Omissions

A Duty to act under a Singh GUILTY Pittwood GUILTY Adomako GUILTY

contract of employment Landlord failed to repair a faulty gas D a railway employee who's D an anaesthetist in a eye
fire- it leaked and killed occupants. job it was to man the level operation.
LBO for manslaughter as failed to fix crossing but he left it open. LBO for manslaughter as failed his
faulty gas under his contractual duty. LBO for manslaughter as contract of employment which
failed to close the gate was to notice the tube had
which he was contracted to become disconnected for several
do. minutes. Grossly Negligent.
A duty to act for person Dytham GUILTY D a PC at a nightclub- watched a man thrown out and kicked to death by 3 men. LBO for
holding public office misconduct ( failing his public duty to intervene/ summon help) as it was his duty because of his job in public
office.
Voluntary acceptance Stone and Dobinson GUILTY Instan D went to live with her aunt who suffered
of care and responsibility D agreed to look after Stones elderly sister. Fanny from a debilitating illness and could no longer
of a person weaker refused to eat and eventually died. care for herself. D stopped care and V died
through age or infirmity LBO for manslaughter as failed to summon help and although she continued to live there.
had accepted a duty of care. LBO for manslaughter as failed to summon help
although she had accepted care. GUILTY
Duties arising from a Gibbins and Proctor GUILTY D separated and starved a 7yr old child Nelly who then died.
relationship such as LBO for murder as failed to care despite the relationship. Dad had an automatic duty due to relationship
parent & child and failed whereas step-mum has accepted care of Nelly and failed.

Creation of danger Miller GUILTY DPP v K GUILTY Khan & Khan GUILTY Evans GUILTY
D a tramp 15 yr old boy took D supplied heroin to a 15yr old girl. D lived with 16yr old half-sister
squatting. Fell acid from class to Took the drugs and overdosed a heroin addict and her
asleep with a test its reaction and then collapsed. The men mother. D bought 20 worth
cigarette and on toilet roll. He chose to leave and when they of heroin for her and she took
the room set on heard footsteps returned she was dead. If they'd too much and overdosed. D
fire and D woke and hid it in the called for medical help she would and her mother then failed to
up and simply dryer. Another have lived. get help and were held LBO
moved rooms. child then used it LBO for manslaughter as failed to for manslaughter as they
LBO for arson as and was call for help even though they created a dangerous
had a duty to sprayed.LBO for provided the drugs which situation which they failed to
stop the ABH as he failed provided the dangerous situation. prevent from continuing.
dangerous to prevent the Appealed and conviction COA held that both owed a
situation which dangerous quashed due to misdirection. duty of care towards V as
D created from situation from COA said in future cases a duty of had a relationship and didn't
continuing and continuing. care could be found. prevent danger. Under Miller
failed. principle.

Omissions created by Statute
Termination of a duty
(contractual and caring
duties)
The Good Samaritan rule
Omissions
Children and young persons Act Greener GUILTY
1933 Dangerous dogs act says its an offence to fail to muzzle
Failure to provide a child with certain types of dogs.
adequate food, clothing, housing or D failed to muzzle his pitbull and it injures a young child.
medical help. LBO as had a duty to control his dog under the Act
which he failed fulfil.
Relevant Issues
When a duty arises as a result of Bland NOT GUILTY
a relationship or contractual Victim in PVS following Hillsborough.
situation, it may be possible to No chance of improvement and so doctors sought
relinquish that duty in certain permission from courts to terminate the duty of care and
circumstances. not be held LBO. In patients best interest .
Failing to help during France and Netherlands-
an emergency Argued a moral duty exists.
England- Adopted this law and Now its been made an offence for anyone
Not a legal obligation to fail to take steps which he/she could without personal risk to save
another from death/ injury.
If don't imprisoned up to 5 years and fined up to 75,000 euros.

Omissions and involuntary Manslaughter

Constructive Manslaughter
Lowe
D convicted of neglecting his
child under CYPA.
Trial judge said D was also
liable for manslaughter but
COA quashed conviction as
charge of constructive
manslaughter cannot occur
where D has failed to act.
Kennedy
V asked D to give him
something to help him sleep.
D gave him heroin. D was
convicted of manslaughter
when v died. HOL quashed
conviction and said dealers
wont be liable in future cases
where drugs were freely and
voluntarily self administered
by V.
Gross negligence Manslaughter
Khan
COA held in future cases that
there could be a duty
established between dealers
and users of a drug.
Evans
Court made specific mention
that the cases did not affect
or relate to any issues
regarding the liability of drug
dealers.
Makes it clear they don't
want to convict drug dealers
of manslaughter.
 Omissions

AO2 + -
Contract of Its in there contract so its their duty Is it fair to impose a duty via a contract where there is a
employment chance of personal risk to D?
Protects us everyday people
Many people do not read/know there contract which
You accept your contract therefore you should be makes it seem unfair as if they don't know what they
aware of your responsibilities and then carry them should do they shouldn't be held liable.
out properly and keep others safe as it is set out to
do.

Public office It is desirable to impose standards of acceptable
behaviour on offices of public duty such as the
police.
Morally right- should set an example
It makes people think they shouldn't help/ do
something. Makes them lead by example.
As a normal human being you should want to help
anyway despite a legal duty

Should do something even if its only calling for help-

Dytham should of don't something even if it was
even radioing for help.

Responsibility Morally right to uphold a duty of care for people
within a certain relationship (mother and daughter)
so could relate to others in a similar way
Such as step mothers such as in the case of Instan.
It is write when you have a relationship such as this
that you owe a duty of care.
No definite rules defining when a duty has been
accepted by D
Is it morally right to impose a duty on d?
Once a duty has been accepted it is difficult to define
the extent to which the duty applies.

Is it right to impose a duty of care on someone who is

incompetent such as in the case of Stone and
Dobinson

Caring duties should be clarified be parliament to

ensure certainty and consistency.

Relationship Morally right to uphold a duty for people within a

certain relationship. Such as in the case of Nelly

Creation of danger Protects us

They created the danger so they should be liable.
 Omissions
+ -
Omissions created Statutes always changing and not always clear-
by statute Greener always adding knew dogs to the dangerous
dogs act.

Often not published and many people don't read

them/ know where to find them.

Termination of a Blands guidelines are vague and inconsistency could

duty occur.

Difficult for doctors to decide between allowing a

patient to die or live.

Good Samaritan Morally right for people to intervene Not needed in the UK
rule Builds community spirit D could worsen the situation
Saves lives Unfair to convict D as he/she did nothing wrong.
Not everyone can help eg- someone who cant swim
Tax is paid for emergency services
Pressure on courts
What is an emergency?
Would certain people be exempt? Elderly?
Could involve imposition of a crime on many people
which is unrealistic
Education in citizenship would be better
Some argue that moral duties should be kept
separate from legal.

REFORM The Criminal law Revision Committee The Law commission 1993 Academic Opinion
1980
Only serious offences endorsed Professor Ashworth argues-
Liability for omissions should be the miller principle- if you create `good Samaritan` principle
restricted to the most serious offences something dangerous you should be implemented so that
Only!! should have to take a positive liability would be imposed
step to stop it. where the rescue of V would
not have presented a danger to
D.
 Causation
Factual The `But for` test White
Causation Would the victim have lived but for the actions of D White illustrates the test for factual causation
White wished to kill his mother and put cyanide in her
drink. The mother then dies of a heart attack.
But for his actions she still would of died so he was not
the factual cause - Convicted of attempted murder

Legal Chain of causation Pagett Marchant and Muntz Adams

Causation D was not the sole cause but D attempted to escape
the legal cause armed police and
Test decided to use his
Morally responsible pregnant girlfriend as a
shield and the girl was
Accelerated death
shot and died.
More than a minimal cause
D convicted as fits into
all 3 tests therefore guilty
as he was the legal
cause.
D driving an agricultural Doctor gave
loading machine and collided medicine to end
with a cyclist. V was impaled the lives of
with metre long spikes that terminally ill
were uncovered. D not liable patients.
as the cyclist would of died Accelerated death
so therefore the
anyway due to his speed.
Not morally responsible so not legal cause.
the legal cause.

Principles of causation
Once causation established liability can only be removed by an act of gross negligence on the part of the victim, a 3 rd party or an intervening event.

Eggshell Skull When a person Blaue Hayward Mckechnie

possesses a
conditions particular physical
D stabbed V through heart and D threatened wife in drunken D seriously assaulted. Doctors
weakness which
liver-Required a transfusion but rage. Wife tried to escape, discovered a ulcer but
as a Jehovah's witness was collapsed and died. Had an couldn't operate due to
THIN SKULL means they are
unable to accept the blood. overactive thyroid which severity of condition. The
more susceptible to
death/injury CAUSATION NOT BROKEN as must brought on the death. ulcer exploded and V died.
take a person as you find them CAUSATION NOT BROKEN as CAUSATION NOT BROKEN as
under eggshell . This may be seen as under eggshell condition V under eggshell condition V
unfair as not physical condition. should be taken as found should be taken as found

Victim- D behaved in such a Pitts Roberts

way V tried to
escape escape.
V in fear of assault D gave a lift to a girl- Told her to undress
If death occurs and
Jumped into a river and drowned. and she refused. He then tried to
escape wasn't daft D liable for death as Vs actions were not seen as uncloth her and v jumped from the car
of grossly negligent grossly negligent. Actions deemed reasonable and was injured. Vs actions not deemed
causation not broken therefore CAUSATION NOT BROKEN grossly negligent therefore CAUSATION
NOT BROKEN. Daftness test.
 Causation
Victim- self- Causation only Wall Dear
treatment & refusal removed if V seriously injures by 800 floggings. V slashed with a knife as V assaulted 12 year old
treatment was To ease the pain drank alcohol daughter. V took no steps to stop the blood and
deemed grossly Died of a heart attack. there was evidence he reopened the wounds to
negligent CAUSATION NOT BROKEN commit suicide.
Refusal of As at the time the self treatment CAUSATION NOT BROKEN
treatment will wasn't deemed grossly negligent. As D had significantly contributed to the death and
never remove was a operating and substantial cause- refusal of
causation treatment does not break causation .

Intervention of a Only an Smith Cheshire Jordan

third party intervening act D a soldier who stabbed v in D in a fight with v outside a V stabbed
of gross the stomach. chip shop Given antibiotics he was
negligence on Soldier was carried to V was shot in the stomach. allergic to twice.
the part of the medical centre and During major surgery fitted V then died.
3rd part will dropped twice with a tracheotomy due to
Medical staff were under breathing problems. Tube Treatment was deemed
remove
pressure and gave poor then became blocked and palpably wrong and grossly
causation treatment. negligent so
v died of heart attack.
CAUSATION NOT BROKEN as CAUSATION NOT BROKEN CAUSATION BROKEN
D the substantial/operating D did not have to be the
cause. sole/main cause but must
significantly contributed.

Life-Support Problems arise when victims Malcherek & Steel Both placed on life support and
machine of violence are on life doctors agreed to switch them
support with no prospects of Malcherek off.
recovery and doctors switch D stabbed his estranged wife 9 COA held that doctors were
time merely allowing them to die
off the machine
naturally.
Steel Did NOT BREAK THE CHAIN OF
D attacked a stranger on the CAUSATION
street in a rage

An Intervening Where V injured causation can be removed if injuries were slight but made worst by event.
Event Couldn't be prevented/ predicted
`Act of god`
Eg- earthquake NOT BROKEN
 Causation
Factual White mother cyanide heart attack died But for his actions she still would of died so he was not the factual cause -
Causation Convicted of attempted murder

Legal Causation Chain of causation- D was not the sole cause but the legal cause
Morally responsible Accelerated death More than a minimal cause

Pagett Human shield D convicted as fits into all 3 tests therefore guilty as he was the legal
cause.

Marchant and Muntz Agricultural loading vehicle cyclist D not liable as the cyclist would of died anyway due to his speed. Not
spikes morally responsible so not the legal cause.

Adams Doctor gave medicine to end the lives Accelerated death so therefore the legal cause.
of terminally ill patients.

Principles of causation Once causation established liability can only be removed by an act of gross negligence on the part of the victim, a 3 rd party or an intervening event.

Eggshell Skull Blaue D stabbed V through heart and liver-transfusion CAUSATION NOT BROKEN as must take a person as you find them
conditions Jehovah's witness under eggshell. Seen as unfair
THIN SKULL Threatened wife in drunken rage. Escape collapsed and CAUSATION NOT BROKEN V should be taken as found
Hayward
died overactive thyroid

Mckechnie assaulted ulcer exploded operation CAUSATION NOT BROKEN V should be taken as found

Victim- escape Pitts fear of assault river and drowned. CAUSATION NOT BROKEN Vs actions were not seen as grossly
negligent.

Roberts lift girl undress refused jumped from the car injured. CAUSATION NOT BROKEN as Vs actions not deemed grossly
negligent. Daftness test created.

Victim- self- Wall 800 floggings alcohol heart attack CAUSATION NOT BROKEN as at the time the self treatment wasn't
treatment & deemed grossly negligent.
refusal slashed with a knife. assaulted 12 year old. suicide CAUSATION NOT BROKEN as D had significantly contributed to the
Dear
death and was a operating and substantial cause- refusal of
treatment does not break causation .

Intervention of a Smith Soldier stabbed dropped twice under pressure poor CAUSATION NOT BROKEN as D the substantial/operating cause.
third party treatment

Cheshire fight chip shop shot tracheotomy blocked heart attack CAUSATION NOT BROKEN D did not have to be the sole/main cause
but must significantly contributed.

Jordan V stabbed antibiotics allergic died Treatment was deemed palpably wrong and grossly negligent so
CAUSATION BROKEN

Life-Support Malcherek Malcherek Both placed on life support and doctors agreed to switch them off.
machine and Steel D stabbed his estranged wife 9 time
Steel COA held that doctors were merely allowing them to die naturally.
D attacked a stranger on the street in a rage Did NOT BREAK THE CHAIN OF CAUSATION

Intervening Where V injured causation can be removed if injuries were slight but made worst by event.
Couldn't be prevented/ predicted `Act of god`Eg- earthquake NOT BROKEN
event
 Causation

AO2 + -
General Issues It is morally correct that the courts usually hold the The court are reluctant to break causation which can
original defendant liable for the ultimate result. be harsh on the defendant

Where causation is broken the defendant may be

charged with a non-fatal assault instead of murder,
which is fair.

Factual Causation But for test is extremely east to satisfy which can make
it unfair and also influence the jury within their decision
making.

Legal Causation This seems a fairer way to test as it examines the The courts have devised a number of tests, this has
culpability of D. promoted confusion

Adams-Could be seen as unjust as many belive in

euthanasia and therefore they are simply helping a
person to carry out their wishes.

Principles of causation

Eggshell Skull Seems fair the law protects those with an eggshell skull Could be considered unjust as D becomes liable for
conditions condition an event that was not intended.
In Blaue academics have argued that D should of
been liable for S.18 GBH reflecting Vs choice to die.

Victim- escape Fair as D will still be liable unless V commits an act What if under pressure V does not act reasonable?
deemed daft or unreasonable. Should there be limits set?

Victim- self- In some circumstances the refusal of treatment can be

treatment & refusal deemed unreasonable Rules were set in 1800s when
medical treatment poor thus was reasonable.
Medicine has altered alot since then and this area
therefore requires reform by parliament.
Maybe should break causation today.
 Causation

+ -
Intervention of a The judicial attitude of the courts protects public It can argues that the rules of causation favour the
third party services personnel such as the police and medical medical profession too heavily. It seems unfair D could
staff who are only trying to do their jobs. A neglect be liable for a crime that a medical professional made
public services worker can be dealt with under civil worse.
law. Everyone makes mistakes and thus to convict a
doctor for example would not serve public policy.
The case law is highly conflicting and the tests are
Jordan shows us that if the event is palpably wrong the confusing
chain will be broken and not all mistakes can be
overlooked. Sometimes it simply isn't Ds fault the Victim Is Jordan's decision still valid?
died.

Life-Support It gives doctors the chance to end the life support and
machine not be found liable for murder which is fair as they are
doing it only when in the best interests of the patient
and when there is no chance of recovery.

An Intervening It is event hat couldn't be prevented/ predicted and

Event therefore breaks the chain of causation, It is fair as the
person can not be held liable for the death of another
when extreme and life threatening events take place
which would mean they were likely to die anyway.
Although Ds actions were only slight

Reform Ultimately, causation needs to be reviewed by parliament in order to clarify the tests, such as legal causation,
third parties and refusal of treatment. It could eliminate uncertainties within this area of law.
 Recklessness
When D lacks the intention for certain offences can be found guilty where he/she was considered reckless.
Subjective Objective
Ds perception What a Ordinary prudent individual would think
Unjustified risk- Potential harm is greater than the social utility
1957 SUBJECTIVE 1979 1981 BOTH 2003 SUBJECTIVE
Cunningham Stephenson Caldwell- 2nd test added R&G return to Cunningham
1957 Birth of Recklessness
Cunningham- SUBJECTIVE TJ- Held `maliciously` meant wickedly
D ripped a gas metre from the wall to steal the money inside COA- Held it meant:
and ruptured a gas pipe and the gas leaked injured a
woman. 1.Did D see the risk and run it?
Charged with S.23 OAPA 2. Was it unjustified?
NOT GUILTY- did not see the risk Conclusion- Subjective type recklessness created.

The Criminal Damage Act 1971

Law commission reported Cunningham's definition correct. Added to criminal damage act. D must have the
intention to be reckless
Problems
1. Didn't say which type of recklessness
2.Didnt define the word.
Stephenson D a schizophrenic homeless man
Took shelter in a haystack and lit a fire to stay warm. Caused 3500 worth of damage. Due to condition deprived of normal
ability to see the risk.
Offence- Criminal Damage
NOT GUILTY SUBJECTIVE- Did not see the risk due to condition
COA said he did not see the risk
 Recklessness
The second test- CALDWELL 1981
Caldwell D created an obvious (and serious)
D a ex-employee of hotel risk which either:
Got drunk, broke a window and started a fire. No serious harm done. Argues he was
so drunk he did not see the risk 1. D was aware of risk and
HOL made OBJECTIVE recklessness -GUILTY nevertheless continued
Offence- Criminal damage with intent or whilst being reckless as to endangering life. 2. D was unaware of the risk but OPI
OPI would of seen the risk would of foreseen it.
Set out to convict the Advertent and Inadvertent risk taker
Advertent Sees/ appreciates the risk Inadvertent Does not see the risk
How convincing was the decision?
3:2 Normal word Inadvertent
Not anonymous/ weak majority Said recklessness is a normal word for the jury to Should not be treated equally as dont see the
So decision is poor decide risk.
Said to have no `special` meaning

Diplocks reasoning described as...

Regrettable and pathetically inadequate
Later that day Caldwell continued...
Lawrence Reid Seymour DPP v K
D a motorcyclist- driving at D undertook a car on D argued with girlfriend and drove a D a 15yr old boy- took
80mph in a 30mph zone. the inside lane lorry into her car- said he was trying to sulphuric acid from class
Killed a pedestrian Hit a taxi hut and killed get it free to test reaction with
OBJECTIVE the passenger. Charged with involuntary toilet paper.
OPI would of seen the risk Charged with death manslaughter Heard footsteps and hid
Charges with causing death by reckless driving OBJECTIVE GUILTY D created a it in dryer. Sprayed
by reckless driving HOL OBJECTIVE GUILTY - obvious/ serious risk that a OPI would another child.
added `serious` to the test OPI would of seen the of seen. Charged with ABH
NOT GUILTY ON risk Lord Roskill- Held objective OBJECTIVE- GUILTY- OPI
MISDIRECTION. recklessness applied to all offences would of seen the risk
unless parliament specified.

Started to be questioned due to...
Fairness Elliot
OBJECTIVE
D a 14 yr old girl with severe mental difficulties ran
away to the shed. Found paraffin and set a fire.
Charges with criminal damage
OPI would of seen the risk GUILTY
Lord Geoff said he was compelled by parliament
Recklessness
The loophole- Shimmen
D had martial arts skills- decided to demonstrate them in the front of
the window. He then put his leg through the window
Charged with Criminal Damage
Said hed moved back to stop the risk - Courts said he only minimised it
OBJECTIVE GUILTY -Alleged to fall in to Caldwell lacuna
D saw the risk and ran the risk

Caldwell LACUNA
Did D consider the risk? See the risk at the time of the crime? Mens rea

No No LACUNA

Merrick
D left electrical cables live and exposed for 6 minutes
D tried to say their was no risk
GUILTY- OBJECTIVE Charged with criminal damage whilst endangering life as D sees risk and ran risk

Gradual Return to Subjectively

Satnam
D aged 30 accused of raping a 13yr
old in the back of a car. Claimed
she consented.
COA quashed conviction due to
misdirection- NOT GUILTY
Held that consent in
rape must be tested SUBJECTIVELY
Adomako
SUBJECTIVE
D an anaesthetist- failed to realise
that the oxygen was not being
supplied to V who eventually died.
Charged with involuntary
manslaughter
HOL replaced objective
recklessness with gross negligence
Spratt
D fired an air pistol through an open window.
Hit and injured the victim.
Charged with S.47 ABH
D argued he was unaware the children were
playing outside.
COA quashed conviction- NOT GUILTY
SUBJECTIVE Said subjective reckless applied
to S.47 ABH

Lidar SUBJECTIVE
D part of a gang. The group got into a range rover
Ds brother shouted something at the bouncer. V approached and put hands inside the vehicle.
Range rover left with V half inside and V dragged under the vehicle and died
Charged with involuntary manslaughter GUILTY
 Recklessness

The return to Cunningham 2003

HOL decided to overrule Caldwell recklessness in 2003 and in doing so utilised the Practise Statement 1966.

G and R TJ applied Caldwell and convicted as OPI would of

Defendants aged 11&12. They were camping away from home seen risk
when they set alight some newspaper in a wheelie bin. The fire
then spread to the surrounding buildings and caused 1 million COA dismissed boys appeal
worth of damage. Both boys declared they genuinely didn't
believe the fire would spread across concrete.
NOT GUILTY SUBJECTIVE- did not see the risk HOL The law lords overruled Caldwell- Now Subjective

Justification of why it should be removed...

Criminal Damage Act 1971-
Said misread the act- HOL had a duty to correct the mistake- The word reckless meant subjective
Culpability-
Any serious crime needs culpability
Elliot and Coles-
Both did not see the risk and are deemed unfair and unjustified.
Academic Opinion
Made reference to academic articles/ books on recklessness which criticised Objective recklessness.
OBJECTIVE ABOLISHED
Cooper Castle
D lived in a hostel for those with mental health. He set his D broke into an office and started a fire. There were flats
mattress in order to harm himself. above the office which were occupied. D was charged with
The fire was extinguished quickly and no damage was caused. arson.
D was convicted of arson , being reckless and endangering life. D convicted as a reasonable man
He was given a life sentence under Caldwell. On appeal D was On appeal conviction quashed.
acquitted Castle was unaware of flats above
As he did not subjectively take the risk NOT GUILTY SUBJECTIVE
NOT GUILTY SUBJECTIVE
 Recklessness
+ -
In General
Subjective Is fair as the defendant will only become liable if he
recklessness knowingly or advertently took a risk.
The test takes into account age and mental
incapacity.
Punishment justified for such a culpable defendant,
who deliberately takes a risk that could cause harm.
Objective Its harder to find a person not guilty which means that
recklessness justice is more likely to be found.
Gets justice for the family and the victim.
Makes others think about their actions in the future so
that dangerous situations don't occur again.
Means that punishment is given as in any other crime
for these acts.
The law is unfair as its been constantly changed and
different tests have been used. The criminal damage
act clearly meant Subjective recklessness as objective
recklessness didn't exist at the time and this is the test
that should of been used all along.
Since D can persuade the jury and convince them into
his version of events it is too easy to avoid liability.
Lack of deterrence- as D only has to state that they
lacked the necessary foresight of risk, this does not
potentially deter others.
Lack of public protection- Protects D rather than the
public.
Fairness? Lack of fairness for families/ victim- D
escapes liability.
Conflict- Conflicts with most of the criminal law- where
there is a gradual move to objective testing.
Conflict- subjective recklessness based on foresight
whereas many defences such as intoxication are
based upon public policy rather than foresight.
Deemed unfair as they don't take into account mental
illness and age.
Doesn't take into account whether D actually meant
to commit the crime.
Talks about the OPI who doesn't exist who is perfect. It
unfair to put a real person up against them.
 Recklessness

+ -
Caldwell Criticised by the courts and academics as being unfair
as the decision was only decided on a 3:2 basis.

Caldwell was morally wrong as it did not make a

distinction between the advertent and inadvertent risk
taker.

The Caldwell lacuna was a potential loophole within

the objective test, whereby the defendant could have
escaped liability

Caldwell blurred the distinction between recklessness

and negligence. Negligence meant unknowingly
taking a risk, which should have been considered

Elliot and Coles- Seen as unfair as they both had mental health
problems which stopped them from seeing the risk. This
should have been taken into account. It is wrong in
Elliot to convict someone so young with a mental age
of 4 as you would do a normal 14yr old girl. She should
not be considered with the same liability.

Reform The law on recklessness needs to be reformed by parliament to make it clear whether in fact subjective or
objective recklessness should be used. The law should be clarified in order to make it consistent and so that
judges can follow the same test. They should reform the law to allow mental health and disabilities to be taken
into account
 Intention
Direct Intention Desired consequence Oblique Intention Undesired consequence

Direct intent Oblique Intention

Highest form of mens rea Applies to the offence of murder where D does not have the aim/desire
D must have the aim/ desire for the certain result. to Kill
D must have foreseen consequences The defendant intends one event but the actual consequence is different
100% foresight D will be guilty if death/serious injury was virtually certain The Jury decides.
Foresight less that 100% usually must be around 90+%- must be high to
justify such a harsh sentence. D must have seen a high probability of
death.

The History of Oblique Intention

Dpp v Smith D asked by PC to stop his car HOL upheld a conviction of murder F = I- not relevant
as thought to have stolen as the test was would a ordinary
goods. D sped off carrying reasonable man would have Tested Objectively.
officer upon the bonnet. Killed foreseen death or serious injury. For such a serious offence should be subjective
the officer therefore unfair
Criminal Parliament intervened Test- Held D must foresee Foresight does not equal intent.
Justice Act Imposed a subjective test death/serious injury as a natural
1967 and probable consequence of his
actions
Hyam D jealous when her boyfriend Test- D would be guilty Foresight = Completely overlooked the Criminal damage act
which is wrong as parliament are the supreme law
decided to go on holiday with if could foresee intent
making body. In obiter Lord Hailsham said Foresight
another woman. D put a death/serious injury as didn't equal intent but is only persuasive so caused
blazing newspaper through a highly likely confusion.
her letterbox to frighten her. consequence
Instead it killed 2 children.
Moloney D and his step father had been drinking. They HOL reduced conviction to Foresight doesn't equal intent
decided to have a competition as to who could manslaughter as test was if D
load and aim the gun in the quickest times. Step foresaw death/injury as a
father goaded D to shoot which he did and the natural consequence. Should of been direct intention
step father died. or recklessness
HOL said jury should decide
foresight
 Intention
The History of Oblique Intention`
Hancock 2 miners striking. Angry at the other miners Test- Did D foresee death/ serious injury Foresight does not equal intent
and for returning to work. To stop them pushes as a natural and probable Murder conviction quashed and
Shankland heavy concrete off a bridge. The block consequence. Finally followed CJ Act. convicted of manslaughter
crashed through a taxi killing the driver.
Nedrick D had a grudge against a neighbour. Test- D must have foreseen Foresight does not equal intention
Poured paraffin through her letterbox and death/serious injury as a Murder conviction quashed as jury had not
set it alight, A 12yr old child died. D was virtually certain been correctly directed.
merely trying to frighten. consequence.
PERFECT TEST by COA- HOL however don't
have to follow it as not binding..
Woollin D threw his 3 month old baby against a Test- virtually Does foresight equal intention? Not sure
wall several feet away. The baby suffered certain
a fractured skull and died. The baby had consequence Lord Steyns comments not clear-Judges would have to
been choking hence he shook it and lost infer to find out. He made it seem asif they did equal
his temper and then launched it. each other. Many judges disagreed and refused to sign
. judgement.
Changed the word `infer` to `find`
RE A
The COA in this case reviewed the comments of steyn in Woollen.
The Court on this occasion held that Lord Steyn had definitely stated that foresight = intent. Was in his obiter word for word.

Mathews D chased, robbed and kidnapped an 18yr Virtually TJ- told the jury that foresight= intent so if they saw D as
&Alleyne old boy. The boy was dropped off a 25ft certain seeing serious injury/ death they had to convict.
bridge. Even though he had claimed he COA- disagreed and said Lord Steyn said foresight didn't
could not swim. He drowned. equal intent.
They said the TJ had wrongly directed the Jury. Created
controversy. Convictions still upheld.
Conclusion Test- virtually certain We don't know if foresight= intent or not.
Wright D & V sharing a prison cell. One morning V found dead. Had a sheet tied around his neck. They alleged D had killed V. D
said however V had committed suicide.
D appealed as Trial Court had not used Woolin direction or oblique intention.
COA held he either had direct intent to kill or it was suicide.
SHOWS THEY DONT UNDERSTAND OBLIQUE INTENTION
 Intention

+ -
In General The test for direct intention is clear and has The importance of defining intent can mean the difference
been unproblematic. between getting a murder or a manslaughter charge so its
crucial the courts have the correct test.
Subjective test fair since they look at Ds
foresight and culpability. The test for oblique intention is confusing and forever confusing
the legal profession.

Difficult for judges to prove Ds state of mind.

Inconsistency The courts have struggled with the wording of tests for oblique
intention

Case law is inconsistent in relation to the level of foresight

required for murder and whether foresight equals intent.

In the criminal justice act they said the level of foresight was
natural and probable which was not followed by the courts as
agreed this is the incorrect level of foresight.

The virtually certain test needs to be implemented within a act

of parliament.

Oblique Sometime the courts introduce oblique intention where it is not

needed. It usual leads to additional appeals.

Jury difficulty Juries find it impossible to understand the terminology and the
different levels of probability required for murder and
manslaughter.

Ultimatelu juries make a decision using there common sense

based on their moral judgement.This is neither fair nor
consistent. This is not suitable for the serious situation.

Sentencing concerns and stigmas make juries reluctant to

convict someone of murder.

Emotive cases may taint the juries view of a case.

 Intention

+ -
Murder label too Some academics criticise the lack of distinction between D
wide who wants to commit murder and D who wants to commit
serious harm. This is unfair as they are not the same type of
defendant.

THE USA MODEL- some argue that this type of system would be
beneficial at ensuring those who intent murder are treated
differently to those who intent GBH.

The law makes no distinction between those who act foolishly

and those who are cold blooded murderers. All attract a
mandatory life sentence, which is unfair as the level of
culpability is different.

Euthanasia Should this be murder?

On going debate whether D should be able to have the right

to choose to have life or death.

Strict Strict liability is when you
liability don't have the guilty mind
but are held liable despite
how careful you may have
been. The act is voluntary.
Strict Liability Guilty/not guilty, facts, principle-link to section
Storkwain D a pharmacist who didn't notice the signatures on Strict Liability as not
the prescriptions were forged. They were excellent full mens rea
copies.D convicted under the medicine act as it was GUILTY
a strict liability crime. Imprisoned for 2 years as it was
a serious matter

Absolute Absolute liability is when Winzar D was taken to hospital but was found just to be Absolute liability as
liability their is no guilty mind drunk. no mens rea and
however they are held liable Was told to leave and the police took them outside involuntary actus
even is actions were and arrested him for being drunk on a highway. reus
involuntary. GUILTY
RE Larsonner D was a french woman who was deported against Absolute liability as
her will. She was brought to the UK and when she got no mens rea and
their was charged with being a illegal alien under actions involuntary
the Aliens order. They had made the woman go their GUILTY
which meant her actions were in fact involuntary.
Statutory Offences of There are Some common law offences of strict liability. However most strict liability offences Pollution, Food Regulations,
Strict Liability are now created by parliament Drug, Alcohol Licensing

Judicial Attitude Most acts of parliament aren't specially identified as being strict liability. It is for the judge to interpret the statutes and decide.
They will try to avoid imposing strict liability because its unfair,

The Gammon test Guidelines from the privy council so are only persuasive, Help judges decide is strict liability or not
The presumption of full mens rea If parliament has not defined that mens rea is needed they will look for words such as knowingly, permit
and intentionally

Sweet v Parsley B v DPP G

D rented a property to students in oxford. The
students grew cannabis. D charged with
managing premises used for the production/use of
cannabis. D had no knowledge of the drugs and
the COA convicted D of a strict liability offence.
The HOL aquitted her as said she needed full mens
rea so not Strict ;liability. NOT GUILTY
Lord Reid- parliament don't intend to make
criminals who are not blameworthy.
D a 15yr old boy
Asked a 13yr old girl on a bus to perform
oral sex. He thought she was 14/15
Charged with act of gross indecency
Not Strict liability as didnt have the
intention which they said he needed.
NOT GUILTY
HOL followed the decision in more recent
cases such as Kumar
D a 15yr old boy
Had sex with a 12yr old girl
Charged under sexual offences act
Believed she was 15 but due to
seriousness was decided that it was
strict liability and he was GUILTY.
 Strict Liability
The Gammon test
The wording and Where the act uses words that indicate mens rea the offence is not one of strict liability. If a particular section is silent
as to mens rea the courts may look at other sections of the statute. If the other sections do include mens rea it is likely
context of the Act to be a strict liability offence.

Cundy DPP c Collins Sherras

Under the licensing act D was charged with
selling alcohol to someone who was already
drunk.
This person was showing no signs. The section of
the act was silent in terms of mens rea. Said
due to this it was strict liability. Said parliament
meant to leave it out. GUILTY
D left racially abusive messages on the
answer phone of a MP. D charged with
sending grossly offensive messages.
This section mentioned no mens rea but
the surrounding sections did. Held the
silent section was deliberate and so it
was Strict liability. GUILTY
D charged under licensing act.
D a landlord who sold alcohol to a police
officer on duty. Was unaware he was on
duty as had no armband.
In this case they said the section was silent
but transferred mens rea from surrounding
sections so it was not strict liability. NOT
GUILTY

Quasi Criminal offence Breaches of regulations are knows as quasi offences and are not truly criminal .They are more likely to be
regarded as strict liability
Callow Cundy Shan and Shan Smedleys v Breed
D a butcher charged with selling Charges with selling alcohol D owned a newsagents. V bought a tin of peas
meat unfit for human consumption. to someone who was One of their employees sold a containing a dead caterpillar.
The butcher had the meat already drunk. lottery ticket to a 13yr old girl Smedleys Ltd GUILTY as a quasi
checked by a vet and it was said As a quasi offence deemed without asking for ID. offence under the food and
to be absolutely fine. GUILTY under Strict liability. GUILTY of strict liability as a drugs act.
As it was a quasi offence was quasi offence.
found GUILTY of strict liability as it
doesn't matter how careful he was.

The degree of danger The courts will look at the danger parliament was trying to prevent and whether the area is one of social
and social concern concern.

Alphacell v Woodward Blake Howells

D owner of a company that polluted a
river when one of the factory pumps
failed. HOL held it was a strict liability
offence since pollution is a danger
GUILTY
D was a DJ charges with using a radio station
without a license. D argued he was creating a
demo tape and was unaware of transmission.
Held the crime was strict liability as it was a
social concern.
D was charged with possessing a gun
without a certificate contrary to the
firearms act. D said he believed it was just a
antique thus didn`t require a license. Strict
liability was upheld due to danger.
 Strict Liability

The Gammon test

Bradish
D charged under firearms act after being
found with a gas canister of CS gas. Said he
was unaware what it was used for but was
deemed a strict liability crime as its a
danger. GUILTY
Warner
D running a business selling perfume. When
he entered a cafe and collected 2 boxes
presuming both contained perfume one
contained drugs. D charged with a drug
offence as it was held to be strict liability as
drugs are dangerous. GUILTY
Gammon
D was charged with deviating from
material building plans as approved by
hong kong authorities. HOL held it was strict
liability as it was a danger to workers and
the public even if he wasn't aware the
plans weren't followed.

Promoting enforcement Even when a statute deals with an issue of social concern, an offence will only be strict liability if it will
of the law encourage others to avoid breaking the law. If SL doesn't make the law more effective then there is no
point in imposing it
Lim Chin Aik
D charged with an offence having entered Singapore after being denied entry. However D was not officially told that he was not
allowed to enter. Although the act dealt with a social concern Strict liability was not imposed as it wouldn't deter anyone as D didn't
know they couldn't enter.

Severity of Punishment
More likely for defendants to be given fines when regarding strict liability.

Storkwain- 2 years in prison prescriptions

Gammon- 3 years in prison Building regulations

Howells- 5 years in prison Antique gun

Warner- 2 years in prison perfume and Drugs

Due Diligence Clause-

You will not be guilty if you have take all reasonable care and done everything within your power to prevent the offence.
Parliament have to say when this applies/ when it doesn't
Should be clear it applies to all SL offences.
 Strict Liability

+ -
Protection/preventi SL protects the public from unfit food for
on example in the case of Smedley v Breed
where they were found guilty when a
caterpillar was found in a tin of peas. This is a
positive because it upholds high standards on
food production companies. You can also link
protection / Prevention to other areas such
as: Drugs, Buildings, Weapons and pollution

Ease/Efficiency Crimes of SL are easy to enforce as they dont

need to prove MR. This saves the courts time
as most defendants are willing to plead guilty
and pay the fine. Lack of blameworthiness
can also be taken into account when
sentencing which is fair.

Fine The punishment for SL is usually a fine. This is a

positive as the defendants liberty is not at
stake and therefore complies with their
human right to freedom.

Lack of Deterrence There is no evidence that SL improves standards. For example

with Shah and Shah they had exercised all care through
reminders and regular training. This can be seen as unfair as SL
is imposing an impossible duty.

Fairness Lack of fairness for people who are not to blame. This means
that the people who are unaware of the risks are found guilty.
For example in the case of Callow v Tillstone where he had
done everything within his power to ensure the meat was fit for
human consumption was still found guilty.
 Strict Liability
+ -
Will not raise Particularly from defendants who are unaware of the crimes
standards they are committing or the risk for example you could link to the
cases like Alpacell, Smedley and Storkwain.

Inconsistent The law on SL is sometimes inconsistent which makes the law

uncertain. It is difficult to predict how the offence will be
interpreted. Cases like Sweet v Parsley and Warner contradict
each other.

Uncertain Sherras v De Rutzen does not follow Cundy. This can be seen as
unfair.

Penalties Some penalties for businesses are small which may not deter
them as they know that the penalty is not great. Therefore the
cost of taking precautions is higher which will mean that they
choose to take the risk. However, some penalties are severe
which can be seen as harsh for example in Storkwain he was
sentenced to 2 years in prison.

Social Stigma For cases such as R v G. He was put on the sex offenders
register which is a really serious consequence when he
believed that she was older. This could be argues unfair.

Reform One way of reforming SL would be (as suggested by the Law

Commission) that Parliament should specifically state if it is a
crime of SL. If this is not done then is must need MR.
Another way of reforming SL could be requiring that each
offence of SL has a defence of due diligence. Therefore it
would be available for all SL offences.
 Attempts
This is governed by the criminal attempts act 1981
It makes a person liable for an attempt if he does something that is deemed more than merely preparatory towards the
commission of an offence, while having the necessary men's rea.
White
D tried to poison his mother but she died of a heart attack before the poison took effect. D found guilty of attempted murder as his
actions were deemed MTMP
As well as the Criminal attempts act 1981 the law on attempts is governed by the common law (judge made law)

The proximity test- Robinson

suggested only acts D was a jeweller. He tied himself up to stage a robbery in order to claim insurance .
immediately connected to The police turned up and realised his plan and arrested him for insurance fraud.
an offence could be He was found NOT GUILTY as it wasn't immediately connected as he hadn't yet rung the insurance
considered a attempt. company.
The Rubicon test Widdowson
HOL suggested that an attempt would only Tried to get a van on hire purchases. His name was blacklisted so he was going to use a
be committed whereby the defendant had neighbours name. He hadn't gone past the point of return though as didn't get the van or
`crossed the Rubicon and burnt his boats` drive it.
and thus `gone past the point of no return`
The series of acts
An attempt will only take place where D commits an act with the intent to commit the crime.

ACTUS REUS
Must be a positive act on the way to completing offence and must amount to more than preparation.
Boyle & Boyle Actions MTMP as the lock was Series of acts
D found outside a door where the lock and hinge were broken. broken. Said if were not interrupted
Charged with attempted burglary. D found GUILTY. would of committed the end
crime
Gullefer MP as he hadn't tried to get his Gullefer test added
D placed a bet on a greyhound race. Seeing his dog losing he money back. `had he embarked on the
climbed onto the track. NOT GUILTY of attempting to steal. crime proper`- Lord Lane

Jones His actions were MTMP as he Gullefer test used

Ds partner leaving him and starting a new relationship. D bought a had actually pointed the gun
shotgun, shortened the barrel and entered the new mans car. He at V.
was found GUILTY of attempted murder
 Attempts
Campbell Actions were just MP as to be ACT
D arrested outside a post office. He had a fake gun, sunglasses and a MTMP he would of had to go Just followed parliament as
threatening note. Found NOT GUILTY of attempted robbery inside. you should do.
Geddes Actions just MP as didn't try to Added the Geddes test
D was discovered by a member of staff in the boys toilet. He ran off get a student into the toilets. Had they moved from
leaving a rucksack containing rope, a knife and a mask. planning to execution?-
D found NOT GUILTY of attempting to falsely imprison a young student. Lord Bingham

Tosti Actions MTMP as they were Geddes

Ds drove to a barn intending to burgle. Ds approached the barn and physically getting to grips with
examined the padlock. Both fled when thy realised they were being the crime by inspecting the
watched. Found GUILTY of attempted burglary. padlock.
Nash First 2 letters were MTMP due to Geddes
D left three letters in the street addressed to the paperboy. them being graphic and their
2 contained invitations to engage in sexual activity. The 3 rd a job offer. sexual nature.
Paperboy went to visit the man. D found GUILTY of attempting o
procure an act of gross indecency.
Toothill Actions MTMP as physically ACT
D standing in the garden masturbating at 11pm at night. When knocked on the door
arrested the police found a knife, condom and glove. D admitted he
knocked on the door. Found GUILTY of attempted burglary with intent
to rape.
Mason Actions just MP as he didn't turn Gullefer
D was drunk. He put his keys in his car then someone dragged him out the keys and started the car.
and stole his car. Was Found NOT GUILTY of attempting to drive whilst
drunk.

Mens rea
This is the intention to commit the final crime. For murder the defendant must have the intent to kill. Intent for GBH is not
sufficient. Can only have direct intent to kill or oblique intent to kill for attempted murder.

Whybrow Can only be intention to

D tried to electrocute his wife by wiring up a soap dish to the electrical mains. D found GUILTY of kill not cause GBH.
attempted murder as their was enough evidence to prove he intended to kill.
Mohan Attempted murder- confirms only
Walker & Hayles intention to kill is enough
 Attempts

Recklessness relevance
S1 of the act states `intent`
Where D was reckless in committing the offence, there will be no liability for an attempt.
Khan RAPE-They had intention for sex
4 men convicted of the attempted rape of a 16yr old girl. but can be reckless as to
All of them tried to have sex with her but were unsuccessful. consent.
They were found GU ILTY of attempted rape.

AG ref No3 of 1992 Criminal damage whilst

A petrol bomb thrown from a moving car. It just missed a parked vehicle with 4 men inside. It also endangering life- confirmed as
missed 2 men standing. It didn't hit anyone. long as you had intention for
Charged with attempted aggravated arson. criminal damage you could be
NOT GUILTY - but will be today
reckless as to endangering life.
Withdrawal
The defendant may withdraw from an attempt as long as he has not gone beyond the preparatory stages. The jury decides.
Taylor Withdrawal- past preparatory
D approached a stack of corn with the intention of setting a fire. He lit the match but then stage.
abandoned his plan when he realised he was being watched.
Withdrawal was irrelevant since he`d passed the preparatory stages.
GUILTY of attempted criminal damage.

Conditional intent
Where a person intends a crime only is a certain condition is satisfied.
Easom Attorney Generals Reference No1 & No2
D picked up a woman's bag in a cinema. Looked in it and saw nothing worth stealing Was 2 burglars entering 2 properties .Didn't find
and then put it back. It was under the old law. Charged with attempted theft. NOT anything of value so left. COA held that in future
GUILTY. as there was no evidence he intended to steal anything specific. cases both defendants would be found GUILTY
Decision criticised for allowing a culpable defendant to escape liability. for attempting to steal anything of value.
 Attempts

Impossibility
Is no defence to the crime of attempts. Where the offence attempted is impossible to carry out but the accused will still be
liable for an attempt if its beyond the point of preparation.
There are 3 types of impossibility
Physically
Legal
Inadequate methods
Anderson V Ryan
D bought a video recorder which she thought had been stolen. However, it transpired that the recorder was not stolen. She was still
charged with attempting to handle stolen goods.
HOL said she was NOT GUILTY for doing innocent acts so therefore not guilty of attempting the impossible. This ignored the act.

Shivpuri
Overruled Anderson v Ryan .
D asked to smuggle in drugs. When D was caught it was actually vegetables.
Was GUILTY as was actually attempting to smuggle drugs as far as D knew. Charged with attempting the impossible as he has the
intention to bring in drugs.
Jones
Followed Shivpuri. Wrote graffiti on the wall of a station toilets. His message was asking girls 8-13 for sex in return for money. He put his
phone details in and the police then went undercover texting him pretending to be a 12yr old girl called Amy. Through text he
persuaded `Amy` to have sex and decided to meet at Burger king.
GUILTY of attempting the impossible as `Amy ` didn't exist but he had the intention for the end crime.
Argument for and against
For- they have the intention to commit the crime so should be liable as it helps to prevent/ stop crime and protect the public.
Against - hasn't actually committed a crime.

Impossibility however will be a defence where the accused attempts to commit what they think is an offence but is actually not.
Taaffe
D tried to smuggle in currency when he got to the airport it was drugs not currency. D found NOT GUILTY as he didn't have the intention to
smuggle in drugs so NOT GUILTY of attempting the impossible. The mens rea cant transfer from currency to drugs.

Excluded Offences
Certain offences cannot be attempting
Conspiracy
Omissions
Crimes which cannot be committed intentionally such as Grossly Negligent.
 Attempts
+ -
Police & The law on attempts allows the police to
deterrance intervene and prevent crime.
The harsh potential sentences can act as a
deterrence and prevent crime.
Actus reus
Mens Rea
Withdrawal Withdrawal is no defence and it shouldn't be.
It will not be a defence if D has passed the
preparatory stages. This is fair since D still
originally intended the offence hence still
remains culpable
The test for the actus reus means that many decisions seem
unfair on the police in that they have to wait till the very last
second before an arrest can take place.
Unfair to treat D as if he committed the final crime even if it acts
as a deterrent. There is also no evidence to prove attempts
deter potential criminals.
The Act clearly intended to reform the previous law. However
some judged have continued to utilise the common law test.
This can make the law unfair and as these tests have proved
unpredictable. Giddes & Gullefer tests add extra confusion.
It is unclear whether the word `merely` has an legal
significance.
`intent`- the definition of mens rea of attempts is brief and this
has resulted in many problems. The act needs greater clarity.
Attempted murder- this was not discussed within the act and
there have been many problems as to what the MR should be.
Example- can this include intent for GBH or Oblique?
Recklessness- This was not included in the act in any way.
However this needs to be reviewed since the courts believe
that recklessness should have some application for certain
offences
Some people argue that withdrawal should be allowed as a
defence in order to encourage Defendants to withdraw from
attempting the crime. It could be possible to allow this for
voluntary withdrawal.
 Attempts
Conditional intent 1979 AG REF- The COA vastly improved Lack of clarity-the act does not specify as to whether conditional
the law in order to convict opportunist intent should be enough to convict D of an attempt hence the Act
thefts. Now D must now only possess intent really needed to be clearer.
to steal anything of value rather than a
specific item. It creates good public The previous law on attempted theft was problematic. It was that
policy. when D intended to steal something specific. This meant all
opportunist thefts led to an acquittal.

Impossibility Criminalising impossibility can act as a Although the act does not broach this issue, it could have been
deterrent more clear in specifically whether impossibility was a defence and
whether it included all types of impossibility. (physical, legal and
inadequate methods) Due to this cases such as Anderson v Ryan
have been misread.

Some people believe the law on impossibility is unfair as although D

intended the crime they did not have the actus reus. This can be
seen as going against the general principle in that both should be
evident.

Attempting the imagery- This does not appear within the act and
some argues that D should be liable since he believed he was
attempting an offence.
In the case of Taaffe it meant that drug smugglers who argues there
were trying to commit an imagery crime were found not guilty.

Excluded offences Some argue D should be found guilty for attempting an omission

Summary offences- attempting a minor crime should not lead to

liability.

Reform The area urgently requires reform in order to update the offence and rectify the problems.
Law Commission 2009- it was agreed that attempts was not applied consistently but no way forward was agreed
on.
Geddes criticised
The offence of `criminal preparation` was rejected.
3 final recommendations-
Include conditional intent
Add recklessness for certain offences eg- criminal damage, rape
Attempted omission for murder
Since main recommendations were rejected by commission reform is considered highly unlikely to be changed.
 Theft

Theft Act 1968- this act codified all the previous precedents and statutes on the offences against property and restated
the law in more simplified terms.

Section 1- The dishonest appropriation of property belonging to another with the intention to permanently deprive.

ACTUS REUS- Appropriation, Property and Belonging to another.

S Appropriation
Theft Act states it is `Any assumption of the rights of the owner`- anything against the owners rights
E
McPherson Under Section 3 it is appropriation as she assumed the
C D took bottles of Whisky from a display stand. She had the intention rights of the owner when she placed them in her bag
T to steal, with the intent to steal.

I Pitham Under section 3 it is appropriation as D offered to sell the

O D tried to sell furniture which did not belong to him furniture which did not in fact belong to him.

N Lawerence Under section 3 it is appropriation as the taxi driver

Italian student Oki who spoke very little English got into a taxi and assumed the rights of the owner when he took more than
showed the taxi driver the address. The journey should of costed 50p the fare. You can consent and it can still be
3 yet the taxi driver claimed it was expensive . Oki opened his wallet appropriation.
and the taxi driver then took a further 6.50.

Morris Under section 3 it is appropriation as he assumed the

D swapped labels in a supermarket and was arrested as he reached rights of the owner when he swapped the labels for a
the checkout. lower price.

Gomez Under section 3 it is appropriation as they assumed the

D persuaded him manager to accept 2 cheques worth 17,000 in rights of the owner when using worthless cheques.
return for some electrical items. D knew the cheques were stolen.

Hinks Under section 3 it is appropriation as she assumed the

D a 38yr old woman befriended a man with a low IQ. Over 8 months rights of the owner when she accepted the gifts from a
she went with him and he withdrew 60,000 and put it in her vulnerable man.
account.
 Theft

S Appropriation and Borrowing

Borrowed property cannot be appropriation unless the borrower then does something inconsistent with the rights of the owner
E
C

T A D
The borrower fails to give it back by the If the property is altered in any If the property is given back in a
appointed date or within a reasonable way useless state or totally
T time limit, if the owners asks for it back
before they must do so.
destroyed.

I
O Appropriation and the bona fide purchaser
N The bona fide purchaser is someone who buys in good faith. If a person buys property which has previously been stolen he will not
appropriate the property or be liable for theft but is he finds out an keeps it he will be.
Appropriation- A continuing act
3 Appropriation is considered to be a continuing act and therefore continues as long as the defendant can be regarded as being
in the act of stealing
Atakpu Under section 3 it was not appropriation as they assumed
D hired cars in Germany and Belgium using a false driving license the rights of the owner in another country. It does not
and passport. Was arrested at Dover and charged with theft. continue into different countries.
However wasn`t appropriation as wasn't in this country.

S Property
Any property is capable of being appropriated provided its moveable and has a owner.
E `Money and all other property real or personal, including things in action and other intangible property`
C Property What will not be theft? Welsh Kelly Oxford
T Real property- parts of Wild plants, fruit etc... Unless
D stole his own urine
sample back off the
D took body parts
from the Royal
D looked at an
exam paper and
land and buildings sold
I police and poured it college of surgeons then put it back.
Personal property- phone, Wild animals down the toilet to makes casts for Not classed as
O book them property as is
N Things in action- bank Whole land information.
account

Other intangible property- Information Under section 4 urine is Under section 4 body Under section 4
4 patents property as it was parts can be information not
Money Electricity given to the police for property as they classed as property
a specific purpose were being used for
casts.
 Theft
S Belonging to Another
E Property belongs to another when it is under the ownership, possession or control of another person. Whether or not it is
C property belonging to another is a matter of fact for the jury to decide.
T Other things to consider-
S.53 property being given for a specific purpose
I S.54 property being given by mistake
O
N S.5 Turner
D left his car at the garage for repairs. It was agreed on the basis
Under section 5 it was Property belonging to another as the
garage had possession and control of the car as he
he`d pay on collection but he saw the car parked on the road suspended his rights until he paid.
5 nearly finished and too his spare keys and got it.

Davidge Hall Wain

5(3) D received cheques from flat mates D was a travel agent who accepted deposits for D organised charity events. Nearly 3,00 paid into a
to pay for communal gas bill. He then some flights to America. The money was paid special bank account. He then with permission
spent this money on Christmas into a general account before the flights were transferred it into his own bank account. He then
presents. booked and the company went into liquidation. spent it and was unable to pay it back.

Under section 5(3) the money was
given for a specific purpose therefore
it was property belonging to another
and he had a legal obligation to
spend it on the bills.
Under section 5(3) it was not property belonging Under section 5(3) the money was given to D for a
to another as it was not given for a specific specific purpose therefore it was money belonging
purpose. It was just a deposit to secure the to an other as they had a legal obligation to give
booking. the money to the charity.

Where property given by mistake there will generally be no act of appropriation when the property is kept however there are 2
exceptions- Extra change under the sale of goods act Extra wage or salary
5(4)
Gilks Attorney general reference
D put some money on a horse. When he went to claim his money at the D s salary was overpaid by 74.74. Not guilty but held in future cases
bookies though they thought his horse had won when it hadn't. He was D would be if were dishonest and decided not to repay the money.
given more money than he should have.

Under section 5(4) gambling is not legally enforceable so was not Under section 5(4) in future cases there will be a legal obligation to
property belonging to another. return the extra money given as property belonging to another.

Ownerless Property- A person cannot steal property that has no owner. Lost property can be stolen abandoned property cannot.
Rostron Ricketts
Ds collected golf balls from a lake on the grounds of a golf course 2 bags lefts outside a charity shop. One left at the door and one in the
5
late at night. Ds argue it is not theft as they were abandoned. bun.

Under section 5 the law states that golf balls are not ownerless they Under section 5 it was decided tat the charity bags were not
are just lost and they are now property belonging to the golf course. abandoned. The one left outside was still property belonging to the
donor and the one in the bin was property belonging to the charity
 Theft

MENS REA
S Dishonesty
E Circumstances under S.2(1) where the defendant would not be

C A) Legal right B) Owner would have allowed him to have the property C) Reasonable steps

T S.2(1)a Holden Not dishonest under section 2(1)a as he thought

D an ex employee of quick fit. He went back and took some tyres he had a legal right as always used to take when
I that he believed he would have permission to take. worked there and supervisor consented.
O S.2(1)c Small Not dishonest under section 2(1)c as he took
N D saw a car for 2 weeks parked . It looked like it`d been left. The reasonable steps to find the owner of the car.
doors were unlocked and the keys were in the ignition.
Ghosh Actions were dishonest by the ordinary reasonable D realised that actions were dishonest by the above
2 honest person. standards.

S Intent to permanently deprive

The intent to permanently deprive must exist at the time of appropriation.
E
Money Where money is concerned D will have Velumyl D had intention to
C the intention to deprive even if an D took 1000 from the company safe permanently deprive of
T equivalent is paid. This is because it is not
the exact notes and coins.
intending to replace it. He took the
money without consent.
the exact notes and
change.
I S6- intends Even where property restored to the Lavender Under section 6 D had the
O to return owner having lost no value this can still D took doors from council property which intent to permanently
amount to theft if D is treating the was being repaired to put them on his deprive as he treated the
N property as his own. girlfriends council house. property as his own.
Can be Cahill Section 6 should not have applied so not guilty due to misdirection.
6 misapplied D picked up newspapers but dropped Should have just been intent to permanently deprive shop of
them when he realised he was being newspapers.
watched.
Borrowed Lloyd Did not have the intention to permanently deprive as when it was
D a projectorist. Gave someone a film to returned it was not wholly diminished or had not lost all goodness and
copy and return for the next screening virtue
Conditional intent- where D picks up an item to see if it is worth stealing but restores the property, this will not be theft but could
amount to an attempt
 Theft
Section 1 The dishonest appropriation of property belonging to another with the intent to permanently deprive.
Appropriation S.3 Mcpherson Whisky on display
Appropriation is where the defendant assumes the
rights of the owner. It inconsistent and interferes with Pitham Furniture
the owners rights.
Lawerence Taxi Oki

Morris Swapped labels

Property S.4 Kelly Body parts casts

Property includes money and all property real or
personal, including things in action and other Oxford Exam papers
intangible property.

Belonging to another S.5 Turner Car garage parked taken

The property is under ownership, possession or control
of another person

S.5(3) specific purpose Davidge Cheques flat mates gas bill

Hall Travel agent deposits

Wain Charity 3000

S.5(4) given by mistake AG ref Salary overpaid

Dishonesty S.2 Holden Quick fit

S.2(1) defines in what circumstances the defendant is
honest. This is where the defendant has a legal right, Small Car 2 weeks left
believes the owner would consent or they took reasonable
steps to find the owner

GHOSH ORHP? Defendant?

Permanently deprived S.6 Intend to return
The intention must exist at the time of appropriation. It
is irrelevant if it is later returned.

Money Exact notes and change

Velumyl Took 1000 from the company safe intending to replace it
Borrowed Holy diminished or lost all goodness and virtue
Lloyd Projectionist film copy
Conditional intent
 Theft, Burglary and Robbery and Scenario
Section 1 The dishonest appropriation of property belonging to another with the intent to permanently deprive.
Appropriation S.3 Mcpherson Whisky on display GUILTY
Appropriation is where the defendant assumes the rights of the owner. It inconsistent
and interferes with the owners rights. Lawerence Taxi Oki GUILTY

Property S.4 Oxford Exam papers NOT GUILTY

Property includes money and all property real or personal, including things in action
and other intangible property.

Belonging to another S.5 Turner Car garage parked taken GUILTY

The property is under ownership, possession or control of another person

S.5(3) specific purpose Davidge Cheques flat mates gas bill GUILTY

S.5(4) given by mistake AG ref Salary overpaid NOT GUILTY but will be in future

Dishonesty S.2 Holden Quick fit

S.2(1) defines in what circumstances the defendant is honest. This is where the defendant has a NOT GUILTY
legal right, believes the owner would consent or they took reasonable steps to find the owner

GHOSH ORHP? Defendant?

Permanently deprived S.6 Intend to return

The intention must exist at the time of appropriation. It is irrelevant if it is later returned.

Money Exact notes and change Velumyl Took 1000 from the company safe intending to replace it GUILTY

Borrowed Holy diminished or lost all goodness and virtue

Conditional intent

Robbery S.8 Theft Act 1968 `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 seeks to put any person in fear of being then and there subjected to force.`

Theft- All elements must be satisfied- Defendant does not need to be successful in Corcoran v Hit a woman in the back. Bag
seizing the property. Anderson G of all elements and had force

FORCE -Slight physical contact If it does not interfere with the victims Dawson D jostled and nudged pick his pocket wallet
movement it will not be counted as force. Slight force/ pressure is therefore decided Only had to modify Vs movement
by the judge.

Hale jewellery hand over the victims mouth tied her up and
Timing The force or threat of force must be immediately before or at the time of gagged her.
theft. Force after is insufficient. Force to escape is insufficient V in property so continuous act

Purpose The force/ threat of force must be utilised in order to steal only.
Burglary Under S.9 Theft Act 1968
Entry Ryan Trapped head/arms when getting through window
Theft Act 1968 did not define entry hence the test was defined by the COA. 2am.
Now it is any insertion of Ds body. The whole body does not need to be
inside. Prior to the act was any unlawful insertion.

Building Stevens Structure made of wood, intended to be used as a

Theft act did not define word building. Follow case law. Fairly permanent, shop
Prefabricated structures, inhabited vehicles if actively occupied, a building A building must be intended to be permanent or at
doesn't have to be inhabited least endured for a considerable amount of time.

Tresspass Collins D drunk, wanted sex. Ladder, Girl

D becomes a trespasser where he-

Enters without permission Ventures into a prohibited area Has exceeded his permission
 Robbery

S.8 Theft Act 1968

`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 seeks to put any person in fear of being then and there subjected to force.`
Robbery is a aggravated form of theft.
D must commit all the elements of theft- if not it is assault
D must have committed the actus reus and mens rea of a non fatal assault.
Force must been used in order to steal
The threat can be made to any person and not necessarily the owner of the property.
It is not necessary that the victim apprehends any force or is infact fearful of it.

Timeline
The Larceny Act 1916 CLRC Report Theft Act 1968 S8
Old law on theft/ robbery Wanted to codify and consolidate the New law on robbery
law

Theft All elements must be satisfied- Defendant does not need to be successful in seizing the property.
Corcoran V Anderson
D hit a woman in the back and
tugged at her bag. She let go
of the bag and D ran off
without it.
Guilty of robbery because
satisfied all the elements of theft
and had the force so it can be
robbery.
Robinson
D ran a clothing club and was
owed money by the victims
wife. During an altercation the
victim dropped a 5 which D
appropriated. D claimed he
owed him a further 2.
Argues he was not guilty under
section 2(1)a as he had a legal
right to the money as D owed
him money. He therefore didn't
have theft so couldn't be
robbery.
Skivington Forrester
D held up a wages clerk and The landlord kept 200 deposit
demanded his wife's wages. from a tenant. |The tenant then
took items of property which
amounted to the money. While
he was taking the property his
friend restrained the landlord.
It was decided it was not Tried to claim under section 2(1)
dishonest under section 2(1)a as he had a legal right to the
he believed he had a legal right property. Found guilty as he
to the money. He was not had a legal right to the money
therefore liable of theft so not not the property. Guilty of theft
liable of robbery. Not Guilty. so Guilty of robbery.
 Robbery

FORCE -Slight physical contact

If it does not interfere with the victims movement it will not be counted as force. Slight force/ pressure is therefore decided by the judge.
Dawson & D jostled and nudged the victim, causing him to lose his Robbery was upheld as COA held the word force was a
James balance, which enabled D to pick his pocket and take his ordinary word that the jury should decide. It was held it
wallet. only had to modify the victims movement. Guilty

Force on or against a person- D does not need to use force that overpowers the victim. Resistance is not required.
Clouden R v DPP
COA held that the D was guilty when he wrenched a shopping D snatched a cigarette from the victims hand without touching the
basket from the victims hands victim.
Held that force against property was force against a person. You Not guilty as the force wasn't on/ against the victim
don't need to resist for it to be robbery. Guilty

Threat of Force to put V in fear. It is irrelevant if the victim is actually put in fear.
A future threat is not sufficient but could ne blackmail. Implied force can now be sufficient.
Bentham B&R
D broke into ex employees house and Victim was a school boy aged 16
placed his finger in his pocket in order for He was stopped by 5 other school boys and they held his arms and pushed him while they
it to look like a gun. He demanded money demanded his phone and money. Another 6 lads joined in and surrounded him. The
threatening to shoot. defendants took his phone, money, watch and travel card.
D found Guilty as intended to place the V said he didn't feel threatened just shocked. They were found Guilty however as they had
victim fear. the actual force of pushing him and the implied threat of force due to the surrounding.

Timing The force or threat of force must be immediately before or at the time of theft. Force after is insufficient. Force to escape is insufficient
Hale Lockley
D entered the property of v. One defendant went upstairs to knick the jewellery D caught shoplifting beer from a off license. He
while the other placed his hand over the victims mouth. On departure they tied her used force when the shopkeeper tried to stop him
up and gagged her. from escaping.
D tried to argue the theft was over as soon as the box was seized and therefore the Guilty of robbery as the theft was continuing as was
tying up was not done at the time of appropriation. The COA upheld the still inside the store when he used the force.
conviction stating it was a continuous act as the defendants remained in the
property and so they were seen to be still in the course of stealing. Guilty.
 Robbery

Purpose The force/ threat of force must be utilised in order to steal only.
Donaghy D ordered a taxi to take him from Newmarket to London and D was not guilty as he didnt repeat the threat when he
made threats to his life. When he arrived he stole 22 from the was taking the money. The threat was to take him to
driver and so was charged with robbery. London not to steal the money.

Vinall 2 youths riding bikes. D then punched the victim and he falls As D didnt have intent to permanently deprive he would
off his bike. He then jumps up and runs off. D takes his bike and not be guilty of theft and therefore not guilty of robbery.
abandons it 50yards away.

The purpose of the force was also to knock the victim off
the bike not to take the bike.

Mens rea
The defendant must possess the intention to commit the assault
The mens rea for the theft must also be present

Max sentence- life

Robbery- Section 8 Theft Act
`A person is guilty of robbery is he steals and immediately before or at the time of doing do uses force on any person or seeks to put any
person in fear of being then and there subjected to force.`
D must commit all elements of theft- if not its assault, force must be used, threat can be made to any person, victim doesn't have to be in
fear
Theft Corcoran Hit in back, tugged bag G All elements of theft satisfied and force.

Robinson Clothing club, owed money, 5, Altercation NG Under section2(1)a had a legal right. Not theft so not robbery

Skivington D held up wages clerk NG Under section2(1)a had a legal right. Not theft so not robbery

Forrester Landlord, 200 deposit, property G Under section2(1)had a legal right to the property not the
money. Is theft so is robbery

Force Dawson Jostled/nudged v, pick pocket, wallet G Only had to modify the victims movement
COA held force was ordinary word for the jury to decide.

Force Clouden Wrenched shopping basket G Force against property can be force against a person. Don't
against need to resist.
a R V DPP Snatched cigarette NG Force wasn't or/against the victim
person
Threat Bentham Broke into ex employees house. Fingers in pocket. G Intended to place the victim in fear
of force Demanded money threatened to shoot.

B&R School boy. 5 boys pulled his arms and pushed G Was both the threat of force and the actual force.
him. 6 boys surrounded him. Took wallet, phone,
money

Timing Hale Entered property, Knicks jewellery upstairs, other D G Tried to argue the force did not take place at the time or before
covered Vs mouth, tied up and gagged the theft. COA upheld conviction- said its a continuous act as
still inside the house.

Lockley Shoplifting beer. Force when escaping. G Theft was continuing as still inside the store when force used.

Purpose Donaghy Taxi threats. Stole 22 NG Didn't repeat threat when taking the money. Threat used to get
to London only.

Vinall 2 Youths, bikes, Punched v and fell off bike, ran NG Don't have intention to permanently deprive so not theft and
away. Took bike dropped it 50 yards away. not robbery. Purpose of the force was to knock the boy off the
bike not to steal it.

Mens rea- D must possess intention to commit assault. Mens rea for theft must be present.
 Robbery

AO2 + -
General Indictable- requires a high culpability in order to justify the
sentence as it can be up to life imprisonment.

Statutory Changes- since 1997 an automatic life sentence will be

given for 2 serious crimes, It is therefore important that all
elements robbery are satisfied.

Broad- the offence can be anything from a nudge to a violent

attack. Due to no hierarchy of seriousness there is a concern.
Ladder- There should be a ladder of seriousness.

Stigma- the stigma is undesirable and stereotypical. Its

associated with weapons and violence.

Public policy- the judge often tends to look at the rights of the
public not the rights of the defendant which may be seen as
unfair.

Deterrence- Most people tend to get a community based

sentence despite the fact you can get life imprisonment and so
is unlikely to act as a deterrence.

Magistrates- it can only be heard in crown court. However for

less serious robbery offences it can be argues they should be
able to be tried in the magistrates court. Saves time and money.

Theft As robbery is a aggravated form of theft all 5

elements of theft must be satisfied. This shows
fairness in favour of the defendant.
Is fair that is its incomplete they should not be liable.

It is advantageous for the defendant to still be

convicted even when the defendant has not
gained sole possession of the property.

Continuous- it is fair that theft can be a continuous

act and result in robbery.
 Robbery

Force Threat- it is fair that the threat of force can still lead
to a conviction.
It is fair that resistance doesn't have to be used for a
robbery conviction as it allows culpable defendants
to be convicted.
Fear- it is fair to allow a conviction for robbery
where the defendant sought to put the defendant
in fear. Allows defendants to be held culpable
even if the victim states they were not in fear.
Third party- even when the defendant uses force it
does not have to be on the person whom the
property is taken from. This is good public property
as it is not always the victim who the force/ threat
of force is against. If this wasn't the case those who
robbed shops and threatened the shop assistant
would never be convicted.
Unfair results can occur since the jury decides whether force
was used or not.
Leads to inconsistencies.
The act did not define force . This is problematic as it is not a
word which is easily understood. The smallest amount of force
may result in a robbery. It is unfair that the theft act does not
define force as it is a key element.
Dawson and James- according to this case nudging and
jostling can amount to sufficient force amounting to robbery.
The test set is far too low. Theft would be more appropriate.
Clouden- the defendant did not even touch the victim and
was found guilty which can be seen as unfair.
Now can be convicted for force against the property which
can be seen as no force at all effectively.

Timing Continuing- this decision to make theft a continuing Act- the theft act states that the force must be at the time or
act is good public policy as it allows culpable immediately after the theft. This causes many problems of what
defendants to be convicted even when the force is in fact `immediately before`
may technically be after appropriation.

If the force is deemed to happen after the theft

then the defendant can still be guilty for assault.

Purpose If the force upon the victim is accidental then it is

fair there will be no robbery conviction.

It is fair that a defendant can be convicted of other

offences if he uses force to escape and therefore it
cannot result in a conviction of robbery.

Reform No distinction between a mere push and serious violence which is wrong due to the stigma of robbery. There should be
a distinction by dividing the offence into 2 degrees. This would allow for lesser offences to be become triable rather
than indictable.
 Burglary

Section 9 (1) Theft act 1968 states that a person will be liable for burglary where:

S.9(1)a- D enters any building or part of a building as a trespasser with intent to steal, inflict GBH or unlawful damage.
INTENTION BEFORE

S.9(1)b- Having entered any building or part of a building as a trespasser, D steals or attempts to steal, or inflict GBH or
attempts to inflict GBH.
INTENTION AFTER

Max sentence- 14 yrs

Sticklen Illustrates problems with the word dwelling. D went The trial judge said D was guilty of burglary as it was a
into a house. It was unoccupied as was being dwelling.
renovated.
COA reduces the sentence and said that it was not a
dwelling because no personal space had been invaded.

Entry
Theft Act 1968 did not define entry hence the test was defined by the COA. Now it is any insertion of Ds body. The whole body
does not need to be inside. Prior to the act was any unlawful insertion.
In Collins COA created a two part test to establish entry. `Effective and substantial entry`
1972 (means majority of the body and got to be able to commit the crime. )

Brown D found with the top half of his
body inside shop window
rummaging through goods.
Ryan D was trapped when trying to get
through a window at 2am. His
head and arms were stuck in the
window.
D convicted of burglary contrary to S.9(1)a .
This was because his entry as effective as he could reach the goods.
This Modified the Collins Decision and it changed to just Effective.
COA held that D was guilty as was evidence that the defendant had
entered. Changed test from effective back to Any insertion
 Burglary

Building Theft act 1968 didn't define the word building and therefore reference is in law cases.
The building must be fairly permanent
Would include prefabricated structures.
Included inhabited vehicles as long as actively occupied.
However a building does not have to be inhabited- garages, sheds, outbuildings, warehouses, churches.
Stevens Leathley Seekings

D had a structure made of wood of a
considerable size, It was intended to be a
permanently used shop. It would then be a
building
Set the test- A building must be intended to
be permanent or at least endured for a
considerable amount of time
Guilty of burglary as it was a permanent
structure.
D was caught entering a 25 foot freezer
container, which had been used in a
farmyard as a storage facility for 2 years, D
stole meat. The containers had no
foundations but locks fitted and external
electricity.
It did rest on sleepers and had no wheels
and had been there fir over 2 years.
The COA held it was a building.
A supermarket needed extra storage
during refurbishment and so obtained 2
lorry trailers, which were parked there over
a year. The trailers remained on their wheels
but had steps, a lock and a external
electricity supply.
It was held this amounted to a vehicle as it
remained on wheels and as it was not
inhabited it could not be burglary. Not
guilty

Part of a Building
This is used when a defendant has permission to be in one part of a building but ventures into an area where they lack
permission.
Laina Walkington
D hid himself in the stockroom of a store. He was found D entered a department store in London shortly before closing
when the store closed. time and remained there as staff cashed up. The defendant
then ventured into a counter area and opened the till. Finding
it empty he left.
Prosecution tried to say he entered as a tresspasser He was then arrested for burglary. The COA upheld the
however it wasn't until he entered the stockroom therefore conviction as D entered a prohibited area of the building
he was found not guilty of burglary. behind the counter.
 Burglary

Trespass Theft act 1968 didn't define a tresspasser.

D must enter the building/ part of the building as a tresspasser. The term is a civil concept and is defined as a person deemed to trespass
where they do not have consent of the owner . Intention is not required.
In criminal law it is however where the defendant has the mens rea.
Must intend/ be reckless as to whether or not he is trespassing. Must knowingly trespass.

D becomes a tresspasser where he-

Enters without permission Ventures into a prohibited area Has exceeded his permission
D must intend or be reckless at the point of entry so if they decide to steal after entry they have not entered as a trespasser
so no burglary charge.
Gaining entry via deception will amount to trespassing.
Collins Smith Barker
D was drunk and wanted sex so went D entered his fathers house during the The victim was going on holiday and
up a ladder when he saw a girl asleep night with his friend and stole 3 TV sets. asked his neighbour to keep an eye on
in bed. He went up in just his socks and Smith had is fathers general permission his house. He told his neighbour where
was invited in as the girl supposedly but not his permission to take the TVs the key was hidden if he needed it. The
though he was her boyfriend. neighbour entered the house to steal
Charged under section 9(1)a D Guilty as exceeded his permission. D was guilty of burglary as he had
COA quashed conviction as there was exceeded permission.
no evidence he was trespassing
Set the test substantial/ effective
entry

Mens rea 2 elements-

Intention or recklessness to trespass Intention for the final offence

S.9(1)a- have intention on entry to trespass and complete offence

S.9(1)b- have intention to trespass initially, which is followed by intention to commit final offence
Conditional intent- This is sufficient mens rea for burglary- to steal anything of value.
Attorney D caught breaking into houses/ inside property. COA held that was no defence to burglary. Anything if
General ref Both Defendants argued they did not intend to value is sufficient. Can be guilty of burglary under
1979 steal anything specific. conditional intent.
 Burglary

+ -
Inconsistencies Mens rea S.9.1.A and S.9.1.B show inconsistencies.
Under S.91a the defendant only needs to intend some damage
however slight but for a person the offence has to be serious such as
GBH. Is there too much emphasis on property rather than people.
Inconsistencies between the two as section s.9.1.b does not include
criminal damage.

Is conditional intent in burglary unjust? In robbery must satisfy all 5

elements of theft as an intention to steal is not enough.

Uncertain case law on what is in fact a building.

Issue of Key terms are not defined in the theft act and so the courts have had
statutory to resort to statutory interpretations.
interpretation Lack of definition has resulted in uncertain case law.

Sentencing The danger of burglary is often highlighted, although British crime

survey date indicates that violence or threat is used in only a small
minority of cases.

The public expect the courts to offer protection to society from

burglary and are angered by the failure to impose custodial sentences.
Causes problems when the courts find it difficult to balance the rights
of the defendant with the rights of society.

Entry The definition is not defined by parliament and the definition provided
by COA has changed numerous times making the law inconsistent and
uncertain. Conflicts with the rule of law.
 Burglary
Building S.9.4 is helpful as it includes buildings can be Law uncertain and inconsistent as parliament did not define
inhabited vehicles and vessels. what a building is.

The law has taken a common sense approach Law is unclear when it comes to unfinished buildings.
that a building does not have to be inhabited at
all times.

The definition is quite wide which means that

defendants are culpable.

It is desirable that a defendant is convicted is he

entered part of a building

Trespass The 3 areas of trespass catch those who exceed Is not defined by parliament. COA has decided that the
permission or enter a prohibited area. defendant must possess mens rea to trespass hence deserving a
criminal conviction.

Reform
Burglary- Section 9 (1) Theft Act 1968
S.9(1)a D entered any building or part of a building as a trespasser with intent to steal, inflict GBH or unlawful damage. INTENTION BEFORE

S.9(1)b Having entered any building or part of a building as a trespasser, D steals or attempts to steal, inflict GBH or attempts to inflict GBH. INTENTION AFTER

Dwelling Sticklen Illustrates problems with the word dwelling. D went into G Trial judge- said guilty of burglary as was a dwelling
a house that was unoccupied. COA- reduces sentence as said no personal space was invaded.

Entry Theft Act did not define entry hence a test created by COA. Is any unlawful insertion.

Collins COA created a two part test to establish entry. `Effective and Substantial entry` (majority of body, got to commit crime)

Brown Top half of body inside shop window rummaging goods G Entry effective as can reach goods. Changed to just effective.

Ryan Trapped head/arms when getting through window 2am. G Evidence D had entered. Changed back to any insertion.

Building Theft act did not define word building. Follow case law. Fairly permanent, Prefabricated structures, inhabited vehicles if actively occupied, a
building doesn't have to be inhabited

Stevens Structure made of wood, intended to be used as a shop G As a permanent structure.

A building must be intended to be permanent or at least
endured for a considerable amount of time.

Leathely Caught entering 25 ft freezer container. Storage facility, G Rested on sleepers and had no wheels and been there 2yrs do
2 yrs. No foundations but locks and external electricity. COA held it was a building.

Seekings Supermarket extra storage, 2 lorry trailers. Still on wheels, N Held that this wasn't a building as it remained on wheels and
steps, lock, external electricity G not inhabited.

Part of a D has permission for one area but ventures into a area they lack permission to be in.
building Hid in stockroom. Found when closed. Prosecution argues he entered as a trespasser which wasn't
Laing N
G true as it wasn't until he went into the stock room.

Walkington Store, London, Closed, Remained there while staff G Guilty as entered a prohibited area behind the counter.
cashed up. Went to counter found nothing and left.

Trespass Theft act didn't define a trespasser. Must intend/ be recklessness as to whether or not he is trespassing. Knowingly trespass.

Enters without permission. Prohibited area. Exceeds permission.

Collins D drunk, wanted sex. Ladder, Girl N COA quashed conviction as no evidence he entered as a
G tresspasser. Set test to effective and substantial entry

Smith Fathers house. Stole 3 TV sets G Exceeded permission.

Barker V on holiday. Told neighbour where a key was hidden. G Exceeded permission
Entered to steal.

Mens rea Intention or recklessness to trespass Intention for final offence S.9(1)a S.9(1)b

AGR 1979 Ds caught breaking into house. Not stealing anything N COA held can be guilty of burglary under conditional intent.
specific G Anything of value
 Fatal offences against a person
The fatal offences against the person include murder and manslaughter. These offences have a common actus reus and
causation. They have different levels of mens rea though.

Actus Reus No statutory definition for actus reus of murder. The definition was created by Lord Coke- `The unlawful
killing of a reasonable creature in being under the queens peace within any country of the realm.`

Unlawful Killing The killing must be considered unlawful.

RE A
Conjoined twins- lawful killing as they needed to kill one to save the other so it was a killing for the
greater good.
Gibbins and Proctor
The killing of Nelly- liable by omissions as failed to carry out the duty of care they had as father and his
partner.

Human Being Human life begins at the point that a child is able to have independent existence outside the wound.
Foetus A life remains in force until natural or brain death.
The killing of a foetus does not amount to murder or manslaughter as it is not considered a human
being. It is not independent of the wound
Brain dead
If you kill someone on life support you cannot be found guilty of murder/manslaughter. If brain dead
can usually turn off the life support machine showing that they cannot be identified as a reasonable
creature.
Malcherek and Steel
Doctors can turn off life support machines and not be found guilty of murder and manslaughter. Wife
stabbed 9 times.

Under the This means the killing of enemy solders during the time of war will not constitute the actus reus of
murder and manslaughter.
Queens peace
Any Country of This means that any of her majesties subjects charged with murder in this country or abroad can be
tried for the offence in this country.
the Realm
The Year and Prior to 1996 There was a rule that death must have occurred within a year and a day of the attack.
In 1996 The law reform act removed the rule as medical care got better.
Day rule
 Fatal Offences against a person-Causation

Factual The `But for` test White

Causation Would the victim have lived
but for the actions of D
White illustrates the test for factual causation
White wished to kill his mother and put cyanide in her drink. The mother then dies
of a heart attack.
But for his actions she still would of died so he was not the factual cause -
Convicted of attempted murder

Legal Chain of causation Pagett Marchant and Muntz Adams

Causation D was not the sole cause D attempted to escape D driving an agricultural Doctor gave
but the legal cause armed police and decided loading machine and collided medicine to end
Test to use his pregnant with a cyclist. V was impaled the lives of
Morally responsible girlfriend as a shield and with metre long spikes that terminally ill
the girl was shot and died. were uncovered. D not liable patients.
Accelerated death
D convicted as fits into all 3 as the cyclist would of died Accelerated death
More than a minimal so therefore the
tests therefore guilty as he anyway due to his speed.
cause legal cause.
was the legal cause. Not morally responsible so not
the legal cause.

Principles of causation
Once causation established liability can only be removed by an act of gross negligence on the part of the victim, a 3 rd party or an intervening event.

Eggshell Skull When a person Blaue Hayward Mckechnie

possesses a
conditions particular physical
D stabbed V through heart and D threatened wife in drunken D seriously assaulted. Doctors
weakness which
liver-Required a transfusion but rage. Wife tried to escape, discovered a ulcer but
as a Jehovah's witness was collapsed and died. Had an couldn't operate due to
THIN SKULL means they are
unable to accept the blood. overactive thyroid which severity of condition. The
more susceptible to
death/injury CAUSATION NOT BROKEN as must brought on the death. ulcer exploded and V died.
take a person as you find them CAUSATION NOT BROKEN as CAUSATION NOT BROKEN as
under eggshell . This may be seen as under eggshell condition V under eggshell condition V
unfair as not physical condition. should be taken as found should be taken as found

Victim- D behaved in such a Pitts Roberts

way V tried to
escape escape.
V in fear of assault D gave a lift to a girl- Told her to undress
If death occurs and
Jumped into a river and drowned. and she refused. He then tried to
escape wasn't daft D liable for death as Vs actions were not seen as uncloth her and v jumped from the car
of grossly negligent grossly negligent. Actions deemed reasonable and was injured. Vs actions not deemed
causation not broken therefore CAUSATION NOT BROKEN grossly negligent therefore CAUSATION
NOT BROKEN. Daftness test.
 Fatal Offences against a person-Causation
Victim- self- Causation only Wall Dear
treatment & refusal removed if V seriously injures by 800 floggings. D slashed with a knife as V assaulted 12 year old
treatment was To ease the pain drank alcohol daughter. V took no steps to stop the blood and
deemed grossly Died of a heart attack. there was evidence he reopened the wounds to
negligent CAUSATION NOT BROKEN commit suicide.
Refusal of As at the time the self treatment CAUSATION NOT BROKEN
treatment will wasn't deemed grossly negligent. As D had significantly contributed to the death and
never remove was a operating and substantial cause- refusal of
causation treatment does not break causation .

Intervention of a Only an Smith Cheshire Jordan

third party intervening act D a soldier who stabbed v in D in a fight with v outside a V stabbed
of gross the stomach. chip shop Given antibiotics he was
negligence on Soldier was carried to V was shot in the stomach. allergic to twice.
the part of the medical centre and During major surgery fitted V then died.
3rd part will dropped twice with a tracheotomy due to
Medical staff were under breathing problems. Tube Treatment was deemed
remove
pressure and gave poor then became blocked and palpably wrong and grossly
causation treatment. negligent so
v died of heart attack.
CAUSATION NOT BROKEN as CAUSATION NOT BROKEN CAUSATION BROKEN
D the substantial/operating D did not have to be the
cause. sole/main cause but must
significantly contributed.

Life-Support Problems arise when victims Malcherek & Steel Both placed on life support and
machine of violence are on life doctors agreed to switch them
support with no prospects of Malcherek off.
recovery and doctors switch D stabbed his estranged wife 9 JR-COA held that doctors were
time merely allowing them to die
off the machine
naturally.
Steel Did NOT BREAK THE CHAIN OF
D attacked a stranger on the CAUSATION
street in a rage

An Intervening Where V injured causation can be removed if injuries were slight but made worst by event.
Event Couldn't be prevented/ predicted
`Act of god`
Eg- earthquake NOT BROKEN
 Mens rea for Murder
Direct intention to kill Direct intention to cause GBH
Oblique intention to kill Oblique intention to commit GBH
Direct Intention Desired consequence Oblique Intention Undesired consequence

Direct intent Oblique Intention

Highest form of mens rea Applies to the offence of murder where D does not have the aim/desire to Kill
D must have the aim/ desire for the certain result. The defendant intends one event but the actual consequence is different
D must have foreseen consequences D will be guilty if death/serious injury was virtually certain The Jury decides.
100% foresight Foresight less that 100% usually must be around 90+%- must be high to justify such
a harsh sentence. D must have seen a high probability of death.

The History of Oblique Intention

Dpp v D asked by PC to stop his car as
Smith thought to have stolen goods. D
sped off carrying officer upon
the bonnet. Killed the officer
Criminal Parliament intervened
Justice Imposed a subjective test
Act 1967
Hyam D jealous when her boyfriend
decided to go on holiday with
another woman. D put a blazing
newspaper through her letterbox
to frighten her. Instead it killed 2
children.
HOL upheld a conviction of murder as the
test was would a ordinary reasonable man
would have foreseen death or serious injury.
Test- Held D must foresee death/serious
injury as a natural and probable
consequence of his actions
Test- D would be guilty if could Foresight = intent
foresee death/serious injury as
a highly likely consequence
F = I- not relevant
Tested Objectively.
For such a serious offence should be
subjective therefore unfair
Foresight does not equal intent.
Completely overlooked the
Criminal damage act which is
wrong as parliament are the
supreme law making body. In
obiter Lord Hailsham said
Foresight didn't equal intent but is
only persuasive so caused
confusion.

Moloney D and his step father had been drinking. They HOL reduced conviction to Foresight doesn't equal
decided to have a competition as to who could manslaughter as test was if D intent
load and aim the gun in the quickest times. Step foresaw death/injury as a natural
father goaded D to shoot which he did and the step consequence. Should of been direct
father died. intention or recklessness
HOL said jury should
decide foresight
 Mens rea for Murder
The History of Oblique Intention`
Hancock 2 miners striking. Angry at the other miners Test- Did D foresee death/ serious injury Foresight does not equal intent
and for returning to work. To stop them pushes as a natural and probable Murder conviction quashed and
Shankland heavy concrete off a bridge. The block consequence. Finally followed CJ Act. convicted of manslaughter
crashed through a taxi killing the driver.
Nedrick D had a grudge against a neighbour. Test- D must have foreseen Foresight does not equal intention
Poured paraffin through her letterbox and death/serious injury as a Murder conviction quashed as jury had not
set it alight, A 12yr old child died. D was virtually certain been correctly directed.
merely trying to frighten. consequence.
PERFECT TEST by COA- HOL however don't
have to follow it as not binding..
Woollin D threw his 3 month old baby against a Test- virtually Does foresight equal intention? Not sure
wall several feet away. The baby suffered certain
a fractured skull and died. The baby had consequence Lord Steyns comments not clear-Judges would have to
been choking hence he shook it and lost infer to find out. He made it seem asif they did equal
his temper and then launched it. each other. Many judges disagreed and refused to sign
. judgement.
Changed the word `infer` to `find`
RE A
The COA in this case reviewed the comments of steyn in Woollen.
The Court on this occasion held that Lord Steyn had definitely stated that foresight = intent. Was in his obiter word for word.

Mathews D chased, robbed and kidnapped an 18yr Virtually TJ- told the jury that foresight= intent so if they saw D as
&Alleyne old boy. The boy was dropped off a 25ft certain seeing serious injury/ death they had to convict.
bridge. Even though he had claimed he COA- disagreed and said Lord Steyn said foresight didn't
could not swim. He drowned. equal intent.
They said the TJ had wrongly directed the Jury. Created
controversy. Convictions still upheld.
Conclusion Test- virtually certain We don't know if foresight= intent or not.
Wright D & V sharing a prison cell. One morning V found dead. Had a sheet tied around his neck. They alleged D had killed V. D
said however V had committed suicide.
D appealed as Trial Court had not used Woolin direction or oblique intention.
COA held he either had direct intent to kill or it was suicide.
SHOWS THEY DONT UNDERSTAND OBLIQUE INTENTION
 Involuntary Manslaughter & Constructive Manslaughter
Involuntary Manslaughter
It is where death occurs but the defendant does not have the intention for death or serious injury. It covers-
Instead he has created a unlawful and dangerous act which has caused death (CM), breached their Constructive manslaughter, Gross negligence manslaughter,
duty of care and death has occurred (GNM) or been reckless and death has resulted (SM). Subjective recklessness manslaughter.

Constructive manslaughter
Occurs when the defendant kills by doing an act which is deemed to be both unlawful and dangerous that kills the defendant but D doesn't have the necessary mens rea
for murder.

Actus reus of murder

Unlawful The act must be deemed unlawful. It must be a positive act and has to be criminal.

act Larkin Lamb

D threatened V with a pen cut knife razor (assault). A D shot his friend with a revolver by accident.
woman was drunk and fell onto the knife and died. Guilty Neither of them foresaw that it would fire since they
of constructive manslaughter because threatening the did not think the chamber contained any bullets. Due
man was an assault which is an unlawful act. The act does to the above V did not apprehend any fear of injury
not have to be directed as the victim. therefore an unlawful act did not occur. D Not Guilty
Lawful Lowe
D convicted of neglecting his son and manslaughter- COA Not Guilty quashed conviction as it was a failure to act
(omission) which cannot be a positive act and therefore it cannot be constructive manslaughter.

Act Deemed D must commit an unlawful act which the SOBER REASONABLE MAN would regard as being dangerous and carries
the risk of SOME HARM occurring.
Dangerous
Sober reasonable Church Ball
man D had a violent argument with a woman about his inability D had a dispute with his neighbour over parking. V
to satisfy her sexually. He knocked her unconscious, and 2 men went to confront him. D loaded a shotgun
believed her dead and threw her in the river. D Guilty as that he believed had blank cartridges. V was shot.
created an unlawful act which caused Vs death, which Guilty of CM as the SRP would not make the same
the SRP would foresee as dangerous and there must be risk mistake and would see the act as dangerous.
of some harm.
The SRM can take
into account Ds Watson Dawson
pre-existing D burgled a 87 yr old men. There was a confrontation. D Armed robbery at a petrol station. Victim had heart
knowledge of V left with nothing but 90mins later the man died. The SRP disease. Caused heart attack. COA held D not Guilty
gains Ds knowledge. Ds convicted quashed as it couldn't of manslaughter as the SRP would of not been aware
be proven the break in caused the heart attack. Not Guilty of eggshell condition and so wouldn't of seen it as
dangerous.
 Involuntary Manslaughter & Constructive Manslaughter
Act Deemed The victim has to be subjected to `some harm`. Merely frightening is insufficient since the trauma must produce
some physical injury.
Dangerous
JM and SM
The SRP would of JM lit a cigarette in a nightclub and was asked to leave. Later they both returned and had a fight with the
seen a risk of doorman. The Victim died of a ruptured artery.
some harm Trial judge- said would be Guilty if the SRP would see a risk of a ruptured artery.
COA- would be Guilty if SPR saw any risk of harm. Not Guilty on misdirection

Act Caused D needs to be the factual and legal cause of death. Ds actions must be closely related to Vs death. The act doesn't
need to be aimed at V so long as it caused Vs death.
the death of
the Victim Mitchell
D pushed his way through a queue in the post office. A
73 yr old man told him off. He punched the man causing
him to stagger into a 89yr old woman who then died.
COA upheld the conviction and stated that it was
reasonably foreseeable for the elderly man to knock
over someone else. The act of the defendant caused
the victims death. Guilty
Goodfelllow
D wanted to move house but owed money on his rent.
He set fire to his house so they could move.
Killed his wife, son and another woman.
D was Guilty as his actions caused the death of the
victims. It is irrelevant the actions were directed on
property the deaths were reasonably foreseeable.

Drugs Cato Dalby

Injected each other. V overdosed and died. D Guilty of V self injected and died. D not Guilty of CM as COA said
cases CM as he committed an unlawful act by administering even though supplying the drugs is unlawful the actual
the noxious substance contrary to S.23 OAPA which injection caused the death. Self injection breaks
caused the victims death. causation.

Kennedy
Self injected and died. D encouraged him to take the
drugs. Found Guilty of CM as COA distinguished the
case from Dalby as he has encouraged the victim
which was said to be a dangerous and unlawful act
that caused the death.
Rogers
Self injected but D held a belt around his arm.
Found Guilty of CM as took an active role in the injection
process so was the cause of death

Kennedy No2 Evans

Self injected and dies. D encouraged him.
Found Not Guilty on appeal as HOL held that self
injection breaks the chain of causation.
Self injection breaks causation.
V obtained heroin from 16yr old half sister. V took it and
died. Neither her half sister or mother called assistance.
Guilty of gross negligence manslaughter. Now drug
dealers can be liable for gross negligence manslaughter
rather than being acquitted if they fail to minimise the
danger created.
 Involuntary Manslaughter & Constructive Manslaughter
Mens rea for They do not have to see the risk or harm. They do not need to know its unlawful
unlawful Act
Newbury and Jones
Defendants are 15yrs old and threw heavy slabs of concrete onto a train below. Killed a guard.
HOL held the defendant was liable despite the boys not foreseeing the result of harm or death.
The responsible adult would see the risk. The age was irrelevant.
Guilty of CM. Was irrelevant that they didn't see any harm just need mens rea for the unlawful act.

Goodfellow
Set the house on fire, killed wife, son and other woman.
Guilty of CM. Only need the intention for the unlawful at which was starting a fire which D had.
 Involuntary Manslaughter & Constructive Manslaughter
+ -

General Undefined- The law is undefined my parliament which causes inconsistencies for judges.

Criticisms Wide- the offence is argues to be too wide. IT covers those who commit minor unlawful acts and those who
do severe unlawful acts. There`s no distinguish between the two.

Overlap- as some of the cases could amount to Gross Negligence manslaughter there is a clear overlap
between both offences.

Sentencing- a manslaughter charge can carry up to a life sentence, but they may also receive non
custodial sentences. The wide range of options available may seem unjustified as the sentence given may
not match the blameworthiness of the defendant.

Reform- it is evident parliament need to reform the law in order to improve it and make sentences justified.

Unlawful act It is good that a defendant can

be held culpable if they commit
As any criminal act can amount to a conviction it is unfair to those who commit a minor crime. No
distinction.
an unlawful act and that those
who do not are not found guilty.
This ensures that only those
culpable deserve a conviction.

Dangerous The test for dangerousness is an objective test which goes against other areas of law.
The some harm test isn't seen as a good test as it does not take into account Ds level of culpability and
Act there is no definitive meaning. It could mean from a scratch to serious harm.

Eggshell skull conditions are not relevant to CM which is very inconsistent and can provide unfair results.

The courts set the dangerousness test which creates a conflict in the separation of powers.

Caused Vs Kennedy- This case clarified the

question on drugs cases and
Drugs cases have caused a lot of confusion for the courts. Reform is needed.

death suggested that a dealer will not

be convicted if the victim wakes it
There are uncertainties in drugs cases whether the dealer can be convicted of GNM rather than CM in
Evans.
freely and voluntarily. Instead a
conviction of GNM would be
more appropriate.

Mens rea As D does not have to know the act is unlawful or dangerous the level of MR required is far too low to justify
a possible life sentence.

If Ds aim is against property it is not fair that the same sentence is passed with the aim against a person.

Reform Law Commission- in 1996 they suggested the abolishment of CM

In 2006 they did nit say this and created a report on `murder, manslaughter and infanticide` which recommended a three tier structure of
homicide offences...
First degree murder, Second degree murder, Manslaughter.
Manslaughter would be the killing through gross negligence or killing someone through a criminal act intended by D to cause injury, or through a
criminal act that D was aware involved a serious risk of causing some injury.
 Involuntary Manslaughter & Constructive Manslaughter
Unlawful Act Larkin Pen cut knife razor (assault)drunk woman Guilty of CM because threatening the man was an assault which is an unlawful act.
and fell onto the knife died The act does not have to be directed ate the victim.

Lamb Revolver, died. Didn't think chamber V did not apprehend any fear of injury therefore an unlawful act did not occur, no
contained any bullets. assauly. D Not Guilty

Lowe D convicted of neglecting his son and COA quashed conviction as it was a failure to act (omission) which cannot be a
Lawful manslaughter- positive act and therefore it cannot be CM.

Act Deemed Church violent argument inability to satisfy her D Guilty as created an unlawful act which caused Vs death, which the SRP would
Dangerous sexually unconscious river dead foresee as dangerous and there must be risk of some harm.

Sober reasonable
Ball Dispute neighbour parking confront shotgun Guilty of CM as the SRP would not make the same mistake and would see the act as
man see as
dangerous & some blank cartridges dangerous.
harm

The SRM can Watson Burgled a 87 yr old man confrontation Ds convicted quashed as it couldn't be proven that d caused the heart attack. Not
take into 90mins later dies. Guilty SRP gains vs knowledge SRP would have seen as dangerous due to age
account Ds
pre-existing Dawson Armed robbery petrol station heart disease COA held D not Guilty of manslaughter as the SRP would of not been aware of the
knowledge of heart attack condition and so wouldn't of seen it as dangerous.
V

The SRP would JM & SM Cigarette nightclub returned fight doorman Trial judge- said would be Guilty if the SRP would see a risk of a ruptured artery.
of seen a risk ruptured artery. COA- would be Guilty if SPR saw risk of some harm.
of some harm Not Guilty on misdirection

Act Caused Goodfellow Owed money on his rent fire D was Guilty as his actions caused the death of the victims. It is irrelevant the actions
the death of Killed his wife, son and another woman. were directed on property the deaths were reasonably foreseeable
the Victim
Drugs Cases Cato Injected each other. Overdosed and died D Guilty of CM as he committed an unlawful act by administering the noxious
substance contrary to S.23 OAPA which caused the victims death CNB

Dalby V self injected and died. D not Guilty of CM as COA said even though supplying the drugs is unlawful the
actual injection caused the death. Self injection breaks causation.

Kennedy Self injected and died. D encouraged him Found Guilty of CM as COA distinguished the case from Dalby as he has
to take the drugs. encouraged the victim which was said to be a dangerous and unlawful act that
caused the death.

Rogers Self injected but D held a belt around his Found Guilty of CM as caused the death by taking an active role in the injection
arm. process by holding the belt. CNB.

Kennedy No2 Self injected and dies. D encouraged him. Found Not Guilty on appeal as HOL held that self injection breaks the chain of
causation. Self injection breaks causation.

Mens rea for Newbury and Jones

unlawful act Defendants are 15yrs old and threw heavy slabs of concrete onto a train below. Killed a guard.
HOL held the defendant was liable despite the boys not foreseeing the result of harm or death. The responsible adult would see the risk. The age was irrelevant. Guilty of CM.
Was irrelevant that they didn't see any harm just need mens rea for the unlawful act.
 Gross Negligence Manslaughter
Duty of Care Donogue v Stevenson-Neighbourhood test- Closely and directly affected by Ds actions.
D must owe a duty of
care towards the Stone and Dobinson Singh
victim. Stones elderly sister Fanny. Refused to eat Died. Landlord. Failed to fix faulty gas fire. LBO for GNM as failed to
The duty has to be a LBO for GNM as they had a traditional duty by fix itrnbhh hmh although had a duty of care via a contractual
traditional duty such accepting care which they failed as they failed duty.
as contractual or to summon help. GUILTY GUILTY
acceptance of care.
Pittwood Litchfield
Level crossing D owned a ship. He set sail knowing a engine was faulty. The
LBO for GNM as had a contractual duty to close ship ran a ground and killed 3 crew members. Duty established
the gate which D failed to do. between captain and crew therefore Guilty of GNM as failed
GUILTY duty. GUILTY

Joint Wacker Willoughby

Venture/enterprise D agreed to bring in 60 illegal immigrants into UK.
Closed air vents to prevent detection. Ferry took
a hr longer. 58 died . D had a duty to the
immigrants as he agreed to help them so Guilty of
GNM as he had a duty via joint enterprise and it
was reasonably foreseeable that they would be
directly affected by his actions.
Pub insurance claim. Friend died.
Guilty of GNM as he owed a duty of care to the victim as it
was reasonably foreseeable that they would be directly
affected through Ds actions via joint enterprise. On appeal
said it should be CM.

Dias Evans
Drugs Trial judge followed Kennedy and found D Not Half sister heroin
Guilty of CM. COA said not guilty as self injection COA held they were Guilty of GNM as they created a
breaks causation. Could be Guilty of GNM as had dangerous situation and failed to act although they has a duty
a duty to not supply drugs via a relationship.

Breached his duty There must be a breach of duty via an act or omission. The breach has to be according to the standards of the
ORM with the same level of skill and expertise.

MENS REA Bateman Andrews

D a doctor who removed the uterus of a woman following
childbirth but did not send her to hospital for 5 days. Died.
Defendant must show a serious disregard for the life and
safety of others which to deserve punishment. It was not as it
was just practice back then. NOT GUILTY
D was sent to rescue a broken down bus. On his
way he overtook a car on the wrong side and
killed a pedestrian. D Guilty of GNM as Negligent
to a very high degree.

Seymour
Drove lorry into girlfriend. Guilty of Objective recklessness manslaughter.
Objective
 Gross Negligence Manslaughter
Return of GNM Adomako
Anaethetist eye operation tube
It has to be so bad it amounts to a criminal offence
Guilty of GNM

Misra
Risk of Death V had an operation on his knee and D was responsible for aftercare. He failed to identify an infection and V died.
Guilty of GNM as they breached their duty of care. Confirmed a risk of death is needed.

Subjective Lidar
Reckless Left pub, Bouncer, Range rover, Dragged under
Guilty of Subjective Reckless manslaughter.
Manslaughter Could of been GNM.

Does SRM Exist?

JC SMITH ADOMAKO KNAH AND KNAN
YES NO NO
 Gross negligence Manslaughter
+ -

General Undefined- The law is undefined by parliament therefore judges have to interpret previous common law. This
conflicts with the separation of powers theory and created inconsistencies.
Criticisms Inconsistency- the jury is suppose to decide if they believe it is a crime/unlawful act which creates
inconsistencies. The judge should decide this aspect with reference to statute law.
There is overlap between GNM and omissions.
Civil- The major decision reached in Adomako held that the ordinary principles of GNM apply to determine if
a duty of care had been breached. This seems to suggest that civil law applies to criminal law which is wrong.

Duty of Care It is good that the dealers

situation has now been resolved
It is uncertain when a duty of acre exists. How do we know who will be directly affected by our actions if we
apply the neighbourhood test?
with the potential gross
negligence manslaughter
conviction instead of no liability
at all. Now a defendant can
owe a duty of care to not supply
drugs.

Breach of The test for negligence is a civil law concept but the result is a criminal conviction. This is inconsistent.

Duty Expertise- On civil law no defence is given for a lack of expertise therefore a learner driver is judged against a
competent driver. Should this apply to criminal law too?

Gross Because jury decides whether D has been grossly negligent inconsistencies can occur.

negligence The test in Bateman- a disregard for life and safety of others is vague and has no mention of criminality.
The test in Andrews negligent to a very high degree is again vague and hard for the jury to follow consistently.
In the case of Seymour the objective test and D creating a obvious and serious risk is a poor test as what is
obvious? The test overruled GNM for a while showing how inconsistent the law is. Determining a manslaughter
charge with a objective test is wrong.

The jury must decide if Ds actions are grossly negligent but what does gross mean.
Foresight- D is given a discretionary life sentence for a death he neither foresaw or intended. In law he is still as
culpable as a D who intends to kill someone which is wrong. This needs rectifying.

Reform Law commission- in 1996 the law commission proposed instead of gross negligence manslaughter there should be two categories of killing
involving negligence. (reckless killing and killing by gross negligence)
In 2006- The report named murder, manslaughter and infanticide. They suggested there should only be one category.
Death would occur if-
A person by their own conduct causes the death of another.
The risk would be obvious to the Reasonable person in there position
They are capable of appreciating that risk at that time
Their conduct falls far below what can reasonably be expected of them in the circumstances.

Reckless It has been argued there does not need to be a separate offence of
reckless manslaughter as it is basically the same as gross negligence
Reform-
Law commission- in 2006 they recommended a very narrow offence of
manslaughter manslaughter. reckless manslaughter .
Duty of Care Stone v Elderly sister G of LBO for GNM as they had a traditional duty by accepting care which they
failed as they failed to summon help
Dobinson GNM

Singh Faulty gas G of LBO for GNM as failed to summon help although had a duty of care via a
contractual duty.
fire GNM

Pittwood Level G of LBO for GNM as had a contractual duty to close the gate which D failed to do.
crossing GNM

Litchfield Ship faulty G of Duty established between captain and crew therefore Guilty of GNM as failed
Duty
engine GNM
Joint venture
Wacker 60 illegal G of had a duty via joint enterprise and it was reasonably foreseeable that they
would be directly affected by his actions.
immigrants GNM

Willoughby Insurance G of owed a duty of care to the victim as it was reasonably foreseeable that they
Drugs pub fire GNM would be directly affected Ds there actions via joint enterprise.

Dias Self injected NG of Trial judge followed Kennedy and found D Not Guilty of CM. COA said not
guilty as self injection breaks causation. Could be Guilty of GNM as had a duty
CM
to not supply drugs

Evans Half sister G of created a dangerous situation and failed to act although they has a duty via a
relationship.
GNM

Breached his duty There must be a breach of duty via an act or omission. The breach has to be according to the standards of the
ORM with the same level of skill and expertise.

Mens rea Bateman Doctor NG of Serious disregard for the life and safety of others which to deserve
punishment.
uterus GNM

Andrews Overtook G of Negligent to a very high degree.

wrong side GNM

Seymour Lorry G of Objective recklessness manslaughter.

girlfriend ORM

Adomako anaesthetist G of It has to be so bad it amounts to a criminal offence

GNM

MIzra Operation G of Confirmed the risk of death is needed

on knee GNM

AG REF COA stated it was possible to convict a defendant of Gross Negligence manslaughter even where
D s foresight was lacking as long as behaviour was so bad it requires a criminal conviction and sees
a risk of death.

Subjective reckless Lidar Bouncer range rover

manslaughter
 Voluntary Manslaughter and Diminished Responsibility

There are 3 `special` and `partial` defences for murder. They are not saying they did not commit the murder they are just asking for a
excusal for full liability. These are Diminished responsibility, loss of control and suicide pact.
This is only available for murder and it reduces the sentence to a manslaughter charge.

Diminished responsibility
It is a partial defence for murder which when successful will reduce a persons conviction to manslaughter. It was introduced through Scottish common law
and introduced into UK law by the S2 Homicide Act 1957. It has been amended by the S52 coroners and justice act 2009

The problems Jury had to decide if they had DR not medical experts.
with the law Public policy- bad as even if you get DR treatment is rare.
under the Prison- Sent to prison which does nothing to help mental illness.
1957 act Wording- `Substantially impaired`- what does this mean?
New defence It is successful if the below is satisfied-
2010 A person who kills or who is party to the killing is not to be convicted of murder is D is suffering from-
Abnormality of mental functioning which ...

Is a recognised medical condition

Substantially impaired Ds ability to

Understand the nature of Ds conduct Form a rational judgement Exercise self control

Provides an explanation for Ds actions and omissions

Abnormality Bryne
of mental D was a sexual psychopath . He strangled a young woman and mutilated her body.
functioning Medical evidence suggested he was unable to control his perverted desires. Found Successful in pleading DR due to his
abnormality of the mind
Arose from a Need to prove that it caused the murder and that it impaired D.
recognised
medical Seers Hobson
condition D stabbed estranged wife and claimed DR due to chronic D stabbed abusive husband. Initially DR failed as BWS was
depression. Successful at pleading DR as had a not yet recognised. On appeal BWS was a recognised
abnormality of the mind due to a recognised medical medical condition. Successful at pleading DR
condition.

Brown
D killed his wife by striking her with a hammer. He had a adjustment disorder which is a recognised medical condition
was Successful at pleading DR
 Voluntary Manslaughter and Diminished Responsibility

Substantially It must have substantially impaired Ds ability to do more than one...

Impaired
Understand the nature of Ds conduct Form a rational judgement Exercise self control
Covers situations where D is in a automatic May include brain damage, confusion or Unable to control desires.
state and does not know what he is doing. dementia.

Lloyd Substantial doesn't mean total or minimal it is somewhere in between.

Diminished Responsibility and intoxication

Voluntary intoxication Choose to drink Alcohol dependency Have to drink to survive

Intoxication alone cannot support a defence for DR.

Juries should be directed to ignore the effects of alcohol when considering if a abnormality exists
They must consider is there is a abnormality of the mind without drink

Dowds
D and his GF were heavy binge drinkers. In a
drunken state he stabs her 60 times. Did not get DR.
Guilty of murder as it was voluntary intoxication
Fenton
D had consumed a large quantity if drink. He drew a revolver and killed a Officer.
He then went to a club where he shot 3 more people. Tried to prove DR but LJ
Widgery held `we do not see how self-induced intoxication can of itself produce a
abnormality of the mind`. Eventually got DR as proved he was a psychopath.

If D is intoxicated but had a underlying medical condition

Gittens
Suffered from depression. In a home
visit he got drunk and killed his wife
and raped and killed his stepdaughter.
Successful at pleading DR as his
depression may have amounted to a
abnormality of the mind. Test- If sober
would D have an abnormality of the
mind? Yes
More recently...
Hendy
D killed whilst drunk but had evidence of brain damage and a psychotic disorder. Successful at pleading DR as the conditions meant he
would have killed V anyway.
Egan
D had a night of drinking and then
entered the home of a elderly woman
and killed her. He suffered a personality
disorder. Test- Was Ds abnormality of the
mind such that he would of been under
DR drink or no drink?
Said no as he wouldn't have killed
without the alcohol. Guilty of murder
Dietschmann
Ds girlfriend/aunty had died. Taken death badly and
began to drink. A watch he`d been given by her got
broken at a party and he blamed V so killed him.
Test- without the alcohol did he have an abnormality
to show DR?
It also states that the drink and the DR can both play
a role and DR did not have to be the sole reason.
Successful at pleading DR due to adjustment
disorder.
 Voluntary Manslaughter and Diminished Responsibility

Diminished Responsibility and Alcoholism (ADS)

If Ds abnormality of mental functioning was caused by long term alcohol or drug abuse and he has developed a medical condition
then different rules apply.
There is a recognised medical condition called Alcohol Dependency Syndrome whereby D cannot control their drinking. If the brain
has been injured through alcoholism then they can have DR.

Tandy
D had been a alcoholic for years. One day she drank a whole bottle of vodka . That
evening her daughter told her she had been sexually abused by her second husband
and D killed her.
Was found Guilty of Murder as her brain had not been injured and nor was her drinking
involuntary. It was deemed voluntary as usually she drinks wine but this time she didn't.
Inseal
D was a alcoholic and killed his GF whilst drunk.
Guilty of Murder as the jury said he could still
resist the temptation to drink so it wasn't ADS

Stewart
D was chronic alcoholic sleeping rough.
Killed v during a fight
Followed Tandy saying all drinks had to be involuntary
Gave DR.

Can DR be raised on appeal?

Yes if you can prove you have fresh medical evidence.

Martin
DR available on appeal due to a personality disorder-paranoia
Ds house had been burgled constantly and he sat on the steps
rocking with his shot gun. One night he was burgled and he's there
on the step. They try to run away but D shoots V in the back.
Ahluwalia-
D set husband on fire. In this case D successful at pleading DR as
BWS was a recognised medical condition on appeal.
 Voluntary Manslaughter and Diminished Responsibility
+ -
General The result of Dr means a reduction from murder to The burden of proof- The burden is on D. This is out of line with the
manslaughter. This is advantageous for those who majority of criminal law. D has to prove mental functioning is
Criticisms don't deserve the culpability of a cold blooded abnormal which can create unfairness.
murderer.
The complexity of the cases mean that it is hard for the jury to
understand and this results in unfair decisions.

The defence can be argued to be too narrow since D has to

satisfy one of the three gateways. If there is a abnormality of
mental functioning it must be proven if effects one of the
gateways.

There is a potential overlap with insanity.

Defendants that gain this defence are generally still sent to

prison which may not be the best place for them if treatment is
needed.

Abnormality There is no definition in the act as to what this means so

uncertainty occurs.
of mental
functioning The jury is forced to rely heavily on medical evidence to
determine whether there is an abnormality which is often
complex and may result in absurdities.

Recognised Evidence has to be provided to show the functioning arose from a recognised medical condition. 2 doctors must
agree which makes it difficult to prove but this isn't necessarily a negative thing.
medical
There is flexibility to add emerging conditions as Public policy- there has been evidence that in the past personal
condition they are recognised which makes it fairer. opinions of the jury have been given. Example- Yorkshire ripper-
a murder conviction was given although there was evidence he
The list of conditions provided is very wide with suffered from paranoid schizophrenia.
conditions such as BWS.

Substantial The three gateways provide added limitation to What is substantial? It has no clarified meaning.
the defence. This is positive as it ensures only It is for the jury to decide if there is a substantial impairment but
impairment those who deserve the defence get it. this meaning is vague and may result in unfair decisions.
 Voluntary Manslaughter and Diminished Responsibility

Provides an The fact that the abnormality only has to provide

an explanation is good since it is rare that the
explanation abnormality is due to one factor.

Intoxication It is good that on its own intoxication will not
provide a defence which is fair as why should D
get the defence when drinking voluntarily.
It is fair that a defendant with ADS should get the
defence as they are unable to control their
drinking.
There is a vast amount of case law relating to this area showing
intoxication is a complex area.
Confusion arises when D has a abnormality of the mind and is
drunk. Is it so easy to exclude the intoxication .
Cases on ADS could argue the initial drink was voluntarily taken
and D should not get the defence.

New law is needed to clarify this area of law.

Reform AS the law has been altered by the Coroners and Justice Act 2009 most older reforms have been put in place but
there are still a few suggestions.

Treatment- Even though D may successfully plead DR he could still be sent to prison and receive treatment. In order
to protect the public D should be treated such as in the case of insanity.

Attempted murder- It has been mentioned that perhaps the defence should be extended to attempted murder as D
has no defence for attempted murder but insanity.

Burden- It is argued that the burden should be taken by the prosecution rather than D.
 Loss of Control
Loss of control is a partial defence for murder. It was initially named provocation and was governed by the S3 Homicide Act
1957. However it has been abolished and the new law is contained under S56 Coroners and Justice Act 2009
Problems with the old law- Very biased towards men It was an objective test It was too wide
A burden was put on the prosecution to prove you didn't lose control.
Section 54(1)- D is not convicted of murder if-
a) Ds actions and omissions in doing or being party to the killing resulted from Ds loss of Control
b) The loss of control had a qualifying trigger
c) A normal person of Ds age and sex with a normal degree of tolerance and self restraint and on the circumstances might have reached in the same/
similar way.

Loss of self Control Section 54(1)a

Duffy
D attached and killed
husband with a hammer whilst
he was in bed. He had been
violent to her throughout there
marriage. Provocation was not
available as it was not a
sudden or temporary loss of
control. Guilty of Murder
Old law said it had to be sudden and temporary
Ahluwalia
D had been provoked after being physically
abused over many years by her husband from a
arranged marriage.
One night he threatened her with violence and
after he went to be she poured petrol over him
and set him alight. She was convicted of murder as
there was no sudden and temporary loss of
control. On appeal got DR.
Gregory
D was provoked and harassed by a man
called monk due to a relationship break up.
He then carried out a pre planned killing
which involved luring the victim into a trap
then attacking him with weapons. Since
there was not temporary or sudden loss of
control a defence was not available. Guilty
of Murder.

The loss is based on a qualifying trigger Section 54(1)b

If the loss of control is not caused by one of the triggers it will not suffice. The Qualifying Triggers are...

Trigger 1 Trigger 2
A fear of serious violence from V A thing or things done or said that
against D or another person a) There were circumstance of an extremely grave character
b) They caused D to have a justifiable sense of being seriously wronged.

Trigger 1 Pearson
2 brothers killed their abusive father with a sledgehammer. The
FEAR TRIGGER older brother had returned home to protect the younger
S55(3) brother. Both got a manslaughter charge not a murder as got
defence of provocation due to serious violence to brother . This
shows the threat of violence doesn't have to be the defendant.
Dawes
D returned home to find his wife and V
asleep on the sofa with their legs entwined.
There was a altercation and D stabbed V.
Convicted of murder as infidelity cannot be a
qualifying trigger/ he induced the violence.
 Loss of Control

Trigger 2 Doughty
D killed a 19 day old baby because it wouldn't stop
Zebedee
Ds 94yr old father repeatedly soiled himself. D killed him
ANGER crying. The Old law said crying babies could be and said he had loss of control.
provocation. D was found Guilty of murder as the new law in order for
TRIGGER Successfully pleaded loss of control. Guilty of things done/said to be a qualifying trigger they must
manslaughter constitute circumstance of an extremely grave character
Today Wouldn't be able to claim this defence and he must have a justifiable sense of being seriously
THINGS wronged. Neither were apparent here so therefore no
SAID OR defence.

THINGS Bowyer Hatter

D and V had a relationship with a prostitute. D was
DONE unaware of this and went to burgle V and V caught
S55(4) him and revealed his partner was a prostitute.
D killed V. Guilty of murder. Couldn't claim loss of
control as no justifiable sense of being wronged and
no circumstances of extremely grave character as he
was burgling him.
D had a relationship with the victim. It fazed out and V
started to see another man. He went to her house at
midnight with a knife and stabbed her.
Guilty of Murder Courts said this wasn't extreme grave
character and justifiable sense of being seriously wrong as
a break up was not enough/

Combination Humphreys D was a 17yr old girl who turned to prostitution. She went to live with her boyfriend who was also
her pimp and he was violent towards her. He made public jokes about the possibility of a gangbang and when he wanted to
of both have intercourse she refused and he taunted her about not being able to commit suicide properly.
triggers She then stabbed him. This is where there were both triggers present.
She had the fear trigger due to violence and had the trigger caused by things said or done as he taunted her. This is cumulative
S55(5) provocation as it takes into account all of the abuse. D got the defence of provocation.

Exclusions
Sexual Clinton
D suffered from depression and was on medication. His wife told him she was having an affair and that he wouldn't have the guts to commit suicide. It
infidelity seems this resulted in a loss of control and he killed her. Manslaughter on appeal due to misdirection. Confirmed that the Act had said that sexual
infidelity cannot be a qualifying trigger.

Self- Johnson
D was in a nightclub and a woman called him a `white nigger`. D then makes a violent threat towards her and her mate pours beer over him. D then
inflicted stabs him.
Not provocation as D cannot claim to have a fear of violence or a sense of being seriously wronged as it was self inflicted as he made threats first.
triggers Manslaughter on misdirection

Revenge Jewell
D drove home to home of V to pick him up for work. D then shot his colleague with a shot gun. D suffered threats over his job. Guilty of murder. No
evidence he had loss of control and this was potentially revenge. A defence will not be given if D had acted out of a `considered desire for revenge`
 Loss of Control

Standard of Self control

(RM may have acted in the same/similar way)
Whichever trigger a defendant wishes to rely on, it is necessary to show that a person of Ds sex and age, with a normal degree
of tolerance and self restraint and in the circumstances of D, might have reacted in the same/ similar way.
A person of Ds sex Camplin
and age, with a 15 yr old boy killed his abuser with a chapati pan .
normal degree of TJ- Said Guilty of Murder
HOL said it was manslaughter as provocation would be successful due to his age and sex. The average 18yr old
tolerance and self boy would be provoked.
restraint
In the The normal person has to be placed in the circumstances of D. Other circumstances apart from age and sex can be taken into account in deciding whether a
`normal` person might have reacted in the same way.

circumstances All Ds circumstances are potentially relevant other than those whose only relevance to Ds conduct is that they bear on Ds general capacity for tolerance and
self restraint.

of D Asmelash
D was drunk when he murdered V.
COA refused to allow D involuntary intoxication to be considered. It doesn't take into account alcohol.
Guilty of murder

Morhall
Killed someone who was taunting him about glue sniffing.
Defence of provocation successful. If glue sniffing is circumstances then it would be taken into account with LOC.
The reasonable man would be Ds age and sex with the circumstances of D which would be his glue sniffing
addiction.

The following old provocation cases illustrate the sort of circumstances in which the normal person may have to be placed
when determining a defence.
Gregson Depressed, unemployed and had epilepsy. D was taunted and so killed V

Might have Van Dongen

reacted in the D killed somebody after he allegedly attacked him with a street sign. They said even though the reasonable man
same/similar way would lose control they wouldn't of killed the victim. This is because the man was curled up and beaten to death.
The RM would have lost control but not beaten V to death. No defence of provocation. Guilty of murder.
to D
The Burden of Proof and Effect
The burden of proof is on the prosecution as they have to prove beyond all reasonable doubt that D did NOT lose self control.
 Loss of Control

+ -
General The burden is on the prosecution which is fair as everyone is The old law was out of date. It was created for men
innocent until proven guilty. However this conflicts with DR. who were provoked into killing their wives. But due
criticisms to the nature in which women think alterations
It is good that the defence allows a manslaughter conviction needed to be made as their actions would not be
instead of a murder is they would have not normally killed but sudden and temporary.
had only been provoked to do so. The defendant may still get
a lengthy prison sentence which means it does nit result in
lenient sentences.

Loss of self The old law said that the loss of control had to be sudden. This
has now been changed rightly but temporary remains. If it
control was not temporary then it would be insanity.

The length between the trigger and the killing does not have
to be short. This is advantageous for women.

It is advantageous that the law takes into account previous

abuse since this could be a major factor.

It is good that there is no defence if D loses control in order to

get revenge on V.

Qualifying The fear of serious violence can come from a 3rd party The meaning of Trigger 2 is unclear and can lead to
member which is good. confusion.
triggers
Trigger 1 was introduced to allow women who fear violence This defence was originally made for situations
from their partners a defence when they subsequently kill where D would kill his partner when he found her in
them. bed with someone else. It makes people question
why we have the defence at all.
The fact that old cases like Doughty would not succeed today
is a positive as it is absurd to believe a defendant can be
provoked by a baby.
The case of Zebedee shows how much the law has improved
and has become fairer.

It is correct for sexual infidelity to no longer stand. You cannot

simply kill someone for having sex with your partner.
 Loss of Control

+ -
Normal It is good that the reasonable man is of the same age and
gender as the defendant as this could largely affect Ds
Person test actions

It is advantageous that he reasonable man is placed in the

same circumstances as D such as history of abuse but
characteristics such as drinking is not taken into account.

It is fair that if the RM would not act in the same way the
defence will not stand.

Reform Sexual infidelity- The defence of provocation was initially created for situations of sexual infidelity so it can be argues
why do we have the new law at all?

Violence- Now that D has to fear serious violence and lose self control it may make the defence more difficult to
prove.

Loss of control- having this requirement may still limit the availability of the defence to abused women.
 Consent
Consent may be a defence for battery and other offences against a person.
It is never a defence for murder or to situations where serious injury is caused.
Assault Consent always available
Battery
S47 ABH Could give consent
S20 GBH and Wounding
S18 GBH and Wounding

Real Consent Just because V consents to Ds actions it does not mean consent Those with a lack of capacity, victims of
will be valid. They must be able to understand the nature and offences and those under duress cannot
quality of the actus reus. consent.

Tabassum Olugboja Burrell v Harmer

He persuaded women to allow
him to measure their boobs for
a test. He said it was for a
database for doctors to help
treatment for cancer.
As the victims knew the nature
of the act but not the quality
No consent given.
Guilty of indecent assault
D offered a lift home to two young girls
and raped one of them. When he tried
to with the other girl she submitted out
of fear. D claimed she consented.
COA said there was a difference
between real consent and mere
submission. No consent given.
Guilty of Rape
A tattooist was charged with S47
ABH after tattooing 2 boys ages 12
and 13. After the boys arms
inflamed. The boys understood what
a tattoo was but not the level of pain
involved. They therefore didn't
understand the nature and quality of
the act. No consent given.
Guilty of ABH

Limitations to There are limits to anyone's right to consent to the harm cases.
Consent. To S47 Euthanasia is still murder even though V consents.
ABH and above... Lord Mustill- the maintenance of human life is an overriding imperative.

E Contact When D takes part in sports he is agreeing to the general contact which is part of the sport. If contact goes
X beyond what is generally allowed an offence may occur.
C sports
E Boxing- Queensbury Rules Any fights that are outside the scope of these rules are not regarded as the
P victim consenting. The belief is due to the fact the sport is highly entertaining and popular.
T
Coney
I
D was in a bare knuckle fight . The injuries were quite severe amounting to S47 and above. The conduct wasn't
O under the Queensbury rules and so consent wasn't available. Spectators also charged as they paid to watch
N knowing the nature of the fight.
S Guilty of s.47 ABH
 Consent

E Contact
sports
Off the Ball
unlawful force.
Deliberate use of On-the-Ball Where the incident occurs on the ball during the play
then D consents to anything the rules would normally permit. However the
rules only provide a general guide as to hat can be consented to.
X Billinghurst Barnes
C D punched V in an off-the-ball incident
during a rugby match fracturing his jaw.
D convicted of inflicting GBH following a tackle in the course of a
amateur football game. Decided the tackle was fair and injuries
Consent is invalid since it was a off-the- were accidental and it was NOT sufficiently grave. Consent given.
E ball incident. Consent not given
Guilty of S20 GBH
Lord Woolf said that we should only convict for on the ball offences if
its sufficiently grave.

P Horse Society accepts that community life, such as in the playground, may involve a mutual risk of deliberate physical contact.

T play Aitken
RAF officer attended a party and became drunk and engaged in an initiation ceremony which involved setting
Vs fire resistant jacket on fire while he was asleep. He poured white spirit on it and lit it. V was severely burned.
I Conviction quashed for GBH as said Not guilty as had an honest mistaken belief that D would Consent to horseplay
so defence given.
O Consent given.

Surgery In surgery there is certainly a wounding therefore the patient must consent.
N Sexual Sexual intercourse and related activity injuries are not classed as assaults if they are consented to. Sexual activity falls into 2 categories-

S activity Inadvertent Sexual Activity

Slingsby D had met V at a nightclub and later had intercourse with her. She consented. He penetrated her
vagina with his hand and she suffered internal cuts caused by his ring. She was unaware how serious they were
and died of septicaemia. All activities were consented to and therefore no unlawful act took place and he got
consent.

S&M- the law does not tolerate deliberate infliction of injury for sexual gratification. Consent is not available.
Brown Emmett
A group of S&M homosexuals willingly participated in D placed a plastic bag over Vs head and ted it tightly
the commission of acts of violence including torture around her neck. It caused bruising and a loss of
for 10 years. Charged with S47 ABH and S20 consciousness. A month later he poured lighter fluid over
wounding. Consent not valid as it is not in the public her breasts and set them alight. Charged with S47 ABH
interest that people should try to cause or should and was convicted since it was aggressive sexual
cause each other actual bodily harm for no good activity which could not be consented to.
reason. Consent not given No consent given.
 Consent
Tattooing and Consent is available for tattooing.
Branding Wilson
Branded initials on his wife's bum. Obiter in brown said that you could consent to tattooing and branding. Got
consent.

Lawful Parents are allowed to use reasonable force in order to chastise their children. Under
chastisement Children's Act 2004 consent can only be justified for assault or battery.
General Principles
fraud Fraud does not necessarily negate consent. It only does where it relates to the identity of the accused or the nature and
quality of the defendants act.

Tebassum
Measuring women's boobs for a test for cancer research. D did infact have a degree in medicine but had no training after.
They did not understand the nature and quality. So no consent given.

Informed D must know what he is consenting to in order for the defence to be successful. A victim cannot consent to something
consent which they are not aware of.

Clarence
D had sexual intercourse with his wife knowing he had
gonorrhoea. He infected her with the disease and was
convicted of S47 and S20 OAPA. On appeal conviction
quashed. Court said it was irrelevant that she didn't know
about the disease if you consent to sexual intercourse you
consent to catch anything. OLD CASE. Consent given.
Dica
D had unprotected sex with 2 women. The women
consented to sexual intercourse but did not know D had HIV.
Both contracted the disease and D was guilty of S20 GBH. D
had a duty to inform them. Consent not given.

Mistake An honest belief that the victim was consenting will be a good defence, as it would carry proof that the defendant
carriedout an unlawful assault.

Burden of Proof and the The burden is on the prosecution to prove there was no consent given by the victim. The effect of the
effect on the defence. defence is a full acquittal therefore evidence of consent is key.

Euthanasia No one can consent to there own Pretty

death. So if a terminally ill patient V suffered from motoruron disease and wanted her husband to
wishes to die they must take their own kill her but not be charged for it. The ECHR said we don't care
life. about the situation as we have the right to live not to die.
 Consent

+ -
Consent It is fair that courts define consent and submission as
different elements.
The law on consent is not governed by an Act of Parliament therefore conflicts occur
with the separation of power theory.

The defence is always available for assault and battery however it has been argued
that it should be available for ABH as the harm level can be extremely minor so
consent should be allowed.

Sport The law relating to off the ball offences have now been
clarified and clearly defined in the case of Barnes ensuring
With a sport such a rugby it is unrealistic to expect no off ball incidents to occur.

people are only convicted if their actions are `sufficiently

grave` to warrant it.

It is clearly correct that an attack after a game should

negate consent since this would equate to a normal
assault on the street.

Horseplay As a defence of consent can succeed despite using violence which may go too far,
this is an area where parliament needs to intervene.

Surgery It is fair that V is seriously injured from an operation

automatically gives consent fro signing a consent form. IT
would be unfair to convict a member of the medical
profession when V has consented and D is just performing
the role of his job.

Sexual Activity It is fair that a D who causes injuries not intended during
sexual activity that he should have a defence where
serious harm is caused; even death
The law on this area is controversial. The law should not intervene in situations
conducted in private between 2 consenting adults. Such intervention could result in
a Human Rights Breach.

Brown- This case had a weak precedent by HOL highlighting the reliability of the
decisions. It is a problem as the case is now binding.
Some academics argue that discrimination had taken place against homosexuals in
the case of Brown. In the case of Wilson they were not convicted as they were a
heterosexual couple.

Tattooing and Should these be classified as the same thing?

Branding
Informed The new law on consent means that even if D understands
the nature of the act they do not understand the quality
The old law on informed consent said if you consented to sex that you were
consenting too the contract of any diseases.
consent and therefore the defence of consent is not available.

Reform Law Commission reviewed the area and said that S47 belongs with assault and battery whereby consent is automatically given.
They also suggested that a line needs to be drawn between injury and serious injury whereby the defence should not be available when D intends
to cause serious injury but would be available if V consents to serious injury but only non serious injury is inflicted.
 Non fatal offence
Offences which do NOT result in death.
The main offences are set out by the OAPA 1861
The AR and MR must be established to secure a conviction.
Assault
Battery Criminal Justice Act
ABH

Malicious wounding and inflicting GBH (S20)

Wounding and causing GBH with intent (S18) OAPA

Assault It is a common law offebce which means there is no statutory definition.

 Self Defence and The prevention of crime
English law allows a person to use reasonable force in 2 main situations-
Self defence
Prevention of crime
Both are codified in the S.76 Criminal Justice and Immigration Act 2008

Test Did the accused honestly believe he had to act in the way he did. Was the force necessary?

Was the degree of force used reasonable?

Subjective In order for force to be justified it must be deemed necessary in the circumstances.
The threat must be specific and imminent.
test D does not have to wait for the assailant to strike the first blow as long as the threat was anticipated. It may be
permissible for a defendant to issue threats of force even death if it might prevent an attack upon themselves or a crime
occurring may even be allowed to prepare for an attack
The assault used within self defence may be aimed at an innocent 3 rd party.

Imminent Cousins Attorney GR No2 Malnik Hussain

D believes that a contract had
been taken out on his life. Armed
with a shotgun he went to the
mans fathers and threatened to
blow his brain out. The threat was
imminent and Ds actions were
deemed reasonable in the
circumstances so self defence
successful
1983 D went to visit a man House burgled. Family told to
Ds shop attacked by he believed had lie on the floor. Buglers ran off
rioters. Fearing further stolen his friends car. and D chased after them with
attacks he prepared D went armed with a cricket bat. Burglar had
petrol bombs. Self rice flail. Self defence fractured skull. Self defence
defence was successful failed as threat failed as there was no
as you can prepare if wasn't imminent. imminent threat and they were
the threat was acting out of revenge.
sufficiently imminent

Self Keane
D provoked V in a fight so self defence unsuccessful as it was self induced.
induced
3rd party Male and female shared a flat. Females boyfriend was jealous and knocked at the door. D feared the boyfriend would
assault him so slapped the girl around the face.

Possibility The old law stated that V Bird

had to retreat from the D was celebrating 17th birthday at house party. Ex boyfriend arrived with new girlfriend.
of threat danger. However it now They began to argue and Debbie bird threw a drink over him. He then slapped her. Bird
has been changed. lunged towards him with the glass in her hand and it broke in his face causing him to lose
a eye. Self defence succeeded as it was not necessary to show reluctance to fight.
 Self Defence and The prevention of crime

Objective test The accused may only use reasonable defence in self defence. This is decided by the jury. Where it is unreasonable
and excessive D will be held liable for the complete offence.

Clegg D was a soldier on duty. When a car containing joy riders failed to stop at a checkpoint he fired 4 shots at the car and a passenger
was killed. D was convicted of murder as self defence failed. This was because V had been killed by the last shot which could not be
considered self defence as the danger had passed. The force was excessive so not reasonable.

Is the test truly objective?

Palmer and White Scarlett Owino
Made the test mostly objective. Said the state of mind of D D asked a drunk man to leave. He D was convicted of assaulting his wife.
and his view of danger was relevant however. refused so D threw him out. The He claimed he was using force to
Palmer- `D will be unable to weigh up the niceties of any victim fell down some stairs and restrain her as she was attacking him.
situation and will act instantly and the jury should consider died. D successfully got self defence Self defence unsuccessful because
that` as D did not believe the force was force unreasonable. Test went back to
Whyte- `The state of mind of D and Ds view of danger is excessive or unreasonable therefore Palmer and Whyte.
relevant for the objective test. a subjective test.

Is psychiatric Martin Oye

evidence of D a farmer had been burgled and one evening he shot the intruder as D a 29yr old acting in a strange manner . Tried
Ds state of they escaped. This was held to be excessive force and therefore self to escape and assaulted 2 officers. He was
defence failed. Ds depression and paranoid personality disorder were then sectioned. Self defence was
mind held to be irrelevant. Self defence does not take into account Ds state of unsuccessful as your state of mind is
relevant? mind. The force used was therefore excessive and unreasonable. irrelevant.

Self defence It may provide a partial defence for murder where D has a serious sense of fear from V.
As long as a normal person of Ds age and sex would of reacted in the same/similar way then where D has this fear from V it may
and Murder succeed although they used excessive force.

Mistake and Where D mistakenly believes he needs to act in Beckford

self defences he will have a defence if it was a
Self defence honest mistake and the degree of force used was
D a officer received a report that a family had been held up and terrorised
reasonable in the circumstances.
at gun point. D shot and killed a man who ran out the house as he
Did d honestly believe he had to use force? approached. Self defence successful as D had made an honest mistake
Was the degree of force deemed reasonable? and the amount of force used was reasonable in the circumstances.

Mistake, Self Where the defendant O Grady Hatton

mistakenly uses self
defence and defence whilst
D and his friend drank 8 bottles of cider and then D drank 20 pints of beer and attacked and
Intoxication intoxicated , the
fell asleep. D then awoke to his friend hitting him. killed a man he invited back to his flat.
defence will always D then picked up a ashtray and threw it. Friend Defence unsuccessful as no defence for basic
fail for all crimes. died. Ds intoxication meant self defence was or specific intent crimes under intoxication.
unsuccessful.
 Self defence
+ -
General The two part test for self defence enables a fair test to take place in
order to be able to receive a full acquittal where they lack culpability
of D and whether the jury feel like the force was reasonable.
Protects the public
The defence could be useful for battered women suffering BWS.
However there is a danger of carte blanche occurring where women
could use whatever force they wanted and get away with it.
Force It is good that the jury have to decide whether force is reasonable so
the law is not completely subjective
It is fair that D cannot rely on the defence when excessive force is used.
It is fair that D can only use reasonable force when in a vulnerable
situation.
D is allowed to make a pre-emptive strike beforehand which makes the
law on self defence wide. However this is sensible as otherwise D would
be expected to wait until he is stabbed or shot before he can do
anything.
It is advantageous that D cannot gain the defence is he creates the
danger.
It is also advantageous that D cannot use the force when the danger is
over.
The reasonableness test now is rightly largely objective. 90% objective
10% subjective.
Mistake Allows a defence as long as its a honest mistake. This is wide as even if
mistake is not reasonable D can still have the defence.
Characteristics It is good that the jury put themselves in the position of D when deciding
if the force is reasonable. Taking into account his state of mind.
Reform The law commission proposed a partial defence of killing in response to fear or serious violence. This would be available to someone who overreacts
to what they perceive as an imminent threat and would reduce the charge to manslaughter. This would mean Clagg and Martin would be able to
use the defence.
Self defence is a common law defence. There if no act of parliament
which means inconsistencies occur.
The defence is seen as a all or nothing offence. No middle ground has
been argues as with other defences.
Is it fair that there is a defence available for those who do things they
would never normally do.
Its hard for the jury to put themselves in the defendants situation so makes
it harder to decide is force was necessary. Created inconsistencies.
If force is slightly excessive during a murder conviction the conviction can
be seen as unfair.
Clegg is a unfair decision as it was his job to stop the joy riders. He should
of been able to get a reduction if not a full reduction.
Should there be a duty to retreat?
Is it fair that D can use force on a innocent 3rd party?
The test for reasonableness of force has changed throughout the years
which has shown great inconsistencies within the law.
Law may be seen as too lenient
Is it fair that a drunken mistake provides no defence as being intoxicated
is no defence under public policy grounds
Is it fair that those intoxicated making the mistake and those not get the
same culprability?
Mental conditions are not relevant which can be arguably unfair. This is
because the jury should be putting them selves in the position of D.
However DR and loss of control may be able to help such defendants.
 Intoxication
Is a common law defence. Occurs through effects of drugs, alcohol or mixture of both. Provides a defence in limited circumstances.

If D was able to form the Kingston

mens rea for the crime D admitted to being a paedophile but could control urges whilst sober. As part of a set up he and 15yr old boy
were lured into a flat and drugged. The boy fell asleep and D was intoxicated and encouraged to abuse him.
then there will be no Evidence despite the effects of the drugs he intended to touch the boy So Convicted. Drunken intent still intent.
defence available. Defence failed.

Voluntary Intoxication If D has become voluntarily intoxicated Defence will fail for basic intent For Specific intent crimes defence
via alcohol or drugs then the defence offences since getting will only succeed if the intoxication
will usually fail due to grounds of public intoxicated is known as a prevented D from forming the
policy. reckless course of conduct. required intention.

Basic intent Assault, battery, S.47 ABH, S.20 GGBH, Specific intent Murder , S.18 GBH, Theft, Robbery,
manslaughter burglary

Specific Intent offences and voluntary intoxication

D must be so intoxicated there is no mens rea at all. Intoxication for `dutch courage 'will provide no defence
If successful will reduce sentence. Intoxicated intent is still intent.

Beard Seeham and Moore Lipman Gallagher

Whilst intoxicated D raped a 14 yr old girl
and put his hand over her mouth to stop
her breathing. She suffocated and died. D
charged with murder.
Lord Birkenhead- held that if he was so
drunk he was incapable of forming the
intent required he could not be convicted
of a crime which was committed only if
intent was proved.
D was very drunk and threw
petrol over a tramp and set
him on fire. D was too drunk
to have formed any intention
to kill or cause GBH. D was
said to not have the
necessary mens rea. Guilty of
manslaughter defence
successful.
D and gf took LSD and went
to sleep. D then thought he
was being attacked by
snakes and wakes up with
gf strangled with a bed
sheet in her mouth. Got
defence and Not guilty of
murder as didn't have MR for
murder intoxication was a
defence.
D decided to kill his wife
after she put him in a
mental institution. D
bought a knife and whisky.
He drank the whisky and
killed her. Cannot have the
defence of intoxication for
Dutch courage. D guilty of
murder.

Basic Intent offences and voluntary intoxication

Majewski
D had consumed drugs and alcohol.
Involved in pub brawl. Charged with 3
accounts of S.47. Guilty as no defence
given because voluntary intoxication
and basic intent offence. He`d already
been recklessness to be drunk. Drinking
is a reckless course of conduct.
Caldwell
D an ex employee of hotel. Set it
on fire.
Guilty of criminal damage whilst
endangering life as it was a basic
intent crime and was voluntary
intoxication so no defence for
voluntary intoxication.
Heard
Police called to Ds house. D was heavily drunk and
depressed. They noticed he was self harming and took
him to hospital. When he gets there is loud and
disturbing. Police take him outside and D rub his penis
on the officers thigh. Convicted os sexual assault
because its a basic intent crime and so no defence for
involuntary intoxication. No defence
 Intoxication

Involuntary intoxication
If D is involuntarily intoxicated whereby no mens rea can be established then a full acquittal will be given.
3 Types of involuntary Intoxication-
Laced drinks- non alcoholic Allen
drink drugged without Ds D given homemade wine which was particularly strong. D carried out a serious sexual assault and
knowledge. claimed intoxication as he didn't know what he was doing. It was held intoxication still voluntary
despite wine being stronger .No defence

Prescribed medication- Bailey

Given defence if has D a diabetic for 30yrs. Took insulin and then didn't eat. They attacked V with a iron bar. Guilty of
unpredictable effects. S.18 and intoxication failed as after 30 years would know he has to eat so not unpredictable effects.

Soporific/Sedative Drugs- Hardie

Calming drugs. Providing D did not D broke up with gf and was depressed. Before he left hw took her prescription of Valium. He then
see the likely outcome of taking started a fire and claimed it was the Valium. TJ said hed voluntary took the valium and therefore no
the drug then a defence will be defence available. Conviction of arson quashed on appeal as no evidence that he knew taking
given. valium would be likely to render him aggressive. Defence given.

Intoxication and Mistake

Mistake If D is mistaken about the Ogrady Hatton
fact because he is D and V drinking heavily and fell asleep. D claimed he D drank 20 pints and attacked and
intoxicated the it will woke up to find V hitting him. D picked up a ash tray hit killed a man. Thought V had
depend on the V the went back to sleep. When he woke V was dead. attacked him with a 5ft stick. Guilty of
circumstances of the Guilty of manslaughter. COA upheld the ruling of Lord Murder as an intoxicated mistake
mistake. Lane and stated intoxicated mistakes to the force could not provide a defence to
needed in self defence was not a defence. specific crimes.

Exception- Criminal Damage Act 1971

Allows defence for an intoxicated mistake which goes against the ruling in Majewski since CD is basic intent.
Haggard v Dickinson
D was drunk and went to his friends house. There was no and so she broke a window. It was the wrong house. Charged with criminal
damage but convicted quashed because she could rely on her intoxicated belief that it was the correct house and V would of
consented.
 Intoxication
Intoxication and Insanity
Where long term intoxication has led to a disease of the mind the Must go for Insanity
defendant is then places/ judged under the M`Naghten rules.
Intoxication and Automatism
An act done in the state of non insane automatism will negate criminal Must go for Intoxication
liability expect where it is self induced. Where D is so intoxicated he is in a
automatic state he is placed under normal rules of intoxication.
Diminished Responsibility
When D is under influence of intoxication whilst suffering from DR the Intox alone-No DR
defence will fail unless the addiction has been involuntary. Intoxication and separate AMF- ignore effects of
alcohol
Intoxication is the AMF(ADS)- ADS looked at
Mistake
Intoxicated mistake wont be a defence for basic or specific intent Intox and Mistake- No Defence
crimes. Exception- Criminal damage
 Insanity
Governed by the M`Naghten Rules
Provides a defence to those who commit crime whilst suffering from a malfunctioning of the mind.
Before 1991- meant indefinite hospitalisation. Now only if you kill.
Insane Automatism- Insanity is a general defence formulated in 1843 and is governed my M`Naghten Rules
M`Naghten Case- Caused uproar as people thought you could
D suffering from extreme paranoia and an insane delusion that the Prime be found not guilty of murder and not be
Minister held a personal grudge against him. D believed he was being sent to a mental hospital.
persecuted by the government and as a result attempted to kill him but
instead killed his secretary. The HOL however clarified the defence and
made the M`Naghten Rules.
Found Not Guilty of murder due to his mental state however committed to
Broadmoor until his death 20yrs later.

Rules-
Juries should be told in all cases every man is presumed to be sane.
In order to establish the defence D must establish that at the time of the crime that he was suffering from a defect
of reason from a disease of the mind.
Meaning D did not know the nature and quality of his act or that he did not know what he was doing was wrong.
Presumption Everyone who comes before the court are presumed sane. If D raises the defence of insanity he then
had the burden of proving this on the balance of probabilities.
of Sanity
Defect of Ds powers of reasoning Clarke TJ- said this amounted to insanity
must be impaired (if D went into a supermarket and placed and therefore D pleaded guilty.
reason capable but merely COA- quashed conviction. D was
several items in her bag including a jar
failed to use his power of mince meat. She left without paying not insane just simply lacked the
this will not be enough) and was charged with theft. D claimed MR so not guilty.
The defect of reason she lacked the MR since she had no
must amount to more recollection of placing the items in her The rules only apply to a person
than absent bag and was suffering from absent- who are deprived of the powers
mindedness, mindedness caused by diabetes and of reasoning not those why retain
forgetfulness or depression. the power but in a moment of
confusion. confusion or absent mindedness
fails to use them
 Insanity

Disease of the The defect of reasoning must be
due to a disease of the mind . This
Mind is a legal term not a medical. It
can be a mental or physical
disease which affects the mind.
Various conditions-
Epilepsy, Sleepwalking, Diabetes,
Schizophrenia, Brain injury,
Psychosis, Post traumatic stress,
manic depression, Dissociation.
Kemp
D was suffering from
arteriosclerosis which
restricted flow of blood to the
brain causing blackouts and
a temporary loss of
consciousness. During an
episode D attacked his wife
with a hammer causing her
serious injury. D was charged
with GBH.
Not Guilty by reason of insanit.
At trial D said he has suffered a
defect of reason but not due to
disease of the mind as it was a
physical illness. D raised
automatism in order to avoid
being labelled. NOT GUILTY
COA- This came within the rules of
insanity because it affected
memory, reasoning and
understanding.
COA- decided to clarify the
meaning of disease of the mind.

The tests Problems

The continuing The more likely the condition is to reoccur in violence then this Just because something reoccurs
danger theory would be considered insanity. doesn't mean its insane

External Cause Issues stemming from psychological or emotional factors rather Just because its internal doesn't
theory than an external matter would constitute insanity. mean you're insane.

Bratty Charlson Sullivan

D killed 18yrold girl by removing one of
her stockings and strangling her with it.
Said something terrible had come over
him a sort of blackness. Said it took
place in a epileptic seizure
TJ refused automatism and said it was
internal so insanity
HOL- NOT GUILTY by reason of insanity
as epilepsy is a disease of the mind.
D invited his son to look out the window
to watch a rat. D then picked up a
mallet and struck the boy and threw
him out the window. D was suffering
from a brain tumour. It was held this was
a physical disease and not a disease of
the mind under M`Naghten. The jury
acquitted allowing automatism. NOT
GUILTY due to defence of automatism.
D aged 51 suffered from epilepsy since
a child. One day sat in neighbours flat
with a friend aged 80 and the next
thing he recalled was standing by the
window whilst V was laid on the floor. D
charged with GBH
Epilepsy is a disease of the mind and
therefore comes under insanity .D
plead guilty to avoid insanity.

Epilepsy This is a functional; disease of the brain, characterised by seizures. Affects hundreds of thousands of people in
the UK. The HOL in Bratty and Sullivan have branded epilepsy as insanity however this is hugely unfair.
 Insanity

Dissociation (trance) Ordinary stress Extraordinary Stress

This is a condition that
causes D to act in a trance
like state which is usually
caused by extraordinary
events or overwhelming
emotions.
This episodes are usually
triggered by severe mental
stress.
When extraordinary events
and stress- Automatism
Induced by ordinary stress
of life- Insanity
Rabey
D was a 20 yrs old
Geology student who
had a attraction towards
a girl. He took a rock from
school for work and met
the girl who told him they
were just friends. He then
hit her over the head with
the rock and strangled
her. D charged with GBH .
Pleaded automatism but
Supreme court Canada
held that ordinary stresses
of life do not constitute to
an external cause.
Suggests insanity.
R vT
T was raped and suffered post traumatic stress . Days later
committed robbery stabbing V. Although she had some control
over actions she acted in a dream like state. This was considered
an external cause and TJ allowed automatism to be placed
before the jury however the jury rejected the defence and
convicted D. GUILTY
Falconer
D was convicted of the murder of her husband with a shotgun.
Gave evidence of a violent marriage and the discovery that her
husband had sexually assaulted her daughters. On the day of his
death hed come home and sexually assaulted her. She cant
remember anything from that point till she found herself on the
floor with a gun and him dead on the floor. High Court Australia
acquitted D on the grounds of automatism.

Diabetes Hyperglycaemia Hypoglycaemia

This is a disorder of the
pancreas. Injections are
insulin are needed to
control the body's blood
sugar. If they get too high
or low then a seizure may
result which can lead to
unconsciousness and
eventual coma. Can
become violent or
aggressive.
High Blood sugar
No insulin taken/not enough
INSANITY
Hennessy
D a diabetic, who had not taken his insulin
for 3 days. Suffered a Hyperglycaemic
seizure. Charged with taking a vehicle
without the owners consent and driving
whilst disqualified. He had no memory of
driving the car. Cause of episode diabetes
which is internal and therefore amounted to
insanity.
Low Blood sugar
Too much insulin take/ no food afterwards
Automatism
Quick
D was a diabetic who worked as a nurse on a
psychiatric ward. He had taken his insulin but
ate little afterwards which caused a seizure
during which he attacked a patient. Was
found unable to talk and glassy eyed. D had
no recollection of what he had done. It was
held the cause of his episode was the external
drug and thus this amounted to automatism.
 Insanity

Sleep Walking- Sleepwalking Night terrors Sexomnia

Somnambulism Burges Brian thomas Bilton
D watching a video with his friend and both Husband strangled D raped a woman
This is a sleep disorder, which is fell asleep. During his sleep D attacked V with wife during a night 3 times but was
very common in children and a wine bottle and VCR and then grabbed her terror. Had been sleepwalking and
present in 2% of adults. For around the throat. Insanity as it was an suffering from them couldn't
many years was considered internal factor. for 50yrs. Not Guilty remember. Not
automatism however the as got automatism. guilty due to the
reliance on the external cause Supreme court Canada...
defence of
theory means the condition is Parks automatism.
now insanity. 2 Million people D got up in the middle of the night, dressed,
sleep walk in the UK. Area got in his car and drove 15 miles to the home
covers 3 types- of his in laws and stabbed and killed his
Sleepwalking mother in law and severely injured his father in
Night terrors law. D was charged with murder and
Sexomnia attempted murder.
Automatism succeeded.

Nature and Quality-

D must not know the nature && quality of his act as a result of the defect of reasoning. D must be unaware of what he is
doing .
If D was aware of the nature & quality of his act then he must not know that the act is wrong.
D must not know his/her actions are morally wrong or legally wrong.
Windle
D killed his wife who constantly threatened to commit suicide and was classified as insane. Windle had a mental illness and
gave his wife over 100 aspirin. When he was arrested by police he said `i suppose they will hang me for this`.
This showed that he knew the act was legally wrong therefore no defect of reasoning and so couldn't have the defence of
insanity.
Procedure
Special Verdict- where insanity succeeds the defendant will be found not guilty by reason of insanity.
Before 1991 this meant that the courts gad to impose a mandatory unrestricted hospitalisation order for every successful plea
of the defence.
Now- for all offences except murder the judge may impose a variety of orders such as supervision order, absolute discharge
etc...