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Criminal Law 2014-5

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P E R VI I SSI O I N O1 ES EUx tR ernal V elements of an offence

I N T E N T I O N Woollin [1999] created oblique intention whereby even if D does not intend V to die, but does an action which is virtually certain to cause death, he is still liable for murder. However, in this case, they found that on the facts, D did not have oblique intent. Lord Steyn "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...as a result of the defendant's action and that the defendant appreciated that such was the case." Matthews and Alleyn [2003] Ds threw V in a river, knowing he could not swim and watched him drown. Convicted of murder through oblique intent. A U T O M A T I S M

A U T O M A T I S M A-G's Reference (No.2 of 1992) D a lorry driver killed 2 people on the hard shoulder of the motorway. He claimed he was "driving without awareness" induced by hours of staring at long straight roads. Held: this was not capable of constituting automatism. Lord Taylor: "the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough."

O M I S S I O N S Miller [1983] D fell asleep on a mattress holding a lot cigarette. He awoke and saw that the cigarette had started a small fire. Upon seeing the fire, he then got up and went to another room and went back to sleep. Held: where D creates the dangerous situation, he has a duty to rectify it; guilty of an omission. Evans [2009] V self-injected, and D did not seek medical help. D's duty of care arose from her supplying the heroin. She had, in effect, created a dangerous situation and failed to take action to reduce the risk by summoning medical assistance which would have saved her. Ashworth - "The scope of criminal liability for omissions": Introduces the "conventional view", which is that liability for omissions is "to impose a duty to do X at a certain time prevents the citizen from doing anything else at that time, whereas the conventional prohibitions of the criminal law leave the citizen free to do whatever else is wanted apart from the prohibited conduct. Moreover, the criminal law should recognise an individual's choices rather than allowing liability to be governed by chance, and the obligation to assist someone in peril may be thrust upon a chance passer-by, who may well prefer not to become involved at all."

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R v G [2003] Two boys, aged 11 and 12 years, were camping without their parents' permission when they entered the back yard of a shop in the early hours of the morning, Lighting some newspapers they found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately PS1m damage was caused. Held: In the HoL, Lord Bingham saw the need to modify Lord Diplock's definition to take account of the defence of infancy, which contains the concept of "mischievous discretion". Bingham stated that "a person acts 'recklessly' with respect to: (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur and it is, in the circumstances known to him, unreasonable to take the risk." This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding.

Pedain in "Intention and the terrorist example" argues that the use of the term "virtual certainty" is too narrow and does not allow the law to recognise "unwanted but foreseeable" consequences of, usually, violent crimes. She states the judgement in Woollin adds "little if anything to the accepted concept of intention". I disagree with Pedain on this point as in order to be convicted of an intended murder for example; the defendant must set out with the goal of death in mind. Any other outcome would be seen as failure in the defendant's mind, because he fully intended to kill the victim.

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V MALICE

Leading case in transferred malice Latimer [1886] D swung his belt at a man whom he was quarrelling with - belt hit the face of a woman. Lord Coleridge stated if the malicious intent is present, it transfers to the injured party. Doesn't just apply to murder or intention; recklessness and other crimes can be transferred to other target. However, cannot have differing offences in actus reus and mens rea e.g. throwing a stone at a person but breaking a window = not guilty of criminal damage. Defences can be transferred e.g. self-defence if you kill someone else instead of the person attacking you - both intention and defence are transferred. Jeremy Horder suggested that there should be 'remoteness' or 'incompatibility' limitation if a) V was not the intended victim & b) V was killed in an unexpected way, unforeseen by the defendant e.g. D misses, bullet flies into a factory, factory blows up and kills V. Should this be rejected? It's uncertain; no limits; unnecessary sophistication because as in Mitchell [1983] "the criminality of the doer of the act is precisely the same whether it is A or B who dies" A-G's Reference (No.3 of 1994) D stabs gf in the stomach, knowing she is pregnant, 2 weeks later the child is born grossly premature and dies 4 months later. Held: found that "the intent to stab the mother (a live person) could not be transferred to the foetuses (not a live person)". Lord Mustill stated that the idea that a "wrongful act displays a malevolence which can be attached to any adverse consequence, has long been out of date" Bollom [2003] D charged with causing serious bodily harm after his 17-month old stepdaughter was found with circular bruises all over her body - D appealed against the seriousness of the injuries, and it was held that "serious" harm was agent-specific aka dependent on age/health etc...

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COINCIDENCE OF EXTERNAL FA U LT E L E M E N T S

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Generally, actus reus and mens rea must occur at the same time (contemporaneity), except in some circumstances: i. if the action is continuous e.g. Fagan (man refused to move car from policeman's foot) where continuous act matches later mens rea. ii. subsequent omission to remove accidental danger e.g. Miller (tramp accidentally set fire to mattress with cigarette; did not put out fire) iii. complex single transaction e.g. Thabo Meli (4 Ds hit V on head; believing him dead, they rolled him off a cliff where he later died) held to be murder. Only applicable to prescribed intent e.g. Church D knocked out V; believed her dead and threw her into river where she died = manslaughter for lack of prescribed intent. See also Le Brun. iv. causation approach: mens rea precedes actus reus, concurrence can be circumvented by showing earlier action was the cause of death e.g. Mackinnon (NZ) D knocked V out, then manhandled him causing him a nosebleed; V chokes on blood and dies - D convicted of murder because he had to correct mens rea when he struck V. R v Thabo Meli [1954] Lord Reid: "it appears impossible to their Lordships to divide up what was really one series of acts in this way...the accused set out to do all these acts in order to achieve their plan" "much too refined a ground of judgement to say that because they were under a misapprehension at one stage and thought that their guilty purpose was achieved before it was achieved, that they are to escape the penalties of the law" A-G's Reference (No.3 of 1994) D stabs gf in the stomach, knowing she is pregnant, 2 weeks later the child is born grossly premature and dies 4 months later. Lord Hope: "that act which caused the death and the mental state which is needed to constitute manslaughter need not coincide in point of time...[as long as]
they are part of the same sequence of events" Fagan v Metropolitan Police Commissioner [1969] "it is not necessary that the mens rea should be present at the inception of the actus reus, it can be superimposed on an existing act"

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V MISTAKE Mistake usually has no bearing unless it causes D to lack mens rea or provides a legal excuse. Taaffe [1984] - D smuggled in a packet containing drugs; believed he was smuggling foreign currency which he thought was an offence and was then charged with it. It was not an offence and his conviction was quashed. The impossibility of committing the full offence is not a defence. Morgan [1976] - RAF men raping wife of friend as told she had a rape fantasy and would object. Held - unless a mistake was based on reasonable grounds could not raise defence of mistake. HoL disagreed and held unreasonable mistakes could be used. Men convicted as was not believed that they genuinely believed that V consented. English legal theory on defence of mistake is not coherent and v shaky. Exacerbated by a series of conflicting cases:

Martin (David) [2000] - ruled it was a misdirection to tell a jury to assess the reasonableness of D's belief; a genuine belief, however unreasonable, would suffice Martin (Anthony) [2002] - D pleaded mistaken self-defence because his personality disorder perceived the threat to be greater than it was. Held: reinforced that a genuine albeit mistaken belief was enough but created the distinction between (i) the situation as D perceived it and (ii) the actual danger presented by that situation. In terms of (i) D had a case but he failed on (ii). Ignorantia juris neminem excusat - ignorance of the law excuses noone. Is mistaken belief justification or excuse? Anthony Duff argues t is excuse as it is "wrong but warranted" The case of Tony Martin is contentious now after the passing of the Crime and Courts Act 2013 s.43 which denotes that force used in the home against a trespasser must now be "grossly disproportionate" to the threat presented.

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2 NEGLIGENCE Negligence does not presuppose any particular state on D - it is an objective assessment of an objectively recognisable risk: emphasis is on the unreasonableness of D's behaviour. Ordinary negligence - relatively minor but prudent lapses in the reasonable standard e.g. driving without due care and attention. Gross negligence - a standard which falls well below the competent person e.g. driving in a way that the competent driver would consider dangerous and carless. Adomako [1995] - D, an attending anaesthetist, failed to notice the tube supplying oxygen had become dislodged; 9 minutes later, the patient died. D convicted of manslaughter - gross dereliction of the standard of care. Emergency factor? Jeremy Horder suggests the orthodox test does not allow for cases of genuine emotion/fear. Abnormal Defendants Elliot v C (a minor) [1983] - C, a 14-year-old girl of low intelligence spent the night outdoors without sleeping and ended up in a garden shed where she found white spirit and ignited it by dropping lit matches onto it. Held: convicted of criminal damage This does not seem fair - but there is no clear rule on people of low intelligence; academics favour the subjective approach - H. L. A Hart proposed this question "could the accused, given his mental and physical capacities, have taken the [required] precautions?
Test can be applied to the subjective e.g. blind/paraplegia/low intelligence. Very few offences based on negligence as it derogates from the subjective principles of the English criminal law - negligence as a standard of liability shows insufficient respect for the principle of autonomy.

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V S T R I C T, A B S O L U T E A N D CONSTRUCTIVE LIABILITY Strict liability offences do not require mens rea, usually regulatory e.g. parking offences; selling alcohol to drunken people; selling controlled medicines. Sweet v Parsley [1970] - D was a teacher prosecuted for "being concerned in the management of premises used for the purpose of smoking cannabis" having sublet her farmhouse to a group of students. Despite the terms of the statute being satisfied - she was concerned in its management; the HoL quashed her conviction on the grounds that: "there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy for what they did" This is an indication that sometimes, where the statute is silent, the courts will impose a mens rea requirement. B v DPP - 15-year old D repeatedly asked a 13-year old girl to perform oral sex on him whilst on a bus and was charged with indicting a girl under 14 to perform an act of gross public indecency. D said he genuinely believed the girl was 14 - however, no mens rea is required for the offence and he was convicted. Held: HoL quashed his conviction on the assumption that there is common law presumption that mens rea is required. It is suggested that SL acts fall within the "class of acts...which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty" Public welfare offence: one that regulates and controls excess in an otherwise acceptable practice, strict liability simplifies prosecution because it is difficult for the prosecution to acquire sufficient expert knowledge to establish mens rea. Cannot plead lack of mens rea or fault when charged with a SL offence but you can use the defences of duress, necessity and self-defence. Unclear on insanity. Constructive liability: causing something as a consequence to your act e.g. manslaughter by an unlawful act. Also technically breaches the correspondence principle.

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2 ARGUMENTS FOR STRICT LIABILITY
- Simplifies prosecutions, because there is no requirement to establish mens rea.
- Cheaper
- Offers a higher measure of protection and prevention e.g. those offences which specifically endanger the public (drugs; food safety; driving).
- Lord Scarman states "the creation of strict liability will be effective to promote the object of a statute by encouraging greater vigilance"

ARGUMENTS AGAINST LIABILITY

STRICT

- Can lead to harsher sentencing despite the lack of fault e.g. in Gammon the minimum 3-year imprisonment was described by the Privy Council as a "formidable point" against strict liability.
- The need for imprisonment should be reserved for 'truly criminal' rather than 'regulatory' offences.
- Could encourage retribution as it only requires D to be in a certain situation without a mental requirement.
- Can reduce the criminal law to a legal lottery over which D has no control.
- Promotes cynicism and disrespect for the law amongst innocent people.
- The argument for strict liability (cheaper; less time-consuming; easier to discharge burden of proof) is morally incoherent because it uses procedural convenience as a reason to change substantive criminal principles.
- Always possible to convict the innocent; the public need protection from random impositions of liability.
- Breaches the correspondence principle.

HOMICIDE

(1)

CAUSATION

3 cases where an intervening human act does not break the chain of causation: The act must cause the death, there must be an unbroken chain of causation leading to the death.

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V 1. Non-voluntary conduct of 3rd parties - infants/mentally disordered; innocent agents given false information which D hopes will be acted on, that action is discounted e.g. Michael [1840] D's child in care of foster-mother, D wished child dead, handed poison to foster-mother saying it was medicine, mother left the medicine out where her own child swallowed it and died > neither the conduct of the child or the mother was sufficient to relieve D of causal responsibility. If intervening act is one of compulsion, necessity, duty/D applies duress to 3rd party/ D's conduct creates a duty on 3rd party to act e.g. Pagett

2. Conduct of doctors - under pressure; required to make rapid decisions; D's conduct does not need to be the sole or even main cause, only a significant contribution e.g. Cheshire [1991] "even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding responsibility of the accused unless the negligent treatment was so independent of [D's] acts...that they should regard his contribution as insignificant"

3. Conduct/condition of victim - "egg shell skull" principle; refusal to accept medical treatment e.g. Blaue [1975] held that the thin skull rule applied to "the whole man, not just the physical man" Seems at odds with principle of autonomy?
Kennedy (No.2) [2007] - D handed syringe to B, who injected himself with heroin and died. Judged that B was an autonomous individual and made the decision to inject. Cannot be convicted of 'maliciously administering' as D did not administer. Self-injection not a crime, so no accessory liability either. Williams [2010] - D was driving uninsured and without a license and killed V who stumbled in front of the car suddenly. D's appeal dismissed notwithstanding that the prosecution had accepted that no fault, carelessness or lack of consideration in driving could be attributed to the defendant and where the evidence established that the deceased had stumbled into the defendant's path, thereby being a major cause of his own death.

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2 Glanville Williams wrote in Finis for Actus Novus? (1989) "I may suggest to you reasons for doing something; I may urge you to do it, tell you I will pay you to do it, tell you it is your duty to do it...my efforts...do not cause you to do it...your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going" In the event of multiple causes, D's act has to be significant and operating. In the case of natural events that contribute, D is held responsible unless the natural event was not reasonably foreseeable. Lord Hoffman defined this as "something extraordinary".

HOMICIDE

(1)

DEFINED:

a) the victim must be a human being b) death must be caused through the act or omission of one or more human beings c) death must occur within the Queen's peace Human beings: foetuses not afforded full human status. Test of independent respiration to attain personhood; pre-birth injuries that cause post-birth death can be homicide.

HOMICIDE (1) LOSS SELF CONTROL

OF

Coroners & Justice Act 2009 s.54 Solidified a statute on provocation as a partial defence to murder (goes down to manslaughter). There are 3 main statutory components: (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b) the loss of self-control had a qualifying trigger, and (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

R v Hughes [2014] - H (uninsured with no licence) in collision with D, another driver who was killed. Crash is fault of D entirely. SC held that offence 32Z of Under the CJA 2009 a "qualifying trigger" is found in s.55(3-5) and details that D the Traffic Act required some minor act or omission that contributes to the must have "a fear of serious violence" or something was done or said to leave D death. They held H's actions did not contribute to the death in any minor way. with a justifiable sense of being seriously wronged.

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V This qualifying trigger cannot be caused by sexual infidelity is any sense under s.55(6)(c) and under s.54(3) all characteristics which may affect D's self-control will be disregarded. This means that people like e.g. battered wives, are probably in a worse position now than with the old common law defence of provocation.

Pre-CJA cases: Doughty [1986] that a baby's persistent crying could be viewed as a provocative incident, which blurred the lines between aggravating natural events and events attributable to human agency. Under the CJA this would not work as the defendant must be seriously wronged by the crying. Acott [1996] - D killed his mother in a frenzied attack which implied something said/done, however, D had no recollection of the event so provocation could not be raised. Held: must be evidence of something said or done. Would probably still apply under the CJA - evidence is needed of a qualifying trigger. Cocker [1989] D killed his terminal wife after persistent pleas to do so
- no provocation; circumstances were calm and deliberate. Would still be decided this way under the CJA.

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2 1. She had told him that she had had sexual relations with five men and was describing in graphic detail the acts they had performed.

2. She had laughed and taunted him about the suicide website.

3. She had told him she no longer wanted the children. Held: Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers. Where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being wronged under s.55(4) Sexual infidelity may be taken into account in examining the defendant's circumstances under s.54(1)(c). Dawes, Hatter and Bowyer [2013] application of the law in Clinton. Bowyer burgled the home of a man who came back when D wasn't expecting it, D killed him and ran loss of control. Judge left to the jury. D appealed saying a misdirection. CoA upheld conviction - no way could a burglar on being disturbed by a householder say he had a "justifiable sense of being wronged.

Hatter climbed into his unfaithful mistress's house and stabbed her to death. Tried to plead that he was joking around - should the judge have left to the jury the defence of loss of control? If evidence gives possibility of a defence, the judge Mohammed [2005] D, a devout Muslim, stabbed his daughter 19 times must leave it to the jury, but there was no evidence so judge was right not to leave after finding her in her bedroom with a young man. At his trial he raised it to the jury. (s.56 applies anyway - cannot take infidelity into account) clear the defence of provocation based on his devout religious beliefs surrounding application of Clinton. sex before marriage. His defence was not accepted. May be different under the CJA, if he had a justifiable sense of being Dawes found wife asleep on sofa with V, then beat up and stabbed V. Ran seriously wronged by her conduct. defence of self-defence, it failed. Argued judge should have left loss of control to jury, but facts seem to suggest evidence. Post-CJA: Clinton [2012] D and his wife both suffered from depression for which Changes from common law defence: they were on prescribed medication. He and his wife agreed to a trial
- no longer matters that the loss of self-control was not sudden separation for four weeks as she needed time out. She left him with the children and moved out. D did not cope well with this and became
- applies to a person with "a normal degree of tolerance and selfobsessional and had been looking at suicide websites. Two weeks later restraint" it was held in A-G for Jersey v Holley [2005] that mental she revealed that she was having an affair. He asked for her to come to the characteristics cannot be applied to this objective standard. house to tell the children together that their marriage was over. At the
- If the fear of violence or things done or said were incited by the defendant meeting he killed her by repeatedly beating her on the head with a wooden they are to be disregarded. baton and strangled her with a belt. D said he lost his control at the meeting due to three factors:

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