences against the Person Act 1861 can be committed where no physical violence is applied directly or indirectly to the body of the victim. It was held that in the context of a criminal act the words ‘cause’ and ‘inflict’ were held to be interchangeable. It is entirely consistent with the ordinary use of the word ‘inflict’ in the English language to say that an appellant’s actions ‘inflicted’ the psychiatric harm from which a victim may suffer.

6.2 Mens rea

Section 20 of the Offences Against the Person Act 1861 uses the word “maliciously” meaning intention or recklessness. One of the certified questions the House of Lords were asked to consider in R v Savage; R v Parmenter [1992] 1 AC 699 (HL) was whether, in order to establish an offence under s 20 of the 1861 Act, the prosecution had to prove that the defendant actually foresaw that his act would cause harm, or whether it was sufficient to prove that he ought to have foreseen the harm. It was held that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20 of the Offences Against the Person Act 1861, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.

6.3 Table of key case authority

R v Bollom (2004) 2 Defendant was convicted when Defendant was convicted of Cr App R 6 17- month-old child suffered more serious offences based bruises to abdomen, arms and on age of the victim (child) legs. JCC v Eisenhower Victim was shot in eye with No wound as all layers of skin [1983] 3 All ER 230 shotgun pellet causing severe were not broken therefore no bleeding under skin. conviction for Battery. R v Wood [2009] 1 Defendant broke victim’s No break in skin and so no WLR 496 collarbone. wound. R v Burstow [1997] Defendant carried out a Defendant was convicted UKHL 34 campaign of harassment against based on the level of ex-girlfriend using abusive and psychiatric harm. silent phone calls, hate mail and stalking. Woman suffered severe depression. R v Dica [2004] 3 ALL Defendant infected two women Offence could occur by ER 593 with HIV after unprotected sex. D transmission of disease. did not say he was HIV positive. Parmenter and Defendant injured baby son by Defendant’s conviction was Savage [1991] 94 Cr throwing him in air and did not reduced on appeal to section App R 193 realise risk of injury. 47 ABH as not foreseen any injury. © Association of Costs Lawyers Training 2019 55 6.4 Crown Prosecution Service Charging Standards

The charges standards explain that the definition of wounding may encompass injuries which are relatively minor in nature, for example a small cut or laceration. They go on to explain that an assault resulting in such minor injuries should more appropriately be charged contrary to section 47 of the Offences Against the Person Act 1861. The standards say that an offence contrary to section 20 of the Offences Against the Person Act 1861 should be reserved for those wounds considered to be serious (thus equating the offence with the infliction of grievous, or serious, bodily harm under the other part of the section).

Examples are provided as to what may amount to Grievous bodily harm or serious bodily harm, these include:

þ an injury resulting in permanent disability or permanent loss of sensory function; þ an injury which results in more than minor permanent, visible disfigurement; þ a broken or displaced limbs or bones, including fractured skull; þ compound fractures, broken cheek bone, jaw, ribs, etc; þ injuries which cause substantial loss of blood, usually necessitating a transfusion; and þ injuries resulting in lengthy treatment or incapacity. (When psychiatric injury is alleged appropriate expert evidence is essential to prove the injury.).

In accordance with the recommendation in R v McCready [1978] 1 WLR 1376, if there is any reliable evidence that a sufficiently serious wound has been inflicted, then the charge under section 20 should be of unlawful wounding, rather than of inflicting grievous bodily harm. Where both a wound and grievous bodily harm have been inflicted, discretion should be used in choosing which part of section 20 more appropriately reflects the true nature of the offence.

The standards go on to say that prosecution must prove under section 20 that either the defendant intended, or actually foresaw, that the act would cause some harm. It is not necessary to prove that the defendant either intended or foresaw that the unlawful act might cause physical harm of the gravity described in section 20. It is enough that the defendant foresaw that some physical harm to some person, albeit of a minor character, might result: R v Savage, R v Parmenter (supra).

7. Section 18 Offences Against the Person Act 1861 – grievous bodily harm with intent

Section 18 of the Offences Against the Person Act 1861 reads:

“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 some person or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty”.

7.1 Actus reus

The rules regarding the actus reus are the same as those for the section 20 offence. For a more recent illustration of what constitutes grievous, consider R v Doyle [2004] EWCA Crim 2714, where the defendant’s conviction under section 18 of the Offences Against the © Association of Costs Lawyers Training 2019 56 Person Act 1861 was upheld after he had, inter alia, bitten the victim in the genital area through his trousers. The Court of Appeal confirmed that it was perfectly adequate on the facts for the judge to leave the issue with the jury on the basis that grievous bodily harm had been caused if they viewed it as serious harm.

7.2 Mens rea

The mens rea is intending to cause GBH or to resist or prevent lawful apprehension; or intentionally or recklessly wounding with an intent to cause GBH or to resist or prevent lawful apprehension. In section 18 there is a requirement of ulterior intent, so there are actually two aspects to the mens rea - malice (meaning intent or recklessness) and the intent either to cause grievous bodily harm, or to resist or prevent arrest.

Intent has the same meaning as in murder, so it is specific intent measured by desire of consequences or foresight of consequences according to the established test. Given that intention to do grievous bodily harm is sufficient mens rea for murder, intention in this context ought to have the same meaning as that attributed to it in R v Woollin [1998] 4 All ER 103.

7.3 Crown Prosecution Service Charging Standards

The charging standards make clear that distinction between charges under section 18 and section 20 of the Offences Against the Person Act 1861 is one of intent and that the gravity of the injury resulting is not the determining factor although it may provide some evidence of intent. When charging an offence involving grievous bodily harm, consideration should be given to the fact that a section 20 offence requires the infliction of harm, whereas a section 18 offence requires the causing of harm. This is especially significant when considering alternative verdicts. There are factors listed which may indicate the specific intent which include:

þ a repeated or planned attack; þ deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; þ making prior threats; and þ using an offensive weapon against, or kicking, the victim’s head.

The evidence of intent required is different if the offence alleged is a wounding or the causing of grievous bodily harm with intent to resist or prevent the lawful apprehension or detainer of any person. This part of section 18 is of assistance in more serious assaults upon police officers, where the evidence of an intention to prevent arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt.

1. Introduction

The principal fatal offences are:

þ murder; and þ manslaughter.

These offences are forms of homicide. Although they are among the most serious offences in criminal law, they are still common law offences, which has led to criticism. All forms of homicide have a common actus reus – the prosecution must prove that the defendant has caused (in fact and in law) the death of a human being. Once the actus reus is made out, the defendant’s liability will be considered against the backdrop of the current two category structure of homicide offences – i.e. either as a murder case (where certain defences may be available) or as a manslaughter case. For murder the prosecution will have to show that the killing was caused with the necessary mens rea (intent). Even if the actus reus and mens rea are made out, the defendant may still be able to rely on certain partial defences that are specific to murder, such as provocation, diminished responsibility, or infanticide. These defences will, if made out, reduce the defendant’s liability to manslaughter.

2. The Year and a Day Rule

It used to be the case that, for a person to be convicted of murder or manslaughter, the death of the victim had to occur within a year and a day of the act or omission which caused the death. Section 1 of the Law Reform (Year and a Day Rule) Act 1996, however, abolishes this rule.

3. Murder

The actus reus for murder can be found in Lord Coke’s 17th century definition:

‘Murder is when a [person] . . . unlawfully killeth . . . any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought . . . so as the party wounded or hurt, etc dies of the wound or hurt’

The definition includes three elements of actus reus.

3.1 Element 1 of actus reus

The first element is the King’s/Queen’s Peace (also killing under the King’s Peace). This means that to satisfy the actus reus of murder the killing cannot be the killing of alien enemies in time of war. Additionally, historically, the killing had to take place within a year and a day but the legislative repealed this by the passing of the Law Reform (Year and a Day) Act 1996.

The prosecution must prove that the victim in a murder or manslaughter case was a person in being, i.e. the victim must be deemed by the law to be alive or in existence. In the case of R v Malcherek [1981] 2 ALL ER, the defendant had stabbed his wife and she had been taken to hospital and placed on a life support machine. The doctors in the case later switched off the life support machine as the victim was not showing any activity in her brain stem. The defendant appealed his conviction and sought to argue that the doctors' actions constituted a novus actus interveniens which broke the chain of causation. The defendant’s conviction was upheld. The test of death is where the brain stem has died. Thus, at the time of switching off the machine, the victim was already dead. The doctors could not, therefore, be the cause of death. The Defendant’s act was operating and substantial cause of his wife’s death.

Many of the old cases that dealt with this issue arose out of botched abortions or deliveries; hence the term ‘life in being’ came to mean a child that had been fully expelled from its mother’s body and capable of existence independent of its mother. A human being, for the purpose of murder, excludes aborting a foetus or damaging it in such a way that it cannot be born alive, but it is possible to commit homicide by conduct that occurs before a baby is born alive if the baby later dies from his pre-birth injuries. In A-G Ref NO. 3 Of 1994 [1997] 3 All ER 936 the defendant stabbed his girlfriend, an expectant mother. She gave birth prematurely and the baby died after birth. The House of Lords held that the defendant was guilty of manslaughter. There are now statutory offences specifically designed to protect the unborn, in particular the Infant Life (Preservation) Act 1929, the matter has given rise to less litigation. The 1929 Act provides that any person who intentionally causes the death of a child capable of being born alive commits an offence carrying with it the possibility of life imprisonment. The Act contains a rebuttable presumption in section 1(2) that a child is capable of being born alive once 28 weeks of gestation have passed. If there was doubt, therefore, as to whether a child had been killed whilst in utero, or after having been born, the prosecution would simply proceed on the basis of alternative counts, murder and a charge under the 1929 Act.

3.3 Element 3 of actus reus

The act must be unlawful, so the soldier or executioner may have right to lawfully kill and end-of-life decisions by doctors may be lawful. These events would not be murder.

In Airedale NHS Trust v Bland [1993] A.C. 789 a victim of the Hillsborough disaster had life- sustaining treatment removed, but this was not sufficient to amount to the actus reus for murder. A similar decision was made in Re A [2000] 4 All ER 961, a case concerning the separation of conjoined twins.

A key element is killing another; the defendant must be shown to have caused the death of the victim. You will recall the case of White [1910] 2 KB 124 where the defendant did his best to poison his mother, but didn’t actually cause her death. He was liable for attempted murder. The question may arise as to whether the defendant’s contribution causes the result and the court must therefore consider the principles of causation. Firstly, the court will consider the factual test or the “but for” or “sine qua non” principle – the result would not have occurred without the defendant’s act. In R v Dalloway [1847] 2 Cox 273 the defendant was driving a cart without his hands on the reins. A child ran out in front of the

© Association of Costs Lawyers Training 2019 59 cart, was struck by a wheel of the cart and died. The court held that the child would have died anyway - the defendant’s act was not the cause and he was found not guilty. There needed to be a causative link between the defendant not holding onto the reins and the child’s death in order for a guilty verdict.

In Pagett [1983] 76 Cr App R 279, the defendant kidnapped the victim and used her as a human shield. It was held that the defendant caused the death of the victim.

Secondly, legal causation needs to be considered. There are a number of legal aspects of causation and, whilst factual causation is necessary, it may not always be sufficient. Legally, the defendant’s act must be the substantial cause. The courts have developed this principle with a number of tests, but it is clear that the defendant’s act must be more than the minimal cause. In R v Hennigan [1971] 3 All ER 133 it was held that it was only necessary for the prosecution to show that the defendant’s dangerous driving was a cause of the accident and was more than de minimis; it was not necessary to show that it was a “substantial” cause.

The actus reus need not be direct - the defendant need not have touched the victim to have legally caused unlawful killing. In R v Watson [1989] 2 All ER 865 verbal abuse of an elderly victim by a burglar was sufficient. In R v Towers (1874) 12 Cox CC 530, the defendant assaulted a girl holding baby. The baby suffered convulsions and died. This was sufficient for liability.

The courts will also consider the thin skull rule (or egg shell skull rule) - you must take your victim as you find him. Just because a victim has characteristics that makes him vulnerable, this will not affect (or break) the chain of causation and absolve the defendant from his liability. So, a victim might suffer from a weak heart or have particular religious beliefs, but this will not impact upon causation (R v Blaue [1975] 1 WLR 1411).

A key principle of causation in law is that if the defendant has factually caused the result, he has also legally caused it if a reasonable person would have foreseen that consequence. So, in R v Roberts [1971] EWCA Crim 4, when the victim sought to escape from a moving car to escape an assault from the defendant, this did not break the chain of causation and liability still followed. The act of escaping was unreasonable, but not so unreasonable as not to be foreseeable.

3.4 Mens rea

For a defendant to be convicted of murder he must have caused the death of a human being and must be shown to have acted with the requisite mens rea – an intention to kill a human being, or an intention to cause a human being grievous bodily harm.

Section 1 of the Homicide Act 1957 states:

Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for the killing to amount to murder when not done in the course or furtherance of another offence.

© Association of Costs Lawyers Training 2019 60 The definition of murder requires the act of killing must be completed with malice aforethought and it is this phrase which is the mens rea of murder. The defendant charged with murder does not need to have displayed any ‘malice’ towards his victim – it may, for example, be a mercy killing.

The effect of section 1 of the Homicide Act 1957 was the abolition of the doctrine of constructive malice, whereby a defendant who killed in the course of committing a felony was deemed to have the mens rea for murder. Hence, prior to the Act coming into effect, a defendant who killed in the course of committing a robbery would have faced a murder charge – the mens rea for murder being ‘constructed’ from the mens rea for robbery. Following the enactment of the Act mens rea for murder must be established in its own right. The effect of the provision has been undermined to a degree, however, by the decision in R v Vickers [1957] 2 QB, where the Court of Appeal confirmed that, notwithstanding section 1 of the Homicide Act 1957, an intention to do grievous bodily harm would suffice for the mens rea for murder. This means that the defendant can be guilty of murder if he intends to cause a serious, but not life-threatening, injury – such as breaking the victim’s leg – and the victim dies as a result of this.

4. Involuntary Manslaughter

Academics and text books define involuntary manslaughter with reference to the offence of murder. It can thus be said to be defined as “causing death without the criminal intent for murder” – i.e. without an intention to cause death or serious injury.

To give a more precise definition without referring to murder is quite difficult. This is partly because of the fact that the offence is extremely broad and involves everything between murder (R v Church [1965] 2 WLR 1220) and accidental death (e.g. road traffic offence). It is also difficult to define because there is no cohesive structure and no clear and obvious link between the types. However, the judge does have a discretionary sentence that provides him with the discretion and jurisdiction to ensure each offence can be sentenced based on any aggravating/mitigating factors and the facts or the case.

There are certainly two, and probably three, types of involuntary manslaughter:

þ unlawful act (constructive); þ gross negligence; and þ reckless.

There is a lack of distinction between the types of involuntary manslaughter and the lack of a clear definition contravenes Dicey’s Rule of Law in the sense that the law is uncertain. Not only is the uncertainty unfair on the defendants, but it also makes charging a defendant difficult for the police. This can be seen in the uncertainty in deciding which type they should charge the defendant for. The police see cases of similar fact yet the defendant could be charged under all three types, for example, drugs cases:

þ R v Cato [1976] 62 Cr App R 41: In this case two friends spent a night injecting each other with heroin and water mixes. The victim had prepared the mixture but Cato had injected it. The defendant was convicted on the basis that the administering of a noxious thing was an offence under the Offences Against the Person Act 1861. This case was dealt with under unlawful act manslaughter. © Association of Costs Lawyers Training 2019 61 þ R v Dalby [1982] 74 Cr App R 348: The defendant obtained a drug on prescription, shared some of it with a friend and they injected themselves. Death occurred and the basis of the prosecution was that the defendant had acted illegally and dangerously by supplying the drug. This was rejected as the cause of death was not the supply. This case was dealt with under unlawful act manslaughter, but shows the problems if the police charge the defendant with unlawful act manslaughter and the principle of causation is not satisfied, despite the morally wrong behaviour of the defendant. þ R v Khan & Khan [1998] Crim LR 830: The defendants’ convictions of unlawful act manslaughter were quashed, but the Court of Appeal thought there could be a duty to summon medical assistance in certain situations. The Court of Appeal made it clear the police should charge defendants with gross negligence manslaughter to ensure a chance of a conviction. þ R v Dias [2002] 2 Cr App R 5: The defendant’s conviction of manslaughter was quashed, but the court suggested that there should be a duty of care not to supply and prepare drugs. Again, the court made it clear that, in order to secure a conviction, gross negligence manslaughter may be more appropriate in drugs cases. þ R v Rogers [2003] EWCA Crim 945: The defendant applied and held a tourniquet (a belt) on the arm of a victim while he injected himself with heroin. The application of the tourniquet was "part and parcel of the unlawful act of administering heroin" and the defendant was playing a part in the mechanics of the injection which caused death. Therefore, there was an unlawful act. It was immaterial whether the deceased was committing a criminal offence. þ R v Kennedy [2007] 3 WLR 612: Two men lived in a hostel. One of the men, the victim, asked the other man, the defendant, to supply him with heroin. The defendant filled a syringe and gave it to the victim, who injected himself. He died by inhalation of gastric contents while acutely intoxicated by opiates and alcohol. It was held that, where the deceased was a fully informed and responsible adult, it was never appropriate to find guilty of manslaughter a person who had been involved in the supply to the deceased of a Class A controlled drug, which had then been freely and voluntarily self-administered by the deceased, and the administration of the drug had caused his death. An intervening act of the victim can break the chain of causation. The unlawful act manslaughter charge was not successful. þ R v Evans [2009] 2 Cr App R 10: The defendant gave her sister some heroin which was then self-administered. Following symptoms of overdose, the defendant failed to summon medical attention. She was liable for gross negligence manslaughter because being family meant she owed a duty of care.

It is possible drugs cases should or will now be dealt with under gross negligence manslaughter.

4.1 Unlawful act (constructive) manslaughter

Unlawful act (constructive) manslaughter is causing the death of the victim through a dangerous and unlawful act, without the malice aforethought required for murder and with the mens rea being that for the unlawful act (DPP v Newbury [1977] AC 500). R v Lowe [1973] QB 702 is authority that there must be an act and that an omission will not be sufficient. The act itself must be unlawful and not a lawful act carried out unlawfully

© Association of Costs Lawyers Training 2019 62 (Andrews v DPP [1937] AC 576). For unlawful act manslaughter the act must be criminal rather than merely tortious (R v Franklin [1883] 15 Cox CC 163), however civil wrongs and torts may amount to gross negligence manslaughter. The case R v Church [1965] 2 WLR 1220 demonstrates that the act must be dangerous. In this case, the victim had mocked the defendant’s ability to satisfy her sexually before she was assaulted, placed in a box and thrown into the river. The defendant had believed her to be dead and was liable for unlawful act manslaughter, having done a criminal act that was objectively dangerous – such that a reasonable person would consider that it was likely to cause harm to the victim. R v Dawson and others [1985] 81 Cr App R 150 confirms that there must be a risk of physical harm rather than mere emotional disturbances, but this case should be compared to R v Watson [1989] 2 All ER 865 where it was said, obiter, that emotional disturbances where you are aware of the victim’s frailty may amount to unlawful act manslaughter.

The case R v Goodfellow [1986] 83 Cr App R 23 shows how the unlawful act need not be directed at the victim. In this case, the defendant set fire to his own house in order to show the council that he was under threat in his current house. He unintentionally killed three family members in the process. He was liable for unlawful act manslaughter, he had committed an (intentional) unlawful act that was dangerous and this caused death. The case further confirmed that only some harm need be foreseeable from the unlawful act to make it capable of giving rise to a conviction for unlawful act manslaughter.

4.2 Gross negligence manslaughter

R v Adomako [1994] 3 WLR 288 is the leading authority in this type of manslaughter. Gross negligence manslaughter is based on the death occurring where the defendant owes a duty to the victim and breaches the duty causing death by falling below the standard of care that is appropriate to that duty. To be liable, the conduct of the defendant must fall so far below the standard of care that it goes beyond mere compensation and amounts to a crime i.e. “gross” (R v Bateman [1925] 19 Cr App R 8). For a conviction of gross negligence manslaughter there must have been a risk of death (R v Misra & Srivastava [2005] 1 Cr App R 328). In criminal law, unlike civil law, it is irrelevant that the victims were party to an illegal act (R v Wacker [2003] 1 Cr App R 329). The defendant would still owe them a duty of care if the defendant knew the victim’s safety was dependant on him so a duty of care had been assumed. This is determined by the jury from the facts.

The case of Stone and Dobinson [1977] 1 QB 354 shows that this type of manslaughter can be committed by an omission as well as an act. You may recall that this is the case where the defendant had voluntarily assumed responsibility for an anorexic relative, but then failed to act as he should in that he failed to seek medical help. R v Singh [1999] All ER (D) 179 confirmed that a contractual duty counts when giving a conviction of gross negligence manslaughter.

At points in time it has been questionable as to whether or not the offence really exists. In R v Seymour [1983] 2 AC 493 the House of Lords said that gross negligence manslaughter should, in fact, be considered reckless manslaughter. As you will have seen, R v Adomako [1994] 3 WLR 288 confirmed the opposite.

© Association of Costs Lawyers Training 2019 63 There are benefits of establishing a duty of care between drug-dealers and users because of the problems faced by the prosecution of securing convictions where the defendant has shown a disregard to the law. You will recall the case of R v Khan & Khan [1998] Crim LR 830 where the Court of Appeal indicated that there could be a duty to summon medical assistance in certain situations. This would encourage liability where there is some level of moral blameworthiness and act as a deterrent. The more recent decision in R v Evans [2009] 2 Cr App R 10 confirmed this approach, although, in this case being a family member meant the sister owed a duty of care so the case was easier to determine and the duty easier to establish.

It is for the jury to decide liability in these cases and different juries could decide differently. Due to jury secrecy there is no way of knowing how those decisions are made. It could be argued that this contravenes the defendant’s right to a fair trial under Article 6 ECHR. There is also the problem of deciding how far below the standard of care the defendant must fall before it becomes a crime and whether it is appropriate that this is left to the jury. The test has been criticised for its circularity - the jury members are told, in effect, to convict of a crime if they thought a crime had been committed.

It is questionable as to whether the use of civil law principles and objective standards within criminal law is appropriate. The two areas of law are quite distinct with very different aims. There also appears to be an inconsistent approach on omissions between the different classes of manslaughter so that different results could occur depending on what is charged.

4.3 Reckless manslaughter

As has already been established, the actus reus requires the killing of a human being. The requisite mens rea is recklessness measured subjectively. You will recall that, originally, the leading case in this area of R v Cunningham [1957] 2 QB 396 held that a subjective test applied to determine recklessness. The position was then changed following the decision in MPC v Caldwell [1982] AC 341 where the House of Lords upheld the conviction and formulated, what has become known as, “Caldwell recklessness”. A person is reckless as to whether property is destroyed or damaged where:

þ he does an act which, in fact, creates an obvious risk that property will be destroyed or damaged; and þ when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

Caldwell recklessness was eventually overruled by the House of Lords in R v G & R [2003] 3 WLR House of Lords and the correct test is now a subjective one. In R v Lidar [2000] 4 Archbold News, the defendant foresaw the risk of serious injury or death, but carried on to take it. What is particularly interesting about this case is that the defendant was a road user. This case should, possibly, have been dealt with under the principles of gross negligence manslaughter because all road users owe a duty of care.

There is the inherent problem of showing conscious risk taking and proving mens rea. Some would argue that there is no difference from gross negligence manslaughter in practice

© Association of Costs Lawyers Training 2019 64 given the decision in Lidar suggests the offences are the same. Some unlawful killings might be charged under any category, but without reckless manslaughter some might escape.

5. Voluntary Manslaughter

Voluntary manslaughter covers those killings where the defendant has the mens rea for murder, but the law regards the killing as partly excused by:

þ diminished responsibility (section 52 of the Coroners and Justice Act 2009); or þ loss of control (sections 54 and 55 of the Coroners and Justice Act 2009).

If the defendant successfully relies on either partial defence, he would be acquitted of murder and found guilty of voluntary manslaughter instead. This allows the judge a discretion in sentencing, rather than having to impose the mandatory life sentence for murder. There are two other defences that are uniquely available to a defendant who is charged with murder. They are infanticide and suicide pact.

5.1 Diminished responsibility

This partial defence was introduced by the Homicide Act 1957 and amended by the Coroners and Justice Act 2009. Under section 52 of the Coroners and Justice Act 2009, to successfully raise the defence the defendant must suffer from an “abnormality of mental functioning” which:

þ arose from a recognised medical condition; þ substantially impaired the defendant’s ability to understand his conduct, from a rational judgement or exercise self-control; and þ which provides an explanation for the defendant’s acts and omissions in doing or being a party to the killing in the sense of being a cause or contributory factor in the defendant’s conduct.

R v Campbell [1997] Crim LR 495 made clear that diminished responsibility will only be available as a defence where death has actually occurred, hence it is not available to a defendant charged with attempted murder.

Before the Coroners and Justice Act 2009, R v Byrne (1960) 2 QB 396 provided that, to rely on the defence, the defendant must have a “state of mind so different from that of an ordinary human being that the reasonable man would term it abnormal”. The court took an objective view of what was meant by “abnormal”; the reasonable man’s view. Although this case uses the old test, it is likely the courts will use this definition when considering if there is an abnormality of mental functioning. The courts have tended to take a liberal view as to what can give rise to diminished responsibility. In R v Reynolds [1988] Crim LR 679, it was, in effect, accepted that premenstrual syndrome and post-natal depression could be causes. In R v Hobson (1997) The Times, 25 June, the Court of Appeal held that ‘battered woman syndrome’, having been included in the British classification of mental diseases recognised by the psychiatric profession, could form the basis of a plea of diminished responsibility. So, as far as recognised medical conditions are concerned, the following were recognised prior to the new legislation coming into force:

þ psychopath (R v Byrne (1960) 2 QB 396); © Association of Costs Lawyers Training 2019 65 þ depression (R v Seers (1984) 79 Cr App R 261); and þ battered woman syndrome (R v Ahluwalia (1993) 96 Cr App R 13).

The word “substantial” in the Homicide Act 1957 did not mean total, nor did it mean trivial or minimal. It was something in between and it is up to the jury to decide (R v Lloyd [1967] 1 QB 175). This meaning has been reaffirmed since the implementation of the new legislation (R v Brown [2011] QCA 16).

5.2 Loss of control

In law, this is a very new partial defence and replaces the old law on provocation which was under the Homicide Act 1957. Whilst it is influenced by the earlier Law Commission Report on Murder, Manslaughter and Infanticide, the government has introduced some of its own ideas as well. It removes not only the old partial defence under section 3 of the Homicide Act 1957, but also all of the common law which existed before and during the older defence. Under the old law, the judge was under a duty to leave provocation to the jury if there was any evidence that the defendant had perhaps responded to it. It was then left to the jury to weed out the proper provocations from the daft ones. Leaving this question to the jury came in for a great deal of criticism from the Law Commission, which argued that it had become so “loose” as a defence that even trivial or ordinary actions were accepted. It was felt that the jury may still believe that there was insufficient reason to feel justifiably and seriously wronged, or consider that the “defendant’s attitude ... demonstrated an outlook offensive to the standards of civilised society.” (Law Com No 290, para 3.70).

Section 54 of the Coroners and Justice Act 2009 provides that the evidence of any provoking actions will only be admissible if, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

Sections 54 and 55 of the Coroners and Justice Act 2009 sets out a two-limbed approach to the loss of control partial defence. To rely on it, the defendant’s acts or omissions in doing so, or being a party to the killing, resulted from the defendant’s loss of self-control, which had a “qualifying trigger”.

Section 54(2) of the Coroners and Justice Act 2009 makes it clear that the loss of control does not have to be sudden. This was one of the biggest problems under the old act, or more accurately following R v Duffy [1949] 1 All ER 932. In this case a married couple were arguing; there had been quarrels and blows had been struck. The defendant (the wife) wished to take their child away and the husband had prevented her. The defendant left the room for a short while and changed her clothes. Eventually she returned with a hatchet and a hammer and killed her husband in his bed. The defence of provocation could not be relied upon as, for the defence to apply, there had to be a sudden and temporary loss of self-control. Section 54 of the Coroners and Justice Act still requires a loss of control and the longer the gap, the more likely it is that it would be found that the defendant was in control when undertaking the killing. If the reaction is not sudden it may even influence the judge whether to let the defence go before the jury to begin with!

Section 55 of the Coroners and Justice Act 2009 is an important section of the Act. It explains what section 54 means by a “qualifying trigger”. The section is quite detailed on what is and is not covered by the term. The first is where a defendant kills after suffering a © Association of Costs Lawyers Training 2019 66 loss of self-control attributable to fear of serious violence from the deceased. The other will apply where the loss of self-control can be attributed to things done or said which constituted circumstances of an extremely grave character and which caused the defendant to have a justifiable sense of being seriously wronged. The defendant will be judged against a reasonable person of his own age and sex and will be expected to possess normal tolerance and self-restraint. His circumstances will also be taken into account. The defence will not apply where the defendant incited words or acts by the victim so as to provide an excuse for violence or where the defendant acts in revenge.

5.3 Infanticide

The current defence of infanticide was introduced by the Infanticide Act 1938, section 1 provides:

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, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, 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.

The provision creates an offence of infanticide, but also makes clear that it operates as a defence to murder – typically the mother who kills her baby whilst suffering from post-natal depression. The provision is rarely invoked – in the region of five convictions a year are based on infanticide. This perhaps also reflects a reluctance to prosecute at all in such cases. One difficulty that has been identified however, relates to those women who kill as a result of post-natal depression, but who refuse to acknowledge their condition – and hence do not provide the prosecution with the basis for this alternative to murder.

5.4 Suicide Pact

Section 4(1) of the Homicide Act 1957 introduced the defence of suicide pact. It provides:

It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third person.

For these purposes a suicide pact is defined by section 4(3) as: ‘. . . a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact’.

6. Other Homicide Offences

There are some other statutory homicide offences that cover specific sets of circumstances.

This offence is created by the Corporate Manslaughter and Corporate Homicide Act 2007 and attempts to enable blame to be apportioned, and sanctions to be applied, where death has been caused by the acts or omissions of a company.

6.2 Familial homicide

Section 5 of the Domestic Violence, Crime and Victims Act 2004 created the offence of causing or allowing the death of a child or vulnerable adult. The offence is designed to cover situations where a death has occurred as a result of ill-treatment, but it is impossible to decide which of the victim’s carers was directly responsible. The maximum penalty is 14 years’ imprisonment. The offence has so far been used only where one carer has already been charged with murder or manslaughter (R v Stephens [2007] All ER (D) 438 (May)).

6.3 Vehicular homicide

There are five offences that cover situations where the defendant has, by his poor driving, caused the victim’s death. These are:

þ causing death by dangerous driving (section 1 of the Road Traffic Act 1988); þ causing death by careless or inconsiderate driving (section 2B of the Road Traffic Act 1988); þ causing death by careless driving while under the influence of drink or drugs (section 3A of the Road Traffic Act 1988); þ causing death by unlicensed, unqualified or disqualified driving (section 3ZB of the Road Traffic Act 1988); þ causing death by aggravated vehicle-taking (“joy-riding”) (section 12A of the Theft Act 1968).

For all these offences, liability is determined by the application of an objective test – that is, whether the defendant’s driving falls short of the standard expected of a competent and careful driver. If the defendant was aware of a dangerous defect in the car, his knowledge would be attributed to the “competent and careful driver” who would presumably be unlikely to have driven a vehicle in such a condition.

1. Introduction

In English law, causing criminal damage was originally a common law offence. The modern law of criminal damage is mostly contained in the Criminal Damage Act 1971, which redefines or creates several offences protecting property rights. The Act provides a comprehensive structure covering merely preparatory acts to the most serious offences of arson and causing damage with intent to endanger life. The Theft Act 1968 creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception, but that Act is beyond the scope of this handout.

2. Criminal Damage

The offence of criminal damage was created by the Criminal Damage Act 1971, replacing the Malicious Damage Act of 1861. As an offence against property, some forms of criminal damage clearly share some of the features of the offence of theft, for example property belonging to another is a definition common to both offences. There may indeed be situations where the prosecution may have a choice of bringing either theft or criminal damage charges. To destroy another’s property is undoubtedly an appropriation for the purposes of theft. The determining factor may be that criminal damage does not require proof of dishonesty. For a period of almost 20 years from 1983, a key feature of criminal damage was the fact that Caldwell recklessness applied to both the ‘simple’ and ‘aggravated’ forms of the offence. Caldwell no longer governs recklessness in this area following the House of Lords’ decision in R v G [2003] 4 All ER 765.

Criminal damage is governed by the Criminal Damage Act 1971. The important sections are:

þ Section 1(1) of the Criminal Damage Act 1971: intentionally or recklessly destroying or damaging someone else’s property (the “basic offence”); þ Section 1(2) of the Criminal Damage Act 1971: intentionally or recklessly destroying or damaging property with intent to endanger life or with recklessness as to whether life is endangered (the “aggravated offence”); þ Section 1(3) of the Criminal Damage Act 1971: the offence is arson if the damage or destruction of the property is caused by fire – this applies to both the basic and aggravated offences; þ Section 5 of the Criminal Damage Act 1971: the defence of lawful excuse.

2.1 The basic offence

Section 1(1) of the Criminal Damage Act 1971 provides that the actus reus of the offence is destroying or damaging property belonging to another. This will include:

þ physical harm, both permanent and temporary; and þ permanently changing the property’s quality or value.

© Association of Costs Lawyers Training 2019 69 The definition of damage or harm isn’t found in the Criminal Damage Act 1971. This is the same phrase used in law prior to the 1971 Act and, therefore, precedent/common law should be considered. In Gayford v Chouler [1898] 1 QB 316, the defendant walked across a grass field belonging to the victim. The grass was knee high; the defendant trampled it and damaged it. The defendant and another were crossing the victim's field from one footpath to another, despite being told by the owner not to do so. It was held that slight damage is enough. Destruction has been held to be a much stronger word and includes where property is made useless, but not completely destroyed. As we have seen, the damage does not need to be permanent in order for liability to follow as illustrated by the case Roe v Kingerlee [1986] Crim LR 735 where the defendant smeared mud up the wall of a cell. In Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim LR 330 the defendants were campaigning for nuclear disbarment. They painted human silhouettes on a pavement on the anniversary of Hiroshima. The paint was water-soluble paint specially mixed so that rainwater and pedestrian traffic would remove it. Before this could happen the local authority employed a “graffiti squad” to remove the paint. In this case “destroying” was held to include rendering an item useless even though it is not completely destroyed. It also includes non-permanent damage, which may be repaired. Damage can be non-permanent and the real question is the time and effort that is needed to remedy the damage. In R v A (a juvenile) [1978] Crim LR 689 the defendant was escorted with a group and he spat on a police officer’s raincoat. This did not constitute damage because it could easily be wiped off. Morphitis v Salmon [1990] Crim LR 48 shows that damage may result even where there is a dismantling and no permanent loss as in this case where a scaffolding pole was dismantled. The type and purpose of property will be taken into account. Damage to computers is now governed by the Computer Misuse Act 1990.

Property is defined by section 10 of the Criminal Damage Act 1971 as being property of a tangible nature, whether real or personal. It includes animals, wild or domestic, but not mushrooms, fruit, flowers or foliage of a plant growing wild. For basic criminal damage, property must belong to someone else. This is not necessary for other offences. “Belonging to another” is set out in section 10(2) of the Criminal Damage Act 1971 and includes owners and anyone:

þ having the custody or control of it; or þ having in it any propriety right or interest; or þ having a charge on it.

Although the offence created by section 1(1) of the Criminal Damage Act 1971 requires the destruction or damage of property ‘belonging to another’, it is possible to be guilty of an offence under section 1(1) even though the property damaged belongs to the defendant, provided that someone else also has a proprietary right in the property. This means that the person who owns property can be guilty of destroying or damaging it if the offence occurs while one of these lesser interests applies; for example, a property owner who damages his house, which has a mortgage on it.

The mens rea of the offence is intention or recklessness. The mens rea applies both to the destruction or damage and to the fact that the property belongs to another. Where the prosecution asserts that the damage was caused intentionally, it must show, beyond reasonable doubt, that the defendant intended to: -

In R v Smith [1974] QB 354, at the termination of his tenancy agreement the defendant removed wiring that he had installed himself in a flat. In law, the property became the landlord’s once it was installed, but the court held that believing property is yours means that there is no intention to damage property belonging to another.

Initially courts used subjective recklessness test in relation to recklessness. In MPC v Caldwell [1982] AC 341 the House of Lords ruled that a person is reckless where they do an act which, in fact, creates an obvious risk and had not given any thought to the consequence (objective) or gave thought, but carried on (subjective). This test was particularly hard on some defendants (Elliot v C [1983] 1 WLR 939). Seay-Wurie v DPP [2012] EWHC 208 (Admin) involved a defendant who wrote on parking signs with a black marker pen. The court held that the defendant appreciated there was a risk that the writing could not be erased and that the correct test was subjective recklessness. The court confirmed that the prosecution must prove that the defendant was reckless as to the damage caused, but does not need to show that the defendant knew or was reckless as to whether or not what he did amounted to damage in law.

2.2 Aggravated criminal damage

Section 1(2) of the Criminal Damage Act 1971 defines aggravated criminal damage as:

“intentionally or recklessly destroying or damaging any property, whether belonging to the defendant or another...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”.

The actus reus is the destruction or damage/destroy property. “Damage” and “destroy” mean the same as in section 1(1) of the Criminal Damage Act 1971, but the property need not belong to someone else; the defendant can endanger life by destroying or damaging his own property. The mens rea is intention or recklessness to cause damage to property and intention or recklessness as to endangering life by the destruction/damage. Note that it is not an actus reus requirement that life need actually be endangered, but only that the defendant intended or was reckless as to endangering life. This must be from the damage caused, not, for example, by the means used to cause the damage as demonstrated in R v Steer [1988] 1 AC 111. In this case, the victim was standing behind a window and the defendant shoots at him breaking the glass but missing the victim. The court held that this was not aggravated criminal damage because the defendant intended to endanger the victim’s life with the bullet, not the window. This case is supported by the decision in R v Wenton [2010] EWCA Crim 236D where the defendant smashed a ground floor window at a block of flats and threw in a filled petrol can with a lighted paper wick. The court held that the danger to life must come from the property that is subjected to criminal damage.

2.3 Racially or religiously aggravated criminal damage

Section 30 of the Crime and Disorder Act 1998 creates the offence of racially or religiously aggravated criminal damage, for which the actus reus is the same as the offences under section 1 of the Crime and Disorder Act 1998.

When the damage or destruction is caused by fire the offence becomes arson as defined by section 1(3) of the Criminal Damage Act 1971.

2.5 Lawful excuse

Section 5 of the Criminal Damage Act 1971 sets out the defence of lawful excuse, which is specified as applying to the basic offence only, not the aggravated offence.

Under section 5(2)(a) of the Criminal Damage Act 1971, the defendant has a lawful excuse for the basic offence if he believed he had the consent of someone entitled to consent to the damage. This applies even if the defendant has a genuine but mistaken belief in the victim’s consent and it is a defence even if the victim’s motives are fraudulent (R v Denton [1981] 1 WLR 1446). However, the belief that God would consent to the damage is not a defence (Blake v DPP [1993] Crim LR 586).

Alternatively, under section 5(2)(b) of the Criminal Damage Act 1971, the defendant also has a lawful excuse where he believes that property is in need of immediate protection "and he believes he adopts a reasonable means of protection in the circumstances. In Hill and Hall [1989] Crim LR 136 the defence failed in respect of damaging the perimeter fence of an RAF base (as a protection for neighbouring houses against a Soviet nuclear strike) because there was no genuine belief in the need for immediate protection.

The definition of the aggravated offence in section 1(2) of the Criminal Damage Act 1971 also includes the words “without lawful excuse”, but the meaning of this in respect of this offence is not defined in the Criminal Damage Act 1971. As the offence includes endangering life, it seems unlikely that the owner’s consent or a belief in the need to protect property would be sufficient.

3. Theft

The full definition of theft is contained in section 1 of the Theft Act 1968. The actus reus has the following elements:

þ appropriation; þ of property; and þ belonging to another.

The mens rea has the following elements:

þ dishonesty; and þ intention to permanently deprive.

3.1 Appropriation

It should be noted that section 1(2) of the Theft Act 1968 provides that: ‘It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.’

© Association of Costs Lawyers Training 2019 72 Appropriation is any assumption by a person of the rights of an owner (section 3 of the Theft Act 1968). This includes taking, but also using, altering, damaging, moving, destroying, pledging, selling, etc. In R v Morris [1984] UKHL 1, which involved switching price labels on goods in a shop, it was held that an assumption of any of the rights of an owner is sufficient to constitute appropriation.

Section 3(1) of the Theft Act 1968 makes no reference to whether or not the absence of consent on the part of the owner is a matter that has to be established by the prosecution. It might seem logical to assume that where the owner genuinely consents to property being appropriated there can be no theft; where the owner is tricked into consenting, the appropriate charge would be one of fraud by false pretences contrary to section 2 of the Fraud Act 2006 (formerly obtaining property by deception contrary to s 15 of the Theft Act 1968). Where the owner does not consent the appropriate charge would be theft. However, in Gomez [1993] AC 442, the House of Lords held that appropriation can occur even if the assumption of the owner’s rights occurs with the owner’s permission, and that only the lack of mens rea prevents everyday actions, such as shopping, from constituting theft. In Hinks [2000] UKHL 53 the House of Lords held that appropriation can occur even if something has been transferred to the defendant by a means that would be valid in civil law. Again, only the lack of mens rea prevents the acceptance of a birthday present, for example, from constituting theft.

Where a ‘thief’ commits several acts in respect of a particular item the question arises as to whether the acts of appropriation are a continuing process that is complete only when the final act has been done, or can an item be appropriated on more than one occasion. In most cases this will not matter (since the jury or magistrates will only have to consider whether the goods were stolen by the defendant on a particular date: the exact time of the appropriation does not matter). However, uncertainty over when the theft is complete creates a particular problem with the regard to the offence of handling stolen goods, since this offence cannot be committed until the goods have been ‘stolen’. In R v Atakpu [1994] QB 69 the Court of Appeal gave some guidance on when the appropriation takes place. In R v Atakpu [1994] QB 69 the appellants operated a scheme whereby they hired expensive motor cars abroad, drove them into the United Kingdom, made changes to the vehicles, and sold them on to unsuspecting purchasers. The issues for the Court of Appeal were: (1) whether the theft committed abroad continued within the jurisdiction so that it could be established by the retention of the car after the hire period had expired, or by altering the cars, or by some other fresh appropriation; (2) whether cars stolen abroad could be stolen again, and again and again, within the jurisdiction each time an appropriation of them is made. It was concluded that where a defendant has come by the property by stealing it then his later dealing with the property is by implication not included among the assumptions of the rights of an owner which amount to an appropriation within the meaning of section 3(1) and that if goods have once been stolen, even if stolen abroad, they cannot be stolen again by the same thief exercising the same or other rights of ownership over the property.

3.2 Property

Property is defined very widely and includes money and all other property, real or personal, including things in action and other intangible property (section 4 of the Theft Act 1968). It should be noted that the statutory definition excludes land (real property), except in a number of defined cases, by virtue of section 4(2) of the Theft Act 1968. Real property

The statutory definition does include ‘things in action’. A ‘thing (or ‘chose’) in action’ describes ‘all personal rights of property which can only be claimed or enforced by taking legal action, and not by taking physical possession’ (Torkington v Magee [1902] 2 KB 427 at 430, per Channell J). A good example of a ‘thing in action’ is a debt. The term therefore includes bank and building society accounts (if my bank account is in credit, then the bank owes me a debt equivalent to the amount of my credit balance). A cheque is a piece of paper and therefore amounts to ‘property’, and this is so whether or not the account on which the cheque is drawn is in credit. It is because things in action include legally enforceable rights, such as the right to travel, that the theft of London Underground tickets and travel cards amounts to stealing more than some small pieces of cardboard (R v Marshall and Others [1998] 2 Cr App R 282).

All other property will, for example, include unlawful drugs (R v Smith, Plummer, Haines [2011] 1 Cr App R 30).

Taking wild mushrooms, fruit, flowers, etc. is not theft unless it is carried out for a commercial purpose. Similarly, wild creatures can be stolen only if they already belong to someone else.

It is also important to note what is not property:

þ electricity cannot be stolen (Low v Blease [1975] Crim LR 513), though section 13 of the Theft Act 1968 creates the offence of abstracting it; þ confidential information (Oxford v Moss [1978] 68 Cr App Rep 183, in which exam papers were copied) – although the taking of the document or disk on which it is stored could be theft; þ dead bodies.

3.3 Belonging to another

Section 5(1) provides

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).

The expression ‘belonging to another’ is given an extended definition by section 5(1) of the Theft Act 1968, and by the provisions of section 5(3) and section 5(4). The term ‘belonging’ is not to be regarded as synonymous with ‘owned’. Hence property can belong to another because they have it in their possession or control – even where, as a matter of civil law, legal ownership is vested in the defendant.

The following cases illustrate the principles within section 5 of the Theft Act 1968:

þ R v Woodman [1974] QB 758: abandoned scrap metal was taken and it was decided that the owner of the land on which others’ property was situated had a proprietary right in it; © Association of Costs Lawyers Training 2019 74 þ lost golf balls are not abandoned (R v Rostron & Collison [2003] EWCA Crim 2206) nor bags of clothes left outside a charity shop (R (Ricketts) v Basildon Magistrates Court [2011] 1 Cr App Rep 15); þ R v Turner (No 2) [1971] 1 WLR 901: an owner can steal his own property if that property is in the lawful possession of another when he takes it back without informing the possessor. The defendant took his car from a garage before paying his bill; þ R v Wain [1995] 2 Cr App Rep 660: someone can steal property which he obtains subject to an obligation; in this case a collection for charity, which was deemed to be the owner, because the defendant was under an obligation to pay the money to it (section 5(3) of the Theft Act 1968); and þ A-G Ref (No 1 of 1983) [1985] QB 182: deals with property obtained by mistake, (section 5(4) of the Theft Act 1968), and confirms that the defendant has an obligation to restore any overpayment to the person or organisation that mistakenly paid it to him. An intention not to pay is held to be an intention permanently to deprive, but this does not mean that it is theft, as all the other elements of actus reus and mens rea are also required.

Under section 5(3) of the Theft Act 1968, where a person receives property from another and is under an obligation to deal with that property in a particular way, the property is to be regarded as belonging to that other person. The obligation to deal with property in a particular way must be a legal obligation (ie one which is enforceable by civil proceedings).

Under section 5(4) of the Theft Act 1968, where A receives money from B as the result of a mistake on B’s part, and A is under a legal obligation to return some or all of that money to B, the money which should be returned to B is regarded as property belonging to B for the purposes of theft.

3.4 Dishonesty

Given the extended definition of appropriation resulting from decisions of the House of Lords and the wide ambit of the term ‘belonging to another’, there will be few situations in which a defendant deals with another’s property where the elements of appropriating property belonging to another cannot be made out by the prosecution. This means that in most theft cases, liability will hinge on the issue of mens rea, specifically whether or not the defendant was dishonest. The scheme adopted by the Theft Act 1968 is to provide a negative statutory definition of dishonesty – essentially three situations where the defendant is not regarded as having been dishonest. If a defendant cannot bring himself within one of the three, he may yet escape liability if, following a direction on the common law definition of dishonesty, the jury conclude that he was not dishonest.

Section 2 of the Theft Act 1968 provides that a defendant is not dishonest if he believes that:

þ Under section 2(1)(a) of the Theft Act 1968 the defendant will not be dishonest if he honestly believes he has the right in law to deprive the other party of the property. R v Holden [1991] Crim LR 478 makes clear that reasonable belief is not the relevant test; however, the reasonableness of the belief might be relevant to the question of whether the defendant could have had an honest belief that he was entitled to

© Association of Costs Lawyers Training 2019 75 take the tyres. It follows, as the test is subjective, that the defendant does not have to have had any actual legal right. To this extent his mistake of civil law provides him with a basis for his defence. This section was held to apply in R v Wootton and Peake [1990] Crim LR 201 where the defendants had taken some items of pottery from their workplace in lieu of payment of wages; or þ Section 2(1)(b) of the Theft Act 1968 covers situations where the defendant would have the owner’s consent to take it, as often occurs when flatmates use one another’s food; or þ Section 2(1)(c) of the Theft Act 1968 covers appropriation of property which the defendant honestly believes to be lost or abandoned property. The reasonableness of the belief rests on whether that belief was genuinely held. This claim failed when golf balls were recovered from a lake by the defendants in R v Rostron and Collinson [2003] All ER (D) 269 (Jul) because lost balls were deemed to have been surrendered to the golf club.

In theft cases, resort to the common law definition of dishonesty should be the last resort, not the first. Most defendants charged with theft who are found to be not guilty because they were not dishonest will have been excluded from liability by virtue of s 2(1)(a)–(c) of the 1968 Act. The problem with attempting a general definition of dishonesty lies in striking the right balance between objectivity – the standards to be expected of individuals – and subjectivity – what the defendant thought of what he was doing. The leading case on dishonesty is R v Ghosh [1982] 3 WLR 110 in which the Court of Appeal held that the jury must ask itself two questions to determine whether the defendant was dishonest:

þ was the defendant’s conduct dishonest according to the current standards of ordinary decent people? If the answer to this question is “no”, the defendant must be acquitted; if the answer is “yes”, the second question must be asked; þ did the defendant realise that his conduct was dishonest by the current standards of ordinary, decent people? If the answer to this second question is “no”, the defendant is not dishonest; if the answer is “yes”, the defendant should be found dishonest.

Section 2(2) of the Theft Act 1968 provides that a defendant can dishonestly appropriate something even if he intends to pay for it – this is a common sense provision, as few people would be content to receive a cheque from a burglar in return for jewellery that had sentimental value.

3.5 Intention to permanently deprive

This aspect of the mens rea is dealt with in section 6 of the Theft Act 1968 and the main purpose of this element of the mens rea is to ensure that the courts make the necessary distinction between borrowing and theft, The section does not actually define intention to permanently deprive. What it does is to provide a number of specific instances where a defendant who does not actually have any intention to permanently deprive can nevertheless be deemed to have such an intention because of the way in which he has dealt with the property.

The defendant must intend to permanently deprive the victim of his property, rather than intending some temporary deprivation. This can be interpreted quite widely, as illustrated in R v Marshall and Others [1998] 2 Cr App R 282 where it was held that the defendants had

© Association of Costs Lawyers Training 2019 76 an intention permanently to deprive London Underground of the use of the tickets, even though they would be returned after use, because they would be useless when returned.

The following rules apply:

þ The intention of permanently depriving is sufficient – it is not necessary that the victim suffers any actual deprivation. þ “Permanent” can mean the whole of the time during which the victim would be entitled to the property, such as a hire period. þ The defendant must actually steal specific items – simply rummaging through a bag with the intention to steal is insufficient (R v Easom [1971] 2 QB 315). þ If the defendant steals money, he permanently deprives the victim of it unless he returns those actual notes and coins. If he intends to repay an equivalent sum, this may mean that he is not dishonest, but does not alter the fact of the deprivation (R v Velumyl [1989] Crim LR 299).

4. Robbery

Robbery is a form of aggravated theft. It involves the offence of theft (as above) and in addition force or the threat of force on a person. The maximum sentence for robbery is life imprisonment. The offence is found in section 8 of the Theft Act 1968 which states:

"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."

The actus reus of robbery includes:

þ steals; þ immediately before or at the time of stealing; þ use of force or threat of force; þ on any person; and þ use/threat of force in order to steal.

4.1 Steals

The first element of the actus reus of robbery requires that all elements of theft must be established as per the definition under section 1 of the Theft Act 1968. If one or more elements are not satisfied then there will be no robbery, for example in the case of R v Robinson [1977] Crim LR 173 there was no theft since the defendant had an honest belief that he was entitled to the money and therefore dishonesty under section 2 of the Theft Act 1968 was not satisfied.

4.2 Immediately before or at the time of stealing

The offence of theft is complete as soon as the appropriation has taken place however the courts have held that appropriation is a continuous act, as can be seen in the case R v Hale [1978] 68 Cr App R 415 where Eveleigh LJ stated:

© Association of Costs Lawyers Training 2019 77 "To say 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 the words. The act of appropriation does not cease. It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished."

This case involved two defendants braking into a woman's home. After one of the defendants went upstairs and took some jewellery, the two of them tied her up. They were convicted of robbery and on appeal they argued that the force came after they had appropriated the jewellery which meant that the requirement of being immediately before or at the time of stealing was not satisfied. Their appeal was dismissed and their convictions upheld.

4.3 Use of force or threat of force

It is a matter for the jury as to level of force required for robbery and the Theft Act 1968 gives no guidance for the jury as to the meaning of force so consideration must be given to the common law. In the case R v Dawson and James [1976] 64 Cr App R 150 one of the defendants nudged a man so as to make it easier for the other defendant to take his wallet from his pocket. The jury convicted both of robbery and the defendants appealed arguing that nudging fell short of using force. On appeal the convictions were upheld, force is to be given its ordinary meaning and requires no direction to the jury. The jury were entitled to find that force had been used even where the level of force is minimal. The definition of force may also cover situations where the force was not directed at a person, for example in the case of R v Clouden [1987] Crim LR 56 the defendant wrenched a shopping bag from a woman's grasp and it was held that the force used on the bag was sufficient to amount to force on a person.

4.4 In order to steal

Section 8 of the Theft Act 1968 requires the use/threat of force to be in order to steal. Thus the use of gratuitous violence at the time of stealing but not used in order to steal is strictly speaking outside the boundaries of the offence of robbery. Similarly if a person hits another with the intent to do GBH and knocks him unconscious then decides to steal his wallet would not be guilty of robbery. Although this point has not been litigated in the appeal courts and it may well be that a robust approach is taken.

4.5 Mens rea of Robbery

The defendant must have the mens rea of theft i.e. dishonesty and intention to permanently deprive

5. Burglary

The offence of burglary is set out in section 9 of the Theft Act 1968. Burglary has two distinct forms under section 9(1)(a) and section 9(1)(b) of the Theft Act 1968 although in many cases the same conduct could amount to an offence under both sections. The maximum sentence for burglary is 14 years imprisonment in the case of dwellings and 10 years for all other buildings.

This section is concerned with entry with intent, a person commits burglary under s.9(1)(a) if he enters a building, or any part of a building, as a trespasser, with intent to either:

þ steal anything in the building; þ inflict grievous bodily harm on any person in the building; or þ doing unlawful damage.

In R v Collins [1973] 3 WLR 243 the defendant was charged with burglary but his conviction was later quashed. In this case the defendant had climbed a ladder to an open window where a young woman was sleeping naked in her bed, the defendant stripped down to his socks and the woman woke and saw him at the window. Mistakenly the woman thought the defendant was her boyfriend so invited him in and they had sexual intercourse. She then realised it was not her boyfriend and screamed for him to get off. He ran off. The defendant appealed his conviction of burglary on the grounds of a misdirection as the jury had not been asked to consider if he was a trespasser at the time of entry. It was held that there must be an effective and substantial entry with knowledge or being reckless as to being a trespasser. In this case the defendant was not trespassing because the girl had invited him in.

5.2 Burglary under section 9(1)(b) of the Theft Act 1968

A person commits an offence of burglary under s.9(1)(b) if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict GBH on any person therein. There is no requirement of prior intent to commit an offence for an offence under section 9(1)(b) of the Theft Act 1968. The main difference of the two offences of burglary is that under (a) the intent must be formed at the time of entry whereas under (b) the intent to commit the ulterior offence can come later. Also (a) covers unlawful damage whereas (b) does not.

5.3 Actus reus of Burglary

The elements which make up the actus reus of the offence burglary are common to both subsections. These are:

þ entry; þ as a trespasser; and þ a building or part of a building.

In cases such as R v Collins [1973] 3 WLR 243 the court’s indicated that to amount to entry there had to be a substantial and effective entry. However in more recent cases convictions have been upheld where there has been no such substantial entry, for example the case of R v Ryan [1996] Crim LR 320 where a defendant was wedged in the kitchen window of the home belonging to an elderly man with only his head and right arm inside the property.

© Association of Costs Lawyers Training 2019 79 There is no statutory definition of building although section 9(4) of the Theft Act 1968 states that inhabited vehicles and vessels are included even if not inhabited at the time of the offence.

5.4 Mens rea of Burglary

As we can see from the case R v Collins [1973] 3 WLR 243, the defendant must know they are a trespasser or be reckless as to whether they are trespassing in order to be convicted. For the offence under section 9(1)(a) of the Theft Act 1968 the intention to commit one of the ulterior offences must be evidenced. For section 9(1)(b) of the Theft Act 1968 the requisite mens rea of the ulterior offence must be present.

5.5 Aggravated Burglary

There is also an offence of aggravated burglary under section 10 of the Theft Act 1968 which carries a maximum penalty of life imprisonment. A person will be guilty of aggravated burglary if he commits any burglary and at the time of the burglary has with him any firearm or imitation firearm, any weapon of offence or any explosive.

þ the applicability of the general defences; and þ the framework of police powers and the Police and riminal Evidence Act 1984.

3.1 General Defences

1. Introduction

General defences arise in cases where the prosecution is unable to prove all elements of an offence beyond reasonable doubt because of some specific characteristics of the defendant or circumstances of a particular offence. Some offences have particular defences attached to them, e.g. criminal damage; others exist only in relation to murder.

The use of a general defence may result in a defendant's acquittal. The main general defences are:

þ automatism; þ intoxication; þ insanity; þ duress and necessity; and þ self-defence, the defence of others and of property.

2. Automatism

An act is done in a state of automatism if it is done by the body without control by the mind (e.g. it is a spasm or a reflex) or if it is done by a person who is not conscious of what he is doing. To claim a defence of automatism, the defendant has to have a total loss of control over his actions, meaning he cannot be held liable for those actions.

Other examples might include a person inadvertently dropping and damaging property when suddenly seized by cramp or discharging a firearm as a result of a bout of sneezing.

The defence is a complete defence and a defendant will be acquitted if the jury is not satisfied that the prosecution has disproved automatism beyond reasonable doubt. However, if the loss of control is brought about by voluntary intoxication or by insanity, the defence becomes narrower. The law therefore distinguishes between the types of automatism. Insane automatism is where the cause of the automatism is a disease of the mind within the M’Naghten Rules. In such cases, the defence of insanity will be raised and the verdict would be “not guilty by defence of insanity” (internal disease). Non-insane automatism is where the cause is an external one. Where such a defence succeeds, it is a complete defence and the defendant is not guilty. This is a defence because the actus reus by the defendant is not voluntary. In addition, the defendant does not have the required mens rea for the offence, therefore he can raise a defence.

In the case of Bratty v A-G for NI [1963] AC 386, it was made clear that there is a need for an involuntary act over which the body has no control. This case concerned a defendant who strangled a girl with her stocking. The defendant claimed that, at the time of the incident, he was suffering from psychomotor epilepsy. It was held that the defendant was entitled to raise the defence of automatism if the jury rejected the defence of insanity.

“No act is punishable if it is done involuntarily and an involuntary act … means an act which is done by the muscles without any control by the mind such as a spasm, a reflex

© Association of Costs Lawyers Training 2019 82 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 done whilst sleep-walking.”

2.1 Examples of external causes

Examples of external causes include:

þ An attack by a swarm of bees must be a voluntary positive act for liability. Perhaps one of the best examples of this defence is one where a swarm of bees flies into a car causing a reflex action by the driver resulting in an accident. As the driver's actions in such a situation would be involuntary, and not sufficient to support a criminal charge, the defence of automatism would be available. This example was famously used in the case of Hill v Baxter [1958] QBD where the defendant drove through a halt sign without stopping and then collided with another car. He was charged with dangerous driving, but acquitted by the magistrates who accepted that he remembered nothing from some distance before reaching the halt sign. The Divisional Court allowed the prosecution’s appeal and remitted the case back to the magistrates, with a direction to convict as there was no evidence to support a defence of automatism! The example of the swarm of bees was said obiter in this case. þ Sneezing: the case of R v Woolley [2005] All ER (D) 213 (May) concerned a lorry driver involved in a collision on the M62. þ Exceptional stress can be an external factor which may cause automatism. In the case R v T [1990] Crim LR 256, the defendant had been raped. Three days later she took part in a robbery and assault. She claimed that, at the time of the robbery and assault, she was suffering from post-traumatic stress disorder as a result of the rape and that she had acted in a dream-like state. The trial judge allowed the defence of automatism to go to the jury, but the defendant was convicted. þ Diabetics as a result of taking insulin, as can be seen from the case R v Quick [1973] 3 WLR 26. In this case the defendant was a nurse who assaulted a patient. He was a diabetic, had taken insulin and not eaten sufficient food. He drank whisky and rum and he could not remember the assault. He pleaded automatism. The court held that the defendant was suffering from automatism, which is a mental abnormality caused by an external factor. He was not suffering from insanity caused by hypoglycemia (low sugar in the blood) by taking insulin prescribed by his doctor.

The piecemeal development of the defence has shown that the defence can be very wide, but the courts have tried to restrict development which may be attributable to issues of public policy. What is clear is that, to successfully raise the defence, the defendant must be incapable of forming the requisite mens rea and, because of this, successfully raising automatism leads to an acquittal, as it is a complete defence, as was seen in A-G Ref (No 2 of 1992) [1993] 3 WLR 982. In this case, the defendant was a lorry driver who, after driving for several hours, drove along the hard shoulder of a motorway for about half a mile. He hit a broken down car which was stationary on the hard shoulder, killing two people. He said that he was suffering from the condition “driving without awareness” which puts a driver into a trance-like state. The jury acquitted him. The Attorney-General referred the point of law to the Court of Appeal which ruled that, because this condition only causes partial loss of control, it did not amount to automatism.

© Association of Costs Lawyers Training 2019 83 Automatism may be self-induced, that is to say that the defendant may know that his conduct is likely to bring on an automatic state. One such case is that of R v Bailey [1983] Crim LR 353. In this case, the defendant was a diabetic who had failed to eat enough after taking his insulin to control the diabetes. He became aggressive and hit someone over the head with an iron bar. The trial judge ruled that the defence of automatism was not available. Bailey appealed, but the Court of Appeal upheld the defendant’s conviction as there was insufficient evidence in the case to raise the defence of automatism. It was Bailey’s appeal that led to the Court of Appeal setting rules on self-induced automatism - setting out that there is a difference in the way the defence applies to specific intent and basic intent:

þ In specific intent offences it can be a defence. This is because the defendant lacks the required mens rea for the offence. þ In basic intent offences the defendant cannot use the defence if he has brought about the automatic state by being reckless i.e. through intoxicating substances.

Where the defendant does not know that his actions are likely to cause a self-induced automatism state in which he may commit an offence, he can raise a defence, as illustrated by the case of R v Hardie [1985] 1 WLR 64. In this case, the defendant was depressed because his girlfriend had told him to move out of their flat. He took some valium tablets which had been prescribed for his former girlfriend. She encouraged him to take the tablets, stating it would calm him down. He then set fire to a wardrobe in the flat. He said he did not know what he was doing because of the valium. The trial judge directed the jury to ignore the effect of the tablets and he was convicted of arson. The Court of Appeal quashed his conviction as the defendant had taken the drug to calm him down. This is the normal effect of valium. So the defendant had not been reckless and the defence of automatism should not have been left to the jury.

There are a number of problems in the law on automatism and these can be summarised as follows:

þ In each case, it has to be decided whether the situation is one of insane automatism or non-insane automatism. This is implied because the effect of these two types of automatism as a defence is so different. þ Situations which would seem to the non-lawyer to be ones of non-insane automatism, such as a diabetic being in high blood sugar or someone sleep walking, may, at law, be considered to be insane automatism.

3. Intoxication

The rules governing the defence of intoxication are to be found at common law. There is no general defence of intoxication as such. What intoxication does is potentially remove the necessary mental element required for a defendant to commit an offence. For intoxication to be raised, it must prevent the mens rea for the offence being formed. This is a legal principle which is clear that liability is based on fault voluntarily assumed and the taking of risks.

Where a defendant, through his own volition, becomes intoxicated he may have a partial or complete defence to the offence with which he is charged, depending on whether the offence is classified as being one of specific or basic intent. In general terms, where the © Association of Costs Lawyers Training 2019 84 offence is classified as requiring specific intent the defendant who successfully pleads the defence of intoxication will be acquitted of that specific intent crime, but convicted instead of the lesser included basic intent crime. Hence in a case where the defendant is charged with murder, he might be acquitted on the basis of his voluntary intoxication, but convicted instead of manslaughter.

So, firstly, there is a need for evidence of intoxication. This covers alcohol, drugs or other substances. In the case of R v Groark [1999] Crim LR 669, the accused had drunk 10 pints of beer but was not drunk. He could not raise intoxication as the accused must be so intoxicated that he did not form the requisite intent as laid down by the definition of the offence.

There is much case law that shows that a drunken intent is still an intent. In the case R v Sheehan and Moore (1975) 60 Cr App R 308 the defendant, in revenge for a minor theft and in a drunken state, poured petrol over a man and burned him to death. It was held that the question was not whether defendants were capable of forming the necessary intention, but whether they had in fact done so; and the onus of proving that was on the prosecution. In this case, the defendants were found not guilty of murder, but guilty of manslaughter. In the case R v Heard [2007] 3 WLR 475 D Heard was heavily intoxicated and in a depressive state. He had been self-harming. The police took him to hospital. He was making a disturbance in the waiting room so the officers took him outside. The defendant took out his penis and started rubbing it against the officer's thigh. He was charged with sexual assault contrary to section 3 of the Sexual Offences Act 2003. It was held he was reckless and liable for the offence despite the fact he was intoxicated. From these cases, it is clear that whether the defendant forms the necessary mens rea depends on:

þ whether the intoxication was voluntary or involuntary; and þ whether the offence charged is one of specific or basic intent

So, intoxication can be divided into two categories:

þ voluntary intoxication: the defendant became intoxicated out of choice; þ involuntary intoxication: the defendant was not responsible for getting in that condition.

The distinction between the two types of intoxication is important when considering whether the offence the defendant is alleged to have committed is one of specific or basic intent.

3.1 Voluntary intoxication

Voluntary intoxication can be raised to answer a charge to an offence of specific intent, e.g. murder or theft, but not for an offence of basic intent, e.g. assault under section 47 of the Offences Against the Person Act 1861. Involuntarily intoxication (e.g. where a defendant's drink has been spiked) can be raised in answer to a charge of both specific and basic intent.

With specific intent crimes the courts have declared how voluntary intoxication applies to this type of crime although the certainty of the law is questionable because there is a lack of clear definition for specific intent crimes. The case of DPP v Beard [1920] AC 479 involved © Association of Costs Lawyers Training 2019 85 a defendant who, whilst drunk, raped a 13-year old. He placed his hand upon her mouth to stop her from screaming, pressing his thumb on her throat. She died of suffocation. The court held that drunkenness was no defence unless it could be established that the accused, at the time of committing rape, was so drunk that he was incapable of forming the intent to commit it. Lord Birkenhead LC stated (at p 499):

. . . where a specific intent is an essential element in the offence, evidence of a state of drunken-ness 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 particular 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.

The defendant killed his wife in A-G for N. Ireland v. Gallagher [1963] AC 349. He drank a bottle of whisky to give him the "Dutch courage" to do so. The court held that, as long as the defendant had the mens rea of murder at the time of drinking the whisky and did not positively discard it, he could properly be convicted. In this case, Lord Denning set out that the defence is not available to either “specific” or “basic” intent if drink or drugs had been taken to fortify courage. The case of R v Lipman [1970] 1 QB 152 saw the defendant and his girlfriend taking a quantity of LSD. During his "trip", the defendant imagined he was being attacked by snakes at the centre of the earth and had to defend himself. In doing so, he actually killed the victim by cramming eight inches of sheet down her throat. He was acquitted of murder because the jury were not sure that he had the necessary intention, being intoxicated, but they convicted him of manslaughter.

In DPP v Morgan [1976] AC 182, Lord Simon of Glaisdale (at p 216) observed that: ‘By crimes of basic intent I mean those crimes whose definition expresses (or, more often, applies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be closely connected with the act or remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence, however remote, as defined in the actus reus.’ The problem with Lord Simon’s explanation of the basic/specific intent dichotomy is that it is not borne out by practice. Murder is regarded as a specific intent crime, yet no one would claim that the mens rea – intention to kill – goes beyond the actus reus – killing. A simpler way of approaching the issue is to proceed on the basis that any crime for which recklessness would be sufficient mens rea can be regarded as a crime of basic intent for the purposes of the defence of intoxication.

As we have seen, where the offence is one of basic intent, intoxication is not a defence because voluntarily becoming intoxicated is considered a reckless course of conduct and enough to constitute the necessary mens rea. The decisions on this point have caused conflict because of the premise that intoxication is equivalent to recklessness in offences of voluntary intoxication which runs counter to section 8 Criminal Justice Act 1967. In DPP v Majewski [1977] AC 443 the defendant assaulted three people in a fight in pub, then three PCs. His defence was that he had been drinking, had taken drugs and had no intention to commit the acts which he did. It was held, in this case, that intoxication is no defence to a crime of basic intent. His conduct in reducing himself to that condition supplies the evidence of mens rea sufficient for crimes of basic intent. In R v Bailey [1983] Crim LR 353 the defendant seriously injured a “rival in love” with an iron bar. The defendant, a diabetic, visited his ex-girlfriend and her new partner. He took insulin and drank some sugared water,

© Association of Costs Lawyers Training 2019 86 but he had nothing to eat. He assaulted the partner of his ex-girlfriend. The defendant claimed he acted in a state of automatism caused by hypoglycemia. It was held that automatism, even if self-induced, could provide a defence to a crime of basic intent crime (unless caused by intoxication). Following an evening's drinking, the defendants in R v Richardson and Irwin [1999] 1 Cr App R 392 (CA), who were two students, lifted another over a balcony and dropped him about 12 feet to the ground, causing him serious injuries. Clarke LJ said that the question was not what another person would have foreseen, but what defendants themselves would have foreseen had they been sober.

There are offences known as fall back offences because committing the actus reus of a crime in a state of voluntary intoxication is not morally equivalent to committing the offence with its mens rea. For these offences, the prosecution must prove the mens rea. If they cannot, the defendant is not liable for that offence, though usually there is a fallback offence of basic intent, e.g. section 20 for section 18 of the Offences Against the Persons Act 1981. This has led to a lot of inconsistent and unfair incomparable decisions where there is no fallback offence.

3.2 Involuntary intoxication

Involuntary intoxication covers situations where the defendant did not know he was taking an intoxicating substance. It also covers situations where prescribed drugs had an unexpected effect of making the defendant intoxicated. The test is: “Did the defendant have the necessary mens rea when he committed the offence?”

In R v Allen [1988] Crim LR 698, the appellant was convicted of buggery and indecent assault. It was the appellant’s alternative line of defence that if, contrary to his basic assertion that he was not the attacker, he was so drunk at the time that he was not responsible for his actions and was in effect acting in a state of automatism; and that that drunken condition was due to his involuntarily having imbibed a quantity of alcohol which he was not responsible for consuming. The appellant gave evidence that he had consumed some drink in a public house and had later been given wine by a friend. He had not realised that the wine had a high alcohol content. The second line of defence was not left to the jury by the judge. The appellant appealed against conviction on the ground that the judge erred in ruling that involuntary drunkenness could not be a defence to a crime of non-specific intent. The court held, dismissing the appeal, the judge was correct in ruling that there was no evidence before him that the drinking was other than voluntary. Further, where an accused knows that he is drinking alcohol, such drinking does not become involuntary for the reason alone that he may not know the precise nature or strength of the alcohol that he is consuming.

In R v Kingston [1994] 3 WLR 519, the defendant’s coffee was drugged by someone who wanted to blackmail him. He was then shown a 15-year-old boy who was asleep and invited to abuse him. The defendant did so and was photographed. The House of Lords upheld his conviction for indecent assault; they held that if a defendant had formed the mens rea for an offence then involuntary intoxication was not a defence. This decision led to difficulties raised because the defendant was disinhibited and lost his self-control.

Intoxication plays a role in other defences, such as the defence of mistake. If the defendant is mistaken about a key fact because he is intoxicated, then it depends on what the mistake was about. Where the mistake is about something which means that the defendant did not have the necessary mens rea for the offence, then for a specific intent offence he has a defence; not for a basic intent offence, however.

In the case R v O'Grady [1987] QB 995 the defendant woke from a drunken stupor to find his equally drunk friend hitting him. In order to defend himself he retaliated with several blows and then returned to sleep. He awoke to find his friend dead. The defendant was convicted of manslaughter and appealed against conviction. The Court of Appeal dismissed the appeal and said that a mistake arising from voluntary intoxication could never be relied upon in putting forward a defence, whatever the crime.

Jaggard v Dickinson [1981] 1 QB 527 provides an exception to the rule on intoxicated mistake. In this case the defendant was drunk and went to what she thought was a friend’s house. No-one was in, so she broke a window believing her friend wouldn't mind. Unfortunately, she got the wrong house. It was held that, although the defendant’s mistake was not a reasonable one, parliament had provided a defence based on honest belief. The court had to consider the defendant’s actual state of belief.

R v Hatton [2006] 1 Cr App R 16 is a case concerning intoxicated mistake and self-defence. The defendant beat the deceased to death with a sledgehammer after drinking over 20 pints of beer. His recollection of events was unclear, but he believed that he was under attack. The issue was the reasonableness of the defendant’s reaction as he had believed the facts to be, even if that belief was mistaken and the mistake was caused by his intoxication. It was held that, in self-defence, a mistake induced by drunkenness cannot be relied on.

3.4 Proposals for reform

Historically the Law Commission proposed to redefine terms in voluntary intoxication, creation of a presumption against involuntary intoxication and a clarification of definitions in involuntary intoxication.

In 1975, the Butler Committee proposed the creation of a new offence of dangerous intoxication. The idea was that this proposed offence would be used where the defendant was acquitted of a dangerous offence on the basis that he was intoxicated. This was aimed at balancing public protection against defendants’ rights. However, the proposal was rejected. The main argument was that it did not distinguish how serious the original offence was.

In 1993, the Law Commission proposed that evidence of voluntary intoxication should be available for all offences on the issue of mens rea. This would allow a defendant to be acquitted if he did not have necessary mens rea. However, this idea was also abandoned and the law remains as developed by case law.

The Law Commission Report 2009 proposed abolishing the misleading terms “basic” and “specific” intent. They would list the states of mind that always have to be proved by the © Association of Costs Lawyers Training 2019 88 prosecution and these states of mind would be called ‘integral fault elements. For offences with integral fault elements, evidence of voluntary intoxication could be used to establish lack of mens rea.

3.5 Intoxication and policy

Intoxication is largely policy-based because:

þ intoxication is a major factor in the commission of many crimes; and þ there is a need to balance the rights of the defendant and victim.

Public policy principles counter to allowing such a defence are based on public protection and the encouragement of good behaviour. The courts have faced a dilemma raised between personal responsibility and the greater public good. The courts may be criticised as to what extent to either principle or policy has prevailed in the piecemeal development of the defence.

The courts have also been faced by problems caused by the fact that, when intoxication occurs, no particular crime, or any offence at all, may be in the mind of the defendant. It can also be argued there are implicit difficulties in raising involuntary intoxication in terms of proof.

There have been mixed messages from the executive. The government has raised income from alcohol sales and sets levels of safe drinking which run counter to policies of neighbourhood control and condoning anti–social behaviour.

4. Insanity

A successful plea of insanity provides a complete defence to a charge where the defendant was insane at the time the criminal act of the offence was committed. Where a person wishes to raise insanity as a defence the burden of proof (on the balance of probabilities) rests with the defendant.

If a defendant claims to have been insane at the time of the offence that claim will be judged against the M'Naghten rules. These rules state that at the time of committing the act the accused was labouring under such a defect of reason or from disease of the mind, as not to know the nature or quality of the act he was doing or, if he did know it, that he did not know it was wrong.

So, there is a common law definition and the key test for insanity is laid out in the case of R v M’Naghten [1843] 8 ER 718 (from which the M’Naghten Rules were developed). This was a case where the defendant murdered Edward Drummond who was secretary to a famous politician called Robert Peel. He was trying to kill Peel but missed. The jury found the defendant insane and he was sent to a secure mental hospital. At the time, the defendant thought he was being persecuted by the Tories. It is from this case the definition of insanity is derived - the defendant must be:

“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 wrong.” © Association of Costs Lawyers Training 2019 89 Medical knowledge of mental disorders in 1843 was very limited. Much more is known today about such disorders. In all cases, every man is presumed to be sane and to possess a sufficient degree of reason to be reasonable for his crimes.

4.1 Element 1: defect of reason

The defendant’s powers of reasoning must be impaired and the defendant must be incapable of reasoning. This can be seen in the case of R v Clarke [1927] 40 CLR 227 where a 58-year-old woman absent-mindedly placed a jar of mincemeat, a jar of coffee and some butter into her bag whilst shopping in a supermarket. She had no recollection of placing the items in her bag. Medical evidence was given at her trial which stated that she was suffering from depression and was diabetic. The court held that confusion is not enough to rely on the defence of insanity; there needs to be a total inability to reason or know the act is not wrong.

4.2 Element 2: disease of the mind

The disease of the mind can be physical or mental disease which can affect the mind. The following cases illustrate this.

þ R v Kemp [1957] 1 QB 399: The defendant was suffering from a hardening of the arteries which affected the supply of oxygen to the brain, which led him to lose consciousness. The defendant was not medically insane, but, since his reasoning was affected, the defence of insanity was open to him. Internal cause does not have to be a disease of the brain, just anything that effects the defendant’s ability to reason or know what he is doing is wrong. þ R v Sullivan [1984] AC 156: This was an internal cause of epilepsy so insanity was successfully raised. þ R v Hennessy [1989] 1 WLR 287 concerned a diabetic. This was held to be an internal cause so insanity could be relied upon. þ R v Quick [1973] 3 WLR 26 concerned a diabetic who took insulin; so, although this was a diabetes case, because it was the insulin that caused the act, the defendant must rely on automatism because the cause was external.

The source of disease is irrelevant – it can be organic (such as epilepsy) or functional. It does not matter if the disease is permanent or transient and intermittent so long as it existed at the time of the act. The defence is, however, closely linked with automatism where the mental state causes automatic actions, but automatism is due to external factors and there is an overlap between these defences. This shows the law can be uncertain and unfair on the defendant.

4.3 Element 3: know what they are doing is wrong

This element is best illustrated by the case of R v Windle [1952] 2QB 826. In this case, the defendant killed his wife. She was suicidal and he administered an aspirin overdose. Medical evidence supported the view that he was suffering from a mental condition at the time of the crime. On arrest he said to the police, "I suppose they will hang me for this". The trial judge refused to allow the defence of insanity to be put before the jury as he had demonstrated that he realised that what he was doing was unlawful. He was convicted of manslaughter. © Association of Costs Lawyers Training 2019 90 4.4 Special verdict

A special verdict of not guilty by reason of insanity is provided if the defence is successful.

5. Duress

As per Murnaghan J in Attorney-General v Whelan [1934] IR 518, duress is a defence because:

"… threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal”.

Duress by threats provides a complete defence to a charge of any offence other than murder, attempted murder or (potentially) treason. The case of R v Howe [1987] AC 417 concerned the defendants participating in one killing as secondary parties, but were the principals in another killing. They claimed that they were acting out of fear that they would be seriously harmed or killed by a man named Murray, who organised the killings. The defendants wished to plead duress. The trial judge ruled that duress was a defence to secondary parties to murder, but no defence to principals of murder. The House of Lords overruled this stating duress was no defence to murder, irrespective of whether the person was principal in first degree or second degree. Not only can it not be raised as a defence to murder, but it cannot be raised as a defence to attempted murder as can be seen in the case of R v Gotts [1992] 2 AC 412. In this case, the defendant was charged with the attempted murder of his mother. He claimed that his father had threatened to shoot him unless he killed his mother and wished to plead duress. The trial judge ruled that duress was not available to a charge of attempted murder. As a result of this ruling, the defendant pleaded guilty and appealed on the ground that the trial judge’s direction had been wrong. The House of Lords dismissed the appeal and confirmed there is no defence of duress to attempted murder. Lord Jauncey questioned whether there is:

“logic in affording the defence to one who intends to kill but fails, and denying it to on who mistakenly kills intending only to injure?”

The defence arises where the defendant commits the offence with the relevant intention, but is induced to act by a threat made by another person, or reasonably believes such a threat has been made, to the effect that, unless the defendant commits the offence with which he is charged, he or a third person will be harmed. The evidence for a defence of duress must be raised by the defendant. The burden is then on the prosecution to disprove the assertion. It is a two-part test for the defendant to satisfy, as derived from R v Graham [1982] 1 WLR 294. In this case, the defendant was living with his wife and a homosexual man, King, who was the defendant’s lover. King was a violent man who was jealous of the defendant’s wife. He suggested that they kill her. King placed an electrical flex around the wife’s neck and told the defendant to pull on the other end. He did so and the wife died. The defendant was charged with murder and pleaded duress. He argued that he only acted out of fear of King. He was convicted and appealed. The Court of Appeal upheld conviction because the threat made by King was not sufficiently grave to raise duress. Lord Lane CJ gave the leading judgment and stated that the jury should consider the following two questions:

© Association of Costs Lawyers Training 2019 91 þ Was the defendant compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger? (Subjective test) þ Would a sober person of reasonable firmness sharing the defendant's characteristics have responded in the same way to the threats? (Objective test).

The case of R v Hudson & Taylor [1971] 2 WLR 1047 illustrates the necessity for the defendants to believe there is an imminent danger. In this case two young girls were charged with perjury after they gave evidence in respect of an incident they had witnessed in a pub. Both defendants were called to give evidence against the man charged, X, but both failed to identify him in court. They argued that Hudson had been approached by X’s friends who threatened her with physical injury if they gave evidence. The trial judge ruled that duress was not available because the girls were protected by the police at the time. The Court of Appeal held the girls were not guilty of perjury, stating that it should have been left to the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the evidence – were the threats still imminent?

It is because the test is subjective that characteristics of the defendant must be considered. The case R v Bowen [1997] 1 WLR 372 is the leading case on this. Here the defendant was convicted of the offence of obtaining services by deception. He was of low IQ, with a reading age of 7 years old, and was abnormally suggestible and vulnerable. The defendant claimed that he had been threatened by two men saying that they would throw a petrol bomb at his house unless he committed the offence. It was held that this was not a relevant characteristic since it did not make those who had it less courageous or less able to withstand threats and pressure than an ordinary person. The Court of Appeal held that the only relevant characteristics were the age, and possibly the sex, of the defendant, pregnancy (where the threat of harm is to the unborn) serious physical disability and a clinically recognised psychiatric condition.

It is clear that the defence cannot be used where the defendant has put himself in danger, although much of this case law concerns criminal activity and there may be an element of policy involved in the decision making. In R v Sharp 85 Cr App R 212 the defendant joined a gang who carried out a series of armed robberies at sub-post offices. In the last of these robberies, the sub-postmaster was shot and killed by X. Lord Lane CJ said:

“…the defence of duress was not available to a person who 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.”

In R v Shepherd [1988] 86 Cr App R 47 the defendant voluntarily joined a gang of shoplifters. They were not a violent gang and the defendant did not know them to use violent methods. However, the defendant was threatened with violence, as a result of which he committed burglary. The trial judge followed previous authorities and refused to leave duress to the jury. On appeal, the Court of Appeal ordered a retrial and held that duress should have been available to the defendant in this case. The court distinguished on the grounds that the gang the defendant had joined was not known to use violence. The defendant was held to be not guilty. In R v Hasan [2005] 2 WLR 709 the defendant worked as a driver for a woman who was involved in prostitution. The woman’s boyfriend, S, was a drug dealer and a violent man. The defendant was charged with aggravated burglary. He

© Association of Costs Lawyers Training 2019 92 claimed that he had acted under duress having been coerced into committing the burglary by S. The trial judge directed the jury that the defence of duress would not be available to the defendant if they found that by associating himself with S, he had voluntarily put himself in a position in which he knew that he was likely to be subjected to threats. The House of Lords confirmed this.

Duress of circumstance may be a defence where a defendant has no real alternative but to commit an offence. The defence applies to all crimes except murder, attempted murder and some forms of treason. If a doctor is suddenly called upon to use his car to get someone to hospital for emergency treatment then those circumstances may provide a defence for driving while disqualified. Threats of immediate violence may allow a defence of duress of circumstances for someone who drives dangerously in order to escape the threat. The court will consider the reasonableness of the defendant's behaviour in light of the prevailing circumstances.

6. Necessity

The defence of necessity is available only in very narrow circumstances. It is a choice between two evils that provides justification for the offence. The person committing the act is not morally culpable for the criminal act he has committed. The evil caused by committing the offence is overridden by the greater evil of the consequences if the offence were not to be committed. The leading case on necessity is R v Dudley and Stephens [1884] 14 QBD 273. The defendants and a cabin boy were cast adrift in a boat following a shipwreck. The defendants agreed that, as the cabin boy was already weak and looked likely to die soon, they would kill him and eat him for as long as they could, in the hope that they would be rescued before they themselves died of starvation. A few days after the killing they were rescued and then charged with murder. The judges of the Queen's Bench Division held that the defendants were guilty of murder in killing the cabin boy and stated that their obvious necessity was no defence. The defendants were sentenced to death, but this was commuted to six months' imprisonment.

In Re A (conjoined twins) [2001] 2 WLR 480 the Court of Appeal held that doctors would have the defence of necessity if they separated conjoined twins in order to prevent the weaker twin from killing the stronger twin. The operation, however, would inevitably result in the death of the weaker twin. It was held that the surgery would be lawful because it would be aimed at preventing a greater evil: the death of both twins.

7. Self-Defence and Defence of Others or Property

There are circumstances where the use of force against person or property will be permissible.

Self-defence is an absolute defence, based on the evidence, that can apply in crimes committed by force. The defence will be available to a person if he honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as he viewed them. Self-defence as a defence can take the form of defence of the person himself, defence of another person, defence of property, the prevention of crime and the lawful arrest and apprehension of offenders.

© Association of Costs Lawyers Training 2019 93 Self-defence is both a common law defence and a statutory defence. The former is the use of “reasonable force to save oneself, other persons or property”, while the latter, under section 3 of the Criminal Law Act 1967, is the use of “such force as is reasonable” for the prevention of crime or to assist in a lawful arrest. The common law rules on self-defence have been put into statutory form by the Criminal Justice and Immigration Act 2008. Section 76 of the Criminal Justice and Immigration Act 2008 restates four common law principles on self-defence and prevention of crime:

þ the reasonableness of force is to be judged on the facts and circumstances as the defendant honestly believed them to be; þ an intoxicated mistake about the facts or circumstances is no defence; þ excessive or disproportionate force is not “reasonable”; þ the defendant is not expected to “weigh to a nicety the exact measure of any necessary action” and evidence of honest and instinctive self-defence or prevention of crime will be strong evidence that only reasonable force was taken.

In order for the defence to succeed, two conditions must be satisfied:

þ the defendant must genuinely believe that the use of some force is necessary – he is entitled to be judged on the facts as he genuinely believed them to be, even if he was mistaken (R v Gladstone Williams [1984] 78 Cr. App. R. 276), but the defendant may not rely on a mistake caused by voluntary intoxication (R v O'Grady [1987] QB 995); þ the actual force used by the defendant must be proportionate to the danger that the defendant genuinely believed to exist – in determining whether this was the case, the jury is allowed to consider the pressures that the defendant was under, the circumstances surrounding the event and any particular characteristics of the accused (R v Palmer [1971] AC 814).

The defence can be used to a charge of murder or attempted murder, but, if the force used was disproportionate, the defendant will be convicted of murder rather than manslaughter (provided the defendant has the necessary mens rea) (R v Clegg [1995] 1 AC 482– but note that the defendant was acquitted at his re-trial). In R v Martin [2002] 2 WLR 1, the Court of Appeal upheld the conviction of a reclusive farmer who, after being burgled several times, fired at intruders, killing one and injuring another. His plea of self- defence was rejected because the force he had used was excessive, but his conviction was reduced to manslaughter on the grounds of diminished responsibility.

Reasonable force may be used to protect property, but only where necessary as demonstrated by the case R v Burns [2010] All ER (D) 186 (Apr). The defendant may rely on this defence in some circumstances even if he struck the first blow, as in R v Bird [1985] 1 WLR 816. He may rely on the defence if he knowingly “walks into trouble” (R v Field [1972] Crim LR 435 (CA)), but not if he creates a dangerous situation (Malnik V DPP (1989) Crim LR 451). The defence is not automatically denied to one who provokes violence if he meets an unreasonably aggressive response as can be seen in R v Keane [2010] EWCA Crim 2514.

1. Introduction

The powers of the police in England and Wales are defined largely by statute law, with the main sources of power being the Police and Criminal Evidence Act 1984 and the Police Act 1996.

2. The History of the Police

To understand how the police force operates in England it is important to understand the history and origins of the police as well as the objectives.

"The primary object of an efficient police is the prevention of crime: the next that of detection and punishment of offenders if crime is committed. To these ends all the efforts of police must be directed."

Sir Richard Mayne, Commissioner of the Metropolitan Police, 1829.

2.1 Sir Robert Peel

Sir Robert Peel was Home Secretary from 1822-27 and 1828-30. He revolutionised law enforcement in Britain by organising a uniformed group of men to patrol the streets of London in 1829 and prevent crime. He had already organised a similar force in Ireland when he was Chief Secretary there from 1812 to 1818. This was the first real police force. An Act in 1814 established a local police force.

Peel believed that people should be deterred from committing crime by the fear of being caught rather than the fear of punishment. This system of preventative policing is still followed today. Policing is about preventing crime taking place and taking action after a crime has been committed.

2.2 The Metropolitan Police

In 1829, while Sir Robert Peel was Home Secretary, the first Metropolitan Police Act was passed and the Metropolitan Police Force was established. This new force superseded the local Watch in the London area, but the City of London was not covered.

Even within the Metropolitan Police there still remained certain police establishments outside the control of the Metropolitan Police Office. By 1839, all these establishments had been absorbed by the Metropolitan Police Force. The City of London Police, which was set up in 1839, remains an independent force to this day.

2.3 Early detectives

The logic behind creating a force of detectives was to allow police officers to mingle with the public and gather intelligence. In this way, they could collect information to prevent crime and apprehend criminals.

2.4 Jack the Ripper

During 1888, the mutilated bodies of five prostitutes were found in Whitechapel, East London. The public were afraid and demanded action. A petition was sent to Queen Victoria and, as a result, pressure was brought to bear on the Home Secretary. More than 600 police officers were brought in to patrol the area but found no trace of the murderer.

2.5 The Second World War

Police around the country faced a massive task during the Second World War. Not only did they have to prevent and detect crime, they were also heavily involved in civil defence work dealing with the threat and aftermath of bombing raids.

The police supervised the National Registration Scheme. Everyone had to carry an identity card which the police could demand to see at any time. Rationing and general shortages of food and consumer goods meant that theft and trading on the black market were a problem.

There was also the risk of looting from damaged buildings. All of this increased the workload of the police and extra officers were drafted in. This was the beginning of Mutual Aid at heavily bombed areas. Thousands of civilians became Special Constables, Police War Reserve Officers and Women Auxiliary Police Corps members. The war years changed attitudes towards women officers and many stayed on afterwards and joined the regular force. Many officers also joined the armed forces.

3. Stop and Search

Powers to stop and search set out under the Police and Criminal Evidence Act 1984 (PACE), the codes of practice, the Criminal Justice Act 2003 and other relevant legislation. Stop and search powers allow the police to combat street crime and anti-social behaviour and prevent more serious crimes.

3.1 Section 1 of the Police and Criminal Evidence Act 1984

Section 1 of the Police and Criminal Evidence Act 1984 gives the police the power to stop and search a person in a public place if they have reasonable suspicion that prohibited articles, stolen goods or articles made, adapted or intended for use in burglary or criminal damage are in their possession.

Under section 1(1) of the Police and Criminal Evidence Act 1984 the search must be in a public place, which means a place where the public have access on payment (cinema, zoo, bowling) or otherwise or by virtue of express or implied permission (school, court, supermarket). In any other place to which people have ready access at the time (school field, derelict buildings), but which is not a dwelling. Under section 1(2) of the Police and Criminal Evidence Act 1984 a constable may search any vehicle or person or anything which is in or on a vehicle for stolen and prohibited articles, they may detain persons or vehicles for the purposes of such a search. Section 1(4) of the Police and Criminal Evidence Act 1984 prohibits a constable from stopping and searching anyone who is in any garden, © Association of Costs Lawyers Training 2019 96 yard or land adjacent to a dwelling unless he has reasonable grounds to believe that they don't reside in the dwelling and that they aren't in the place in question with express or implied permission of the person who does reside there.

Section 1(6) of the Police and Criminal Evidence Act 1984 allows the police to seize prohibited or stolen articles such as offensive weapons, anything used in a theft or burglary or any articles used to commit offences (spray cans, knives etc.). Prohibited fireworks were added in the Serious Organised Crime and Police Act 2005. Where a suspect is carrying these items not only can they be seized but the police may choose to arrest, warn, fine etc. as well.

There are a number of safeguards in place when the police undertake a stop and search, for example:

þ a police officer must give his name, station and the reason for the search; þ a written report is required for every stop and search; and þ officers are only permitted to make a request for a suspect to remove his outer coat, jacket and gloves.

The case of Osman v DPP [1999] EWHC Admin 622 made it clear that if the police do not give the suspect their name or station (in other words stick to the safeguards) then this would be an unlawful search.

It should be noted that, under a different statute, section 60AA of the Criminal Justice and Public Order Act 1994, the police may ask the suspect to remove any item he reasonably believes to be concealing his identity. In addition, under section 47A of the Terrorism Act 2000, the police can ask an individual to remove headgear and footwear in public in addition to his coat, jacket and gloves. They may take the individual somewhere out of public view to ask him to remove any headgear worn for religious reasons. Please note that this can only happen if the individual is searched under these specific powers.

3.2 Reasonable suspicion

As well as the sections of the Act, there are a number of Codes of Practice (incorporated under section 66 of the Police and Criminal Evidence Act 1984) which give the police guidance on how to exercise their power. These are not legally binding, but the police would face disciplinary action if they breached them.

Code of Practice A sets out guidance for police on stop and search. A guide to reasonable suspicion is found in the codes of practice; it can never be based on personal appearance, previous convictions etc. At paragraph 2.2 of the code, reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind or, in the case of searches under section 43 of the Terrorism Act 2000, to the likelihood that the person is a terrorist. Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person. Reasonable suspicion cannot be based on © Association of Costs Lawyers Training 2019 97 generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity.

At paragraph 2.3 it states that reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of some level of generalisation stemming from the behaviour of a person. For example, if an officer encounters someone on the street at night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried. Similarly, for the purposes of section 43 of the Terrorism Act 2000, suspicion that a person is a terrorist may arise from the person’s behaviour at or near a location which has been identified as a potential target for terrorists.

3.3 Section 44 of the Terrorism Act 2000

The police have many other powers to stop and search. These include the power to stop and search for drugs, firearms and under section 44 of the Terrorism Act 2000. However, this power can only be used when authorised by a senior police officer. Authorisations under section 44 of the Terrorism Act 2000 confer extraordinary powers of stop and search. They can be made where expedient for preventing acts of terrorism. Although initially made by police officers of Association of Chief Police Officers rank (ACPO), they must be confirmed by the Secretary of State. In view of their importance, authorisations are subject to considerable scrutiny before being confirmed by the Secretary of State. Authorisations allow officers to stop and search vehicles, persons within vehicles and pedestrians. The power conferred allows an officer to search for articles of a kind which could be used in connection with terrorism, whether or not there are grounds for suspecting the presence of such articles. Authorisations can last up to 28 days, they are limited to geographical area and there has to be a good reason for authorising the powers. The controls on the police appear to be quite limiting, but, in practice the police operate under this section without much restriction. This wide ranging power is linked to other "counter terrorist measures" in areas where a senior police officer authorises the actions. The police may also search to find evidence that a person is a terrorist (section 43 of the Terrorism Act 2000). This power is very controversial; the use of this power by police has received considerable adverse press reports, and cases, as can be seen by the coverage of Gillan v Commissioner of Police [2006] UKHL 12 where two protestors were arrested at an arms fair in London. Mr Gillan was riding a bicycle and carrying a rucksack; Ms Quinton, a journalist, was ordered to stop filming despite showing her press cards.

3.4 Section 60 of the Criminal Justice and Public Order Act 1994

Section 60 of the Criminal Justice and Public Order Act 1994 gives the police blanket authority to search anyone in the "area". It was originally introduced to prevent antisocial behaviour, for example at football matches. Under section 60 of the Criminal Justice and Public Order Act 1994 a police officer of the rank of superintendent or above may authorise all persons and vehicles within a locality to be searched regardless of suspicion, if serious violence is expected in an area. The authority may be given by an inspector if he believes violence is imminent and no superintendent is available. The police do not need to have reasonable suspicion that a person is carrying an offensive weapon to search under section 60 of the Criminal Justice and Public Order Act 1994.

© Association of Costs Lawyers Training 2019 98 This power has led to criticism. The police have used this section to cordon off demonstrations, corral people into a confined area before taking their names, addresses and sometimes photographs, then releasing them one by one. The section 60 order is used by the police at major demonstrations to control, subdue and gain personal information about protesters despite it being a power limited to "stop and search in anticipation of violence".

The safeguards, which require police to give certain information prior to the search, apply to section 60 just as they do to any other search (section 2 of the Police and Criminal Evidence Act 1984).

3.5 Common law powers

In the case of Rice v Connolly [1966] 2 QB 414, the defendant was seen behaving suspiciously in the early hours of the morning in an area where burglaries had occurred. He refused to say where he was going or where he had come from and he refused to give his full name and address. He also refused to accompany the police to a police box for identification purposes, saying: "If you want me, you will have to arrest me", so he was arrested. The court held that, although every citizen had a moral or social duty to assist the police, there was no legal duty. The defendant was entitled to decline to answer the questions. This case can be compared to the case of Ricketts v Cox [1981] 74 Cr App Rep 298 in which the police were looking for a group of youths responsible for a serious assault. They approached Ricketts and Blake. The latter refused to give names or information and were abusive to the police officers. One of the police officers then took Blake’s arm, at which point Blake punched him. Blake was arrested (for assault) and Ricketts intervened to prevent his arrest. He was then himself arrested and charged with obstruction. It was held that, in this particular case, based on the facts, Ricketts’ silence did amount to an obstruction. The case of Kenlin v Gardiner [1967] 2 QB 510 should also be considered. In this case two boys were doing nothing illegal, but officers in mufti were suspicious of them. One of the officers showed the boys his warrant card and told them he was a police officer and asked them what they were doing. The boys, not appreciating that they were being spoken to by police officers, tried to run away. Both were caught, but struggled and hit the officers. The boys were not being arrested and therefore the catching hold of them was technically an assault. The boys were allowed to use self-defence against an assault.

4. Arrest

The term “arrest” is not defined in the Police and Criminal Evidence Act 1984. The courts have held that it is an ordinary English word and whether or not a person has been arrested depends not on the legality of the arrest, but on whether he has been deprived of his liberty of movement. The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right. The use of powers of arrest must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. The exercise of arrest powers is subject to a test of necessity based around the nature and circumstances of the offence and the interests of the criminal justice system.

The police powers of arrest are principally governed by the Police and Criminal Evidence Act 1984 and Code G of the Codes of Practice. Under the Police and Criminal Evidence Act 1984, a police officer must inform a person that he is under arrest and the reason why. © Association of Costs Lawyers Training 2019 99 A failure to do so will render the arrest unlawful. In a fairly recent controversial decision by the Court of Appeal (R v Iqbal [2011] EWCA Crim 273) it was held that a man who had been handcuffed by the police in connection with a criminal offence was not under arrest because he had not been told that he was under arrest and the officer had not considered that he was making an arrest.

4.1 Arrest without warrant

The police powers of arrest without warrant were substantially changed by amendments to section 24 of the Police and Criminal Evidence Act by sections 110 and 111 of the Serious Organised Crime and Police Act 2005. The historical distinction between arrestable and non-arrestable offences was abolished.

Under the new provisions, police have the power to arrest without warrant for any offence, subject to the requirement that a police officer must have reasonable grounds for believing that an arrest is necessary for one or more of the reasons set out in the Police and Criminal Evidence Act. The power of arrest must never be used simply because it can be used. Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court. When the power of arrest is exercised, it is essential that it is exercised in a non-discriminatory and proportionate manner. Under section 24 of the Police and Criminal Evidence Act 1984, a lawful arrest requires two elements:

þ A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and þ Reasonable grounds for believing that the person’s arrest is necessary.

The necessity test requires that an arrest is necessary for any of the criteria listed in section 110 of the Serious Organised Crime and Police Act 2005. The reasons are:

þ to enable the name (and address) of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name); þ to prevent the person in question- o causing physical injury to himself or any other person; o suffering physical injury; o causing loss of or damage to property; o committing an offence against public decency (subject to subsection (6)); or o causing an unlawful obstruction of the highway; þ to protect a child or other vulnerable person from the person in question; þ to allow the prompt and effective investigation of the offence or of the conduct of the person in question; þ to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

A new PACE Code of Practice (Code G) provides guidance to police officers in exercising their powers of arrest. The code emphasises the right to liberty and provides that it is essential that the power of arrest is exercised in a “non-discriminatory and proportionate manner”. Therefore, the less serious a suspected offence, the less likely an arrest will be justified if there is another sensible option, such as service of a summons. © Association of Costs Lawyers Training 2019 100 The Police and Criminal Evidence Act expressly preserves certain powers of arrest enacted prior to the Police and Criminal Evidence Act set out in schedule 2 of the Act.

4.2 Breach of the peace

There also remains a common law power for a police officer (or citizen) to arrest a person for a breach of the peace if:

þ a breach of the peace is committed in his presence; þ the person making the arrest reasonably believes that such a breach will be committed in the immediate future; or þ a breach of the peace has been committed or the person making the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened.

These conditions were set out in Bibby v Chief Constable of Essex [2000] All ER (D) 487. The power to arrest for a breach of the peace is unaffected by the Serious Organised Crime and Police Act 2005 because a breach of the peace is not an "offence". The police can arrest where there has been or there is likely to be a breach of the peace. This applies even if the behaviour complained of was on private premises, as shown by the case of McConnell v Chief Constable of the Greater Manchester Police [1990] 1 WLR 364. In this case, the manager of a carpet shop asked McConnell to leave but he refused. A police officer took him outside and McConnell attempted to re-enter the shop. He was then arrested for a possible breach of the peace. The Court of Appeal held that the arrest was lawful and that a breach of the peace could take place on private premises.

4.3 Arrest under a warrant

There are a number of statutes that authorise the arrest of a person suspected of committing a criminal offence by use of a warrant. The most important statute is the Magistrates' Courts Act 1980. The Magistrates' Courts Act 1980 gives the magistrates' court power to issue a warrant after hearing evidence on oath from a police officer that a person has, or is suspected of having, committed an offence. Such a warrant may be endorsed with or without bail.

A warrant is issued under section 1 of the Magistrates’ Court Act 1980. This requires written information from the police, supported by evidence under oath, showing that the named person has or is suspected of committing an offence. Warrants are only available for offences which may lead to a prison sentence if the person is eventually convicted.

If endorsed with bail, the person, once arrested, is issued a date by the police when he is required to appear before the court. If the warrant is not backed for bail the person, following his arrest, will be kept in custody and brought before the court at the next available sitting.

The police have other statutory powers to arrest without warrant. These include:

þ the power under the Bail Act 1976 to arrest a person for failure to surrender to court or for breaching his bail conditions;

© Association of Costs Lawyers Training 2019 101 þ the power under the Police and Criminal Evidence Act to arrest a person for failure to surrender to police bail; þ the power under the Police and Criminal Evidence Act to arrest a person for the purpose of taking his fingerprints or samples; and þ the power under the Terrorism Act 2000 to arrest a person who is reasonably suspected of being a terrorist.

4.4 European arrest warrant

This is valid throughout all EU Member States and is when a national judicial authority, such as a court, can issue a European arrest warrant to get a suspect extradited. For such a warrant to be valid, the suspect must be accused of an offence incurring a maximum penalty of at least a year in prison, or must have been already sentenced to at least four months in prison.

5. Detention

Once a person has been arrested for an offence he will usually be taken to a police station. At the police station a custody officer will determine whether there is sufficient evidence to charge the suspect with the offence. Under the Police and Criminal Evidence Act 1984, if the custody officer decides that there is insufficient evidence to charge him, the person must be released unless the officer has reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence or to obtain evidence by questioning.

5.1 Timeframes

The maximum period of detention without charge is generally 24 hours from the relevant time. The definition of “relevant time” is set out in the Police and Criminal Evidence Act 1984. It generally means the time an arrested person arrives at the first police station he is taken to.

The period of detention without charge may be extended for up to a period of 36 hours from the relevant time. The extension can only be granted if the requirements in the Police and Criminal Evidence Act 1984 are satisfied.

Detention beyond 36 hours is only permitted under the Police and Criminal Evidence Act 1984 where a magistrates' court issues a warrant of further detention. The procedure and statutory requirements are governed by the Police and Criminal Evidence Act 1984.

If the court grants the application, the warrant can be issued up to a maximum of 36 hours. However, this is subject to an overall maximum period of detention without charge of 96 hours from the relevant time.

The Divisional Court recently held in R (Chief Constable of Greater Manchester Police) v Salford Magistrates' Court and Hookway [2011] 3 All ER 521, that the Police and Criminal Evidence Act 1984 detention clock continues to run while a suspect is on bail. The decision sent shock waves throughout police forces up and down the country. This was because, prior to this decision, it had always been assumed that the time a person spent on police

In July 2011, the government introduced emergency legislation to amend the Police and Criminal Evidence Act 1984. The effect of the amendments is that time spent on police bail will not count towards the time a person spends in police detention. Therefore, the position has been restored to the footing that it was commonly thought to be on prior to the Hookway decision.

5.2 Rights of a detainee

Once a person is in custody, he has rights which the custody officer must ensure are followed through. For example, the detainee is allowed to inform someone of his whereabouts, he is allowed to ask for a solicitor and he is also allowed free medical help if he is injured or feeling ill.

5.3 The lawyer at the police station

A police station adviser can have a profound impact on the course of a criminal trial. Poor advice could make the difference between a guilty and not guilty verdict. This is because the role of a police station adviser is a substantial one.

Code C defines the lawyer's role as to protect and advance the legal rights of his client. This may require:

þ giving advice that has the effect of the client avoiding giving evidence that strengthens the prosecution case; and þ intervening in an interview to seek clarification, challenge an improper question or to provide further legal advice.

The role of a police station adviser can be difficult and stressful. Often an adviser will be defending clients who are vulnerable because of age or mental health issues. In these circumstances, it is not always easy to advise, for example, on appropriate strategies to minimise inferences from silence in interview. A client will always need to be carefully advised on the range of options available to him.

In every case the police station adviser must act ethically. This means he must:

þ keep the affairs of his client confidential; and þ avoid acting for more than one client where there is a conflict of interest.

6. Voluntary Attendance at the Police Station

A volunteer is defined in section 29 of the Police and Criminal Evidence Act 1984 as a person who, for the purpose of assisting with an investigation, attends a police station voluntarily or at any other place where a constable is present, or who accompanies a constable to a police station or such other place without having been arrested. The definition does not include anyone being interviewed other than by a police officer unless the interview is conducted in the presence of a constable. The definition includes witnesses and victims, as well as those suspected of committing a criminal offence. © Association of Costs Lawyers Training 2019 103 A volunteer is entitled to leave at will unless he is placed under arrest. If a volunteer is prevented from leaving at will the Police and Criminal Evidence Act 1984 and Code C stipulate that he must be informed immediately that he is under arrest and brought before the custody officer. The custody officer must then notify the person of his rights in the same way as a detained person.

If a person is not arrested but is cautioned (Code C, para 10.1) the officer administering the caution must immediately inform him that:

þ he is not under arrest; þ he is free to leave if he wishes; þ he may obtain free and independent legal advice; and þ he has the right to legal advice which includes the right to speak with a solicitor on the telephone (he must then be asked if he wishes to exercise this right).

An officer must caution a person under Code C, para 10.1 where there are grounds to suspect that he has committed an offence before any questions about an offence, or further questions, are put to him. A volunteer is entitled to legal advice at any time. This right applies whether a person is at a police station or elsewhere. However, if a person is at a police station he does not have to be told about his entitlement to legal advice unless he asks or has been arrested or cautioned under Code C, para 10.1. If a person asks about his entitlement he must be given a copy of the notice explaining the arrangements for obtaining legal advice. Many of the provisions of the Police and Criminal Evidence Act 1984 and Codes of Practice do not apply to volunteers because they are not persons who are detained in police custody.

The Police and Criminal Evidence Act 1984 provides that a person is in police detention if:

þ he has been taken to a police station after being arrested for an offence or after being arrested under section 41 of the Terrorism Act 2000; or þ he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it and is detained there or is detained elsewhere in the charge of a constable, but a person who is at court after being charged is not in police detention for those purposes.

Code C states that volunteers at a police station should be treated with no less consideration, e.g. they should be offered refreshments at appropriate times.

6.1 Provisions that do not apply to volunteers

The following are the common provisions of the Police and Criminal Evidence Act 1984 and the Codes that do not apply to a person who has attended the police station voluntarily.

þ Review of detention time limits: the maximum period of detention without charge is 24 hours from the time a person is brought to a police station. The Police and Criminal Evidence Act 1984 requires that the detention period must be reviewed periodically to ensure continued detention is justified. These provisions do not apply to a volunteer since a volunteer is not a detained person or a person held in police custody.

© Association of Costs Lawyers Training 2019 104 þ Custody records: the requirement to open a custody record only applies if person is brought to a police station following arrest, attends to answer bail or is arrested at the police station having attended there voluntarily. þ Right to inform: only a detained person has the right to inform someone of their arrest or to consult the Codes of Practice. þ Care and treatment of detained persons: the provisions in Code C relating to the care and treatment of suspects at the police station only apply to those who have been detained. For example, a custody officer must ensure a detainee receives appropriate clinical attention as soon as reasonably practicable if required. þ Right not to be held incommunicado: the right to have one person known to him or likely to take an interest in his welfare informed of his whereabouts only applies to a person arrested and held in custody at a police station or other premises. þ Fingerprints: the power to take fingerprints without consent is often dependent on a person being arrested and detained at a police station, although the police have a wide power to take fingerprints without consent in other circumstances. þ Searches: the power of the police to search a person on arrival at the police station for the purposes of ascertaining what he has on him only applies in respect of a person detained. The power to conduct a non-intimate search or an intimate search is also subject to a requirement that a person must be in police detention. þ Inferences from silence: where a person has been arrested by a police officer and fails to account in the interview for an object, substance or mark, or to account for his presence at a place at or about the time a crime was committed, he may be at risk of adverse inferences under the provisions of the Criminal Justice and Public Order Act 1994. These provisions only apply once a person has been arrested. They do not bite where a suspect is merely interviewed as a volunteer.

6.2 Advising a volunteer

In practice, a person who attends the police station as a volunteer is often arrested as soon as he arrives. A police station adviser should alert his client to this possibility and advise him that, if he is arrested, he will no longer be free to leave the police station at will.

It may be possible to challenge the lawfulness of an arrest in these circumstances if it can be shown that it was unjustified under the Police and Criminal Evidence Act 1984.

In Al Fayed v Metropolitan Police Commissioner [2002] EWCA Civ 780 an arrest to facilitate an interview that the suspect was willing to co-operate in was unsuccessfully challenged in the High Court. However, this case was decided before the amendments to the police powers of arrest in the Police and Criminal Evidence Act 1984 in 2006.

ACL Training Herringbone House Lion Road Palgrave, Diss, Norfolk, IP22 1AL Tel: 0203 1740 967 Email: [email protected] Web: www.associationofcostslawyers.co.uk.co.uk ALCD (Training) Limited trading as ACL Training. Registered in England and Wales. Registered Office: 16 Broad Street, Eye, Suffolk IP23 7AF. Company Number 04158593.