Criminal Law Cases

Question 1 What is the general rule on liability for omissions in the criminal law - The general rule on liability for omissions is that there is no criminal liability for failing to act and no general obligation to intervene and help Question 2 Name a statutory offence that may be committed by omissions - Statutory obligation to act - Contractual obligation to act Question 3 The prosecution argue that Kwame has completed the actus reus because he falls into one of the well-established common law exceptions to the general rule on omissions. Consider each of these in turn and discuss (briefly) whether they apply to Kwame’s situation. a) Contractual duty b) Voluntary assumption of responsibility for another c) Special relationship d) Duty to avert a danger created. Question 4 Is the prosecution likely to succeed in establishing liability and, if so, what is the most relevant exception on the given facts? - The general rule may not apply to Kwame as Martha and him are cohabitating and therefore there may be a special relationship with one another. However, there may also be a contractual duty as he is a paramedic and failed to act when someone was in need and therefore breached his contractual duties however it depends how far the contract reaches and can it be established in their own home - In conclusion, I do not believe that the prosecution would be able to succeed on establishing liability as Kwame does not fit within any of the exemptions Answers: Question 1 To convict for murder, the prosecution must prove that Kwame, a paramedic, brought about Martha’s death by ignoring her as she choked to death on a chicken bone. However, the general rule on omissions is that a person cannot be criminally liable for a failure to act. Question 2 There are a number of statutory offences where the actus reus is specifically defined as an omission and one such example is failing to provide a police officer with a specimen of breath when asked to do so. You may have legitimately referred to others. Question 3 There are common law exceptions to the general rule on omissions where the law imposes a duty to act; and the defendant is guilty of an offence if they fail to do so. You were asked to consider these in turn and discuss (briefly) whether they apply to Kwame’s situation. Contractual duty: Although Kwame is a paramedic, he is off duty at the time of Martha’s death so would not be subject to his contract of employment. The answer would be different if the incident had happened while he was at work. Voluntary assumption of responsibility for another: This is a weak argument as there is nothing to suggest that Martha needs his care or that Kwame has accepted this. Special relationship: Although the strongest argument, it is unclear whether this applies as Kwame and Martha are not married where a special relationship is established. The question is whether Kwame had a duty to act because he has a special and close relationship to Martha as she is his ‘long-term girlfriend’ and they are cohabiting - thus living as ‘man and wife’. However, there is no direct authority on this point. Duty to avert a danger created: This does not apply as Kwame did not cause Martha to choke on the chicken bone. If he had done so, he would have been under a duty to take reasonable steps to avoid Martha’s death by helping her in some way, perhaps by calling an ambulance. Question 4 It is unlikely that the prosecution could prove the actus reus of murder in these circumstances, even though Kwame may be morally culpable for Martha’s death. However, if they were to succeed, special relationship is the most relevant, although there is no definitive answer. Prepare Task 2 1. Question 1 1 Point In this next scenario, you are required to apply your knowledge of the law of omissions and analyse whether the defendant is liable for the victim’s death. Lyra McKenzie Lyra is charged with the murder of her flatmate, Bonnie. Lyra was smoking late one night whilst sitting in an armchair in the shared living room. She noticed that the armchair was smouldering but did nothing as she realised she had run out of alcohol and, being an alcoholic, was desperate to buy a bottle of vodka from the local shop before it closed. Bonnie subsequently died of smoke inhalation. Complete the summary set out below by adding in the missing word(s). To convict Lyra for Bonnie’s death, the Blank 1 must show Lyra completed the actus reus. Although there is no general duty to Blank 2, Lyra is likely to be held liable for her Blank 3 to do so in these circumstances. The reason is that Lyra has created a Blank 4 situation as she started a Blank 5 which is likely to spread. Also, this occurred in the Blank 6 which she shares with Bonnie. Lyra is Blank 7 of the fire as the facts state that she Blank 8 and so is under a duty to take Blank 9 steps to neutralise that danger. She must either attempt to put out the fire, if reasonable, or at the very least Blank 10. Instead, Lyra simply left the flat and went out to buy Blank 11. Lyra is likely to be found criminally liable for her Blank 12. o Prosecution o act o failure o dangerous o fire o living room o aware o noticed the armchair was smouldering o reasonable o call the fire service o alcohol o omission To convict Lyra for Bonnie’s death, the prosecution must show Lyra completed the actus reus. Although there is no general duty to act, Lyra is likely to be held liable for her failure to do so in these circumstances. The reason is that Lyra has created a dangerous situation as she started a fire which is likely to spread. Also, this occurred in the living room which she shares with Bonnie. Lyra is aware of the fire as the facts state that she ‘noticed the armchair was smouldering’ and so is under a duty to take reasonable steps to neutralise that danger. She must either attempt to put out the fire, if reasonable, or at the very least call the fire service. Instead Lyra simply left the flat and went out to buy alcohol. Lyra is likely to be found criminally liable for her omission. Prepare Task 3 Instructions You are a trainee solicitor at Shah and Partners, a firm of solicitors who specialise in criminal defence work. Shah and Partners are instructed to represent Lyra who is being prosecuted for murder. Read the email (below) and prepare a written analysis as directed by your supervisor. Dear trainee You will recall that we discussed Lyra’s case last week in relation to her liability for failing to act. Having considered this carefully, the defence team have conceded that Lyra was under a duty to act in these circumstances. However, we have now received more information from the prosecution and I want you to analyse whether legal causation is established. In particular, has the chain of causation been broken between Lyra’s omission to act and Bonnie’s death due to the poor medical treatment which Bonnie received? Lyra McKenzie: Case Notes Lyra is charged with the murder of her flatmate, Bonnie. Lyra was smoking late one night whilst sitting in an armchair in the shared living room. She noticed that the armchair was smouldering but did nothing as she realised she had run out of alcohol and, being an alcoholic, was desperate to buy a bottle of vodka from the local shop before it closed. Bonnie, who suffered from emphysema (a long-term lung disease) awoke while Lyra was out to find the flat ablaze and managed to dial 999. Bonnie was rescued by the fire service and taken by ambulance to the Accident and Emergency Department (A&E) at the local hospital suffering from severe respiratory problems arising from smoke inhalation and exacerbated by her medical condition. At A&E, Bonnie was seen by Dr Wong, a very inexperienced doctor who had only been working in the department for two days. Dr Wong assessed Bonnie incorrectly as not requiring urgent attention and left her on a table in the A&E waiting room to attend to more urgent patients. When Dr Wong returned three hours later, Bonnie was dead. When completing your report, use a clear structure and ensure that you refer to the facts of Lyra’s case to support your conclusions. Supervisor Structure of the Task The aim of this task is to ensure that you understand actus reus, but also to practise your ability to analyse. This is an important skill to develop if you are to attain a high grade on this course and you will have plenty of opportunities to do so. Adopting a structured approach is key and you should check your answer against the automated feedback to ensure that you have done so. 1. Define factual causation and state how this applies to Lyra’s case. 2. Define legal causation. Analyse each of the required elements in turn using the flowchart (above) to assist you and relate them to Lyra. 3. Conclude whether you believe the prosecution will be able to establish causation. Factual causation can be defined as a situation in which the defendant is not responsible for the cause of an event such as death if the situation would have occurred exactly the same even without the defendant’s act or omission. In order to determine whether the principle of factual causation can be applied is whether as a matter of fact, the defendant caused the victims death. In order to conclude this, the ‘But for’ test is applied in which one will ask themselves, ‘but for the defendants conduct, would the victim’s death have occurred in the same way that it did’. Answering yes or no will determine whether that is factual causation. This can apply to Lyra’s case however; it will not assist in this situation. The ‘but for’ test would be satisfised as if Lyra had not caused the fire, Bonnie would not have had to go to A & E and therefore she would not have died. However, there is an additional part of the principle of factual causation in which the defendants act or omission must be ‘a substantial and operating cause of the consequence’ which is referred to as legal causation. There are separate legal rules that combine under legal causation which have an impact on the final outcome. One of the rules is that the consequence, in this case the death of Bonnie, must be attributable to a culpable act or omission. Ultimately, this means that the Lyra as the defendant will establish legal causation only if the result (aka death in this case) was a consequence of their actions. Again, this rule is satisfied as Lyra’s actions of smoking and setting light to the armchair, noticing the smouldering chair and then leaving without taking reasonable steps to mitigate the dangers. Another rule is that the culpable act must be more than minimal cause of the consequence. In this situation, it must be proved that Lyra’s conduct was the ‘operating and substantial cause’ of that result. It can be seen in that the conduct by Lyra was substantial on Bonnie’s health and ultimately the operating cause of Bonnies death. It is also a rule that the culpable act does not need to be the sole cause. This could refer to another defendant contributing to the victims death. In this case, it could be argued that Dr. Wong also contributed to the death of Bonnie, however this does not mean that Lyra’s culpability is diminished and she could still be found guilty Another important rule is ‘taking the victim as the defendant finds them’ this refers to the possibility of the victim having a physical or mental state that contributes to their death. This physical or mental state does not diminish the omission of the defendant. Bonnie had a longterm lung disease which may have attributed to the severity of the smoke inhalation. However, again, this does not dimmish Lyra’s culpability as the law states that Lyra as the defendant is still responsible for the consequences of her actions even if they were unforeseeable. In this case, it may not have been known to Lyra that Bonnie had a long-term lung problem which caused the severity of the smoke inhalation, however this does not diminish Lyra’s responsibility in Bonnies death. Unknown if we talk about the chain of causation must not be broken In conclusion, Lyra is responsible for bonnies death as it she has satisfied factual causation as the ‘but for’ test was satisfied. If Lyra did not cause the fire to start and she took reasonable measures to act and prevent the harm from the dangerous situation, Bonnie would not have had severe smoke inhalation and ultimately would not have died. All other legal causations have been satisfised which in turn, Lyra has factually and legal caused the result and therefore is criminally liable, To convict for murder, the prosecution must prove the actus reus of the offence and show that Lyra brought about Bonnie’s death. 1. Factual causation To establish factual causation, the prosecution must prove that ‘but for’ Lyra setting fire to the armchair, Bonnie would not have died as and when she did – R v White. This is clear on the facts as Bonnie died of ‘severe respiratory problems caused by smoke inhalation’. 2. Legal causation The prosecution will argue that legal causation is established for the following reasons: a) The consequence (Bonnie’s death) must be due to a culpable act which includes a failure to act where the defendant is under a duty – R v Dalloway. o Lyra is under a duty to act because she created the dangerous situation (the fire) but failed to take reasonable steps to neutralise the danger – R v Miller. o Her omission was in failing to put out the fire or to call for help. b) The culpable act must be a more than minimal cause of the consequence – R v Pagett. o Bonnie’s smoke inhalation caused by Lyra’s omission is clearly more than a minimal cause of her death. c) The culpable act need not be the sole cause – R v Benge: o More than one person may be liable for homicide. o In this case Dr Wong may also be liable (for gross negligence manslaughter) but this does not mean that Lyra will avoid liability. d) Lyra must take her victim as she finds her (the eggshell skull principle). o This principle applies to pre-existing medical conditions – R v Hayward/R v Blaue. o Bonnie’s emphysema will not break the chain of causation, even if most victims would not have died resulting from such smoke inhalation. e) The chain of causation must not be broken: the issue here is the negligent medical treatment which was one of the causes of Bonnie’s death. However, this will only break the chain of causation in the most extraordinary and unusual cases. It will not do so unless: o the negligent treatment is so independent of the accused’s actions (here it follows on – Bonnie was taken to A&E, misdiagnosed there by Dr Wong who was inexperienced and had only been working in the department for two days and treated too late); o and so potent in causing death (Bonnie died of the smoke inhalation caused by the fire); o that in the jury’s view it makes the contribution made by the accused’s acts insignificant (the primary cause of death was still the smoke and not the medical negligence). 3. The prosecution argument is likely to succeed. Prepare take 4In the Engage section of this workshop, you will take part in a discussion on whether you consider there should be criminal liability for omissions. In particular, you will analyse whether you believe the law is satisfactory in relation to medical treatment for terminally ill patients, where a distinction is drawn between an ‘act’ (which may give rise to liability for murder) and an omission (which generally cannot). To enable you to contribute effectively: 1. Read Chapter 2.4 in Smith, Hogan & Ormerod’s 'Criminal Law'. Pay particular attention to paragraph 2.4.2.4 and make notes as you see fit. 2. Read and make notes as required on the article, ‘Euthanasia and death with dignity: still poised on the fulcrum of homicide’ by Hazel Biggs, which you will find at Crim. L.R. 1996, Dec, 878-888. Your reading will enable you to critically evaluate the current law in relation to these issues. You will review the contents of this task in Engage Task 3 where you will analyse the following question: Using your reading from the Criminal Law Textbook, other textbooks (specifically Smith, Hogan and Ormerod) and the article by Hazel Biggs: Critically evaluate the current position of the law in relation to criminal liability for omissions to act. Do you consider that the current law poses particular difficulties for the treatment of terminally ill patients? Your answers should be clear and structured and to assist you in achieving this, you will use the following headings for your discussion. 1. The general rule and exceptions. 2. Arguments against the law imposing liability for omissions. 3. Arguments for the law imposing liability for omissions. 4. Evaluation as to whether the current law in relation to the treatment of terminally ill patients is satisfactory. It is important that your answer contains references to the legal textbooks and articles that you were asked to read, rather than being a purely descriptive answer. This will enable you to demonstrate the critical evaluation skills and knowledge of current research and scholarship which is an essential requirement to attain a good grade on this module. 1. The general rule and exceptions. 1. The general rule of omission states that there is no general obligation to intervene and act if someone is in trouble -criminal law text pg 12 2. There are several exceptions to this rule which include: 1. special relationships (R v Giobbins and Proctor 1918), 2. voluntary assumption of care (R v Stone and Dobinson 1977), 3. cross over between special relationship and voluntary assumption (R v Ruffell 2003) (R v Smith 1979), 4. contractual duty to act (R v Pittwood 1902), 5. creation of a dangerous situation (R v Miller 1983), 6. voluntary acts (Hill v Baxter 1958), 7. factual causation (R v White 1910), 8. Legal Causation (R v Dalloway 1847 – consequence must be attributable to a culpable act or omission) (R v White 1959 / R v Malcherek and Steel 1981 – culpable act must be a more than minimal cause of the consequence) R v Benge 1865 / R v Pagett 1983 – culpable act need not be the sole cause) (R v. Blaue 1975 / R v Watson 1989) (Suicide – R v Wallace 2018) – taking the victim as the defendant finds them), 9. Causation must not be broken 2. Arguments against the law imposing liability for omissions. 3. Arguments for the law imposing liability for omissions. - 4. Evaluation as to whether the current law in relation to the treatment of terminally ill patients is satisfactory. – view on Bland Janey, aged 14 years, is sitting with her friend, Rosie, in a local authority park smoking a cigarette. Suddenly, Rosie says: “You’d better put that ciggie out quick as your mum’s coming!” Janey looks up and sees her mother walking towards them. She panics and throws the cigarette into the long grass nearby to prevent her mother from seeing her smoking. Janey stands up and then leaves the park with her mother. Usually, the cigarette would have burnt itself out but, because it has been an exceptionally dry summer, the grass catches fire and quickly spreads. A nearby park bench is destroyed in the ensuing fire. Janey is charged with arson. The actus reus is to destroy or damage property belonging to another by fire. Janey has clearly damaged the park bench which belongs to the local authority. However, for the mens rea, the prosecution must establish that she intended or was reckless as to the damage by fire. Can the prosecution prove the mens rea for arson? Justify your answers by reference to the law of mens rea and the evidence. 1. Did Janey intend the damage? In order to determine with Janey intended the damage, it is necessary for intent to be defined. In order to prove direct intent, it must be proved that it was Janey’s main aim or purpose was to cause damage by the fire. However, there is no evidence that this was Janey’s main aim or purpose in which case, she does not have direct intent. However, indirect intent can be considered. Indirect intent has developed through case law and began with R v Moloney and was solidified through more case law with the leading authority in the case of R v Woolin as they applied the virtually certain test from R v Nedrick . For there to be indirect intent, the consequence is virtually certain to occur as a result of the defendants acts and that the defendant foresaw the consequence as virtually certain to occur. Based on the evidence provided, it is not clear whether the result would be virtually certain to occur based on Janey’s actions. The case states that the cigarette would normally have put itself out however due to the conditions of the dry summer this was not the case. It may be highly probable that the fire and damage caused would occur however, it is not virtually certain. There is also no evidence to prove that Janey would have foreseen the consequences of her actions. This is due to her age she does not have the ability to foresee the significance of the potential consequences. As the test is not given to the standard of a reasonable person, therefore it is based on whether Janey and Janey alone could have foreseen that it is virtually certain that her consequences would cause these events, she cannot be held liable for arson as she does not have the required mens rea of intent. 2. Was Janey reckless as to the damage? To determine whether Janey was reckless to the damage, recklessness in relation to mens rea needs to be defined. Recklessness is a subjective test that was seen in the leading case, R v G which states that the defendant must foresee that there is a risk and then the defendant takes the risk anyways and the risk must be unjustified. In this case, there is a potential that Janey would have foreseen that there is a potential of being a risk, it is known that it was a hot dry summer, and a lit cigarette would have the potential to start a blaze. Janey’s actions were unjustified and she took the risk anyways, knowing the potential dangerous that could arise from a lit cigarette in long dry grass. However, an important note is that Janey is 14 years old. In the R v G case, they could not convict the 11/12 year old boys as they were unable to prove that they had recognised the risk as they were too young to perceive it. Due to the age of Janey, and the usual knowledge that a cigarette would burn out, I do not believe she acted reckless Feedback answers Did Janey intend the damage?  There is no evidence that Janey intended to cause damage by fire. She was smoking a cigarette and only threw it onto the grass to avoid her mother catching her. Arson was not her aim or purpose, so direct intent does not apply.  Furthermore, damage is not a virtual certainty of her actions. The facts state that usually the cigarette would have burnt itself out and the only reason the fire took hold was because the grass was so dry. Furthermore, Janey is only 14 years old and so it is unlikely she would appreciate this even if the prosecution could establish the first part of the test for indirect intent – R v Woollin [1999]. 2. Was Janey reckless as to the damage? Mens rea may also be established by proving that Janey acted recklessly. This is a subjective test (R v G [2003]) and the court must be satisfied that this particular defendant foresaw a risk which, in the circumstances known to her, was unreasonable to take. Janey may well be found guilty of arson if the prosecution can establish that she was aware of even the smallest risk of causing criminal damage by fire. This would have to be determined by the evidence, but account would be taken of: o Janey’s age (14) and understanding. o She has no time to think as Rosie’s warning is only given as her mother is approaching and she panics. o She leaves the park immediately with her mother. o Usually, the cigarette would have burnt itself out Janey may not have considered the park bench when throwing the cigarette. BUT: o A normal 14-year-old would know of the risks of fire and there is no suggestion that Janey does not. o It is an exceptionally dry summer, it is well known that dry grass can catch fire and cigarettes are a known fire hazard. You may legitimately have reached different conclusions as to whether Janey satisfies the mens rea or not and, provided your submissions are supported by the evidence, you will be credited. Mens reas of criminal Damage - A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence - Actus reus o Destroy or damage o Property o Belonging to another person - Mens rea o Intend or be reckless in destroying or damaging property o Such property – means property belonging to another  Therefore be knowledgeable that the property belongs to another person Mens rea elements: - Direct Intent o purpose, aim or desire for an outcome - Indirect intent o Foresee the consequence of virtually certain (subjective) o It must in fact be virtually certain o Flight (heahtrow to JFK), commercial flight – blow up the plane but there is no aim desire or purpose to kill anyone, just the aim desire or purpose to destroy the plane  You recognise that it is virtually certain people will die but you HOPE (and not aim desire or purpose) to kill them/hope they will live  Fact that they will die o R v Woollin – leading case on indirect intent o Consequence is virtually certain o Foresaw the consequence as virtually certain - Recklessness o Defendant has to foresee the risk o Defendant took the risk o Risk was unjustified o Subjective test – R v. G  low intelligence can play a role  in order to convict an 11/12-year-old (or anyone) have to show that in their mind they recognise the risk (have to prove they recognised their risk) in R v G – could not convict – no evidence that they recognised the risk (too young) one difference between recklessness/indirect intent o what is going on in the defendants mind – o recklessness – perceive the risk, no matter how small the perception of risk may be o indirect – the perceived risk has to be virtually certain – much higher perception of the risk  - Engage Task 2 In this task, you are required to consider a defendant’s liability for the offence of criminal damage. Katrin, who is of fairly low intelligence, decides to try out her new high-powered air rifle in the grounds of a hotel, by firing from the top of a hill about 50 metres away from the main building. Her shot breaks a window in a hotel bedroom. Consider the liability of Katrin for simple criminal damage, in each of the following permutations. For the purposes of this task, you can assume that the actus reus has been satisfied, as Katrin damages (‘breaks’) property (‘a window’) belonging to another (‘the hotel’). With regard to the mens rea, to be guilty of criminal damage, Katrin must either intend the damage or be reckless as to the damage. Consider the alternatives below and: 1. identify which mens rea would apply; 2. define the appropriate mens rea; and 3. apply this to the facts of the case. Your answer should consist of short summaries (no more than a few sentences for each). (a) Katrin hopes to damage something. a. Direct intent because that was her main aim – said the word hope which ultimately is desire (b) She hopes not to damage anything but she assesses her chances of damaging something as: (i) almost definite; indirect intent because even though the outcome wasn’t the main intent but consequence was virtually certain (ii) highly probable; recklessness - highly probable is not virtually certain (iii) more likely than not; recklessness (iv) unlikely; recklessness - both of these fall under recklessness – foresaw the risk (even if the risk is very small, just need to prove that they foresaw some risk) and the risk is not justified – having fun is not justifiable for breaking the hotel (v) nil. - none of it matters because there is no mens rea - did not foresee the risk therefore no mens rea - negligent – objective standard (j) It never occurs to her that she may damage anything. - No mens rea because it is not occurring her that damage could happen You should now consider Katrin’s liability for criminal damage in the following scenarios. Your answer should refer to the doctrine of transferred malice. (k) Katrin wanted to hit the car of her ex-boyfriend, Mark, who works as a chef at the hotel. She thought she was most unlikely to succeed. - Recklessness – perceiving risk and taking unjustified risk Transferred malice – same crime is hugely important R v Latimer (l) She wanted to kill Mark, who was standing outside the kitchen of the hotel at the time. - Not the same type of crime – therefore not transferred malice - Had the mens rea to kill - R v Pembliton – cant transfer malice between different types of crimes Once you have received the feedback, revisit your answers to check your understanding and to consider ways in which you can improve. Engage Task 4 5. The general rule and exceptions. 1. The general rule of omission states that there is no general obligation to intervene and act if someone is in trouble -criminal law text pg 12 2. There are several exceptions to this rule which include: 1. special relationships (R v Gibbins and Proctor 1918), 2. voluntary assumption of care (R v Stone and Dobinson 1977), 3. cross over between special relationship and voluntary assumption (R v Ruffell 2003) (R v Smith 1979), 4. contractual duty to act (R v Pittwood 1902), 5. creation of a dangerous situation (R v Miller 1983), 6. voluntary acts (Hill v Baxter 1958), 7. factual causation (R v White 1910), 8. Legal Causation (R v Dalloway 1847 – consequence must be attributable to a culpable act or omission) (R v White 1959 / R v Malcherek and Steel 1981 – culpable act must be a more than minimal cause of the consequence) R v Benge 1865 / R v Pagett 1983 – culpable act need not be the sole cause) (R v. Blaue 1975 / R v Watson 1989) (Suicide – R v Wallace 2018) – taking the victim as the defendant finds them), 9. Causation must not be broken Arguments AGAINST imposing liability for omissions - Where do we draw the line - Unfairness/unjust - What would we define someone who is at risk - Cause harm to the person (defendant) - Could overwhelm the criminal justice system - Infringe on individual autonomy Arguments FOR imposing liability for omissions - Relationships have duty to care o Protect vulnerable people Compelled to prevent harm Compelled to help people in harm - Good Samaritan Act Medical staff – compelled to do everything they can to sustain life NHS v Bland - Doctors have to seek court approval to withdraw life support - To remove life support and inject drugs – they are both acts – Judges states - Bland – cause of death was argued that it was the stadium collapsing Actus Reus: - Guilty act - It is the starting point for all crimes - Need to have the ability to analyse the evidence and conclude whether the suspect has completed the actus reus of a particular offence - The concept of causation (important element of the actus reus) is highly relevant - General rule: the defendant is criminally liable only if they can be shown to have caused, both in fact and law, harm to the victim Mens Rea: - To establish criminal liability, the prosecution has to prove beyond all reasonable doubt that the defendant committed the actus reus with the relevant mental state, with strict liability offences being the exception to this rule o This means in most cases that the prosecution must establish that the defendant intended or was reckless as to the consequences of their actions - Mens rea is the technical term for the mental state required for a particular offence and if the prosecution cannot prove that that accused had the necessary mens rea, they will not be convicted Guilty Conduct Actus Reus of an Offence: - Anything other than the state of mind required of the defendant - Essential elements of criminal conduct – no one can be found guilty of a crime without it being proved - Need to discuss whether a defendants behaviour amounts to a criminal offence o Important on whether the defendant should plead guilty or not guilty - Actus reus (guilty conduct) often involved a defendant taking some positive action (starting a fire or punching someone) – in many cases, therefore, establishing guilty conduct is quite straight forward. - Some complex issues can arise when considering the actus reus of a crime o Charged with murder and says they stood by and watched someone drown, have they committed the actus reus of killing? They haven’t done anything, but in some circumstances, you can be liable for failing to act Types of Actus Reus - If the actus reus of an offence cannot be proved, there is no criminal liability - Actus Reus of Murder o The actus reus of murder is causing the death of a human being. It would clearly be ludicrous to accuse someone of murder if no-one had died, the actus reus of the offence would be missing and no criminal liability for murder could follow - It can be a complex principle – as well as people doing or, sometimes failing to do things, it also encompasses any circumstances or consequences needed for the offence to be established - The conduct of the defendant is the attack on the victim and the relevant consequence is their ensuing death - Actus Reus of Rape: o the conduct of act needed is that the man has sexual intercourse with a person – does anything else need to be established?  A man has sexual intercourse with a person who does not consent o You can see that intercourse is an essential element of rape, but it is not the only one – the actus reus is not complete unless a particular circumstance also exists – here the lack of consent on the part of the victim o The actus reus of rape consists of conduct by the defendant – the act of sexual intercourse – and the existence of certain circumstances – lack of consent by the victim - Sometimes the defendant just doing something is enough, but, for many offences, that conduct by the defendant must be accompanied by the existence of certain circumstances Activity - How do you know what is the actus reus of a particular crime?? - Criminal offences are defined by statute or case law. - Each offence, you need to go to its definition and pick out all the elements that make up the actus reus - Example: offence of criminal damage (s. 1 Criminal Damage Act 1971) o Read s.1(1). Don’t worry for now about the reference to lawful excuse. Identify the actus reus of the offence of simple criminal damage under s.1(1) of the Criminal Damage Act 1971.  Actus Reus:  Destroy or damage  Property  Which belongs to someone else  Assume that someone drags their key down the side of your car, scratching it. They are charged with criminal damage under s.1(1) of the Criminal Damage Act 1971. Is the actus reus established? The defendant has done something – he has dragged his key along the car. The relevant consequence has followed as the car has been scratched and so damaged. The relevant circumstance exists as the car is property, belonging to another. So the actus reus of criminal damage is complete. Liability for Omissions - People often speak about someone committing a crime or carrying out a criminal act, and so we tend to think of crimes as something people do – positive action - Ex. Fictional Case – R v Phillips o Facts  Jane Phillips has an argument with Gary and steals his laptop  Goes to the bar and has several shots of vodka – is now intoxicated  Believes that Sandy (bartender) tries to steal her phone  Jane pins Sandy up to the wall, punches her 3 times and throws her to the floor  Sandy has severe bruising, a badly broken nose and a fracture skull as a result  Jane is charged with theft of Gary’s laptop and an offence inflicting grievous bodily harm on Sandy o Charged with 2 offences (theft and assault), in both cases, Jane did something – positive actions - Can there be criminal responsibility for failing to act – some crimes have to have positive conduct by the defendant or else they would not be possible (rape, burglary) - Think back to the offence of murder – actus reus is causing the death of a human being. o Think of positive ways you can kill someone  Stabbing, suffocation, strangling, shooting poisoning o All of these involve positive steps (you have done something) to bring about the death of your victim o But can there be situations in which the defendant fails to act, and someone dies/ is injured as a result? Criminal Liability for an omission?  Ex. you are walking along a beach, and you see a toddler in distress in the water – you carry on walking, ignoring the toddler who subsequently drowns.  Should you be liable for causing that child’s death? o Would think there’s a moral responsibility but is there a criminal liability for failing to try and save the child Activity – drowning child at the beach - Tereza is at the beach. She spots a young child in the water who is clearly in distress. She ignores the child who subsequently drowns. Should Tereza be liable for the death of a child? Consider each set of facts below and type in an answer of 'Yes' if you think the facts should make her liable or 'No' if you do not think she should attract criminal liability. A. Teresa is the child’s mother a. Yes, responsibility to care for the child b. B. Teresa is a lifeguard employed to protect swimmers on the beach a. Yes, duty and contracted to save and protect C. Teresa had taken the toddler to the beach for the day as a favour for a friend a. Yes, responsibility to care for the child D. Teresa has taken her own family to the beach and has never seen the toddler before a. No but potentially yes – negligence - Under the law of England and Wales, there is generally no liability for failing to act, and no general obligation to intervene and help if someone is in trouble o The starting point with Tereza is that, however morally reprehensible her behaviour, she commits no crime by allowing the child to drown Special Relationships - General principle is that there is no criminal liability for failing to act, but there are exceptions to the general rule - There are four main situations where a person can commit the actus reus of an offence by failing to act (almost all case law in this area relates to offences of murder or manslaughter because these are the types of offences most easily committed by omission) - Special Relationship: o Special relationship between defendant and their victim o Case law has held that it can be established either through family ties or because the defendant has assumed the duty towards the victim o Ex. not saving the drowning child – mother? Guilty of causing their death by her inaction. Aunt and their nephew? Law is less clear, dependant on facts of particular case o R. v Stone and Dobinson (1977)  the two defendants took in Stone’s sister to live with them. Stone and Dobinson made what the court called ‘ineffectual’ attempts to look after the sister when she became ill, but did not take proper care of her. The sister died and the defendants were convicted of manslaughter. o Special relationship may exist if you are a parent or if you have assumed duty of care towards the victim  Law is unclear as to how far the duty extends in the case of care for elderly parents, adult siblings - Breach of Contractual Obligation to Act o Case law, such as the case of R v Pittwood (1902) 19 TLR 37, has held that a person can be guilty of a crime if they fail to act when they have a contractual obligation to do so. So a lifeguard ignoring a drowning child could be liable for their death. Their contract of employment would require them to act to try to save the child. The same would apply to a childminder who is employed to care for the child. - Breach of Statutory Obligation to Act o Liability for omissions does not only come from case law. It is also created by statute. Legislation often imposes a duty to act and breach of that duty attracts criminal liability. Road traffic legislation provides numerous examples of liability for omissions. For example, you must stop at red traffic lights – failure to do so is a crime; you must stop after an accident if anyone is injured. Failure to do so is again a criminal offence. Test your Knowledge Neil switches on the gas cooker at his home but forgets to light the burner. He later notices that the burner is not lit and smells gas. He leaves the house without turning off the cooker. Joe, the builder, is in the house. He lights a cigarette and the house explodes, killing Joe.     Special Relationship Contractual Duty Statutory Duty None of the above Correct Neil has no criminal liability for causing Joe's death on the basis of any of these principles. - Neil has no criminal liability based on these three exceptions - You may feel that he should incur criminal liability because he created a dangerous situation then ignored the smell of gas – fourth exception to the general rule is dangerous situation exception Dangerous Situation - Where someone realises they have created a dangerous situation, the law imposes a duty on them to take reasonable steps to remove the danger - This was established in the case of R v Miller (1983) Causation - It has to be shown that the defendant caused those consequences to occur. o If causation cannot be established, then the actus reus of the offence is not completed and the defendant would have to be acquitted - Ex. case of Jane Phillips o We know she has been arrested after taking a colleagues laptop and hitting a barmaid at a local bar – Jane is charged with theft of the laptop and with a s.20 assault  Actus reus elements of s.20  Offences Against the Person Act 1861 s 20 o Actus Reus – wounding or inflicting grievous bodily harm (GBH) o “Wound” involves a cut and “grievous bodily harm” means really serious harm o In Jane’s case, the prosecution would have to show that Jane’s actions results in Sandy suffering a cut or a really serious injury.  The cuts on Sandys fact fit the definition of a wound  Jane causes these cuts to occur when she punched Sandy in the face and threw her to the floor  All elements f actus reus of s. 20 are established – there can be no doubt here that Jane casues the wounds o Sometimes not as easy – Imagine Jane pushed Sandy and Sandy fell and cut her face on broken glass lying on the floor  There was an intervening event that occurred between Jane attacking Sandy and Sandy suffering her injuries  The court now has to decide whether Jane can still be said to have caused the injury Activity – Causation - Causation can apply to any crime, many of the causation issues that have come before the criminal courts relate to incidents where the victim has actually died, and the defendant is disputing they cause the victim’s death - Activity: Three people have been charged with murder. Each denies causing the death of the victim. In each scenario consider whether you think that the defendant caused the victim's death. a. Jemma wants to kill her husband Owen. She puts poison in his tea. Before he can take a drink Owen dies of a heart attack a. No b. She may have wanted to but she didn’t casue Owen’s death – her actions had nothing at all to do with casuing his death so the actus reus of murder wouldn’t be made out b. Fred shoots Will at point blank range. Will dies instantly from his injuries a. Yes – no questions c. Hannah kicks Emma and breaks Emma’s leg. An ambulance takes Emma to hospital but on the way the ambulance crashes and Emma is killed a. Yes - but arguments for both b. Yes: if Hannah didn’t attack Emma, then Emma wouldn’t have been in the ambulance and wouldn’t have died c. No: on Hannah’s POV it would be very unfair to accuse you of causing Emma’s death when there’d been an intervening event which, in this case, was completely unforeseeable d. Both are sensible propositions and resolving problems of causation like this has exercised the courts for centuries The Courts’ Approach to Causation - The courts’ approach to causation is a complex one so we will confine ourselves just to the basic points of principle here. - The ‘But For’ test o Courts starting point when considering the issue of causation o If this test is not met, a defendant cannot be said to have cause the victims death o That is why, as a matter of criminal law, Jemma (example above) cannot possibly be said to have caused Owens death – her actions had nothing to do with Owen’s demise. o If the question is asked – ‘but for Jemma’s actions would Owen have died?’ – the answer is yes, he would have died in any event, so his death was nothing to do with her acts o In most cases, if the “but for” test is met, it is proof that the defendant caused the death – in the question of Fred’s case – Fred shooting Will, would Will have died as he did? clearly the answer is no, he would not, so the “but for” test is satisfied and Fred can be said to have caused Will’s death Problems with the “But For” Test - An issue with just applying the “but for” test, to determine the issue of causation is that it makes the defendant responsible no matter what outlandish things happened to their victim after they were attacked and before they die o Consider a situation where Pete attacks Gilly and she twists her ankle as a result. Gilly goes off to the Accident and Emergency department for treatment. While she is waiting to be seen, a gunman bursts in and shoots several people dead, including Gilly. o Did Pete cause Gilly's death? Certainly she was in the A and E department because of what Pete did to her, but can it be argued that Pete killed her? Something completely unexpected happened to bring about Gilly’s death. Does that allow Pete to escape criminal liability for Gilly's death? The answer, in this type of case, is invariably yes. Pete would not be said to have caused Gilly's death, because it was brought about by an intervening event completely unconnected with his attack, and so it could not have been foreseen. - Defendants and their lawyers need to be mindful that even where there is an issue relating to causation, the courts are unwilling to exonerate the original protagonist, except in the most extreme cases - If the defendants actions contributed to the death, they will usually be said to have caused it, even if there were also other causes of death operating - Does it make any difference that your victim was vulnerable in some way? o The law on this is clear – you have to take your victim as you find them, that is with any weaknesses or vulnerability they may have. So, assume you deliberately frighten someone who, unknown to you, suffers from a serious heart condition. As a consequence of your actions, they have a heart attack and die. You caused their death because you have to take your victim as you find them, heart condition and all. It will be no defence to argue that the outcome the death - was unexpected. Criminal States of Mind Guilty Mind? - In most criminal offences, the defendant must have a guilty mind at the time of their guilty conduct - However, there are some situations when a defendant can commit a criminal offence even though they lacked a guilty state of mind - Crimes that Only Require Proof of Negligent Behaviour o Some crimes require only proof of negligent behaviour – the offence of careless driving is an every-day example  it does not matter what the defendant was thinking at the time – if he drove below the standards of the reasonable driver – he is guilty as he has driven negligently - Crimes of Strict Liability o A crime is one of strict liability where a person is liable even though they are morally blameless. They might have acted exactly as a reasonable person would do but if the crime is one of strict liability, they are guilty – accidentally polluting a river is an example of a strict liability crime - Mens rea – guilty mind o The mens rea will very from one offence to the next Direct Intent - Example: o Imagine you are sitting on a jury at the Crown Court. You have to decide whether Frank is guilty of murder. The evidence is that Frank shot Sid at point blank range. Sid died instantly. Frank told police he hated Sid and wanted him dead. o There is no doubt that Frank caused Sid’s death, so the actus reus is clearly established. But what about mens rea? Did Frank intend to kill Sid? You probably decided without a second thought that Frank did intend to kill Sid. He set out to kill him - he wanted him dead. This would be a case of direct intent to kill - the outcome achieved is the defendant’s aim, purpose, goal or desire. - A jury would have no issue of intention – they would simply apply common sense understanding of the word to decide if the defendant intended the consequences of his actions - Motive – why someone did something is not relevant to the issue of mens rea, although motive can sometimes affect sentence after a defendant has been convicted Indirect Intention - What if a defendant argues that they did not want something to happen/ it was not their purpose or aim? - Perhaps they had a particular goal in mind and the crime of which they are accused was a side-effect of achieving that goal – is there an intention to commit the criminal offence? - Example: o Rehana plants a bomb on a plane. It is timed to go off in mid-air because Rehana wants the plane to explode so she can make an insurance claim on the cargo it is carrying. The bomb goes off as planned and the cargo is destroyed. The crew of the aircraft are killed. o Rehana is charged with murder. She says she is devastated by the crew’s deaths. She hoped that, by some miracle, they could have been saved. o Did Rehana intend to kill the crew? o Rehana will say she did not want them to die. Her aim or purpose was to destroy the cargo so she could claim the insurance money. She will argue that she had no direct intent to kill the crew because she did not set out to kill them – their deaths were an unfortunate by-product of her main purpose which was to claim on the insurance. o But surely she should not get away with it! It was almost inevitable that the crew would die as part of her plan. Does the law enable a jury to find that Rehana intended to kill in this type of case? o The answer is yes. A case like Rehana’s would require consideration of the principle of indirect – or oblique – intent. This is a concept developed by the courts which we will look at in detail later. - Essentially the jury in Rehana’s murder trial will be told that, even though Rehana lacked direct intent, they can still find that she intended to kill the crew if the jury concludes o That the consequence was virtually certain to occur and o That the defendant (Rehana in this case) foresaw that consequence as virtually certain to occur - Ultimately – Rehana did intend to kill the crew because death was virtually certain to occur, and she foresaw it as a virtual certainty R. v Phillips (fictious case) - Facts o Jane Phillips has an argument with Gary and steals his laptop o Goes to the bar and has several shots of vodka – is now intoxicated o Believes that Sandy (bartender) tries to steal her phone o Jane pins Sandy up to the wall, punches her 3 times and throws her to the floor o Sandy has severe bruising, a badly broken nose and a fracture skull as a result o Jane is charged with theft of Gary’s laptop and an offence inflicting grievous bodily harm on Sandy - Actus Reus: o Wound or inflict any grievous bodily harm upon another person - Mens rea o Maliciously Maliciousness - Unlawful means ‘without a defence’ - Maliciously is the mens rea element of the s.20 offence o Spiteful, intending to hurt, upset – describing states of mind - Malicious in criminal law has been given a legal definition by the courts for the purposes of s 20 - Leading case R. v Mowatt (1978) the defendant was convicted by the Crown Court of a s.20 assualt after he attacked a police officer. The Court of Appeal subsequently had to determine what was meant by the term maliciously R. v Phillips - If Jane intended to cause some harm, she will be guilty of s.20 - What if the prosecution struggles to prove direct intention? Jane might argue that she did not set out to cause any harm to Sandy – on the facts it would be unlikely that the jury would believe Jane but if they did, is there any other way of establishing the mens rea of s.20 - Prosecution could try to establish indirect intent o Only go down this route if they had to prove intention to get a conviction and they knew they could not prove direct intent - The prosecution has to prove that Jane acted maliciously – maliciously means either intentionally OR recklessly – if direct intent cannot be proved, the prosecution will avoid the hurdle of indirect intent and try to prove recklessness instead Recklessness - Recklessness in criminal law involves foreseeing a risk and going on – without justification – to take that risk - Need to ask: o When will taking a risk be without justification o Who must foresee the risk o What risk must be foreseen - Justification: o Trying to prevent greater harm by taking the risk of causing injury o Magistrates or jury will have to decide whether the taking of a risk was justified by evaluating the social utility or benefit involved in taking that particular risk in those circumstances. It is an objective decision o Would a reasonable person have considered there was any merit in taking the risk? o Often the issue of justification will be decided long before the case gets to court – the prosecutor will decide not to prosecute if there is clear justification for taking a risk Recklessness – Foresight of Risk - Foresight of risk has to be established but it raises two questions o Who needs to foresee the risk  Does the prosecution have to prove the defendant did foresee the risk, or is it enough that they prove the defendant should have foreseen the risk because a reasonable person would have done so?  Subjective test – the prosecution have to prove that this defendant did foresee the risk, it is not enough to argue that they should have done so o What risk needs to be foreseen  We need to consider what the defendant needs to foresee as a risk – this will always depend on the offence charged R. v Phillips – Case Analysis - Direct intent o You may have decided that Jane did have mens rea. She may have intended to cause Sandy some injury. Jane did “grab” her and then punch her several times. Was it Jane’s aim or purpose to cause some physical harm to Sandy? If so, Jane had direct intent and so has the necessary mens rea of the offence. - Indirect intent o If Jane lacked intent, the prosecution would not usually try to prove indirect intent. o They will only seek to rely on indirect intent if the crime requires proof of intention and nothing less will do, as is the case with murder - Recklessness o Here, the mens rea can be established by intention OR recklessness. So if Jane did not intend to harm Sandy, was she reckless? That is - did she foresee the risk of causing some physical harm to Sandy? And if so, did she go on without justification to take that risk? o There’s little doubt that the risk was unjustified – there is clearly no social benefit in beating someone up. o But did Jane foresee the risk? It depends on the facts, but, surely, the answer has to be yes. She grabbed Sandy, punched her several times, and threw her to the floor. The facts would seem to suggest that Jane did foresee the risk of causing harm to Sandy. If this is the case, then the mens rea of the offence is established. o What if the prosecution argued that Jane should have foreseen the risk of harm? As we have seen, this is irrelevant – they have to prove that Jane did foresee the risk before they can secure a conviction. Activity Decide whether you think Keith should be guilty of murdering Sian and type in the box provided the reason(s) for your decision. Remember to consider whether (a) the actus reus and (b) the mens rea of the offence are established. - Keith hates Fiona and wants to kill her. He points a gun at Fionas bedroom window planning to shoot and kill her. He sees a female figure at the window, fires his gun and runs off believing he has killed Fiona. In fact it is Fiona’s flatmate, Sian, who is shot. Sian dies of her injuries. Keith is charged with murder. He says he didn’t intend to kill Sian. Keith says he loved Sian and is devastated by her death - Actus reus o Yes – there was positive action, Keith pulled the trigger and shot someone and killed them – therefore there is actus reus - Mens rea o Yes because even though he did not kill the right person, he still had the intent to kill Fiona and he knew that there was potentially another person in the flat (as he knew and loved Sian) and the But For test is satisfied Transferred Malice - When considering mens rea issues of intention or recklessness does the defendant have to have mens rea specific to his victim or is it sufficient for them to have a general mens rea - General mens rea should suffice – broadly speaking, the law agrees - The doctrine called ‘transferred malice’ establishes that if a defendant has the ‘malice’ (think of it as mens rea) to commit a crime against one person, that ‘malice’ transfers to any unintended victim - So in the example – Keith is guilty of murdering Sian - This doctrine does not just apply to murder cases – the same principle applies to other offences against people (ie. Assault) and to offences against property (ie. Criminal damage or theft) - There are limits o The principle of transferred malice will only work if the actus reus committed is the same type of crime as the defendant originally had in mind o Ex  The principle of transferred malice will only work if the actus reus committed is the same type of crime as the defendant originally had in mind. Sally set out to commit an assault. The actus reus committed (damage to property) is not the same type of crime as assault so transferred malice will not apply. - - - - - The approach taken by the New Zealand Court of Appeal in Lee focused on the defence of the victim as a defence, consent can be withdrawn based on individual facts of the case and other values, with an emphasis and focus on personal autonomy and there is no defence of consent where death is intended or subjectively risked – no exceptions The case of Lee focuses heavily on individuals autonomy and social utility as the main purpose of making decisions. The Court of Appeal adopted the minority position of Lord Mustill in Brown in which consent can be used as a defence in respect of intentional or reckless infliction of actual bodily harm, however Lee took it one step further and created the presumption that consent was also available as a defence once grievous bodily harm was intended or risked by the accused Lee – requires the court to decide whether or not to overturn that presumption by directly engaging with considerations of harm, victim vulnerability and social utility on the facts of the individual case rather than assessing these considerations in relation to the generic category of behaviour it belonged to – gives full expression to the reasons for allowing/disallowing consent in the first place In Brown, there was emphasis on public interest to not inflict actual bodily harm for no good reason, victims consent was not a defence, satisfying sado-masochistic desires was not a valid reason and since there was admission of guilt and the injuries were neither transient nor trifling, the question of consent was immaterial - - The approach in Brown focuses heavily on morality, public interest and policy , and focused heavily on whether behaviours serve an important social function and if there are reasonable safeguard implemented. The case of R v Brown removed freewill and considerations of victim vulnerability from the decision as to whether the defence of consent is allowed or disallowed on a set of facts – considerations of harm are assessed in the abstract Brown creates a patchwork of categories of lawful and unlawful activities loosely based on ‘normal’ behaviour and what Is not – it employs analogy-based reasoning to determine which category any particular activity falls within - I agree with Tolmie conclusion as the law should not reasonable take away an individual’s personal autonomy and if they are have the ability to consent without and vulnerabilities and they are in full acknowledgement of the events that are to occur and the harm that they will most likely endure, there is no reason that they cannot consent to the acts they are participating in. it can also be difficult as seen in the case of Brown, to measure that activities fall within the lawful and unlawful category and therefore, causes of consent as a defence should be seen on individual facts and not as a generic category. It can also be argued that the law, taking away an individuals free will and individual autonomy is more harmful than the individual consenting to activities in which they take pleasure in as they are seen to be against public interest and policy. Assault offences Actus Reus  Starting point – the injury; what is it, and within which legal definition does it fall?  Consider the ‘possible’ offence(s) that could apply.  Begin by discussing the most serious offence first.  Work down the assaults and complete your discussion with the least serious offence which could apply (realistically) on the facts. Mens Rea  Use the evidence to consider the defendant’s state of mind.  Having identified that the actus reus of a particular offence has been satisfied, consider whether the mens rea is also met.  If not, work down the offences until the actus reus and mens rea have both been satisfied. Finally  If more than one offence ‘fits’, consider which you believe is relevant and why. Scott and Thomas S.18/s.20 o Scott was punched in the face, unconscious – would fall under serious harm as he is unconscious for an extend period of time and needs an ambulance (extend unconsciousness can lead to affects on brain functioning) o S.18 – actus reus requires is really serious harm. Actus Reus was fulfilled as he caused really serious harm Was it his aim, desire, purpose for a specific outcome  “you’ll really regret this” – does not help his case, possibly shows intent  Punched him just once, if he wanted to cause GBH he’d keep going – goes against possible intent  Took a step back and punched him full on in the face – possibly shows intent - Hard to prove MR until more information from doctor o S.20 –  AR –  MR – maliciously – intention or recklessness as to actual bodily harm – see facts above – punching is intent to cause actual bodily harm o S.47 – easiest arrest to make  AR – simple or physical assault causing actual bodily harm  MR – intention or recklessness as to the simple or physical assault (NO NEED for the defendant to have intended or foreseen the actual bodily harm)  Start with s.47 – define AR – give case State the facts Unconsciousness – need to have more facts to see if there is actual GBH - Need information from doctors and ambulance Thomas and PC Manson - S.18 - AR: o wounded PC Manson – has a wound (cut on leg – broke layers of skin and there’s blood) from Thomas pushing him trying to resit arrest - MR: (rely on alternate way to prove MR because – first intent is hard to prove) o Intention to resist/prevent arrest  PC Manson went to arrest him and Thomas pushed him and ran away trying to o Intention or recklessness as to causing actual bodily harm  Reckless to causing actual bodily harm  Have to prove that he foresaw the fact that pushing would cause actual bodily harm – recklessness requires subjective – has to acknowledge that there is a small risk and does it - anyways – has to be what he believes not what a reasonable person would foresee – that’s why its subjective  Pushing could be seen as an act of aggression  Look at the environment o Could be for or against o  Facts are kind of unclear  Could be intent because he probably heard them saying that If not going to go for s.18 – not going to go for s.20 because MR is identical to s.18 S.47 o MR – only requires intent for an assault not actual bodily harm o He intended to push him and therefore satisfies MR o AR: simple or physical assault causing actual bodily harm  This satisfies Use your notes to answer these questions on the law of consent and the case of R v Brown. a) What is the general rule in relation to consent?  Consent as a defence is not available to any assault where harm is intended or caused even if the consent it valid – Attorney-General Reference #6 1980 b) Give some examples of exceptions to the general rule and explain why these are justified.  Surgical operation  Dangerous exhibitions  Properly conducted sports – R v Barnes  Lawful activities – tattooing, ear-piercing, ritual circumcision – R v Brown  Rough and ill-disciplined behaviour – horseplay – R v Jones c) Does Lord Templeman assume/imply that, currently, sado-masochistic activities (SM) are lawful or unlawful?  Sado-masochism was concerned with violence as well as sex and as such fell within the OAPA 1861  have no way of foretelling the degree of bodily harm which will result from their encounters’ and that the acts were ‘unpredictably dangerous’  it’s a public policy and therefore not a new exception  paternalistic view o “protective of society” o Ur dad d) In his conclusion, he decides that the defence of consent should not be extended to SM based on what considerations? e) Is his judgment indicative of a paternalistic or a civil libertarian approach, and why? f) List five reasons why you believe that Lord Templeman took this view. - have no way of foretelling the degree of bodily harm which will result from their encounters’ and that the acts were ‘unpredictably dangerous’ o Can get out of hand – not a great argument – things get out of hand in sports or horseplay - Concerned with violence and not the act of sex – concerned with public policy o Violent conduct - Influence on young people – some participants were young - Infection of HIV/aids within the group – public health - Glorification of violence – - Didn’t want to invent a defence of consent for these types of activities g) Summarise Lord Templeman’s judgment in a sentence or two. h) Why does Lord Mustill (dissenting) consider SM to be legal? - Law should respect individual autonomy - Defined as private, consensual sex and is legal - If anyone is to make it illegal it is Parliaments job to do so o Judges aren’t here to make public policy - Sexual disease isn’t coming from SM activities but sex overall and therefore in Lord Templemans argument – sex should be outlawed - Can get out of hand – can apply to sports and horseplay as well - Risk of corruption of young people – worrying but not enough to be criminal i) In his conclusion, Lord Mustill decides that the defence of consent should be extended to SM. Is his judgment indicative of a paternalistic or a civil libertarian approach, and why? j) List five reasons why you believe that Lord Mustill took this view. Taking the most extreme example and making it illegal – not all SM cases will have someone end up in the hospital or will involve drugs Next, consider how the arguments from the case of R v Brown have been applied in the four cases listed below: Wilson [1997] 1 QB 47 - Branded initials on her ass – decided the activity was analogous to tattooing Emmet (1999) The Times, 15 October - Applied R v Brown – degree of harm made it appropriate for the criminal law to interfere Dica [2004] QB 1257 - If you have an STI you have to inform your sexual partners and if you don’t, they haven’t fully consented R v BM [2018] EWCA Crim 560 - Body modification – wanted to look like a lizard - Said it was tattooing – judges rejected that and medical procedure and needs to be done by a doctor For each of these:   state what you believe the legal principle is – namely that which has an impact on future cases; and give a comment that you could use when analysing the defence of consent in an essay. It is important that you go beyond simply describing the law to critically evaluating it (in the manner of an informed debate), if you are to achieve a good grade on this course. Part 2: Critical Evaluation In this part, you will use your understanding of the issues raised in the case of R v Brown to evaluate the law of consent, with particular reference to another jurisdiction. To assist you in structuring your analysis, you will work with your colleagues on the following: 1. Identify and summarise the approach taken by the New Zealand Court of Appeal in the case of R v Lee (2006) 22 CRNZ 568. 2. Contrast this with the approach of the House of Lords in R v Brown. 3. Consider Tolmie’s conclusion that the New Zealand approach was better than that of the House of Lords in Brown. 4. What are Tolmie’s objections to category-based decision making as in Brown? Thereafter, you should consider what conclusion you would reach. Is the current law satisfactory or do you prefer the approach adopted in New Zealand? By the end of this discussion, you should feel more confident about dealing effectively with questions on this topic should it arise in your assessment. Consent – Sexual Activities - Consent can be a defence where no harm is caused or intended– consent cannot be a defence Attorney-General Reference (No. 6) R v Dica 2004 - Defendant was charged with inflicting - General surgery Sports - - - to more serious GBH on his victims by assaults charged un transmitting the HIV the OAPA 1861 virus to them through sexual activity Victim only consents if they know the - Court said first issue nature and quality of was whether the the act to be victims were aware of committed, and the the defendants HIV – identity of the the fact that the attacker victims had consented to sexual intercourse Taking the Risk of with the defendant did Harm  offender not mean they had taking the risk of consented to any risk infection rather than of infection deliberately trying to inflict harm. The risk - “private sexual activity was incidental to the would not be main purpose of the considered unlawful, act – sexual just because there was intercourse – and this a known risk to the is different to the health of one facts of Brown participant” (concerned with sado- R v Konzani masochistic act) - Taking the Risk of Distinction between Harm intentional infliction - Similar allegations to of harm and taking Dica. Evidence was the risk of harm – “in that the defendant had principle there is a not told his sexual difference between partners he was HIV violence which is positive incidental and - Jury decide that the violence”which is victims had not inflicted for the consented and indulgence of convicted him of cruelty” offences under s.20 of the OAPA – held on appeal R v Brown (and r v Emmett) - Deliberate Infliction of Harm - Distinguished from Dica – concerned with the deliberate infliction of harm. The fact that such harm was for sexual gratification did not make them lawful DPP v Smith - In this case the defendant was alleged to have caused actual bodily harm to his former partner by cutting her hair. He was charged with an offence of assault occasioning actual bodily harm under s. 47 OAPA 1861. - When the case was tried in the magistrates’ court, the defence submitted that there was no case to answer because the cutting of hair did not amount to actual bodily harm. The court agreed. The prosecution took the matter on appeal to the High Court. There, it was held that cutting hair, like putting paint on it or some unpleasant substance that marked or damaged it without causing injury elsewhere, was capable of being assault causing actual bodily harm. Consent – Homicide - General rule: consent will fail where ABH or worse is caused or intended. - Mercy killing – is murder, consent of the victim to being killed is no defence – assist someone to RvP - the defendant and a coaccused picked up the victim, lifted him over a bridge and dropped him into the river below. The victim drowned. - Defendant tried to appeal however Court Different scenarios: Diana is a jeweller who is qualified in body piercings. She is charged under s.47 OAPA 1861. She admits that she pierced the ears of a 15 year old girl who came to her shop and requested the procedure. As the girl commit suicide, you commit murder - of Appeal dismissed the appeal - Defence of consent did not help the accused because the jury didn’t believe his evidence Similar cases – R v Jones (1987) and R v Aitken (1992) - It acknowledges horseplay as a scenario where consent can afford a defence even where serious – and even fatal – injury results - It seems with the right evidence, the consent of the victim, or indeed an honest belief in consent on the part of the defendant, can afford a defence to a charge of manslaughter is under 16, the defence of consent will not succeed – false - There is no reason why Diana should not rely on the defence of consent. Remember that for assault offences, the victim’s age is only relevant to their ability to understand the nature and quality of the act, and the identity of the defendant. If the 15-year-old girl gives a valid consent, this will be a defence to the s.47 assault offence. Earpiercing was acknowledged in Brown to be an activity which fell within an exception to the general rule that consent cannot be a defence if harm is caused. Wynn is chairman of an extreme sports club. It is a tradition of the club that all new members take part in an initiation ceremony. When Jim joined the club he went through the ceremony. Wynn admits that he put electrodes on Jim's body which burnt Jim. Jim is scarred as a result. If Jim was aware of the details of the initiation ceremony before he joined the club, Wynn may be able to rely on the defence of Jim's consent to the risk of injury. – True - Wynn may be able to rely on the defence of consent if Jim was aware of the details of the ceremony. Even if he did not give an express consent to being injured, Wynn will say Jim impliedly consented to the risk of harm by agreeing to the activity. What if Jim was not consenting either expressly or by implication? Even then, if Wynn honestly believed Jim to be consenting, that could suffice. Wynn will argue this is a "horseplay" case, and that the court should follow the principles established in R v Jones and R v Aitken. - Even if Jim dies, R v P suggests his death is not an automatic bar to the success of the defence. As there is no suggestion that Wynn intended death or GBH, the charge is likely to be one of manslaughter and the defence of consent will succeed if Jim did consent or if Wynn honestly believed he was consenting. Stella works in a circus. She is part of a stunt team who perform high risk displays. Last night, a member of the stunt team was seriously hurt by Stella in the course of the display. Stella is charged under s.20 OAPA. She has told police that she realised there was a risk of injury although she had hoped that none would occur. She will not be able to rely on the defence of consent - There is nothing to prevent Stella raising the defence of consent. Injuries sustained during dangerous exhibitions fall, like ear-piercing and horseplay, into the categories of activity which are exceptions to the general principle that consent cannot be a defence where harm is caused. Stella’s team-mate had consented to the risk of injury by taking part in the display so Who cant consent: The Commission considered the question of capacity to consent and identified three groups of people who may lack this capacity: 1. Those who are unable through mental disability to make a decision as to consent. 2. Those who cannot communicate their decision because they are “unconscious, or for any other reason”. 3. Those under the age of 18 who are unable to decide on the matter of consent, either because of their age or because of their immaturity. Stella can rely on that consent Different types of Homicide Offences - Murder - Voluntary manslaughter - Unlawful act and gross negligence manslaughter Actus Reus of Homicide - Coke’s classic definition of murder: the unlawful killing of a reasonable creature in being under the Queens peace with malice aforethought - Accused has caused the death of a human being and killing must take place under King or Queen’s peace - Requirements:  Victim must be a human being a. Child must be wholly expelled from the mothers body and be alive and have an existence independent of the mother – R v Poulton 1832 b. Weaker twin was born in the sense that she has an existence quite independent of her mother. – should not lead the law to fly in the face of the clinical judgement that each child is alive and that each child is separate both for the purposes of civil and criminal law - Re A (Children) ( conjoined twins: surgical separation) 2000 c. Baby who is born due to injuries of the mother then dies – perpetrator can be liable for unlawful act manslaughter, cannot be murder as mens rea of the mother does not transfer to foetus – Attorney-General’s Reference (no 3) 1997  Death Occurs a. It is irrelevant if medical staff are the ones to turn off life support, if the victim is on life support due to defendants actions and injuries they sustained from it, defendant is liable for the death – R v Malcherek and Steel 1981  Unlawful a. Homicide requires that the death of the victim is unlawfully caused  Causation a. Accused must cause the death of the human being (all usual rules of causation apply) Mandatory life-sentence for murder conviction Murder offence is common law but there are two statues that deal with partial defences (Homicide Act 1957) and (Coroners and Justice Act CJA 2009) Mens Rea - Intention to kill or an intention to cause GBH – subjective test – R v Moloney 1985 - Direct Intention:  desired something to happen or aim, goal, purpose – R v Moloney 1985 - Indirect intention:  Defendants primary aim or desire was not the forbidding consequence but where they foresaw the consequence as virtually certain – R v Woolin 1999 - Mercy Killings or killing with benevolent intentions – still guilty of murder – R v Inglis 2011 Manslaughter - The law recognises that there are certain situations where someone who has killed should be treated differently or more favourably - R v Ahluwalia 1993: violently abused by husband for 10 years, kills him by pouring petrol over him while sleeping and set fire to him. Charge was reduced from murder to manslaughter  R v Martin 2002 – shot burglar while he was running away – not a case of self-defence or prevention of crime – still convicted of manslaughter Voluntary Manslaughter - Three special situations for defendant (who has necessary mens rea) should be treated less harshly – these do not provide a true defence – they are referred to as partial defences  Diminished responsibility  Loss of control  Suicide Diminished Responsibility - Definition: a defendant who has committed the actus reus of murder with the necessary mens rea, but was suffering from a recognised medical condition (not legal defence of insanity – but provides partial excuse) - Evidential issues: burden of proof falls on defence on a balance of probabilities - Outlined in s 52 of the Coroners and Justice Act (CJA) 2009 and incorporated into s 2(1) of the Homicide Act (HA) 1957 Abnormality of mental functioning - First question of the jury is – whether the defendant was suffering from an abnormality of mental functioning when they killed their victim Fa lls to the jury to decide having heard expert medical evidence Definition of abnormality of mental functioning: a state or mind so different from ordinary human beings that the reasonable man would determine it abnormal – R v Byrne 1960 Recognised Medical Conditions - Second requirement for diminished responsibly is that the abnormality of mental function must arise from a recognise medical condition - Government envisage that qualified medical experts giving evidence would accept classification systems encompassing recognised medical conditions (physical, psychiatric or psychological) such as the World Health Organizations international classification of disease - Legal Guidance on Homicide: Murder and Manslaughter  Schizophrenia, phobic anxiety disorders, bipolar affective disorder, depression, and battered person syndrome  Physical conditions as long as they impact defendants mental state - Example of a medical condition – R v Blackman 2017 – shot and killed a badly wounded rebel – on appeal it was provided that he was suffering of an adjustment disorder compounded by the presence of several exceptional stressors – incapable of making rationale decisions and self-control, guilty of manslaughter Diminished Responsibility and Intoxication - If defendant commits murder while intoxicated but does not suffer from alcoholism or a dependency-related condition, they cannot rely on diminished responsibility – R v Dowds 2012 - If the defendant suffers from a recognised medical condition such as schizophrenia and kills the victim when in a psychotic state which was triggered by their voluntary intoxication, they may successful plead the partial defence of diminished responsibility. The law does not require abnormality of mind to be the sole cause of the defendants acts – R v Dietschmann 2003 - If the defendant has alcohol dependence syndrome but is also intoxicated at the time of the murder, the jury must focus exclusively on the effect of the alcohol consumed as a result of their illness and disregard the effect of any alcohol consumed voluntarily – R v Woods 2008 Substantial impairment of D’s ability - R v Lloyd (1967): For the impairment to be substantial it must be more than trivial or minimal - Substantial means important or weighty – R v Golds 2016 - Must be a ‘weighty’ impairment of the defendants abilities before this grave offence may be reduced to the lesser offence of manslaughter - Under the amended s 2 D’s ability to do particular things must be substantially impaired:  To understand the nature of their conduct  And/or to form a rational judgement,  and/or to exercise self-control The abnormality of mental functioning must provide an explanation for the killing - causation must be established, the defendant must show that the homicide would not have occurred if the mental abnormality, which amounts to a recognised medication condition had not been present - ex. if the accused suffers from a paranoid personality disorder but kills the victim in a fit of rage associated with their personality disorder, they will not be able to rely on diminished responsibility Diminished Responsibility and Legal Insanity - diminished responsibility can only be used as a partial offence to murder - complete defence resulting in verdict ‘not guilty by reason of insanity’: insanity  requires defendant to prove on a balance of probabilities that they were suffering from a ‘disease of the mind’ causing a ‘defect in reason’ so that either they did not know the ‘nature and quality’ of their act, or they did not know their act was legally and morally wrong – M’Naghten’s Case 1843 - Michael Abram – successfully argued insanity to an attempted murder charge against George Harrison – held in a secure psychiatric hospital Loss Control - Everyone has a breaking point and circumstances may arise that push people so far, they lose their self-control - Background:  Provocation was introduced by s 3 of the HA 1957 a. Was the defendant provoked by things said and/or done to suddenly and temporarily lose their self-control? (subjective test) b. Would the provocation have made a reasonable person lose their selfcontrol and act as D did? (objective test)  Generally agreed that a reasonable person is the same sex and age as the defendant – DPP v Camplin 1978  Objective test was compromised in R v Smith 1998 but changed again in Attorney-General for Jersey v Holley 2005 which said a. Defendants’ characteristics could be taken into account only when determining the gravity of the provocation towards the defendant. Having assessed how serious the provocation was, the defendant then had to be judged according to the standards of self-control to be expected of an ordinary person of the defendants age and sex - Current Definition of the partial defence of loss of control Evidential Issues - Section 54(5) places an evidential burden only on the defendant  Effect is that provided the accused can produce some evidence that raises the defence, the burden will revert back to the prosecution to disprove loss of control beyond a reasonable doubt Defendant must lose control - Subjectively assessed – must be satisfied that this particular defendant lose selfcontrol, not enough that the reasonable person would have done so but the accused actually did not - Accused shot and killed a work colleague. It was alleged that the victim intimidated and threatened him the previous evening and that he had armed himself for protection. Claimed, when he saw the victim he could not control himself – Court of Appeal approved the meaning of loss of control as a loss of ability to act ‘in accordance with considered judgement, or a loss of normal powers of reasoning’ however, the degree of planning was found to be such that the defendant was convicted of murder– R v Jewell 2004 - No need to be sudden – s 54(2) provides that the reaction need not be sudden  R v Ahluwahlia – more understanding of how domestic violence victims react to their abusers led to a change in the law so that (now) the defendant need only prove that they actually did lose control at the time of the killing. - May be a loss of control where the defendant ‘snaps’ or their reaction is a response to a culmination of events such as abuse that occur over time - Considered desire for revenge: partial defence of loss of control will not apply where the defendant acted in a considered desire for revenge (other factors may satisfy the test, eg. evidence of planning, arming themselves with a weapon or significant delay between provoking words or conduct and killing)  No guidance to ‘considered’ but several concerns were expressed over honour killings - Multiple defendants: under s 54(8) just because one party to a killing successfully pleads the defence, does not affect the criminal liability of any other party The ‘qualifying trigger’ - There must be a specified qualifying trigger respectively known as fear and anger triggers which cause a loss of self-control - The statue provides:  A loss of self-control had a qualifying trigger is subsection 3,4, or 5 applies  This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person  This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which a. Constituted circumstance of an extremely grave character and b. Caused D to have a justifiable sense of begin seriously wronged  This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections 3 and 4 - According to s 55(6)(a) and (b) the defendants fear of serious violence must be disregarded and their sense of being seriously wronged is not justifiable if they incited the thing said or done in order to provide an excuse to use violence in response - The Fear Trigger S. 55(3) will apply where the loss of control was attributable top the defendants fear of serious violence from the victim agains the defendant or another identified person  Subjectively assessed The Anger triggers  S. 55(4) applies where the defendants loss of control was attributable to the things said and/or done that amounted to circumstance of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged  Objective question to be determined initially by the judge who must decide whether a properly directed jury could reasonable conclude the defendants sense of being seriously wronged was justified Sexual infidelity  - - - S 55(6): states that sexual infidelity cannot be a sufficient qualifying trigger for this - defence - S 55(6): states that sexual infidelity cannot be a sufficient qualifying trigger for this - defence - S 55(6): states that sexual infidelity cannot be a sufficient qualifying trigger for this - defence s. 55(6) concludes that sexual infidelity on its own could not constitute grounds for the defendant to have a justifiable sense of being seriously wronged to extent that would warrant reducing murder to manslaughter  where sexual infidelity is part of the background or context to other possible triggers, then evidence relating to it may be relevant when assessing that other potential qualifying trigger – R v Clinton, Parker and Evans 2012 Similar reaction of a person of D’s sex and age - s 54(1)(c): a person of D’s sex and age with a normal degree of tolerance and selfrestraint and in the circumstances of D might have reacted in the same or in a similar way to D - the circumstances of D are defined in s 54(3): all of D’s circumstances other than those whose only relevance to D;s conduct is that they bear on D’s general capacity for tolerance or self-restraint Sufficient evidence - there is now a filter on whether the issue is to be brought before the jury  example of filter in case: R v Doughty 1986  under s54(6) of the CJA 2009: the defence of loss of control can only be presented to the jury if there is sufficient evidence that ‘in the opinion of the trial judge, a jury, properly directed could reasonably conclude that the defence might apply’  Actus reus of murder: - Coke’s classic definition of murder: o the unlawful killing of a reasonable creature in being under the Queens peace with malice aforethought o today: unlawful killing of a human being in the kings peace (aka not at war) Mens Rea - Intention to kill or an intention to cause GBH – subjective test – R v Moloney 1985 Voluntary Manslaughter Loss of control/diminished - Only apply to murder - Partial defence (ie. Get convicted of voluntary manslaughter) Diminished Responsibility - Elements o Suffering abnormality o Recognized medical condition - o The substantially impaired  Understanding nature of conduct  Forming a rational judgement  Exercising self control o Explains D’s conduct – is caused or was a significant factor Burden: on defendant o Balance of probabilities Crown Court Compendium o Route to verdict – pg. 19-15 Loss of control - Loss of self-control - Qualifying trigger ‘extremely grave’ character with a ‘justifiable sense’ of being wrong - Similar reaction of someone the same age and sex - Burden: D burden to prove some evidence/ COS must disprove beyond a reasonable doubt - Crown Court Compendium o Route to verdict p 19-29 Engage task 3: Mauro is a bricklayer and works on a building site. Two years previously, when Mauro was on holiday, he was sitting in a restaurant when a bomb exploded just outside, causing significant damage and killing and injuring several people nearly. Although Mauro was not injured, he struggled to cope with the experience and was subsequently diagnosed as suffering from post-traumatic stress disorder. This causes him to be anxious and he can also be short-tempered. Donte works with Mauro and finds him difficult and irritating. He has noticed that Mauro often over-reacts to loud noises and sometimes even cowers on the floor. Donte finds this amusing and, on occasion, deliberately drops the bricks or bangs his equipment to see what Mauro will do. One morning, when both men are working on building the wall of a house, Donte is bored and so he hits the scaffolding loudly and repeatedly with his hammer. He laughs each time Mauro winces. Mauro becomes very agitated and shouts: “Why don’t you just leave me alone?” He then marches off to take his lunch break. Half an hour later, when he returns, Donte says: “You’re such a baby!” Mauro grabs a large brick and swings it hard at Donte’s head, screaming: “Shut up! Shut up!” Donte falls to the ground with a fractured skull. Unfortunately, he has a rare blood type and the hospital cannot find enough blood to replace that which he has lost from the head injury. He dies without ever regaining consciousness. When interviewed by the police, Mauro said: “Donte wouldn’t leave me alone. I just wanted him gone so I could get on with my job without him.” (a) Discuss the criminal liability of Mauro for Donte’s death. Mauro meets the actus reus of murder as there was an unlawful death of a human being under the kings peace. Mauro also meets the required mens rea of intention to kill or cause GBH as he would have known that his actions would lead to GBH as well as his statement “I just wanted him gone” would show intention of death/GBH – take your victim as they are, medical negligence is not grossly negligent Step 1: Actus Reus o Murder Step 2: causation o o Factual causation  ‘but for’ test – R v White  ‘but for’ Mauro smashing a brick over Donte’s head, Donte would not have been in the hospital Legal causation  Substantial cause of the death – R v Blaue  Have to take the victim as they are – R v Blaue  Substantial and operating cause of death  Medical Negligence (R v Cheshire) – as long as the cause is more than minimal, the defendant is at fault Step 3: Mens Rea o Intention to kill or cause GBH o Facts – apply mens rea  Prosecution can prove intent through actions and words  Mauro hit Donte over the head with a brick, would  Mauro also in his statement “I just wanted him gone” (b) Consider whether Mauro will be able to rely on any partial defences to reduce his potential liability from murder to voluntary manslaughter. 1. Diminished responsibility a. Mauro has an abnormality i. stressed/anxious ii. short tempered b. Mauro has a recognised medical condition i. Post-traumatic stress disorder c. Substantial impairment – at least one of Or i. Understanding nature of conduct ii. Forming a rational judgement iii. Exercising self-control 1. Can argue that his PTSD causes him to over-react and cower when he hears loud noises which shows that he does not have the ability to exercise self-control and therefore when Donte repeatedly causes the loud bangs, he would not have the ability to exercise his loss of control iv. Provides an explanation of his acts 1. His PTSD which causes 2. Loss of control a. Loss of self-control b. Qualifying trigger ‘extremely grave’ character with a ‘justifiable sense’ of being wrong c. Similar reaction of someone the same age and sex  A persons of D’s age and sex  With a normal degree of tolerance and self-restraint  Might  Have reacted  In the same or similar way  In those circumstances  All are taken into account  Except  D’s general capacity for tolerance and self-control eg. aggression / short temper  Therefore, cannot take PTSD  Can raise it but can’t take it into consideration when o Harassing someone with a disability – things said/or done which amounts to circumstances of an extremely grave character Engage task 2 a) Does the current law of loss of control ensure that there is no longer any overlap with diminished responsibility? a. Provocation was becoming more subjective – defendants personal characteristics were coming into play b. Two conflicting cases on the standard of the provocation defence – i. Defendant can rely on personal circumstances and subjective – House of Lords 2000 ii. Different case – Attorney-General Holley 1. Needs to be objective because anyone would be able to raise and get a reduced sentence c. Law of provocation was accused of having a gender bias d. Requirement of suddenness favoured the defence (favouring men) – what this does is favours men because that’s how they might react to a trigger (they react in a violent sudden way) – women may not react to a sudden trigger, it’s a slow burn e. Gender bias in favour of men f. Ahwalulia and thornton – slow burn triggers g. If someone approaches someone else – a man may i. May be more reasonable for a women to use a weapon or pepper spray ii. Thinking as to why gender should be in there h. Age: older = more mature b) Do you agree with the exclusion of sexual infidelity as a qualifying trigger? What do you consider to be the reasoning behind this and how did the Court of Appeal in R v Clinton [2012] EWCA Crim 2 interpret this provision? a. Clinton – exclusion but not full exclusion. Only full exclusion if its only sexual infidelity – if its part of something bigger it can be used b. c) Do you agree with the statement made by Simon Parsons in the conclusion to his article that: 'The problem behind all this is the mandatory life sentence for murder”? Would there be any need for this defence, or that of diminished responsibility, if there were no mandatory life sentence? a. Be more on a case by case factor – judges could rely on more mitigating factors b. Lots of confusion – should get rid of mandatory sentence and then judges can decide on a case by case basis i. Lead to inconsistencies d) Nalah is a midwife who is responsible for the care of a young mother. However, the birthing process takes longer than she expects so Nalah leaves the mother under the supervision of more junior colleagues as she is in a hurry to leave work to get ready for a party. The baby dies due to the lack of experience of those caring for her. - Nalah owes a duty of care as she is a midwife (its her job) - Nalah breach her duty as she leaves the mother in the care of a less experienced colleague - Yes there is a risk that the breach would cause death - Yes the breach caused the death of the baby - Yes it fell below the standards of a reasonable person as a reasonable person would not leave a junior colleague with assumed limited experience be in charge of a birth due to the known complications that could occur Yes Nalah is likely to be guilty Veronika is walking her dog along a remote lane when she sees a car which has crashed into a ditch. The motorist is trapped in the car but she ignores his cries for help as she does not want to get involved. The motorist dies of his injuries before assistance arrives. - Veronika does not owe a duty – she has not obligation to act, she is not liable Duncan works at a children’s nursery. He is supervising the children in the garden but is suddenly called into the building to deal with an important telephone call. Duncan gathers up the children and takes them back inside, but he fails to notice that he has left the door slightly ajar. A small boy manages to open the door. He walks out onto the road where he is hit by a car and killed. - Duncan owes a duty of care as he works in a nursey and there is a duty of care to the children - Duncan did breach his duty as one of the children was no longer being supervised and died - Duncan took reasonable steps however, if he knew the door was ajar, it is likely to have led to the death - Yes his action led to the death - No, his Bernard is a farmer. He spends the day ploughing the field next to his farm but, due to heavy rain, a significant amount of mud washes onto the road adjacent to the field. A motorist drives around the bend into the mud and loses control of his vehicle. The car hits a wall and he is killed by the impact. - Bernard does not owe a duty of care Liu owns a restaurant. He persistently failed over a period of several months to take steps to ensure customers suffering from peanut allergies were not served with food containing peanuts. The supplier of the mixed nut powder that proved to be fatal had warned Liu that he should advertise the presence of nuts in his menu but, rather than do this, Liu had reassured customers that his menu did not contain any nuts. A young man ate a meal and died of an allergic reaction to the peanuts. - Yes Liu has a duty of care to the customers - Liu did not advertise the presence of nuts which breached his duty of protection against the customers and he lied stating that the food did not contain nuts when it did - Yes - Yes - Yes as he had the ability to change the menu, or even if he did not, he had the ability to advise when customers came that the food contained nuts or potentially contained nuts - Yes Liu’s actions fell below the standard of a reasonable person as he ignore advise from the supplier, did not change his menu and did not advise the customers of peanuts. All of which he is required to do. Feedback answers – I got one wrong on the farmer basis as he does owe a duty of care Nalah is a midwife who is responsible for the care of a young mother. However, the birthing process takes longer than she expects so Nalah leaves the mother under the supervision of more junior colleagues as she is in a hurry to leave work to get ready for a party. The baby dies due to the lack of experience of those caring for her. Answer  Is D under a duty of care? Nalah is a midwife so has a duty of care to the mother and baby under her contract.  Is D in breach of their duty? If so, how? She fails to comply with her duties by leaving her patient as she is in a hurry to get ready for a party,  Is there a risk that the conduct could cause death? Yes, as Nalah left her patient with inadequately qualified staff. This could cause death as childbirth is known to have significant risks to both mother and baby.  Did the breach of duty cause the death? Leaving work in these circumstances did cause the baby’s death as he died due to the lack of experience of those caring for him.  Did D’s conduct fall so far below the standards of reasonable people in their situation that they can be labelled grossly negligent and deserving of punishment? Nalah should have called for assistance and stayed until such time as this arrived or at the very least, checked whether her colleagues were capable and qualified to deal with the situation alone.  Nalah is likely to be found guilty of gross negligence manslaughter B. Veronika is walking her dog along a remote lane when she sees a car which has crashed into a ditch. The motorist is trapped in the car but she ignores his cries for help as she does not want to get involved. The motorist dies of his injuries before assistance arrives. Answer  Is D under a duty of care? There is no duty for Veronika to act. The general rule is that there is no criminal liability for omissions and Veronika does not fall into any of the exceptions requiring her to do so; thus, she cannot be found guilty of the offence. C. Duncan works at a children’s nursery. He is supervising the children in the garden but is suddenly called into the building to deal with an important telephone call. Duncan gathers up the children and takes them back inside, but he fails to notice that he has left the door slightly ajar. A small boy manages to open the door. He walks out onto the road where he is hit by a car and killed. Answer  Is the defendant (D) under a duty of care? Duncan clearly has a duty of care under his contract of employment and falls within one of the established exceptions to the general rule.  Is D in breach of their duty? If so, how? Duncan is in breach of his duty as, when he gathers up the children and takes them back inside, he fails to notice that he has left the door slightly ajar.  Is there a risk that the conduct could cause death? Given that Duncan works at a nursery, he is responsible for young children who do not have an awareness of danger. The nursery is situated on a road and there is a risk of death from the traffic.  Did the breach of duty cause the death? Yes, as a small boy manages to open the door and walks out onto the road where he is hit by a car and killed.  Did D’s conduct fall so far below the standards of reasonable people in their situation that they can be labelled grossly negligent and deserving of punishment? This is questionable. Duncan is clearly in breach of his duty of care, but it is doubtful that this is ‘gross’ enough to warrant conviction for manslaughter. He appears to have been momentarily distracted when he is suddenly called into the building to answer an important phone call. Although he should have checked the door, this is unlikely to sufficient on its own to lead to a conviction.  Is D likely to be guilty of gross negligence manslaughter? This will depend upon further evidence but it seems unlikely. D. Bernard is a farmer. He spends the day ploughing the field next to his farm but, due to heavy rain, a significant amount of mud washes onto the road adjacent to the field. A motorist drives around the bend into the mud and loses control of his vehicle. The car hits a wall and he is killed by the impact. Answer  Is the defendant (D) under a duty of care? Bernard has a statutory duty to other road users.  Is D in breach of their duty? If so, how? He has breached his duty as he should have made some efforts to clear the mud or put up warning signs.  Is there a risk that the conduct could cause death? It is possible that mud on the road could lead to a risk of death as cars and other road users such as bicycles may slip on it and cause an accident.  Did the breach of duty cause the death? The motorist drives around the bend and loses control of his vehicle because of the mud, causing the car to hit a wall and killing him in the impact. However, more information is required – was he driving too fast as he approached the bend? Although it seems likely the defendant’s breach caused the death, there is scope for argument in relation to issues of causation.  Did D’s conduct fall so far below the standards of reasonable people in their situation that they can be labelled grossly negligent and deserving of punishment? It would be difficult for the prosecution to establish that Bernard’s conduct fall so far below the standards of reasonable people in his situation that he can be labelled grossly negligent and deserving of punishment, although it may depend upon the amount of the mud.  Is D likely to be guilty of gross negligence manslaughter? It is doubtful that this would be sufficient for Bernard to be guilty of gross negligence manslaughter. E. Liu owns a restaurant. He persistently failed over a period of several months to take steps to ensure customers suffering from peanut allergies were not served with food containing peanuts. The supplier of the mixed nut powder that proved to be fatal had warned Liu that he should advertise the presence of nuts in his menu but, rather than do this, Liu had reassured customers that his menu did not contain any nuts. A young man ate a meal and died of an allergic reaction to the peanuts. Answer  Is the defendant (D) under a duty of care? Liu is under a duty to his customers to provide food which is safe to eat.  Is D in breach of their duty? If so, how? He provided food which included peanuts but failed to provide a warning.  Is there a risk that the conduct could cause death? It is well known that people can die from a peanut allergy.  Did the breach of duty cause the death? A young man ate a meal and died of an allergic reaction to the peanuts.  Did D’s conduct fall so far below the standards of reasonable people in their situation that they can be labelled grossly negligent and deserving of punishment? Yes, as Liu persistently failed over a period of several months to ensure customers suffering from peanut allergies were not served with food containing peanuts. He ignored the warnings of the supplier of the mixed nut Prepare task 4 Consider the case of Keni who sets fire to the council house in which he lives because he wants his family to be rehoused. Unfortunately, and unknown to Keni, his wife and child have returned early from their holiday. He manages to rescue his wife but sadly his son dies in the fire. Analyse Keni's criminal liability for murder and unlawful act manslaughter. The AR of murder is the unlawful killing of a human being. Keni has the Actus Reus for murder as he unlawfully killed a human being which was his son. But for Keni’s actions, his son would not have died. Keni’s actions led to the cause of his sons death. The mens rea for murder is intent to kill or cause GBH with malic aforethought. Keni does not have the mens rea for murder as he did not intent to kill his son or intent to cause grievous bodily harm. He intended to start a fire to rehome his family. Therefore he cannot be guilty of murder. He also does not have a partial defence under voluntary manslaughter. As he does not have a defence for voluntary manslaughter, involuntary manslaughter must be looked at. Constructive manslaughter requires the AR of an unlawful act that is dangerous and causes death – DPP v Newbury and Jones. The act must also be a positive act (R v Lowe) Keni satisfies the AR as his unlawful act of setting the fire, which is objectively dangerous without a doubt (R v Ball). An objective test needs to be satisfied (R v Church) caused the death of his son. The mens rea is Murder: Actus Reus – unlawful killing of a human being - Amie has died - Factual causation o R v White – ‘but for’ test  But for Kieron swinging his cricket racket, Amie would not have been hit and died o The factual causation has been satisfied - Legal causation o Kieron’s actions were the substantial and operating cause of Amie’s death o ‘must take the victim as they are’ – even though Kieron did not know about her heart condition, it does not limit his criminal liability. o No intervening events that would break chain of causation o Legal causation has been satisfied Mens Rea – intent to kill or cause GBH - Direct intent – aim or purpose o aim/purpose was not to kill Amie nor was it his aim or intent to kill Sally when he swung the racket. Kieron stated that he did not mean to or intent to - Indirect intent – (subjective) virtually certain and foreseeable that actions would kill or cause GBH o It could be argued that hitting a cricket racket at the head of another person would cause significant injury, however, based on the medical evidence, it stated that no one without the weak heart would have suffered death or even significant injury. o It is hard to believe that a 15-year-old would have been virtually certain that his actions of swinging a cricket racket would result in GBH or death. It is also difficult to argue that a 15-year-old would foresee that their actions would cause GBH or death. - Kieron is likely to not be guilty of murder, however if he is, he could use loss of control as a defence Voluntary Manslaughter – loss of control - Kieron had endured months of torment and physical abuse by this group of children he had the qualifying trigger of anger as well as fear as he was cornered and as they were the same age, that is not a factor in this situation. Involuntary Manslaughter Actus Reus – unlawful act, which is dangerous and causes death - Unlawful act – DPP v Newbury and Jones o Kieron would be guilty of simply battery assault - Dangerous – R v Church o Hitting someone with a cricket racket would be considered a dangerous act by the reasonable person - Causes death o Amie has died o Factual and legal causation have already been established Mens Rea - Would be the mens rea of battery assault which is satisfised - He attempted to his Sally in the head but missed and hit Amie – even though he did not intend to hit Amie, he is still guilty of his actions towards Amie Self-defence - Did defendant believe it was necessary to use force in that moment (subjective) - Was the degree of force used reasonable in the circumstance (objective) o General rule – the greater the danger D faces, the greater the force that may be used - Kieron would have believed that he needed to rely on self-defence in the moment that he was being shoved - However, the degree of force that Kieron used may not be considered reasonable as he used a weapon. - He also admitted that he went beyond the scope of protecting himself - He would not be able to rely on self defence Unlawful Act Manslaughter - AR o Unlawful act  DPP v Newbury and Jones o Which is dangerous  R v Church Must be dangerous from the point of view of the (ordinary) reasonable person and this is decided by the jury based upon the evidence put before them  An act which ‘all sober and reasonable people would inevitably recognise must subject the other person to, at least the risk of some harm … albeit not serious harm o And cause death  Causation analysis  Factual and legal causation Gross Negligent Manslaughter - Duty of care - Breach of duty - Breach caused death - ‘Grossly Negligent’ o Bateman and Andrews o Has to be so far below the standard of a reasonable person and is so bad as to be worthy of criminal sanction o Conduct fell so far below standards of reasonable people in their situation that it is deserving of punishment  R v Adomako  Eye operation requiring anaesthesia ending up killing the victim  R v Singh  Not just the risk of injury or serious injury but death  Reasonably prudent person would have foreseen a serious and obvious risk death  AR - - - Appropriation – s3 o Definition  Any assumption by a person of the rights of an owner amounts to an appropriation and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner  Assuming any of the rights of an owner o R v Hinks – appropriation and gifts o R v Gomez – business and appropriation Property – s4 o Money o Real property o Personal property o A thing in action  Bank account  Copy right  Legal right too Belonging to another – s5 MR - - o Turner – stole his car back from a garage – until you paid, car also belongs to garage Dishonesty ** heavily tested ** o Clear dishonesty o Section 2 TA o Case law  Ivey v Genting Casino  The court must first ascertain subjectively that actual  R v Ghosh  Was the D dishonest according to the standards of honest and reasonable people AND  If so, did the D realise that honest and reasonable people would regard this as dishonest  Criticism of Ghosh  The more warped the D standards of honesty are, the less likely it is that he will be convicted of dishonest  The capacity of all of us to persuade ourselves that what we do is excusable knows few bounds Intention to permanently deprive – s6 **critical evaluation will come from one of the first 3 classes - Omissions - R v Brown o consent to assault - loss of control o law of provocation/ gender bias Problem Question - for every sentence – see if there has been a crime committed Dawn buys goods from a supermarket but leaves her debit card in the chip and PIN point when she leaves. Jemima served Dawn and saw which PIN she keyed in. She takes the card from the machine and pockets it. When her shift ends, Jemima takes Dawn’s card and buys a DVD player and selected films from a nearby shop for £250, paying with Dawn’s card. Jemima also goes to the local cash-point machine and uses Dawn’s debit card to withdraw £100. Meanwhile Jemima’s boyfriend, Simeon, has borrowed a friend’s van and gains access to an animal research centre at the local university by pretending to be a delivery man. He takes two puppies but, as he tries to leave the campus, he is stopped by the security guard and the police are called. Simeon says he acted as he did because it is not morally justifiable to harm animals for research purposes. However, he does not tell Jemima what he has done as he thinks she will disapprove of the steps he has taken. Back at home, Dawn finds a dress which her friend lent her for a party over a year ago. As the dress was not expensive and no request has been made for its return, Dawn believes that her friend will not want the dress back now. She puts it in a bag and leaves it outside the charity shop on her way to work. Aliya sees the bag and looks inside to see what is there. She likes the dress so picks up the bag and walks away.. - - - Jemima o Stealing the pin is not theft – Oxford v  Pin is not property o Theft of car o Buys DVD player/films with D’s card  Fraud by false representation  Theft of DVD player and films  Theft of D’s bank account o Uses card at cashpoint  Fraud by false representation  Theft of cash  Theft of D’s bank account Simeon o Theft of the puppies o Fraud by false representation Dawn o Theft of dress Aliya o Theft of dress Jemima - Stealing the card o Appropriation  Assumes rights when she picks up the card and takes it – DPP v o Property  Thing in action or property  It is property as it is tangible – section 4(1) o Belongs to another  It belongs to dawn  S 5(1) – possession and control of her own card – does not pass to Jemima’s possession o Dishonest  o Permanent  No indication that she was going to give it back after her spending spree - Fraud by false representation o AR  False representation  S. 2(3) – representation may relate to  o MR    o A fact, law or state of mind the person making the representation and any other person S.2(4) – representation may be o Express o Implied DPP v Ray - Implied representation that they’re going to pay Dishonesty Intends by making the representation to make a gain for themselves or another or to casue loss to another or to expose another to a risk of loss - Theft of DVD player/films o AR satisfied o MR  Dishonesty  Clear dishonesty using someone else’s card to buy merchandise  Shop owner – would they have consented if they knew all the facts – no  Dishonest based on the Ivey test  Permanently deprive  What if she is treating as a blockbuster and will return  Lloyd o Value of the films has not decreased - Fraud at the cash point o Fraud  Intent to make gain to themselves or loss of another – MR  Even if not successful, still fraud Simeon - Theft of puppies o AR  Appropriation – section 3  Any assumption by a person of the rights of an owner amount to an appropriation and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner  Assumption of the rights of an owner  S took the puppies and is assuming the rights of the owner of the puppies without consent  Property – s 4  Section 4 (4) o Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or  o MR  another person is in course of reducing it into possession  Simeon has stolen the puppies as they belong to the Lab and kept in captivity – therefore they can be stolen (domesticated animals can be stolen) Belonging to another person – s 5  Section 5(1) - Property shall be regarded as belonging to any person having possession or control of it or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).  The puppies belonged to the lab Dishonesty  Clear dishonesty o Has to dress up and impersonate someone else in order to get into the lab  S 2(1) (a), (b), (c) o None apply o Section 2 (1) – has a right in the law  Moral right does not apply  Apply the Ivey test o Was dishonest  Intent to permanently deprive  Under the clear definition (state it) Simeon did not have any intent based on the facts to return the puppies – as the reason he is taking them - Fraud by false representation o S 2 of Fraud Act 2006  AR – making a false representation  S 2(2) states that the representation is false if o Untrue or misleading o The person making it knows that it is or might be untrue or misleading  Presenting himself as the delivery driver  MR  At the time he does that he intends to make a loss to the university by taking the puppies  Dishonest o Ordinary people would think that it dishonesty  Knows the representation is false D takes the dress - Later appropriation o Later appropriation because she left it outside of the charity shop o Treates it as her own - MR o Section 2(1) – not dishonest if she believed the owner would have consented  May be able to rely on that o If not – Ivey test  Would she have believed the owner would have consent  Based on facts yes  Would reasonable person believe she was honesty  Based on facts – had it for a year, hasn’t asked for it back but she was her friend so could have asked her  Dawn had the genuine belief friend didn’t want the dress Aliya took dress outside of charity shop - Appropriation – yes - Property – yes - Belonging to another o Rickets - MR o Maybe section 2(1)  Unlikely to apply because its right outside the charity shop o Ivey  Probably dishonest o S. 1 of the Theft Act 1968 - Theft is defined as dishonestly appropriating property belonging to another with the intention of permanently depriving [the other of it]. - Actus Reus o Appropriation of property belong to another  S.3 appropriation is any assumption of the rights of an owner - Mens Rea o Dishonesty coupled with the intention to permanently deprive 5 elements needed to secure a conviction for theft Appropriation - Section 3(1) – any assumption by a person of the rights of an owner amounts to an appropriation and this includes , where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner - Any assumption of the rights of an owner Consent of the Owner - DPP v Gomez 1993 o Defendant was the assistant manager in a shop – customer asked to be supplied with goods for which he would pay with two cheques o Both the customer and the defendant knew the cheques were stolen and therefore worthless – the defendant asked the manager to authorise the transaction without telling him that the cheques were of no value – manager did and the goods were handed over o Question the court was asked to consider  When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that has been obtained by a false representation has (a) an appropriation within the meaning of s 1(1) of the Theft Act 1968 taken place, or (b) must such a passing of property necessarily involve an element of adverse interference with or usurpation of some right of the owner o House of lords answered – yes to question (a) and no to questions (b) o House of lords agreed with the decision in Morris that the accused only had to assume one of the rights of an owner for an appropriation o Confirmed that an appropriation occurred even though the property passed with the consent or authorisation of the owner S.4 of the Theft Act - Property includes money, real property, personal property, things in action and other intangible property - Real property – land but can only be stolen in exceptional circumstances – ex. sold by a trustee in breach of trust o Would be theft if things forming part of the land (such as a house or a garage) were severed - Things in action – things you cant physically see or touch – ex. right arising under a trust, money in a bank account - Intangible property o Ex. patent for a new drug o Doesn’t include electricity nor confidential information o Oxford v Moss – university student who saw his exam paper in advance was not guilty of theft because the exam questions were information which can’t be stolen – would have been different if he removed the paper itself and didn’t just read it. s.5 - The property must belong to another - Where any person has o Possession o Control; or o Any proprietary right or interest in the property in question R v Turner (No 2) 1971 - Frank Turner’s car was in the garage, he snuck in and took it as he didn’t want to pay the repair bill - Court of Appeal held that the garage had possession and control of the car so it ‘belonged’ to them Edwards v Ddin 1976 - When does ownership in property pass - Man puts gas in his car, goes to pay and realised he forgot his wallet. He then drove away - High Court confirmed that the property already passed to him when he drove away and therefore an essential element of the actus reus was missing o The element of the actus reus – property belong to another – did not coincide with the mens rea and so he is not guilty of theft - As a result, a new offence was created under s.3 – doing a ‘runner’ R v Wain 1993 - Does it make any difference if you were under an obligation to deal with property in a particular way Court decided that although the sponsorship money had been given to the accused, he was under an obligation to deal with it in particular way (pay it to the nominated charity) - According to s.5(3) it did not belong to another Ricketts v Basildon Magistrates’ Court 2010 - Seamus is coming back from the pub one evening, sees a bin bag full of clothing lying next to the door of the shop – takes a jumper and continues home - If property has been genuinely abandoned, it does not belong to another and no offence has been committed - However, in this particular case, the court found that the owner had not abandoned the bag as he intended the charity shop to have it - Similar cases – courts will be very slow to treat property as having been abandoned Mens Rea - Dishonesty o No working definition under the Theft Act o Partial definition under s.2 – 3 circumstances that will NOT amount to dishonesty and one circumstance that MAY still be regarded as dishonest o NOT regarded as dishonest  S.2(1)(a) – he has the right in law to property  Belief in legal right  Joel lent £10 to Ian – Ian has not repaid and Joel has taken £10 from Ian’s wallet without his knowledge – Joel could argue that he does have the right in law to deprive Ian of the £10 as it was a debt owed to him  S.2(1)(b) – the owner would have consented had he known of the circumstances  Belief in the others consent  Suki shares a flat with Dana – she run out of food and her welfare benefits aren’t paid till the next day. She eats some of Dana’s food from the fridge – Suki believed Dana would have consented if she had known the circumstances  S.2(1)(c) – the owner cannot be discovered by taking reasonable steps  Belief the owner can’t be found by taking reasonable steps  Ahmed picks up £5 that he finds on the high street, keeps it – realistically he wouldn’t be able to find out who the owner was by taking reasonable steps  Purely subjective test – what did this particular defendant believe, not whether the belief was reasonable or not – more unreasonable, less likely to be believed - Section 2(2) – a person may be dishonest even though he was willing to pay for the property o Lucy wants to see her favourite band – Russell has tickets – Lucy takes the tickets and leave the amount of money equal to the ticket value – lucy did this with Russell knowing as she knows he would not have agreed – lucy is dishonest o It will be up to the defendant to raise these issues, but having done so, the Prosecution will then have to disprove it - - - - R v Ghosh o Set out a two-stage test (part objective and part subjective) o 2017 – Ivey v Genting Casinos (UK) Ltd – Supreme Court revisited the issue of dishonesty and decided the law should change Ivey v Genting Casinos (UK) Ltd o Civil case but because of the comments made by the judges, its impact spreads to criminal law o Phil Ivey – Claimant – sued Genting Casinos for over £9 million which he won over 2 days of playing cards – the casino refused to pay claiming he cheated. Supreme Court agreed and went on to declare specifically that the civil test of dishonesty should also apply to criminal cases o The effect is. – magistrates or jury must  Ascertain (subjectively) the actual state of the defendants knowledge or belief as to the facts and then  Determine whether his conduct was honest or dishonest by the (objective) standards of ordinary, decent people There is no longer any requirement that the defendant himself must appreciate that what he has done is, by those standards, dishonest – all the Prosecution needs to do to secure a conviction is to put before the facts of what the accused did and thought and then leave it to the jury to decide whether they believe what he did was dishonest or not Section 6 – Intention to permanently deprive - When all other elements are present, it must still be proved that the accused intended to permanently deprive someone else of the property in question - Usually this won’t be an issue – ordinary meaning of intention to permanently deprive will be sufficient o Some situations – ‘borrowing’ type – which are problematic - Act states that an accused will have an intention to permanently deprive if he treats the property as his own regardless of the owners rights o Covers where the defendant intends to return the property after it was used - R v Lloyd 1985 o Defendant worked as a projectionist at a cinema – loaned a film to make a pirate copy – explained the film would be returned after a few hours and before the next showing o Court of Appeal confirmed that a mere borrowing will never constitute the requisite intention to permanently deprive unless it could be said that all the goodness and virtue had gone which was not the case here o R v Mitchell 2003  Took a car from its owner at gunpoint intending to use it as a getaway vehicle – intention was to abandon it after the robbery  Accused was found not guilty of theft  New offence of taking a vehicle without consent was introduced o R v Marshall 1998  Bought unexpired underground tickets from members of public and sold them for a profit was found guilty of theft Defence – new the tickets would be returned to London Underground by the later passengers when they expired  Judges were unimpressed and the Court of Appeal upheld the conviction on the basis that by acquiring and then selling the unexpired tickets the accused intended to treat them as his own regardless of the rights of London Underground o Chan Man Sin v AG for Hong Kong 1988  Defendant was an accountant for a company, and he drew a forged cheque on the company’s account  His defence was that he knew the bank would reimburse the company the money he had fraudulently transferred  The Privy Council upheld a conviction on the basis that there was ample evidence that the accused intended to treat the credit balance in the company’s account as his own to dispose of regardless of the company’s rights – also public policy considerations at play Section 6(2) o States that there will be an intention to permanently deprive if the person parts with the property under a condition as to its return which he may not be able to perform  Aimed t a situation where an accused pawns items that do not belong to him since he may or may not be able to repay the money loaned  -