Criminal Law Notes

Actus reus voluntary act or omission, if theres a duty to act (6 duties

statutory, Pitwood, Stone and Dobinson, Tuck, Miller, Fagan) / distinction

NHS v Bland
Causation factual (White) or legal: free, voluntary act (Pagett),
substantial and operating, more than minimal, does not have to only
cause (Cheshire); intervening act (Jordan, Cheshire, Malcherek; Roberts,

Blaue, Dear, Kennedy)

Mens Rea intent (Mohan; Moloney), oblique intentvirtual certainty
(Nedrick, Woolin); recklessness Cunningham or Caldwell (abolished in R

v G), Parker (having the risk in the back of mind)

Transferred mens rea Attorney General (stabbed pregnant girl, baby

born then died)

Negligence D behaved in a way in which a reasonable person wouldnt
Intoxication: voluntary and no MR -> reckless; involuntary and no MR ->

not guilty; Dutch courage (Gallagher)

Homicide unlawful killing of another human being under the Queens

peace with intent to kill (express malice) or cause GBH (implied malice)
Legal person born and capable of breathing (Enoch)
Unlawful act manslaughter unlawful act (Andrews v DPP; strict
liability or negligence cannot be the basis), a base crime (Lamb driving;
Senior-omission); Dangerous (Church such that all sober people would
regard as subjecting V to some harm); causes Vs death; not necessary to
be aware the act is unlawful or dangerous or to recognise the risk

(Newbury and Jones)

Gross negligence manslaughter D owed duty of care (Wacker illegal
immigrants, suffocated; (to anyone who may foreseeably be harmed by
your actions - question of law); breaches that duty; breach involves
obvious risk of death (Misra Ds failed to diagnose condition, V died); no
need for foresight of risk (AG Reference); breach causes death; breach so

gross as to amount to crime (Adomako anaesthetist)

Common Assault (s39 Crim Justice Act) D caused V to apprehend
imminent unlawful force intentionally or recklessly; anything can amount
to assault (Ireland D telephoned women, remained silent), words can
negate the threat (Tuberville and Savage), immediacy requirement not
applied strictly (Constanza), enough that D fears there might be violence
(Ireland), MR = intention or recklessness as to creation of imminent

unlawful force (Parmenter and Savage - woman injured another when

glass slipped out, father injured his kid, did not think he will)
Battery (s39 CJA) D used unlawful force against V and intended or was
reckless as to use of force. Does not include everyday touching (Collins

and Wilcock); MR intent or recklessness (Parmenter and Savage)

Assault occasioning ABH (s47 OAPA 1861) common assault or battery
(show both AR+MR), occasioning (caused) ABH - any injury interfering with
victims comfort or health (Donovan), can be psychological illness if
medically recognised (Ireland); MR of assault or battery (Parmenter and

Savage)
Malicious wounding (s20 OAPA) unlawfully, maliciously (foresight of
some harm Parmenter and Savage) wound (break in the continuity of
skin Eisenhower; direct application of force? Wilsons article) or inflict
(cause - Burstow (D and V split up, harassed, severe depression) GBH
(really serious bodily harm DPP v Smith; look at totality of injuries, can

be psychological illness if medically recognised (Burstow).

Wounding with intent (s18) D unlawfully wound or cause GBH; intent
to cause GBH/intent to prevent lawful apprehension; D charged under s18

can be convicted under s20 or s47 instead

Consent - only a defence to assault or battery, not higher degree of
violence (Brown sadomasochist case). Exceptions: organised games,
tattooing (Wilson), rough horseplay, consensual non violent sexual
relations (Dica HIV transmission, sex with 2 women), mistaken belief that

V is consenting (K).
Rape (s1 Sexual Offences Act 2003) D penetrated vagina, anus or mouth
of V with his penis; V did not consent to penetration and D did not
reasonably believe that V did; conclusive presumption under s76 if D
intentionally deceived V as to nature or purpose of the act (Williams
(singing teacher, deception as to nature), Tabassum (deception as to
quality-not right), Linekar (prostitute, 25), Jheeta (anonymous texts), EB
(HIV positive, didnt disclose, not relevant), Denovald (webcam, deception
as to purpose)) or D impersonated a person known personally to V
(Elbekkay - V assumed D was her boyfriend, had sex at night, D didnt
pretend so not guilty); evidential presumption s75 (open to D to rebut); no
consent under general meaning s74 - V must actively agree to penetration
(Lartner V asleep so no consent; Bree V and D drunk, may be so drunk
as to lose capacity to consent so left to jury; H 16year old, no
recollection, couldnt have possible decided to have sex with unknown
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man; Nathan Wright was V so drunk that had no capacity, even if yes,
did she genuinely consent?); consent provided through fear (Olugboja
didnt struggle or resist because scared following another rape by D
friend; question of consent v submission); mistaken consent unclear; MR
= intent to penetrate; did not reasonably believe that D was consenting
jury to decide having regard to all circumstances, including any steps

taken by D(s1(2))
Infancy ReJTB; abolished rebuttable doli incapax presumption of no

liability under 10
Insanity D insane at trial so unfit to plead (Podola hysterical amnesia,
held fit to plead); insane at the time of offence; MNaghten suffered from
defect of reason caused by disease of mind (did not know nature or quality
of his actions, did not know what he was doing was legally wrong, not in
moral sense (Dean Johnson)); internal cause; not a defence to strict
liability; D voluntary intoxicated and commits crime as a result = no
defence (Lipman -LSD, imagined g-f was monster, killed her); if intoxicated
but can show it was disease of mind which caused defect of reason might
plead defence (Burns); weird cases: diabetes, sleepwalking etc. held to be

insanity
Self defence D was (or believed to be) facing an unjust threat from V
and used the level of force which was reasonable in circumstances; s3 CLA
1967 & common law; defence only to crimes involving force (Renouf
reckless driving forcing car of the road sufficient; Blake v DPP writing
didnt amount to force); could be defence to other offences(Bayer Ds
preventing sowing of a maze, couldnt use since not unlawful); degree of
force has to be reasonable by objective standards, could take into acc Ds
disabilities (Martin Anthony D shot 2 burglars, 1 died, argued he was
more likely to believe he was about to be attacked than general person,
rejected) whether D used reasonable means of protection is question for
jury (AG Reference - D possessed explosives to protect shop from rioting).
4 elements: V posed a threat, which was unjustified, use of force by D
necessary and reasonable by objective standards, D acted in order to
protect him or another or property; mistaken self defence jury asks if
reasonable on the facts as perceived by D (Williams Gladstone D
punched V who he thought was making unlawful assault, but he was
preventing robber from escaping); self induced ask whether force was
reasonable in light of fact that D instigated the fight; excessive use of
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force is not justified (Clegg soldier on patrol, shot 3 times, then 4th, killed,
not in defence); D cannot rely on drunken belief that he was about to be
attacked (Hatton drank with V, returned to flat, believed V was attacking

him with a stick, killed him).

Automatism D suffered complete loss of voluntary self control (AG Ref
reckless driving, condition of driving with no awareness caused by
repetitive visual stimuli not sufficient; need total destruction, not partial or
an impairment); caused by external factor; cannot use if voluntary
intoxicated (Quick - D, diabetic nurse, didnt eat although knew
consequences, caused ABH, no defence); consider what caused Ds

condition intoxication or automatism (no defence if former).

Mistake D is mistaken about an aspect of AR; no defence of mistake but
denial of MR instead; does not need be reasonable but needs to be

mistake of fact
Intoxication 1) voluntary (D knowingly consumed substance or unaware
of strength - not a defence; if prescribed substance and aware of effects
but misuses - no defence; intent based crimes jury considers all evidence
to see if D has MR; recklessness based cannot introduce evidence to
rebut MR (Majewski). 2) involuntary (legal substance, but unaware of
effects (Hardie took Valium, thought it will calm him but got excited and
set fire); if D had MR then no defence only used to determine MR
(Kingston paedophilic tendencies, spiked drink, lured onto a boy, still

guilty).
Duress

by

threats

complete

defence

to

all

crimes,

except

murder/attempted murder (Howe); definition (Graham assisted in the

killing of his wife by his homosexual partner, claimed because man was
violent and he was scared; not available and voluntary intoxication
disregarded). 1) Did D act because of threat of death or serious injury?
(Valderama Vega 3 different pressures, as long as could prove that
committed crime because of threat of death or serious injury from one of
them), threat must come from D himself, can rely on what he reasonably
believed to be a threat (reasonable grounds and genuine belief that threat
of death or serious harm has been made). 2) Would a sober person of
reasonable firmness, sharing Ds characteristics, have responded to
whatever he reasonably believed V said or did by committing a crime?
Reasonable firmness test Brown (obtained services by deception,
claimed because of 2 men who threatened his family, had low IQ but that
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didnt count); attributable characteristics: age and sex, pregnancy, serious

physical disability, mental illness; must be shown that characteristic
provided reason to fail to live up to reasonable man standards; unclear if
Smith(Morgan) applies; D must take reasonable opportunity to escape the
threat (Heath D threatened unless he exported drugs in few days time,
had opportunity to escape); threat must be of imminent harm (Abdula
Hussain running from Iraq, hijacked a plane, not restricted to
spontaneous responses to threats, harm doesnt mean immediate); D
must have good cause to believe threat could be carried out; D must not
voluntarily place himself in position where he could be threatened (Hasan
worked for a man, threatened, his own fault); D cannot rely on internal
duress (Quayle D suffered illness, grew cannabis, raised defence of

necessity as drug needed to avoid pain).

Duress by circumstances faced with certain circumstances D does
lesser of 2 evils; overlaps with necessity; will only be available to D who
acted to avoid threat of death or GBH (Colin reckless driving in fear of

own life and that of passenger; defence available).

Necessity not a general defence, not a defence to murder (Dudley and
Stephens); recognised by courts in ReA(Conjoined Twins) as defence to

murder; remember, casuistic approach on the facts of the case

Attempt AR: D does an act which is more than merely preparatory for
commission of offence (Geddes D in boys toilet with tools, looked ready
to capture, did not move beyond preparation); MR: normally intent to
commit full offence, but varies (Mohan intent to cause bodily harm
required; Khan attempted rape; intent as to AR recklessness as to
circumstances sufficient; AG Reference attempted aggravated damage,
intent to damage recklessness as to endangering lives (circumstance or
consequence?) intent to supply the missing element?); not a defence
that it succeeded, can be charged with full offence; impossible attempt
ask whether on the facts as D believed them to be was possible (Shipvuri

thought that heroin, wasnt, still guilty); abandonment is not a defence.

Conspiracy AR: agreement (beyond stage of negotiation; at least 2;
common purpose communicated; both have MR) to pursue a course of
conduct which involves commission of crime (conditional commission
sufficient, agreement must necessarily involve this, but does not mean
inevitably) + MR: intention to do the act for the offence & intention or
knowledge that circumstances of AR exist (must intend consequences of
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their actions which are part of AR); judged on the facts as Ds believe them
to be; Anderson conspiracy to effect escape of prisoner, D received
money, got paid, then injured so couldnt carry out the plan, claimed was
going to buy the rope and do no more guilty, even if he didnt intend for
agreement to be carried out v. controversial, widely accepted as
incorrect)/ common law conspiracy to defraud & corrupt public morals/
impossibility common law available as defence if could never be

achieved, statute not available as long as D thought it was possible.

Complicity 1) principal person whose acts or omissions amount to AR
of offence; can be 2 joint; if cannot establish which is which both can be
guilty for same offence (Gianetto D1 paid D2 to kill his wife, prosecution
unable to establish who did, D1 guilty on the basis that he or someone on
his behalf killed her, as long as jury can establish that D even if didnt kill
her at least encouraged the killing); if both Ds act simultaneously but does
not co-operate or assist one another=separate liability; doctrine of
innocent agency (Michael-D wished to kill her baby, gave poison to nurse,
a child administered it; Cogan and Leek- D1 took D2 back to house, told
him to have sex with wife, wife didnt consent but D2 believed she did so
acquitted of rape charge, but D2 guilty of attempt-controversial, decided
not on technicalities but justice & common sense). 2) Accomplice person
who aids, abets, procures or counsels the principal in the commission of
offence (s8 Accessories Abettors Act); offence committed by principal;
aiding offering help or assistance, actually helpful in commission of
crime, to principal (AG Reference D laced motorist drink, he drove home
with too much alcohol in blood); abetting encouragement at time of
offence?; counselling encouraging, instigating, inciting (Calhaem D1
obsessed with solicitor, hired D2 to kill his girlfriend, D2 said he didnt plan
to but panicked and did it; D1 was accomplice because act was within her
scope of authority or advice; Clarkson watched rapes while intoxicated,
didnt participate and didnt encourage, not guilty; Bainbridge bought
equipment used to break into bank, argued he didnt know but knew it
would be used for breaking and entering guilty as long as knew the type
of offence, didnt need specifics); procuring caused the principal to
commit offence or principal acted as consequence of Ds acts. MR: intent
to assist the principal with foresight that he might go on to commit the
offence with assistance & encouragement (Bryce); Maxwell knowledge of

actual offence not required, knowledge of type of offence sufficient, list of

crimes. 3) Party to joint enterprise AR: 2 or more people expressly agree
to embark on commission of offence; simply being at the scene (omission)
not sufficient; MR: accessory foresaw principal might commit offence he
did; subjective; If principal had a weapon, accomplices foresight of it
being used is presumed and if used weapon of similar kind still guilty, but
will not be liable for acts done by principal which are fundamentally
different from those foreseen by him; if accomplice offered assistance to
commit particular crime against specific person but principal deliberately
committed it against someone else, accomplice not liable (Powell and
English Powell and friends called at house of drug dealer, fight, d. dealer
shot dead; D said he didnt kill & wasnt aware others had a gun, convicted
because he foresaw the principal might have intent to kill or cause GBH;
English and other attacked police officer with wooden post, another
produced a knife &b stabbed him, English wasnt aware he was armed
with deadly weapon this was outside the scope of enterprise so not
liable, but if had weapon of similar dangerousness, wouldnt matter; 4)
withdrawal from participation possible if D communicates it clearly to
associates.